Hood, Ex Parte Charles Dean

IN THE COURT OF

CRIMINAL APPEALS

OF

TEXAS

NO.

AP-75,370

EX

PARTE CHARLES DEAN HOOD, Applicant

ON

APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM

COLLIN COUNTY

Keller, P.J. , delivered the opinion of the Court in which

MEYERS, PRICE, KEASLER, and HERVEY, JJ., joined. COCHRAN, J., filed a

dissenting opinion in which WOMACK, JOHNSON, and HOLCOMB, JJ., joined.

This is applicant = s third

habeas application, and the claim he presents now was presented in neither of

the first two applications. One of the questions before us is whether we are

barred from considering the merits of this application under statutory subsequent

application provisions. We conclude that we are barred from considering the

merits because the legal bases upon which applicant relies were available at

the time he filed his second application.

I.

BACKGROUND

On September 7, 1990, applicant was convicted of

capital murder. During the punishment phase of trial, he presented mitigating

evidence that he now contends was not adequately encompassed by the jury

instructions. This included evidence that he was run over by a truck at the

age of three, that he received beatings during and after school (including a

blow to the head from a metal pipe), and that he suffered from speech defects

and learning disabilities. Applicant = s trial occurred after the United States Supreme

Court handed down Penry I , [1]

but before the Texas Legislature added the mitigation special issue to Article

37.071. [2]

In response to Penry I = s dictates, the trial court chose to use a A nullification @ instruction to enable the jury to give effect to

applicant = s mitigating evidence. As in Smith , [3]

the submitted nullification instruction was a A clear @ instruction, specifically requiring jurors to answer at least one of

the special issues A no @ B even if A yes @ answers to all the special issues had been

established beyond a reasonable doubt B if they believed that the defendant = s mitigating evidence justified a sentence of life rather than death.

The jury answered all of the special issues A yes, @ and, in accordance with the jury verdict, the trial court entered a

judgment sentencing applicant to death.

We affirmed the trial court = s judgment on direct appeal. [4]

In his brief on appeal, applicant raised a point of error complaining that the

trial court erred A in failing to instruct the jury of a method to be

used by them to give effect to mitigating evidence. @ [5] He argued that the charge that was given failed to

satisfy Penry I = s requirements. [6]

Although we found the point to be inadequately briefed, we nevertheless

proceeded to the merits. [7]

After reviewing the jury charge, we concluded that the nullification

instruction A did provide the jury with an adequate vehicle to

express and give effect to its > reasoned moral response = @ to applicant = s mitigating evidence. [8]

On December 22, 1997, applicant filed his first

application for writ of habeas corpus. As originally filed, that application

included a challenge to the nullification instruction, but the application was

subsequently amended, and that particular claim was omitted. We denied the

application on April 21, 1999. [9]

On June 4, 2001, the United States Supreme Court

decided Penry II , holding that the A ambiguous @ nullification instruction submitted in that case

failed to afford the jury an adequate vehicle by which to consider the

proffered mitigating evidence of mental retardation. [10]

On April 21, 2004, this Court decided Ex parte Smith ( Smith I ),

which made two significant holdings: (1) adopting the Fifth Circuit = s A constitutional relevance @ threshold requirement, which called for a showing that A the defendant = s criminal act was due to uniquely severe permanent

handicaps with which the defendant was burdened through no fault of his own, @ and (2) distinguishing the A clear @ nullification instruction in Smith from the A ambiguous @ instruction found to be inadequate by the Supreme

Court in Penry II . [11]

On May 24, 2004, applicant filed, pro se , his

second habeas corpus application, which alleged that he was actually innocent

of the crime for which he was convicted. [12]

We later dismissed that application as an abuse of the writ under Article

11.071, ' 5. [13]

On June 24, 2004, the Supreme Court decided Tennard

v. Dretke , discarding the Fifth Circuit = s A constitutional relevance @ threshold requirement. [14]

On November 15, 2004, the Supreme Court reversed our decision in Smith I

with its decision in Smith II . [15]

The Court overturned our first holding as inconsistent with Tennard , and

it overturned our second holding on the basis that the A clear @ nullification instruction (and thus any

nullification instruction) was governed by its holding in Penry II . [16]

On June 22, 2005, eight days before his scheduled

execution, applicant filed a third habeas corpus application, along with a

motion for stay of execution. That application is the one currently before us,

and it advanced a single claim for relief: A The

nullification instruction in Mr. Hood = s case suffers from the same defects that the

Supreme Court found unconstitutional in Penry II and [ Smith II ]. @ Applicant alleged compliance with the subsequent application

requirements of Article 11.071, ' 5, and we initially accepted that allegation B staying the execution and remanding the case to the trial court for

further proceedings. [17]

After proceedings in the trial court, the record was returned to us, and we

ordered the parties to brief A the merits of this issue in light of the entire

charge that the jury received, harm under Almanza v. State , 686 S.W.2d

157 (Tex.Crim.App. 1985) (op. on reh'g), and whether the issue should have been

raised in either the first or second applications. @ [18]

With regard to the third question, applicant

contends that the Supreme Court = s repudiation in Tennard and Smith II

of the Fifth Circuit = s A constitutional relevance @ threshold requirement constitutes a new legal basis for his claim. He

argues that this Court used the Fifth Circuit = s threshold

requirement as a screening test that prevented ever reaching the merits of a Penry

claim (whether based on Penry I alone or a combination of Penry I and

II ). He further argues that two of our unpublished dispositions evince a

recognition that Tennard and Smith II supplied a new legal basis

for reviewing a Penry II claim. He points first to our unpublished

opinion in Robertson , which explicitly referenced Tennard and Smith

II , in concluding that the legal basis for his claim was unavailable at the

time his previous applications were filed. [19]

Applicant points next to our unpublished, 2002 order in Ex parte Davis ,

which dismissed a Penry II application as an abuse of the writ, [20]

as evidence of how this Court reacted to Penry II applications before Tennard

and Smith II were decided.

The State contends that applicant = s claim became available when Penry I was decided, and thus,

should have been presented in applicant = s first application. The State points out that

applicant did present the claim initially in that application before

withdrawing it. Alternatively, the State contends that the legal basis for

applicant = s claim became available when Penry II was

decided, and thus, should have been presented in applicant = s second application. The State disputes applicant = s allegation that Tennard and Smith II afforded a new

legal basis for applicant = s claim.

II.

ANALYSIS

A.

Statutory Construction

In this case, determining whether the current claim

should have been raised in an earlier application requires that we construe the

capital habeas statute = s subsequent application provision, Article 11.071,

' 5. When interpreting a statute, we follow our

cardinal rule of construction: we must give effect to the plain meaning of the

statutory text, unless the language is ambiguous or the plain meaning leads to

absurd results that the Legislature could not possibly have intended. [21]

In determining the plain meaning of the text, we read words and phrases in

context and construe them in accordance with A the rules of

grammar and usage. @ [22] In addition, A we generally presume that every word in a statute

has been used for a purpose and that each word, phrase, clause, and sentence

should be given effect if reasonably possible. @ [23]

We must first determine whether we can address the A subsequent application @ issue after remanding the case to the trial court

for further proceedings. The capital habeas statute requires the trial court

to forward any subsequent application to this Court before taking any other

action with respect to that application so that this Court may determine

whether the subsequent application provisions have been met. [24]

This Court is then required either to issue an order finding that the

requirements have been satisfied (in which event, the case is remanded to the

trial court for further proceedings) or to dismiss the application. [25]

But the statute also provides that A a court may not consider the merits of or grant

relief based on the subsequent application unless the application contains

sufficient specific facts establishing that @ one of three

statutory exceptions has been satisfied. [26]

Plainly, we are a A court @ within the meaning of the statute, and thus, we are

not at liberty to ignore the legislative prohibition against considering the

merits of a claim that does not meet the subsequent application requirements.

If we determine that those requirements are not met, we must dismiss the

application, even if we had previously remanded the claim on the basis of an

initial determination that the requirements had in fact been met. We therefore

proceed to determine whether a relevant exception to the subsequent application

prohibition has been satisfied. We need not concern ourselves

with two of those exceptions: applicant = s claim does not affect his guilt, so the A innocence gateway @ exception does not apply, [27]

and applicant = s claim, if accepted, would not establish that A no rational juror would have answered in the State = s favor one or more of the special issues @ submitted to

the jury, even if we include, as one of those special issues, the mitigation

special issue now required to be submitted by statute. [28]

At best, applicant = s claim would establish that the jury might have

answered a special issue differently, not that it would have done so.

What remains is the A unavailability

exception, @ which permits a subsequent application if:

the current claims and issues have not been

and could not have been presented previously in a timely initial

application or in a previously considered application filed under this

article or Article 11.07 because the factual or legal basis for the claim was

unavailable on the date the applicant filed the previous application. [29]

This passage is marked by two adverbial

prepositional phrases, A in a timely initial application @ and A in a previously considered application, @ that are introduced by A not @ and separated by A or. @ This A not . . . or @ phrasal structure is the equivalent of A nor, @ and indicates negation of both elements in the

series. [30]

Consequently, the exception requires that the claim in question be unavailable

not only for the first habeas application but also for any A previously considered application. @

Because applicant = s second

application was dismissed as subsequent under ' 5, the

question arises whether an application so dismissed qualifies as a A previously considered application. @ The body of

' 5(a) provides that A a court may

not consider the merits or grant relief based on a subsequent

application. @ [31] Thus, a form of the word A consider @ appears both in the body of ' 5(a) setting forth the general prohibition and in the subsection (1)

exception to that prohibition, but in the former instance, the word A consider @ is given a direct object, A the merits, @ while in the latter instance, the word A considered @ is not so modified. Use of A the merits @ as a direct object for A consider @ indicates that the Legislature recognized there

were other types of A consideration, @ while the absence of that direct object in

subsection (1) indicates that the Legislature did indeed intend the word A considered @ to have a broader meaning in that subsection. [32]

If the statutory text were taken to be ambiguous on that count, however, the

clearly expressed intent in the legislative history to limit applicants to A one bite at the apple @ [33] supports the conclusion that an applicant must show

that a claim was unavailable even for applications that were dismissed under ' 5. [34]

Otherwise, once an initial application had been filed and the time for that

initial filing had run, the statutory disincentive to filing piecemeal

litigation would dissipate. As we have observed elsewhere, A [I]f [a] habeas petitioner has grounds which would justify granting

relief, he should present them with dispatch for determination, rather than

doling them out one‑by‑one in repeated attempts to have both the

benefits of relief and the fleeting pleasures of harassing those who confine

him. @ [35] Thus, to satisfy the exception, applicant = s claim must have been unavailable as to both of his previous

applications.

As our quotation of the text shows, the statute

prescribes two different methods of demonstrating unavailability: (1) a new

factual basis and (2) a new legal basis. We can quickly dispense with the

first method: the facts underlying applicant = s complaint

about the jury instruction were known at trial, and therefore, those facts were

necessarily available at the time the prior habeas applications were filed. [36]

The second method of demonstrating unavailability B a new legal basis B requires more explanation. The Legislature

specifically defined what constitutes an unavailable legal basis under ' 5:

For purposes of Subsection (a)(1), a legal basis of

a claim is unavailable on or before a date described by Subsection (a)(1) if

the legal basis was not recognized by or could not have been

reasonably formulated from a final decision of the United States Supreme Court,

a court of appeals of the United States, or a court of appellate

jurisdiction of this state on or before that date. [37]

Similar to the passage addressed above, this passage

contains a A not . . . or @ phrase, here marked by a series of noun phrases (describing

the various types of courts) introduced by A not @ and separated by A or. @ Consequently, the structure of the statutory

provision requires that availability be negated for all the types of courts

listed. For a legal basis to be unavailable, then, it must be true that no

decision from any of these types of courts makes the claim available (either by

explicit recognition or reasonable formulation). Stated another way, if the

legal basis for the claim was recognized by or could have been reasonably

formulated from a Supreme Court decision, any federal court of appeals

decision, or any state appellate court decision, then the applicant has failed

to meet the unavailability exception. It is not enough, for example, for an

applicant to show that the legal basis could not have been derived from any

Texas state court decision if there existed a federal appellate decision from

which the legal basis could be derived.

Another point that deserves emphasis is that lack of

recognition is not enough to render a legal basis unavailable. If the legal

basis could have been reasonably formulated from a decision issued by a

requisite court, then the exception is not met.

B. First Application -

Adequacy of the Nullification Instruction

Ultimately applicant = s claim is

grounded in Penry I . It is Penry I that requires that the jury

be afforded an adequate vehicle for giving effect to mitigating evidence that

cannot otherwise be given effect through the statutory special issues. [38]

But applicant = s claim is also grounded in Penry II and Smith

II because he contends, as he must, that the submitted nullification

instruction was not an adequate vehicle for that purpose. Penry I did

not specifically address the acceptability of a nullification instruction, so

the legal basis for challenging that type of instruction was not A recognized @ in Penry I . The more difficult question,

however, is whether that legal basis could have been reasonably formulated from

Penry I or from other caselaw from the relevant jurisdictions.

We need not address that question in the abstract,

however, because we decided the acceptability of the nullification instruction

in applicant = s direct appeal. It is axiomatic that issues raised

and rejected on direct appeal are generally not cognizable on habeas corpus. [39]

An exception to that rule occurs when there is a change in a legal principle

relevant to the applicant = s claim, and that legal principle would apply

retroactively to cases on habeas corpus. [40]

But when there has been no change, an applicant should not be expected to again

urge the exact same basis that we have already rejected. In the language of

the statute, the legal basis for the claim A could not

have been reasonably formulated @ at the time the habeas application was filed

because, on direct appeal, we had specifically rejected it, and no change in

the law had occurred with respect to the issue addressed. Not only is this

interpretation supported by the language of the statute, but it serves judicial

economy and conforms to common sense: issues that can be litigated on direct

appeal, should be litigated there, and not re-litigated on habeas corpus. The

same kind of reasoning applies when a claim is litigated in a prior habeas

application and the law has not changed with respect to that claim at the time

a subsequent application is filed. After all, ' 5 bars claims

and issues that have been presented in an earlier application, not just

claims and issues that could have been presented . [41]

If we decide an issue adversely to a defendant in a way that contradicts a

later legal development, that later legal development constitutes a legal basis

that was not presented and could not have been presented at the time.

To summarize: a legal basis is

unavailable if it has been exhausted by previous presentation to this Court,

but that legal basis can become newly available as a result of later, binding

precedent relevant to the issue in question. There are some important

distinctions between this A unavailability by exhaustion @ doctrine and other situations that practitioners must keep in mind.

First, a decision in someone else = s case cannot qualify as exhaustion. Exhaustion is

based on cognizability, which depends on what the applicant has done to

advance his claims. Also, a A change in the law @ under the

exhaustion doctrine, rendering an issue newly cognizable (and thus A available @ ), must come from a binding authority, i.e. cases

from this Court and the United States Supreme Court. If a legal basis has been

exhausted, intermediate federal and state appellate court decisions cannot render

that legal basis newly cognizable. [42]

As we have recognized above (and will discuss more below), however, the rule is

different for issues that are not exhausted.

Applying the A unavailability by exhaustion @ doctrine to applicant = s case, we find that applicant = s subsidiary claim regarding the efficacy of the nullification

instruction had already been exhausted at the time he filed his first

application. We decided on the direct appeal of this case that the

nullification instruction was constitutionally adequate to give effect to any

mitigating evidence offered by the defendant. Between the direct appeal and

the habeas application, no relevant change in the law occurred regarding that

issue. Penry I had already been the law on direct appeal, and Penry

II (as well as Smith II ) had not yet been decided. We conclude that

the particular legal basis being discussed here B the inadequacy of the nullification instruction B was unavailable at the time applicant filed his first writ

application. Therefore he was not required to rely on that legal basis in his

first application. The next question is whether it was unavailable at the time

he filed his second application.

C.

Second Application

1. Adequacy

of the Nullification Instruction

Notably, applicant does not contend that Smith

II = s nullification holding constituted a legal basis

that was unavailable at the time he filed his second application, but we

address that issue nonetheless. Obviously, Penry II was an available

legal basis with regard to the second application because Penry II

was decided nearly three years before the second application was filed. The

question becomes whether Smith II = s

clarification of Penry II constitutes an unavailable legal basis upon

which applicant can now rely. The only relevant distinction between the two

cases is that Penry II involved an ambiguous instruction while Smith involved

a clear nullification instruction. While the Penry II Court did

criticize the instruction submitted in that case as ambiguous, some of the

Court = s discussion suggested that nullification

instructions might be inherently problematic:

Here, however, it would have been both logically and

ethically impossible for a juror to follow both sets of instructions. Because

Penry = s mitigating evidence did not fit within the scope

of the special issues, answering those issues in the manner prescribed on the

verdict form necessarily meant ignoring the command of the supplemental

instruction. And answering the special issues in the mode prescribed by the

supplemental instruction necessarily meant ignoring the verdict form

instructions. Indeed, jurors who wanted to answer one of the special issues

falsely to give effect to the mitigating evidence would have had to violate

their oath to render a true verdict. The mechanism created by the supplemental

instruction thus inserted A an element of capriciousness @ into the sentencing decision, A making the jurors = power to

avoid the death penalty dependent on their willingness @ to elevate the supplemental instruction over the verdict form

instructions. [43]

Although one could certainly argue (as we did in Smith

I ) that a clear nullification instruction would present a distinguishable

situation, satisfying the Supreme Court = s cited ethical concerns by removing any doubt

regarding A which instruction should control over the other one, @ [44] this passage in Penry II certainly afforded

the opportunity to A reasonably formulate @ a legal

argument for the proposition that any nullification instruction would be

inadequate. In fact, the Supreme Court in Smith II specifically found

that Penry II had A identified a broad and intractable problem . . .

inherent in any requirement that the jury nullify special issues

contained within a verdict form. @ [45] And

because Penry II was a new legal development from a binding authority

that was relevant to the nullification claim applicant had advanced on direct

appeal, after Penry II , applicant = s nullification issue became cognizable on habeas

corpus, and thus A available. @

Of course, we held in Smith I that Penry

II was distinguishable, rejecting a constitutional challenge to a A clear @ nullification instruction. But our holding in Smith

I could have no effect on federal precedent. Under the plain language of ' 5, Penry II B a Supreme Court decision B continued to afford a basis for challenging any nullification

instruction. As a general matter, that state of affairs could be

changed only by a decision of the United States Supreme Court.

A particular applicant, however, could render the Penry

II legal basis unavailable by exhausting it. That is, applicant

could have raised the Penry II claim in his second application, and if

that claim were rejected (on the merits or as a result of a ' 5 dismissal), [46]

applicant would then have been able to raise the claim in a subsequent

application after the Supreme Court = s decision in Smith II . [47]

But applicant failed to do so, and thus, he cannot proffer Smith II = s holding on the nullification instruction as one that was previously

unavailable at the time he filed the second application.

2.

Threshold Requirement

We turn finally to the allegation that the Supreme

Court = s decisions in Tennard and Smith II provided

a new legal basis for applicant = s claim by eliminating the threshold requirement

originally imposed by the Fifth Circuit and subsequently adopted by this

Court. Although the Fifth Circuit had adhered to its threshold test for over a

decade, [48]

this test was never adopted in a Supreme Court opinion. In the

meantime, Penry I stood as a Supreme Court decision from which an

applicant could A reasonably formulate @ the

contention that he was entitled to jury consideration of any type of

mitigating evidence. [49]

The Supreme Court = s Tennard opinion recognized that a previous

(1990) decision addressing A the relevance standard applicable to mitigating

evidence in capital cases . . . spoke in the most expansive terms. @ [50] In fact, the Supreme Court repudiated the Fifth

Circuit = s test as one that A has no basis

in our precedents and, indeed, is inconsistent with the standard we have

adopted for relevance in the capital sentencing context. @ [51] In similar,

strongly worded language, the Supreme Court in Smith II rejected the

Fifth Circuit = s approach (and ours) as A a test we have never countenanced and now have unequivocally rejected. @ [52] The Supreme Court observed that its broad

interpretation of mitigating evidence was not new, having been A plain under our precedents @ dating back to 1982. [53]

As we stated earlier, this Court = s decisions cannot affect the availability of legal bases articulated

in federal court opinions. Regardless of our decision in Smith I , or in

our earlier cases, Penry I afforded a legal basis for contending that

the defendant = s mitigating evidence was constitutionally relevant

to determining whether he should receive the death penalty. Applicant was not

required to raise that constitutional relevance issue in his first application

because our nullification holding on direct appeal necessarily rendered any Penry -based

claim non-cognizable. [54]

But once that bar to cognizability was erased (by Penry II ),

applicant was no longer excused from raising the issue. Because we did not

resolve the constitutional relevance issue in applicant = s direct appeal, the issue had not been exhausted, and thus, applicant

was required to raise it in his second application. He did not.

Applicant = s reliance on our post- Penry II dismissal of

a habeas application in Davis , as evidence that he could not have raised

a Penry II claim earlier, is unavailing. For starters, Davis was

an unpublished disposition, and as such, has no precedential value. In any

event, as discussed above, dispositions by this Court, whether published or

unpublished, cannot render unavailable a legal basis made available by a

federal appellate decision except as to the particular applicant in question.

Essentially, each applicant must A fight his own battles @ until the

Supreme Court decides to step in and clarify matters one way or the other.

Finally, we find unavailing applicant = s reliance on the remand in Robertson for the proposition that

he is advancing a previously unavailable claim. As with Davis , Robertson

is an unpublished disposition, without precedential value. Moreover, our

remand opinion in Robertson was handed down before we filed and set the

issues in the present case. We had originally remanded the application in the

present case as well, but have since decided that the subsequent application

issue should be briefed and addressed. Finally, Robertson is

distinguishable because the applicant in that case challenged the nullification

issue at every opportunity: on direct appeal, [55]

in his initial habeas application (filed in 1997), and in his second habeas

application, producing the remand opinion upon which applicant now relies. [56]

D.

Conclusion

Applicant was excused from presenting a Penry -type

claim in his first application because we held on his direct appeal that

the nullification instruction was adequate. That holding was sufficient to

defeat a claim for relief, and binding precedent suggesting the incorrectness

of that holding (i.e. Penry II ) did not yet exist. But applicant was

not excused from presenting this claim in his second application

because it was filed after Penry II , which afforded a new basis to

challenge our previous holding. Smith II did not supply a previously

unavailable legal basis for challenging our original nullification holding

because that basis had already been supplied by Penry II , and, even

though applicant had the opportunity to litigate Penry II in his second

application, he did not do so and thus received no adverse ruling from this

Court holding Penry II inapplicable. Further, the Supreme Court = s repudiation of the Fifth Circuit = s A constitutional relevance @ threshold requirement in Tennard and Smith II does not,

in the abstract, constitute a previously unavailable legal basis for relief

because, according to the Supreme Court itself, that basis could have been

reasonably formulated from the Supreme Court = s prior

decision in Penry I and other previously available Supreme Court

caselaw. And finally, the Tennard/Smith II constitutional relevance

holding has not been made unavailable by exhaustion because this Court has not

previously addressed the issue with respect to applicant and applicant had the

opportunity to raise the issue in his second application but failed to do so.

Accordingly, we hold that the current application is

barred as a subsequent application under Article 11.071, ' 5. The application is dismissed.

Date

delivered: January 10, 2007

Publish

[1] Penry v. Lynaugh , 492 U.S. 302 (1989).

[2] See Acts 1991, 72 nd Leg., ch.

652, ' 9 (adding mitigation special issue). All references

to articles refer to the Texas Code of Criminal Procedure.

[3] See Ex parte Smith , 132 S.W.3d 407, 416

(Tex. Crim. App. 2004); Smith v. Texas , 543 U.S. 37, 46-48 (2004).

[4] See Hood v. State , No. 71,167 (Tex. Crim.

App., Nov. 24, 1993)(not designated for publication).

[5] Id. , slip op. at 18 (quoting applicant = s brief).

[6] Hood , slip op. at 18-19.

[7] Id. at 19.

[8] Id. at 20 (emphasis in original).

[9] Ex parte Hood , No. 41,168-01 (Tex. Crim.

App., Apr. 21, 1999)(not designated for publication).

[10] Penry v. Johnson , 532 U.S. 782 (2001).

[11] Ex parte Smith , 132 S.W.3d 407, 413-416,

416-417 (Tex. Crim. App.), rev = d sub. nom. ,

Smith v. Texas , 543 U.S. 37 (2004)(internal quotation marks omitted).

[12] In this second application, applicant indicated

that he was being represented by counsel in federal court and with respect to

state DNA proceedings but that counsel had refused to file a subsequent state

application raising the actual innocence claim.

[13] Ex parte Hood , No. WR‑41,168‑02

(Tex. Crim. App., Apr. 13, 2005)(not designated for publication).

[14] 542 U.S. 274 (2004).

[15] Smith v. Texas , 543 U.S. 37 (2004).

[16] Smith II , supra .

[17] Ex parte Hood , No. WR‑41,168‑03

(Tex. Crim. App., Jun. 27, 2005)(not designated for publication).

[18] Ex parte Hood , No. WR‑41,168‑03

(Tex. Crim. App., Apr. 5, 2006)(not designated for publication).

[19] See Ex parte Robertson , No. AP-74,720 (Tex.

Crim. App., Mar. 16, 2005).

[20] See Ex parte Davis , No. WR-40,339-03 (Tex.

Crim. App., Apr. 29, 2002).

[21] Boykin v. State , 818 S.W.2d 782, 785 (Tex.

Crim. App. 1991).

[22] Sanchez v. State , 995 S.W.2d 677, 683 (Tex.

Crim. App. 1999); Tex. Gov = t Code ' 311.011(a).

[23] Whitelaw v. State , 29 S.W.3d 129, 131 (Tex.

Crim. App. 2000).

[24] Art. 11.071, ' 5(c).

[25] Id.

[26] Art. 11.071, ' 5(a).

[27] See Art. 11.071, ' 5(a)(2).

[28] See Art. 11.071, ' 5(a)(3).

[29] Art. 11.071, ' 5(a)(1)(emphasis added).

[30] See The

American Heritage Book of English Usage , pt. 1 ( Grammar ), ' 40 ( nor ) (1996).

[31] Art. 11.071, ' 5(a)(emphasis added).

[32] See Ex parte Whiteside , 12 S.W.3d 819, 821

(Tex. Crim. App. 2000)( A The Legislature modified > initial application = with the phrase > challenging

the same conviction = but did not so modify > subsequent application. = The lack of any language modifying > subsequent application = plainly indicates the Legislature = s intent that > subsequent applications = include all subsequent habeas corpus applications regarding the

same conviction, rather than only those that > challenge = the conviction. @ )(emphasis in original).

[33] Ex parte Torres , 943 S.W.2d 469, 474 (Tex.

Crim. App. 1997)(discussing legislative history common to the subsequent

application provisions in both Arts. 11.07 and 11.071).

[34] Whiteside , 12 S.W.3d at 821 ( A Interpreting > subsequent applications = under ' 4 to include all applications for writs of habeas

corpus regarding the same conviction would most effectively achieve the

Legislature's objective. @ ).

[35] Ex parte Kerr , 64 S.W.3d 414 , 418 n. 11

(Tex. Crim. App. 2002)(citing Ex parte Carr , 511 S.W.2d 523, 525 (Tex.

Crim. App. 1974)).

[36] Ex parte Sowell , 956 S.W.2d 39, 40 (Tex.

Crim. App. 1997)(trial court = s statement that the defendant could not appeal did

not constitute a new factual basis because it occurred at trial).

[37] Art. 11.071, ' 5(d)(emphasis added).

[38] See Penry I , supra .

[39] Ex parte McFarland , 163 S.W.3d 743, 748

(Tex. Crim. App. 2005).

[40] Id. ; Ex parte Drake , 883 S.W.2d 213,

215 (Tex. Crim. App. 1994).

[41] Art. 11.071, ' 5(a)(1)( A the current claims and issues have not been and

could not have been presented previously @ ).

[42] Non-cognizability due to exhaustion is an entirely

different situation from non-cognizability due to a failure to exhaust. That

is, the failure to raise on appeal an issue that should have been raised would

render the issue non-cognizable on habeas corpus, but such a failure itself

implicates questions of procedural default, and is not a matter addressed in

the present opinion. See Ex parte Gardner , 959 S.W.2d 189, 198-199

(Tex. Crim. App. 1998)(op. on reh = g).

[43] Penry II , 532 U.S. at 799-800 (citation

omitted).

[44] Smith I , 132 S.W.3d at 416 .

[45] Smith , 543 U.S. at 46 (emphasis added).

[46] See Ex parte Staley , 160 S.W.3d 56, 63-64

(Tex. Crim. App. 2005)(claim can be dismissed under ' 5 if Court determines, substantively, that defendant = s allegations do not fall within the umbrella of the new legal claim).

[47] In fact, had applicant raised the nullification

claim in his second application, he would likely have received consideration in

that application since we disposed of his application after Smith II

had been decided.

[48] See Smith , 132 S.W.2d at 413, 413 n. 19

(citing Graham v. Collins , 950 F.2d 1009, 1029 (5 th Cir.

1992)(en banc), aff = d , 506

U.S. 461 (1993)).

[49] Penry I , 492 U.S. at 315 (special issues

should be A interpreted broadly enough to permit the sentencer

to consider all of the relevant mitigating evidence a defendant might present

in imposing sentence, @ citing Jurek v. Texas , 428 U.S. 262 (1976)),

317 (sentencer A should not be precluded from considering, as a

mitigating factor, any aspect of a defendant = s character

or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death, @ citing plurality opinion in Lockett v. Ohio , 438 U.S. 586

(1978)), 318 (sentencer may not be precluded from considering A any relevant mitigating evidence offered by the defendant as the basis

for a sentence less than death, @ citing Eddings v. Oklahoma , 455 U.S. 104

(1982)).

[50] 542 U.S. at 284 (citing McKoy v. North Carolina ,

494 U.S> 433, 440-441 (1990)).

[51] Id.

[52] 543 U.S. at 45 .

[53] Id. (citing Penry I , Payne v.

Tennessee , 501 U.S. 808, 822 (1991), Boyde v. California , 494 U.S.

370, 377-378 (1990), and Eddings (1982)).

[54] See Staley , cited above (applicant = s claim must fall within umbrella of new legal theory to warrant

consideration).

[55] Robertson v. State , 871 S.W.2d 701, 710-711

(Tex. Crim. App. 1993), cert. denied , 513 U.S. 853 (1994).

[56] See Robertson , No. AP-74,720. After Robertson ,

we remanded a sixth habeas application filed by Davis, which presented a Penry

II nullification claim. Ex parte Davis , No. WR-40,339-06 (Mar. 29,

2006)(not designated for publication). As in Robertson , we cited Tennard

and Smith II . See Davis , No. WR-40,339-06. The Davis

remand order also occurred before we filed and set the issues in the present

case, and Davis = s situation contains two significant distinguishing

factors: (1) he did not raise any sort of Penry claim on direct

appeal, see Davis v. State , 961 S.W.2d 156 (Tex. Crim. App. 1998), and

(2) he did raise a Penry II claim in his first post- Penry II application

(his third application). We express no opinion at this juncture on whether

Davis = s claims are properly before us.