1 —— U.S. ——, 124 S. Ct. 2562 (2003).

2 —— U.S. ——, 125 S. Ct. 400 (2003).

3 402 F.3d 551 (5th Cir. 2005).

United States Court of Appeals

Fifth Circuit

FILED

July 22, 2005

Charles R. Fulbruge III

Clerk

REVISED AUGUST 10, 2005

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 01-10646

 

TED CALVIN COLE, 

now known as Jalil Abdul-Kabir,

Petitioner-Appellant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

--------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

WIENER, Circuit Judge:

This case returns to us on remand from the Supreme Court in

light of its recent opinion in Tennard v. Dretke.

1 PetitionerAppellant Ted Calvin Cole argues that a trio of recent cases ——

Tennard, Smith v. Texas,

2 and Bigby v. Dretke3 —— require reversal

of the district court’s denial of his 28 U.S.C. § 2254 habeas
2

corpus petition and petition for a certificate of appealability

(“COA”). Cole asserts that the Texas capital sentencing scheme’s

special issues did not allow the jury to give “full consideration

and full effect” to the mitigating evidence that he presented at

the punishment phase of his trial. We reverse the district court’s

denial of a COA, grant Cole a COA on his Penry claim, but

ultimately affirm the district court’s denial of habeas relief.

I. FACTS AND PROCEEDINGS

In December 1987, Cole was staying at an abandoned motel with

his stepbrother, Michael Hickey (“Michael”), and Michael’s wife,

Kelly Hickey (“Kelly”). Cole mentioned to the Hickeys that he was

willing to kill someone to obtain cash. Cole and Michael decided

to rob Kelly’s grandfather, Raymond Richardson, and then strangle

him to death.

Two days after this conversation, Cole, Michael, and Kelly

went to Richardson’s home and visited with him in his living room

for several hours. The group moved to the kitchen. As Richardson

left the kitchen, Cole pushed him to the floor, where Richardson

landed face down. Cole then sat on Richardson’s back and strangled

him with a dog leash that the men had brought to the house for this

purpose. After Richardson died, the group put his body under his

bed. They searched the house for cash, finding twenty dollars in

Richardson’s wallet. Michael took the cash from the wallet, and

Cole took the money to the grocery store to buy beer and bacon.
4 492 U.S. 302 (1989) (“Penry I”), abrogated on other grounds,

Atkins v. Virginia, 536 U.S. 304 (2002).

3

Cole returned to Richardson’s house and shared the groceries with

Michael. The morning after the murder, Kelly and Michael

surrendered themselves to the police and gave statements. Kelly

eventually testified at Cole’s trial.

The police arrested Cole at Richardson’s home the morning

after the murder. Cole gave the police two statements in which he

confessed to having murdered Richardson. The statements were

introduced against Cole at trial. In one of these statements, Cole

admitted that the group decided to strangle Richardson because “it

was quiter [sic] then [sic] shooting him and not as messy as

cutting his throat and it just seemed the easiest way to do it.”

The jury found Cole guilty of the capital murder of Richardson

while in the course of committing and attempting to commit robbery.

In response to special issues at the end of the penalty phase,

the jury answered that (1) Cole had deliberately killed Richardson,

and (2) there was a probability that Cole posed a threat of future

dangerousness. The trial court accordingly sentenced Cole to

death. The Texas Court of Criminal Appeals (“TCCA”) affirmed

Cole’s conviction and sentence, and the United States Supreme Court

denied his petition for a writ of certiorari.

Cole filed an application for post-conviction relief in state

court, raising, inter alia, a Penry v. Lynaugh4 claim. The trial

court recommended denying Cole’s application, and the TCCA did so.
5 The district court stated:

Evidence of Cole’s destructive family background

evidence [sic] could be considered under the future

dangerousness special issue.

Evidence of Cole’s organic neurological deficiency

could be considered under either the deliberateness or

the future dangerousness special issues. Testimony

regarding Cole’s lack of impulse control was offered to

explain the offense and demonstrate a capacity for change

through his “outgrowing” the impulsivity over time. The

relevance of this evidence to the future dangerousness

inquiry of the second issue is readily apparent.

4

Cole then filed a 28 U.S.C. § 2254 habeas corpus petition in

the district court, raising six claims, including the Penry claim

and an ineffective assistance of counsel claim. As to his Penry

claim, Cole argued in the district court that his mitigating

evidence of a “destructive family background” and of “organic

neurological defects” —— specifically, a lack of impulse control ——

was “constitutionally relevant mitigating evidence” under our

precedent. Cole also argued that Texas’s two special issues were

not an effective vehicle for the jury to give “full consideration

and full effect” to his mitigating evidence. 

The district court held that Cole’s evidence fell short of our

standard for “constitutionally relevant” mitigating evidence. The

district court also concluded that, regardless of any possible

constitutional relevancy, the mitigating evidence that Cole

presented during the penalty phase was fully within the jury’s

reach given the broad scope of the special issues.5 The district

court ultimately denied all of Cole’s claims on the merits. The

district court further denied Cole’s motion to alter or amend the
6 124 S. Ct. 46 (2003).

7 124 S. Ct. 383 (2003).

8 Abdul-Kabir v. Dretke, 125 S. Ct. 496 (2004). Cole changed

his name to Jalil Abdul-Kabir when he adopted the Muslim faith.

5

judgment under Federal Rule of Civil Procedure 59(e) and Cole’s

motion for a certificate of appealability (“COA”).

Cole appealed the district court’s denial of his Section 2254

habeas corpus petition, his motion to alter or amend the judgment,

and his application for a COA. We denied Cole’s motion for a COA

as to his Penry claim. We held that reasonable jurists would not

debate the district court’s conclusion that Cole’s evidence was not

constitutionally relevant mitigating evidence. Cole asked us to

reconsider our denial of a COA on this claim in light of the

Supreme Court’s grant of certiorari in Smith v. Dretke6 and Tennard

v. Dretke.

7 We rejected Cole’s argument, denied his motion for

reconsideration, and ultimately affirmed the district court’s

denial of Cole’s Section 2254 habeas corpus petition.

Cole appealed to the Supreme Court. In light of its opinion in

Tennard, in which the Supreme Court rejected our “constitutional

relevancy” test for mitigating evidence, the Court vacated our

panel opinion8 and remanded for further proceedings consistent with

Tennard.

DISCUSSION

Section 2253 of the Antiterrorism and Effective Death Penalty

Act (“AEDPA”) forecloses appeal from a state habeas proceeding
9 28 U.S.C. § 2253(c)(1)(A).

10 Id. § 2253(c)(2).

11 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing

Slack v. McDaniel, 529 U.S. 473, 483 (2000)).

12 Miller-El, 537 U.S. at 327.

13 Id. at 336.

14 Id.

15 Miller v. Dretke, 404 F.3d 908, 913 (5th Cir. 2005) (citing

Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000)).

6

unless a circuit justice or judge issues a COA.9 We may issue a

COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.”10 To make this showing, Cole

must demonstrate that “jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.”11

In determining whether to grant a COA, we are limited “to a

threshold inquiry into the underlying merit[s] of [Cole’s]

claims.”12 This threshold inquiry “does not require full

consideration of the factual and legal bases adduced in support of

the claims.”13 Instead, we base our determination on “an overview

of the claims in the habeas petition and a general assessment of

their merits.”14 When the district or state court has imposed the

death penalty, “any doubts as to whether a COA should issue must be

resolved in [petitioner’s] favor.”15
16 Graham v. Collins, 506 U.S. 461, 468 (1993).

17 Bigby, 402 F.3d at 564 (citing Graham, 506 U.S. at 468).

18 Id. (citing Graham, 506 U.S. at 475).

7

Cole argues that he is entitled to a COA on his claim that the

Texas capital sentencing scheme’s two special issues did not allow

the jury to give “full consideration and full effect” to the

mitigating evidence that he presented at the punishment phase of

his trial. Specifically, Cole argues that Tennard and Smith —— as

well as our recent opinion in Bigby —— require reversal of the

district court’s denial of his Section 2254 habeas corpus petition

and request for a COA.

Texas’s capital punishment scheme must meet two requirements

to comply with the Eighth Amendment. First, it must “channel the

discretion of judges and juries to ensure that death sentences are

not meted out wantonly or freakishly.”16 Second, it must “confer

sufficient discretion on the sentencing body to consider the

character and record of the individual offender.”17 Accordingly,

any relevant mitigating evidence “cannot be placed beyond the

effective reach of the jury.”18 To prevail on a Penry claim, Cole

must demonstrate that (1) the mitigating evidence adduced at the

penalty phase of his trial meets the “low threshold for
19 Tennard, 124 S. Ct. at 2570.

20 See Bigby, 402 F.3d at 564-65; Madden v. Collins, 18 F.3d

304, 308 (5th Cir. 1994).

21 Davis v. Scott, 51 F.3d 457, 460-61 (5th Cir. 1995),

overruled in part by Tennard, 124 S. Ct. at 2569-70.

22 124 S. Ct. at 2570.

23 Id. (emphasis in original) (citations omitted).

8

relevance;”19 and, if so, (2) the evidence was beyond the effective

reach of the jury.20

Before Tennard, to demonstrate that evidence was

constitutionally relevant and mitigating, we required a petitioner

to show that (1) he had a “uniquely severe permanent handicap”

acquired through no fault of his own, and (2) there was a nexus

between the offense and the petitioner’s “severe permanent

condition.”21 In our original panel opinion, we held that Cole had

failed to demonstrate “that jurists of reason could debate the

correctness of the district court’s determination that the nexus

requirement applie[d] to his Penry claim.”

In Tennard, the Supreme Court explicitly rejected our

“constitutional relevance” test.22 The Tennard court stated:

The Fifth Circuit’s test has no foundation in the

decisions of this Court. Neither Penry I nor its progeny

screened mitigating evidence for “constitutional

relevance” before considering whether the jury

instructions comported with the Eighth Amendment.

Indeed, the mitigating evidence presented in Penry I was

concededly relevant so even if limiting principles

regarding relevance were suggested in our opinion —— and

we do not think they were —— they could not have been

material to the holding.23
24 Id. (citing Mckoy v. North Carolina, 494 U.S. 433, 440-41

(1990)) (quotations omitted).

25 124 S. Ct. at 2570.

26 Cole’s mother testified as to the last time Cole saw his

father:

The last time he saw his father, his father brought him

9

The Tennard Court also clarified the standard for relevant

mitigating evidence: 

We established that the meaning of relevance is no

different in the context of mitigating evidence

introduced in a capital sentencing proceeding than in any

other context, and thus the general evidentiary standard

—— any tendency to make the existence of any fact that is

of consequence to the determination of the action more

probable or less probable than it would be without the

evidence —— applies.24

Because we relied on the “nexus” requirement to deny Cole a COA on

his Penry I claim, and because the district court relied —— at

least in part —— on our now-defunct test, we hold that jurists of

reason could debate whether Cole’s mitigating evidence is relevant.

Accordingly, we grant Cole a COA on this claim. 

1. Relevant Mitigating Evidence

We must first determine whether Cole’s mitigating evidence

meets the low threshold for relevance as articulated by the Tennard

Court.

25 The district court correctly classified Cole’s mother’s

testimony of a destructive family background as follows:

A. Cole’s mother was an alcoholic who was unable to

care for her children.

B. Cole’s father was arrested for trying to rob a

liquor store.

C. Cole’s father deserted the family when Cole was

five years old.26
to San Angelo. He had took [sic] him off to Abilene and

brought him in [sic] San Angelo and dropped him off a

block from where he thought I lived and said, “Your

mother lives down in that block. Go find her,” and drove

off. That’s the last time he had seen [sic] his father.

10

D. Cole’s mother then moved with her children to her

parents’ home.

E. Cole’s grandparents were alcoholics who did not

want the children to live with them.

F. Cole was isolated from other children because his

grandparents’ home was eight miles out of town.

G. School buses did not run to the grandparents’ home,

and the grandparents did not allow Cole’s mother to

use their car to take Cole to school.

H. Cole was placed in a children’s home at the age of

five.

I. During Cole’s five years in the home, his mother

visited him only twice.

J. Cole’s father never visited him at the home.

K. Cole’s uncle adopted Cole’s brother, but not Cole.

Dr. Jarvis Wright, a psychologist who administered a battery

of psychological and neuropsychological tests to Cole, testified at

Cole’s punishment phase that Cole had a “very rugged, rough

childhood,” that he experienced “a bad, very painful background,

and that he “never felt loved and worthwhile in his life.” Dr.

Wright stated that Cole had repressed many of the memories of his

turbulent childhood. Dr. Wright also testified that Cole’s family

background led him to experience “terrific needs for nurturance,”

a “fragmented personality,” and “chronic depression.” He stated

that while awaiting trial, Cole was so “distressed” and

“distraught” that he tried to commit suicide by cutting his own

throat. 
27 See Tennard, 124 S. Ct. at 2570; see also Skipper v. South

Carolina, 476 U.S. 1, 5 (1986) (holding that evidence of a

defendant’s good conduct in jail, while not related specifically to

his culpability for the crime that he committed, must be allowed

before the jury because “such evidence would be mitigating in the

sense that it might serve as a basis for a sentence less than

death”).

28 See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)

(“Nor do we doubt that the evidence Eddings offered was relevant

mitigating evidence. . . Evidence of a difficult family history and

of emotional disturbance is typically introduced by defendants in

11

The district court rejected Cole’s “family background”

evidence as relevant mitigating evidence because “[n]o testimony

was presented that these events caused any type of psychological

effect on Cole” and “Cole fail[ed] to show that his commission of

capital murder was in any way attributable to his ‘destructive

family background.’”

Given the low threshold for relevant mitigating evidence

articulated by the Tennard Court, we find that evidence of Cole’s

turbulent family background constitutes relevant mitigating

evidence. Cole need not show that any psychological condition

caused by his destructive family background is linked to his

conduct; he need only show that it existed, and that a jury could

find that a sentence other than death would be warranted.27 The

district court erred when it rejected Cole’s evidence of a

destructive family background under the “nexus” test expressly

rejected by the Supreme Court in Tennard. The Supreme Court itself

has sanctioned evidence of family history and emotional disturbance

as relevant mitigating evidence.28
mitigation.”).

29 “Ted” refers to Cole in the direct citations from the

record.

30 Although Cole scored in the bottom five per cent of the

population on some of the tests, he scored a 132 on an I.Q. test.

12

We also conclude that Cole’s evidence of “organic neurological

deficiency” —— specifically, a lack of impulse control —— is

relevant mitigating evidence. Dr. Wright explicitly testified that

Cole suffered from diminished impulse control. He stated:

Ted29 lacks a great deal of impulse control. And I think

that’s important in these tests I gave. . . . It

indicates some central nervous damage or very likely

central nervous damage. Combine that and all the other

factors of Ted’s background, all these other things,

we’re going to have an individual with some real problems

with impulse control.30

Dr. Wright also stated that the combination of Cole’s destructive

childhood of neglect and abandonment had impaired his judgment and

his ability to control his behavior. According to Dr. Wright, Cole

learned to cope with reality by living in a “fantasy” world. Dr.

Wright testified that although Cole started out in life with

“fantastic raw material,” the abandonment, neglect, and

mistreatment that he suffered as a child left his personality “very

damaged” and “horribly” distorted.

The district court rejected Cole’s evidence of organic

neurological deficiency because the “[t]estimony from Dr. Jarvis

Wright fail[ed] to establish that Cole actually suffers from any

organic brain damage, let alone that the disorder constitutes a
31 The district court also rejected Cole’s evidence of organic

neurological deficiency as relevant mitigating evidence because the

“evidence [was] entirely insufficient to prove that Cole did, in

fact, suffer from an organic neurological deficit.” As noted

above, however, because the district court applied an improper test

to screen the mitigating evidence, it erred. Further, it is within

the sentencer’s province to accord the appropriate weight to any

mitigating evidence. See, e.g., Shannon v. State, 942 S.W.2d 591,

597 (Tex. Ct. Crim. App. 1996) (“Instead, jurors must individually

determine what evidence, if any, mitigates against the imposition

of the death penalty, and what weight, if any, to give that

evidence in its consideration.”). Because any possible organic

deficiency could weigh against a death sentence, it is relevant

mitigating evidence under Tennard.

32 Smith, 125 S. Ct. at 405.

33 See Lockett v. Ohio, 438 U.S. 586, 604 (1978) (“[W]e

conclude that the Eighth and Fourteenth Amendments require that the

sentencer . . . 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.” (emphasis in original and

added)); see also Tennard, 124 S. Ct. at 2573 (“Impaired

intellectual functioning is inherently mitigating.”) (citing Atkins

v. Virginia, 536 U.S. 304, 316 (2002)).

13

‘uniquely severe handicap’ to which Cole’s criminal act was

attributable.”31 Because it relied on a test that the Supreme Court

has “never countenanced” and has now “unequivocally rejected,” the

district court “‘assessed [Cole’s] claim under an improper legal

standard.’”32 That Cole’s evidence was relevant for purposes of

mitigation is now clear under current Supreme Court precedent.33

2. Jury Instructions

With that background to establish the framework of our

analysis, we turn to the principal issue in dispute —— whether, at

the punishment phase of his trial, Texas’s special issues allowed

Cole’s jury to give full consideration and effect to the evidence
14

of destructive family background and organic neurological

deficiency. Cole argues that a COA should issue because reasonable

jurists could disagree with the district court’s conclusion that

his relevant mitigating evidence was not beyond the effective reach

of the jury. In light of the Supreme Court’s opinion in Smith and

our recent opinion in Bigby, we conclude that jurists of reason

could debate the district court’s conclusion that Cole’s mitigating

evidence was not beyond the effective reach of the jury.

Accordingly, we reach the merits of Cole’s claim. 

At the end of the punishment phase of the trial, the state

trial court instructed the jury to consider two special issues

pursuant to Texas Code of Criminal Procedure article 37.071(b):

(1) Was the conduct of the defendant, TED CALVIN COLE,

that caused the death of the deceased, RAYMOND C.

RICHARDSON, committed deliberately and with the

reasonable expectation that the death of the

deceased or another would result?

(2) Is there a probability that the defendant, TED

CALVIN COLE, would commit criminal acts of violence

that would constitute a continuing threat to

society? 

The jury charge also contained the following supplemental

instruction:

You are further instructed that in determining each of

these Special Issues you may take into consideration all

of the evidence submitted to you in the full trial of

this case, that is, all of the evidence submitted to you

in the first part of this case wherein you were called

upon to determine the guilt or innocence of the

defendant, and all of the evidence, if any, admitted

before you in the second part of the trial wherein you

are called upon to determine the answers to the Special

Issues hereby submitted to you.
34 The Penry I trial court also instructed the jury to consider

a third special issue —— whether the defendant’s conduct was an

unreasonable response to any provocation by the victim —— which is

not at issue here.

35 Bigby, 402 F.3d at 568 (citing Penry I, 492 U.S. at 318).

15

Cole contends that, in violation of Penry I, the two special issues

“shackled and confined” the jury’s consideration of his mitigating

evidence and provided no vehicle for the jury to give it full

mitigating effect. 

At the punishment phase of the trial in Penry I, the defense

presented mitigating evidence of Penry’s mental retardation and

severe physical abuse. At the conclusion of the penalty phase, the

trial court instructed the jury to consider the two special issues

that we address here.34 The jury answered “yes” to the special

issues, and the trial court sentenced Penry to death.

In the Supreme Court, Penry argued that Texas’s special issues

did not allow the jury to give consideration and effect to his

mitigating evidence. The Court agreed, holding that “in certain

cases Texas’[s] statutory special issues, as applied, d[o] not give

the jury sufficient opportunity to consider and give effect to the

mitigation evidence without appropriate additional instructions.”35

Thus, when the mitigating evidence offered by the defendant (1) is

not relevant to the special issues, or (2) is beyond the scope of

the special issues, and “the jury [is] otherwise unable to express

its reasoned moral response to that evidence in rendering its

sentencing decision,” the sentencing court must provide the jury
36 Id.

37 Penry v. Johnson (“Penry II”), 532 U.S. 782, 797-98 (2001)

(emphasis in original) (quoting trial court).

38 Id. at 790.

16

with additional instructions to inform it that it may consider and

give effect to a defendant’s mitigating evidence.36

At Penry’s retrial, on remand from the Supreme Court, the

state court instructed the jury to answer the special issues but

included a supplemental instruction that the jury was to consider

any mitigating evidence offered by Penry during the punishment

phase:

If you find that there are any mitigating circumstances

in this case, you must decide how much weight they

deserve, if any, and therefore, give effect and

consideration to them in assessing the defendant’s

personal culpability at the time you answer the special

issues. If you determine, when giving effect to the

mitigation evidence, if any, that a life sentence, as

reflected by a negative finding to the issue under

consideration, rather than a death sentence, is an

appropriate response to the personal culpability of the

defendant, a negative finding should be given to one of

the special issues.

37

The jury again found Penry guilty, he was again sentenced to death,

and he again appealed.

The Supreme Court held that the trial court’s supplemental

instruction was “an inadequate vehicle for the jury to make a

reasoned moral response to Penry’s mitigating evidence.”38 The

Court first clarified that

Penry I did not hold that the mere mention of “mitigating

circumstances” to a capital sentencing jury satisfies the
39 Id. at 797 (citations omitted) (alteration and emphasis in

original).

40 Id. at 798 (quoting Penry v. Johnson, 215 F.3d 504, 514 (5th

Cir. 2000) (Dennis, J., dissenting)).

41 Id. at 799.

17

Eighth Amendment. Nor does it stand for the proposition

that it is constitutionally sufficient to inform the jury

that it may “consider” mitigating circumstances in

deciding the appropriate sentence. Rather, the key to

Penry I is that the jury be able to “consider and give

effect to [a defendant’s mitigating] evidence in imposing

sentence.”39

Concentrating on the italicized language in the state court’s

supplemental instruction, the Court found the instruction

constitutionally inadequate because “the jury’s ability to consider

and give effect to Penry’s mitigating evidence was still ‘shackled

and confined within the scope of the three special issues,’”40 which

were not broad enough to encompass Penry’s evidence of mental

retardation and childhood abuse.

The Court also explained that even if the supplemental

instruction and verdict form had allowed the jury to respond in the

negative to one of the special issues and thereby avoid sentencing

Penry to death, it “would have been both logically and ethically

impossible for a juror to follow both sets of instructions,” i.e.,

the special issues instructions and the supplemental instruction.41

The Court reasoned:

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
42 Id. at 799-800.

43 Id. at 800.

44 Id. The current Texas statutory scheme provides:

The court shall instruct the jury that if the jury

returns an affirmative finding to each issue submitted

under Subsection (b) of this article [the special issues

subsection], it shall answer the following issue:

Whether, taking into consideration all of the evidence,

including the circumstances of the offense, the

defendant’s character and background, and the personal

moral culpability of the defendant, there is a sufficient

mitigating circumstance or circumstances to warrant that

a sentence of life imprisonment rather than a death

sentence be imposed.

TEX. CODE CRIM P. art. 37.071(2)(e)(1).

18

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.’”42

The supplemental instruction thus inserted “an element of

capriciousness” into the jury’s sentencing decision, because a

juror would have had to be willing to elevate the supplemental

instruction over the verdict form instruction.43 The Court also

concluded that “a clearly drafted catchall instruction on

mitigating evidence . . . might have complied with Penry I,”

specifically noting that Texas’s current capital sentencing scheme

now includes such a catchall provision.44

In Smith v. Texas, the Supreme Court confronted jury

instructions similar to those in Penry II and again held the
45 —— U.S. ——, 125 S. Ct. 400 (2004). The supplemental

instruction in Smith read as follows:

You are instructed that you shall consider any evidence

which, in your opinion, is mitigating . . . . You may

hear evidence which, in your judgment, has no

relationship to any of the Special Issues, but if you

find such evidence is mitigating under these

instructions, you shall consider it in the following

instructions of the Court. You, and each of you, are the

sole judges of what evidence, if any, is mitigating and

how much weight, if any, the mitigating circumstances, if

any, including those which have no relationship to any of

the Special Issues, deserves. In answering the Special

Issues submitted to you herein, if you believe that the

State has proved beyond a reasonable doubt that the

answers to the Special Issues are “Yes,” and you also

believe from the mitigating evidence, if any, that the

Defendants should not be sentenced to death, then you

shall answer at least one of the Special Issues “No” in

order to give effect to your belief that the death

penalty should not be imposed due to the mitigating

evidence presented to you. In this regard, you are

further instructed that the State of Texas must prove

beyond a reasonable doubt that the death sentence should

be imposed despite the mitigating evidence, if any,

admitted before you.

Id. at 402-03.

46 Id. at 407.

19

instructions unconstitutional.45 The Court first held that the

special issues were not broad enough to encompass Smith’s evidence

of organic learning disabilities and speech handicaps, a low IQ,

and a drug-addicted criminal father.46 Although the Smith

instructions were not identical to those in Penry II, the Court

found any difference constitutionally insignificant because, as we

noted in Bigby, the Smith jury still “faced . . . the ethical

dilemma of either answering the special issue questions in a manner

prescribed on the verdict form and ignoring the supplemental
47 Bigby, 402 F.3d at 570.

48 See id. at 572.

49 Graham, 506 U.S. at 475; see Bigby, 402 F.3d at 570.

20

instruction, or answering the questions as prescribed by the

supplemental instruction which necessarily meant ignoring the

verdict form.”47 The Court concluded that the supplemental

instruction unconstitutionally shackled the jury’s consideration of

Smith’s mitigating evidence to the special issues.48

With this in mind, we address Cole’s claim that Penry I, Penry

II, Tennard, and Smith require reversal of the district court’s

denial of his habeas application. Cole contends that the special

issues are not broad enough to encompass his mitigating evidence of

a destructive family background and an organic neurological

deficiency, including diminished impulse control. Specifically,

Cole argues that the two special issues do not provide an adequate

vehicle for the jury to consider his mitigating evidence. As the

Supreme Court has expressly limited Penry I’s application to cases

in which “the constitutional defect lay in the fact that relevant

mitigating evidence [is] placed beyond the effective reach of the

sentencer,”49 we must first determine whether the special issues are

broad enough to encompass Cole’s mitigating evidence. We conclude

that they are.

Cole’s reliance on Penry I, Penry II, Tennard, and Smith is

misplaced. Penry I and II are readily distinguishable from this
50 509 U.S. 350 (1993).

51 See id. at 368.

52 Id. at 369 (citing Penry I, 492 U.S. at 308-09).

53 See id. (citing Penry I, 492 U.S. at 323).

21

case. In Johnson v. Texas,

50 the Supreme Court confirmed the

limited scope of Penry I and II. Although the defendant in Johnson

insisted that the Texas special issues prevented the jury from

considering the mitigating effect of his youth,51 the Court rejected

that argument and, in doing so, clarified Penry’s scope.

In Johnson, the Court explained that in Penry, “there was

expert medical testimony that the defendant was mentally retarded

and that his condition prevented him from learning from his

mistakes.”52 As the expert testimony intimated that Penry was

unable to learn from his mistakes, the Johnson Court concluded that

the only logical manner in which Penry’s jury could have considered

the evidence of his mental retardation under the future

dangerousness special issue was as an aggravating factor: Penry

would remain a danger in the future because there was no chance

that he would ever understand that rape and murder were wrong.53

Thus, Penry’s jury was unable to give any mitigating effect to the

mental retardation evidence that he proffered. 

Here, however, the mitigating evidence of Cole’s destructive

family background and organic neurological deficiency falls outside

of Penry’s holding. With regard to Cole’s mitigating evidence of
22

“organic deficiency,” the testimony proffered by two of Cole’s own

expert witnesses is directly contrary to the testimony at Penry’s

penalty phase that the Penry Court found aggravating. In response

to direct questions on Cole’s future dangerousness, Dr. Wright

provided the following testimony:

I think the research certainly indicates that individuals

like Ted, individuals who have had this kind of

background, tend to begin making changes at about forty,

forty-five, fifty, somewhere in there. They tend to

mellow a bit and change a good bit. You can infer that

from some of the FBI statistics on age and changes in

persons.

But I think as we see him age, get older, hormones

change, the process of aging takes over, as it does in

all of us —— and we all change. I think the evidence is

overwhelming there that individuals who have behaved as

he has change. They burn out. And I think there’s a

good chance of later in life —— not now, but later in

life —— some changes.

I’m suggesting that, as we grow older, we change; the

compass points a different direction. We’re tired.

We’re —— we’re —— our goals, our orientation is

different. The research indicates that —— that this is

the case with individuals who commit violent or

antisocial acts.

We also know from probabilities that, as people grow

older, the probability of them becoming involved in

violent acts decreases to the point of fifty, where the

FBI statistics would indicate that they’re almost —— it

almost doesn’t happen. These behaviors have almost

burned out of individuals. While they may be flaming

while they’re younger, they burn out later. So I don’t

have any specific statements for Ted as an individual.

That would take a crystal ball. But for Ted as a —— as

a human being, we know this happens to human beings who

are like Ted, who have histories like Ted. We know from

statistics that they change, as we do all change. 

Dr. Wright also testified that even though Cole’s diary

demonstrated a “fantasy” to behave like a “modern-day Viking” or a
23

“pirate,” Cole was unlikely to act on such fantasies because he did

not have the “wherewithal” to do so. 

The former chief mental health officer for the Texas

Department of Corrections, Wendel L. Dickerson, Ph.D., also

testified on Cole’s behalf. Dr. Dickerson first explained the

process behind “predicting future behavior and future violent

conduct in particular.” He then testified:

. . . on the basis of the statistical data available to

use, that diagnosis would necessarily apply five, ten,

fifteen years from now. I mean, whatever condition he is

suffering from is not necessarily immutable and

unchangeable. I mean it can be changed —— I mean, time

changes —— I mean —— and experience changes people.

Changes in body changes people.

Old person gets older. Their hormones change. The brain

changes. So it’s —— I mean, just because he’s dangerous

—— if he’s considered dangerous today, does not

necessarily mean he’s going to be dangerous at some

future point in time.

In addition, although the State’s expert witness testified that

Cole would remain a danger as long as he lived, Dr. Dickerson

attempted to rebut this testimony:

Whenever we assert that someone is dangerous, we’re

saying that he’s more likely to actually act out.

However, when we reach that diagnosis —— it’s been

demonstrated in study after study that that diagnosis

actually leads to —— is followed by violent conduct only

about one in three times. So you’re wrong —— whenever

you say somebody is dangerous, say he’s going to do

something violent or aggressive, you’re going to be wrong

about twice as often as you’re —— as you’re right.

Unlike the evidence in Penry, Cole’s mitigating evidence did

not suggest that he was unable to learn from his mistakes. The

record does not suggest that the jury viewed Cole’s mitigating
54 This testimony also distinguishes Cole’s case from Bigby’s.

In Bigby, the panel relied heavily on testimony that Bigby’s

schizophrenia “cannot be adequately controlled or treated.” 402

F.3d at 571. As with Penry’s evidence that he was unable to learn

from his mistakes, Bigby’s mitigation evidence contained the same

“double-edged sword” as Penry’s. See id. Because Bigby’s

schizophrenia could not be controlled or treated, the jury could

have considered it an aggravating factor under the future

dangerousness issue. See id.

At oral argument, counsel for the state conceded that the

mitigating evidence that Cole presented at trial could perhaps be

a double-edged sword. We do not, however, read Penry I and Bigby

to stand for the broad proposition that any evidence that the jury

may deem either mitigating or aggravating can not be given effect

under Penry I. As we noted above, a jury can not give mitigating

effect to evidence that can be seen as aggravating only. See Penry

I, 492 U.S. at 323 (“Although this [mental retardation] evidence is

relevant to the second issue, it is relevant only as an aggravating

factor because it suggests a ‘yes’ answer to the question of future

dangerousness.” (emphasis in original and added)). Here, on the

contrary, Cole’s mitigating evidence does not suggest only a “yes”

answer to the future dangerousness issue.

24

evidence as an aggravating factor only, i.e., because he cannot

learn from his mistakes, he will remain a danger in the future.

Rather, the evidence proffered by Cole’s expert witnesses suggested

to the jury that Cole could change in the future.54 The evidence

intimated that someone from Cole’s abusive background begins to

change later in life. This evidence also suggests that even

someone with a lower than normal IQ or an organic neurological

deficiency changes later in life. That this evidence fits well

within the broad scope of the future dangerousness special issue is

clearly evident from the testimony of Cole’s own expert witnesses.

Further, the Supreme Court itself has indicated that “family

background” evidence falls within the broad scope of Texas’s

special issues. In Graham, the Court stated:
55 Graham, 506 U.S. at 476 (emphasis added).

25

Moreover, we are not convinced that Penry could be

extended to cover the sorts of mitigating evidence Graham

suggests without a wholesale abandonment of Jurek and

perhaps also of Franklin v. Lynaugh. As we have noted,

Jurek is reasonably read as holding that the circumstance

of youth is given constitutionally adequate consideration

in deciding the special issues. We see no reason to

regard the circumstances of Graham’s family background

and positive character traits in a different light.

Graham’s evidence of transient upbringing and otherwise

nonviolent character more closely resembles Jurek’s

evidence of age, employment history, and familial ties

than it does Penry’s evidence of mental retardation and

harsh physical abuse.55

The Supreme Court has drawn a significant distinction between the

type of evidence that Penry presented at his trial and the evidence

that Cole presented at his, which falls within the scope of Texas’s

special issues. 

As the district court correctly concluded in its alternative

analysis, Cole’s mitigating evidence falls within the scope of the

special issues. Specifically, the jury could have considered

Cole’s family background and organic deficiency evidence under ——

at the least —— the future dangerousness special issue. Given the

experts’ testimony during the punishment phase, the jury could have

believed them and found that, although Cole suffered a turbulent

childhood and may suffer from diminished impulse control, he is

capable of change and thus would not necessarily remain a danger in

the future. 

Neither Tennard nor Smith changes Johnson’s analysis of Penry,

or the result that we reach today. As we have explained, the
56 Indeed, the Court devoted only the last paragraph of the

opinion to the dispute present here. See Tennard, 124 S. Ct. at

2572-73.

57 See id. at 2571.

58 Id. at 2572 (citing Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

59 Id. at 2572 (citing Penry I, 492 U.S. at 322).

26

principal concern of the Court in Tennard was our constitutional

relevancy test, on which we relied to affirm the denial of Cole’s

habeas corpus petition. Whether the mitigating evidence that

Tennard presented at the punishment phase of his trial fit within

the scope of the special issues was of only secondary concern to

the Court.56 What mattered in Tennard was that under our

constitutional relevancy test, most mitigating evidence would have

been “screened out” before a court would ever have considered

whether the evidence fell within the scope of the special issues.57

Further, explained the Tennard Court, our court should have

answered the following question: “Has Tennard ‘demonstrated that

reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong?’”58 In conducting

this analysis, the Court held that “[i]mpaired intellectual

functioning has mitigating dimension beyond the impact it has on

the individual’s ability to act deliberately.”59 It also stated

that “[a] reasonable jurist could conclude that the jury might well

have given Tennard’s low IQ evidence aggravating effect in

considering his future dangerousness, not only as a matter of
60 Id. The prosecutor stated, “[W]hether he has a low IQ or

not is not really the issue. Because the legislature, in asking

you to address that question, the reasons why he became a danger

are not really relevant. The fact that he is a danger, that the

evidence shows he’s a danger is the criteria to use in answering

that question.” Id. (alteration in original).

61 See Penry II, 532 U.S. at 803.

62 Tennard, 124 S. Ct. at 2572.

27

probable inference from the evidence but also because the

prosecutor told them to do so . . . .”60

The situation here is distinguishable from that in Tennard.

We recognize that the trial court failed to define “deliberately”

with respect to the first special issue,61 but we cannot conclude

that the jury could have given Cole’s mitigating evidence an

aggravating effect. The state prosecutor did not ask the jury to

consider Cole’s mitigating evidence as aggravating. Neither did he

“press[] exactly the most problematic interpretation of the special

issues, suggesting that [Cole]’s low IQ was irrelevant in

mitigation, but relevant to the question whether he posed a future

danger.”62 Accordingly, Cole’s prosecutor here did not place the

jurors in the ethical dilemma of responding falsely to a special

issue. And, as we explained above, under the instructions it was

given, the jury could have considered and given effect to Cole’s

mitigating evidence under the future dangerousness special issue.

Neither does Smith require a different result. In Smith, the

Court held that the state trial court’s “nullification instruction”

was constitutionally inadequate to provide the jury with an
63 125 S. Ct. at 406-07.

64 Id. at 407. In Smith, the Court noted that the trial court

instructed the jury that if “you also believe from the mitigating

evidence, if any, that the Defendant should not be sentenced to

death, then you shall answer at least one of the Special Issues

“No” . . . .” Id. at 403 (emphasis added) (quoting trial court).

For the full instruction, see supra note 45.

65 See id.

66 Cole contends that the supplemental instruction is a

“nullification instruction,” similar to those struck down as

unconstitutional in both Smith and Penry. We do not find that this

is so. The trial court’s supplemental instruction did not

“direct[] the jury to give effect to mitigation evidence, but

allow[] the jury to do so only by negating what would be

affirmative responses to two special issues relating to

deliberateness and future dangerousness.” Id. at 401. The

supplemental instruction here merely instructed the jury to

consider the mitigating evidence when deciding the special issues.

67 For a full quotation of the instruction, see supra page 15.

68 494 U.S. 370 (1990).

28

effective vehicle to consider Smith’s mitigating evidence of low

IQ, youth, and family background.63 The Court concluded that the

mandatory language in the charge “could possibly have intensified

the dilemma faced by ethical jurors.”64 The Court noted that, just

as in Penry II, the Smith jurors were faced with having to voice a

false answer to a special issue —— a special issue that they had

sworn to uphold if the prosecution proved it beyond a reasonable

doubt —— to avoid the death penalty.65

Here, however, the supplemental instruction66 is

distinguishable from the one given at either Smith’s or Penry’s

trial.67 In Boyde v. California,

68 the Supreme Court delineated the
69 Id. at 380 (emphasis added).

70 Id.

71 Johnson v. Texas, 509 U.S. 350, 368 (1993) (quoting Boyde,

494 U.S. at 381).

72 509 U.S. at 355.

29

standard under which we assess whether the jury instructions

allowed the jury to consider and give effect to a defendant’s

mitigating evidence. There, the Court held that a reviewing court

must determine “whether there is a reasonable likelihood that the

jury has applied the challenged instruction in a way that prevents

the consideration of constitutionally relevant evidence.”69

“Although the reasonable likelihood standard does not require that

the defendant prove that it was more likely than not that the jury

was prevented from giving effect to the evidence, the standard

requires more than the mere possibility of such a bar.”70 To

evaluate the instructions, we do not “engage in a technical

parsing” of the language in the instructions, but instead “approach

the instructions in that same way that the jury would —— with a

‘commonsense understanding of the instructions in the light of all

that has taken place at the trial.’”71 

The Supreme Court has upheld the use of this instruction ——

almost word for word —— in Johnson v. Texas, in which it held that

Texas’s special issues were broad enough to encompass mitigating

evidence of youth.72 The difference in the language of the

instruction upheld in Johnson and that struck down in Penry II and
73 This further distinguishes Cole’s case from Bigby’s. See

Bigby, 402 F.3d at 572 (“Like the supplemental instructions in both

30

Smith is instructive. Whereas the instructions in Smith and Penry

II specifically tied an answer to the special issues to the

mitigating evidence, the instruction in Johnson merely instructed

the jury to consider all of the evidence when answering the special

issues. The import of the Supreme Court’s focus on state trial

court nullification instructions (which, as we note above, we do

not have here) is to determine whether the jury was given

conflicting duties, viz., to answer the special issues “yes” if the

prosecution proves them beyond a reasonable doubt but to respond

negatively to one of them (even if proven beyond a reasonable

doubt) if the mitigating evidence demonstrates that the defendant

does not merit a sentence of death, thereby violating their oath to

respond truthfully to the special issues. The ethical dilemma in

which the conflicting instructions place the jury constitute the

constitutional violation. 

We are not presented with that situation here. As in Johnson,

Cole’s state trial court instructed the jury to consider all of the

evidence —— from the guilt and punishment phases —— when it

responded to the special issues. The trial court used no mandatory

language, instead instructing the jury that it “may” consider all

of the evidence. Further, the instruction here did not

specifically tie an answer to a special issue to the mitigating

evidence.73 Accordingly, the state trial court did not deliver
Penry II and Smith, this instruction ties the jury’s consideration

of Bigby’s mitigating evidence to the special issues.

Specifically, it instructs the jury that if they find the

mitigating evidence sufficient to warrant a life sentence rather

than the death penalty, they must answer any special issues ‘to

which such mitigating circumstances apply’ in the negative. Thus,

the instruction effectively shackled and confined the jury within

the scope of the special issues.”).

31

conflicting instructions that would place the jurors in an ethical

dilemma. The trial court did not instruct the jury to answer “yes”

to the special issues if the prosecution proved them beyond a

reasonable doubt and then instruct them to respond “no” (falsely)

to one of the special issues if the mitigating evidence

demonstrated that Cole did not deserve death. 

Cole advances that the special issues must allow the jury to

be able to respond favorably to the specific facts of each

defendant’s case. Stated differently, Cole contends that “generic”

mitigating evidence is not sufficiently particularized to allow the

jury to give it mitigating effect. Specifically, Cole maintains

that the evidence that he presented at the punishment phase of his

trial supported only the proposition that “everyone” mellows as

they tend to get older. Thus, he urges, such evidence is

insufficient to allow the jury to consider the mitigating evidence

with respect to Cole as an individual. Cole maintains that Smith

supports this proposition.

We do not read Smith so broadly. Although we recognize that

we must consider the particularized facts of each defendant’s case,

nothing in Smith supports Cole’s argument that trial counsel must
32

submit “specific” —— as opposed to “generic” —— mitigating evidence

at the punishment phase of trial. We do not have an ineffective

assistance of counsel claim before us. Whether Cole’s counsel

should have presented more specific mitigating evidence is not a

claim that we must reach today.

Further, we note that the mitigating evidence here is not as

generic as counsel maintains. Both Dr. Wright and Dr. Dickerson

explicitly referenced Cole when they testified at the punishment

phase of the trial. Despite counsel’s argument that the evidence

supported only the proposition that all of us tend to “mellow” as

we get older, Dr. Wright and Dr. Dickerson compared Cole to the

“generic” and broad mitigating evidence that they presented.

Indeed, as Dr. Wright noted, to be any more specific with regard to

Cole’s particular future behavior would require a “crystal ball.”

The specific references to Cole in Dr. Wright’s and Dr. Dickerson’s

testimony lead us to conclude that the jury could easily have

understood that they included Cole individually within the

mitigating evidence that they presented. 

CONCLUSION

Because we conclude that jurists of reason could disagree with

the district court’s resolution of Cole’s claims that the Texas

special issues were not broad enough to allow the jury to give

“full consideration and full effect” to his mitigating evidence, we

reverse the district court’s denial of a COA on Cole’s Penry claim
33

and grant him a COA. For the foregoing reasons, however, we

ultimately conclude that the Texas special issues allowed the jury

to give “full consideration and full effect” to the mitigating

evidence that Cole presented at the punishment phase of his trial.

We therefore affirm the district court’s judgment denying habeas

relief. 

REVERSED; COA GRANTED; JUDGMENT DENYING HABEAS RELIEF AFFIRMED.