1 (Slip Opini o n) OCTOBER T ERM , 20 06 Sy llabu s
N O TE : Wh er e it i s feas ibl e , a s yllab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s yll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detro it Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

## SUPREME CO URT O FTHE UNI TED STATES

Sy llabu s SMITH v . TEXAS
CERTIORARI TO THE COUR T OF CRIM I NAL APPEAL S OF TEXAS

No. 05–1 13 04. Ar g u ed Janu a r y17, 2007 —D ec ided April 25, 20 07 Smith’s trial took place in t h e interim bet w een Penryv. Lynaugh , 492

U. S. 302 (Penry I) , an d Penryv. Jo hn son , 532 U. S. 78 2 (Penry II)

. At tha tti me, Texas capit a l juries were st ill given the s p ecial-is sue qu estion s fou n dc o n s titu tion allyin ade q u a t ein Penry I. Texa s court s atte mpted to curethat inadequacy byins t ructing thej ury that if it felt deathsh o u ld n o t be imposed bu t also f e lt th e spec ial issu es s ati s fied, it shouldfalse l y answ er “no” to one of the sp ecia l-issue ques

tions, thus nullifying the special is sues. T h is nullificatio ncharge was la t e r found in a d eq ua t e t ocure t h e s p ecia l is s u es in Penry II

. Before h i s tr ial, Smit hobjec t ed to th e c o n s titu tio n alityof th e s p ec ial issu es , b u this cha llenges were den i ed. Ats e nt encing , S m it h’s j ury re ceived the specia l i s s u es and the nullification charge. The jury sentenced Smithto de at h

. In h i s app e al an d pos t c o nv ic tionstate pr oc eedin g s, S m it h cont in ued t oa r gue his s e nt encing wa s uncons t i t u t i ona lb e cause of the defects in the special issues. At each stage, the argu

mentwa s either rej e ct ed o nt h e merit s , or els eheld procedura lly b a rred b e ca use it ha d a l ready b e en a ddres s e d ondirecta ppea l

. Th e Texas Court of Criminal Ap peals (her einafter appeals co urt) affirmed the denial of relief, distinguis hing S m it h’s ca s efrom t h e Penry pr e c e dent s . This Courtreve rs ed, Smithv. Texas , 543 U. S. 37 (per curiam) (Smith I), finding there wa s Penry error and that th e nullification cha rgewa s ina d eq ua t eunder Penry II. Onrema nd , t h e a ppea l s courtdenied relief once more. Relying o nit s Almanzadecision, i t held t h a tSmith ha d notpres erved aPenry II challenge to the nullifi

ca t i on cha rge, s i nce heonlyma de a Penr y I challenge at trial; an d that this procedural defect requiredhim to show not merely some ha rm, b u tegr e gious ha rm, ab urden he co u l d notmeet

. Held: 1

. The a ppea l s courtma de errors of federa l la w t h atca n n otb et h e2 SM ITH v. TE XAS Sy llabu s predicate for requiring Smit h to show egregious harm. Smith I con fir m ed th at th e spec ial issu e s did n o t meet c o n s titu tion al stan d a r d s and that the nullificationcharge did not cure that erro r. The basis for relief wa s error ca us ed b yt h e s p ecia l is s u es , not s o me s e pa rate error caused by the nullificati on charge. On remand from Smith I , th e appeal s c o u r tmistook th is Cou r t ’s h o ldin gas gr a n tin gr e lief in light of an error caused by th e nu llification charge and concluded that S m it h ha d not pres erved t h a tcla i m b e ca use he ne ver obj e ct ed t ot h e n u llific ationc h a r g e. Alth ou ghSmith ’ s s e c o n dstate h abea s peti tion included an argument that the nu llificati on charge it self prevented t h e j uryfrom cons idering hi s mit i gat i ng e v idence, t h a twa s nott h e on ly , orev en th e pr imar y , ar g u men th epr esen ted to th e appea l s courta n d t h is Court

. The pa rt ies ’ post -t ria lfilings , t h e s t at e court s ’ ju dg men t s, an d Smith I ma ke clea r t h a tSmit h cha llenged t h e s p ecia l issues before t r ial and did not aban don or transform that claim dur

in glen gthypost-tr i a lpr oc eedin g s . Reg a rdless of h o wth e State n o w c h a r a c t er izes it, Smi t h ’ s pr etr i al c l ai m w a s tr eate d byth e appeal s courta s a Penry cha llenge t ot h e a d eq ua cy of the special issues in h i s c a se, th at is h o wth is Cou r ttr eated it in Smith I , an d th at w a s th e error o nwhic ht h is Courtgra n t e d relief. The a ppea l s court ’s mis i n ter p r e tationof feder al lawonr e man dfr om Smith I ca nnotform t h e bas is forth e imposi tionof anadequ ate an d in depen d en t state pr oc e dura l b a r . Ak ev. Ok lahoma , 470 U. S. 68, 75. Pp. 15–17.

2. Th e state c o u r t s th at r e v i ew ed Smith ’ s c a se did n o t in dic ate th a t he fa iled t opres erve his cl a i m t h att h e s p ecia l is s u es were ina d e qu ate inh i s c a se. Un derth e appeal s c o u r t’s appl ic ationof Almanza , pres erved er ro r is s ubj ecton ly t onorma lh a rmles s -error review. The a ppea l s court ha s indica t e d els e where t h a ts olong t h e r eis area s on able likel ih ood th e ju r ybeliev e d it w a s n o t per m itted to c o n s ider releva ntmit i g a t i ng evidence, t h e lower Almanza st an dar dis met

. Because the state court must d efer to this Court’s finding of Penryer r o r , wh ic his a fin d in gth atth er e is a r e a s on able likeli h ood th e ju r y b e lieved it was notpermit t e d t ocons ider S m it h’s relevantmitiga t i ng evidence, Joh nsonv. Texas , 509 U. S. 35 0, 367, it app e ar s Smithis en titled to r e li ef u n d er th e state h a r m le ss- er r o r fr amew or k. Pp. 18– 19. 185 S. W. 3d 4 55, r e v e r s ed an d r e man d ed.

K ENNEDY , J., delivered the opinion of the Court, in which S TEVENS , S OUTER , G IN S B U R G , and B RE Y E R , JJ., join ed. S OUTER , J., filed a conc u r ring opinion

. ALITO , J., filed a dissentingopinion, in which R OBERTS , C. J., and S CALIA an d T HOMA S , JJ., joined._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt

NOTICE: This op i n ion is subjec t to f o rmal revi si on bef o r e publicat ion in the p r eli m in ary p rin t of th e U n it edS t at es R e p o rts

. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05– 11 304
LAR O YCE LAT H AIR SMITH, P E TITIONE R v. TEXA S ON WRIT OF CERTIORARI TO THE COUR T OF CRIM I NAL APPEAL S OF TEXAS [Apr il 25, 20 0 7 ] J USTICE K E NNEDY delivered the opinion of the Court. The juryi na Texas state cour t convic tedpetitioner LaRoyce La thair Smithof first-degree murder and deter

mined he s h ould receiv e a death s e ntence. T h is Court now reviews a challenge to the sentencing proceeding for a second time. The senten cing tookplace in theinterim be tween our decisions in Penryv. Ly naugh , 492 U. S. 302 (1989) (Penry I) , and Pen r yv. Johnson , 532 U. S. 782 (200 1) (Penry II )

. In Penry I th e Court addressed the special-iss u e question s then submitted to Tex a s juries to guide their sentencing determinations in capital cases. The decision held that the Texas special issues were insufficient to allow proper consideration of some forms of mi tigating evidence. Fol

lowing a pretrial challenge to the special issu es by Smith , the trial court issued a charge instructingthe jury t o nullify the special issu es if the mitigating evi d ence, take n as a whole, convinced the jury S m ith did not deserve t h e death penalty. After Smith’s trial, Penry II h e ld a simi lar nullification charge insufficient to cure the fl awed special issues. Smith, on st ate collateral review, continued to seek relief based on the inadequacy of the special issues ,2 SM ITH v. TE XAS Opinion of t h eCourt arguing tha tthe nullification charge had not remedied the problem identified in his pretrial objection. The Texas Court of Criminal Appeals affirmed the denial of reli ef, distinguishing Smith’s case from the Penry precedents. Ex parte Smi t h , 132 S. W. 3d 407 (2004). This Court, by summary disposition, reversed. Smithv. Texas , 543 U. S. 37 (2004) (per curiam) (S mith I)

. On remand the Court of Criminal Appeals again d e nied Smith relief. It held, for the first time, that Smith’s pret rial objections did not pr eserve the claim of constitutional error he asserts. Under th e Texas frameworkfor deter

mining whether an inst ructionalerror merits reversal, the state court explained, this procedural default required Smith to s h ow egregi ous harm—a burden the court he ld he did not meet. Ex parte Smith , 185 S. W. 3d 455, 467– 473 (Tex. Crim. App. 2 006). The requiremen tthat Smith show egregious harm was predicated, we ho ld, on a mis

understand ing of the federal right Smith asserts; and we therefore reverse. I A The Sp ecia lIssues Under Texa s law the jury ver d ict f o rm provid es specialissue quest i ons to guide the jury in determining whether the death penalty sh ould be imposed. At the time of Smith’s trial, Texas law set forth th ree special i ssues. The first addre ssed deliberateness; the second concerned fu

ture dange r ousness; and the third asked whether th e killing was an unreasonable resp onse to provocation by the victim. Provocation was not applicable to Smith’s cas e so the third question was not included in the instructions. If the jury answered the two applicable special-issue questions i nthe affirmative, the death pen a lty would be imposed. In Penry I , the Court held that nei t her of thes e special

-3 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt issue instructions was “broad enough to p r ov ide a vehicle for the jury to give mitigati ng effect” to the evidence at issue inthat case. Penry II, su pra , at 798 (citing, and characterizi ng, Pen r y I, supra , at 322–325). We refer to the inadequacy of the special issue instructi ons as “Pen r y error.” For the brief period between Penry I and th e Texas Legislature’s addition of a catchall special i ssue, Texas courts atte mpted to c u re Penry error with a nullificati o n charge. In Smith’s cas e the trial c o urt instruc t ed that if a juror was c o nvinced the corre ct answer to each specialissue question was “yes,” but nevertheless concluded the defendant did not deserve death in light of all the mitigat

ing evidence, the juror must answer one special-iss u e question “no.” The charge was n o t incorporated into the verdict for m . See, e.g., 1 App. 123–124. In essence the jury was instructed to misrepresent its answer to one of the two spe c ial issues when necessary to take account o f the mitigating evidence. In Penry II , the Court conclude d that a n u llification charge crea t ed an ethi cal and logical dilemma that pre

vented juro rs from givi ng effe ct to the mitigating evidence when the evidence was outside the scope of the special issues. As the Court explained, “because thesupplemen

tal [nullification] instruction had no practical effect, the jury inst ruc t ions .

. . were not meaningfully different fro m the ones we found cons titutionally inadequate in Penry I .” 532 U. S., at 798. Inother words, Penry II h e ld that the nullification charge di d not cure the Penry error. Penry II andSmithI recognizedthe ethica l dilemma, the confusion, and the capricious ness introduced into ju ry deliberations by directi ng the juryto distort t h e meaning of an instruction and a verdict fo rm. Penry II, supra , a t 797–802; Smith I, supra , at 45–48. These a r e problems distinct fro m Penry er ror and ma y be gr ounds for revers al as an independent matter; but we need not reach th at4 SM ITH v. TE XAS Opinion of t h eCourt issue here, just as the Court did not need to reach it in Penry II or Smith I

. When this Court rever s ed the Court of Criminal Appeals in Smith I , it did so because the nullification charge h a d not cured t h e underlying Pen r y error. See Smith I , 5 43 U. S., at 48 (holding that “the burden of proof .

. . was tied by law to findings of deliberateness and future dangerous

ness that had little, if anything, t odo with” t h e mitigating evidence). While the ethical and logical quandary cause d by the ju ry nullification charge m a y give rise to distinc t error, this was not the basis for reversal in Smith I

. On remand the Court of Criminal Appeals misu nderstood this point. Its interpretati on of federal law was incorrect. In light of our decision in Smith I , our revi ew of the facts need not restate the brutality of the murder Smit h committed or the evidence he offered in mitigation. See id. , at 38–4 3. We need only address the concl u sion of the Court of C r iminal Appeals that the constitutional erro r asserted by Smith was caused by the nullification charge and that, h aving failed to alert the trial court to that erro r, Smith was required to demons trate egregious harm to obtain relief. B The Trial Before voir dire , Smith filed three written motions addressing the juryin structions. In the firs t, he argue d that Jurekv. Texas , 428 U. S. 262 (1976), and Penry I establishedthe consti tutional inadequacy o f the speci a l issues. The motion maintained that Texas law denied the trial court power to cure the problem because “[t]he exclu

sive methodology for submissionto the jury of special issues with regardto infliction of the death penalty [is ] contained i n” Article 37.071 of the Texas Code of Criminal Procedure Annotated (Vernon 2006 Supp. Pamphlet), which did not authorize the trial court to a dd an addi

-5 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt tional special issue onmitigation. 1 App. 9. The trial court, the objection stated, wo uld not be ab l eto provide “any instru ction with r e gard to mi tigating evi d ence whic h would perm it the jur yt o make a m o ral reasoned response to” mitigating evidence not co vered by the special issu es . Ibid

. Smith would offer such evidence. The second pretrial motion raised a related but distinc t argument. Smith began by noting that in Ju rekthe S u preme Court had found Article 37.071 constitutional on i t s face. He argued, however, it did so with the understand

ing that the Texas courts woul d give broad construction t o terms in th e special iss u es such as “ ‘ d eliberately.’ ” 1 Ap p. 12. They h a d not done so and the r efore “[t]h e re [was] n o provision in Texas forthe jur yto decide the appropria t e ness of the death pen a lty ta king into consideration th e personal moral culpability of the [d]efendant balanced by mitigating evidence which is not directly orcircumsta n tially probative in answering the special issu es.” Id., at 13. Smith therefore reasoned that Article 37.071 was unconstitutional. The third pretrial motion asked the court t ostate the contents of the mitig a tion charg eprior to voir direso Smith could exercise his jury challenges intelligently. Id., at 17–19. The trial court denied t h e first two motions. Id., at 21

. In response to the third it provi d ed Smith a copy of its proposed mitigation charge. That charge, which we will refer to as “the nullification charge,” defined mitigatin g evidence broadly before explaini ng to the ju r y , in releva nt part: “[I]f you believe that the State has proved beyond a reasonable doubt that the answers to the Special Is

sues are ‘Y es,’ and yo u also believe from the mitigat

ing evidence, if any, that the Defendant should not be sentenced to death, then yo u shall answer at least one6 SM ITH v. TE XAS Opinion of t h eCourt of the Special Issu es ‘ N o’in order to give effect to your belief that the death penalty should not be imposed due to the mitigating evidence pr esented to you. In this regard, you are fu rther instr u cted tha t the Sta t e of Texas must prove beyond a reasonable doubt that the death sentence s h ould be i m posed despite the mitigating evidence, if any, admitted before you.” Smith I, supra , at 40 (internal qu otation ma rks an d citation omitted). The nullif ication charge did not d e fine or describe the special issu es. 1 App. 105–110. T h e judge told counsel: “ I f you see something in that charge that you’d like worded differently or you thin k could be made clearer or better , I’m always willing to entertaindifferent wording or differ

ent ways of putting the idea. So if you come up with som e thing you li ke better, just let me know and I’ll look at it. ” Id., at 21. Smith raised no additional object ion and did not sugges talternati v e wordin g for the nullification charge. The jury received the nullification charge from the judge, but the verdictform did not incorporate it. The form was confined to the special issues of deliberatene ss and future dangerousness. Id., at 123–12 4. The jury unanimousl yanswered “yes” to b o th special-issue ques

tions, and Smith was sentenced to death. C Post-T rial Proceedin gs The State does not co ntest the validity of Smith’ s chal

lenge to the special issues in his pretrial mo tion. It do es contend tha tsince Smith did not object to the n u llification charge, his state habea s petition r e sts on an unpreserve d claim, namely that th e nullificati o n charge excluded his mitigating evidence. The State’ s formulation of the fed

eral right cl aimed by Smith, a formulation accepted by the Court of Cr iminal Appeals, is based on an incorrect rea d

-7 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt ing of feder a l law and this Court’s precedents. Consider

ing Smith’s first t w o pr etrial motions together, as the trial court did, it is evident Smith’s objection was that t h e special-issu e frameworkviolated the Eighth Amendment because it prevented the court from formulating jury instructions that would ensure adequate consideration of his mitigating evidence. This framework failed because the special issues were too narr o w, the tri al court w a s unable to promulgate a new catch a ll special i ssue, and the Texas courts did not define “delib erately” in broad term s. The State i s correct th at this was an objection based on Penryerror, not one based on the confusion caused by th e nullification instruction. A review o f Smith’ s post-trial proceedings shows that the central argument o f his habea s petition, and the basis for this Court’s decision in Smith I , is the same constitu

tional error asserted at trial. 1 Dire ct A ppe al On direc ta ppeal from the trial co urt, Smithr e newed his argument that the special issues were unconstitutional: “[I]n [Penry I], the Supreme Court held that there was an Ei ghth Ame[n]dmen t violation where there was mitigating evidence not relevant to the special verdict que stions, or that had rel e vance to the defen

dant’s moral culpability beyond the scope of the spe

cial verdict questions, and the jury instructions would have provided the jury with no ve hicle for expressing its reasoned moral response to that evidence.

. . . . . “By its ex t r emely narrow interpr e tation of the re

quirements of Penry , this Court has unconstitution

ally narrowed the sentencer’s d i scretion to consider relevant mitigating evidence

. . . . The special issues

. . . do not i nreality provide a vehicle for individual

-8 SM ITH v. TE XAS Opinion of t h eCourt ized consid eration of the appropriateness o f assess ment of the death penalty and [the article establishing them] is unconstitutional as applied.” 1 App. 133– 134. Both the C o urt of C r iminal Appeals, in its most recen t opinion, an d the State, in it s b r i e f o ndi re ct appeal, recog

nized Smith’s pretrialmotions p r eserved th is argument. 185 S. W. 3d, at 462, and n. 9 (holding Smith’s directappeal argu ment that “the jury wa s unable to give effect to his mitigating evidence in answering the special issues” was “based upon his pretrial motion”); Brief for Texas in No. 71,333 (Tex. Crim. App.), p. 6 2 , Record 6 74 (“[Smith ] reiterates his [pretrial] claim that the statute is unconsti

tutional as applied si nce it fails to provide an effective vehicle for the jury to apply mitiga ting evidence”). In its opin i o n affirmin g th e sentence on direct revi e w the Court of Criminal Appeals held that the “instruction complied with Penrya n d provide da sufficient vehicle for the juryto consider any mitigati ng evidenc e[Smith] of

fered.” Sm ith v. Sta t e , No. 71,333 (Tex. Crim. App., Jun e 22, 1994), p. 11, 1 App. 147. 2 First and Second State Habeas In 1998, Smith sought state hab eas relief. Under state law the petition was untimely. The Court of Criminal Appeals, over a dissent , rejected an argument that neglect by Smith’s counsel merited equi table tollin g. Ex parte Smith , 977 S. W. 2d 61 0 (Tex. Cri m . App. 19 98) (en banc); see id. , at 614 (Overs treet, J., dissenting). Texas then amended its filing rules to all o w the exception the Court of Criminal Appeals had declined to create. The statuto ry change permitted Smith to file for habeas reli ef. Smith filed his second habeas petition before this Court’s deci sion in Penry II

. He ar gued once more that the special issu es were inadequate: “In Penry [I], the Supreme9 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt Court .

. . held that t h e former Texas capit a l sentencing statute did not provide an ade quate vehicle for expressin g its reasoned moral response to[ m itigating] evidence i n rendering its sentencing decision .” Application for Writ of Habeas Corpus Pursuant to Section 4A of Article 11.071 of the Texas Code of Criminal Procedure in No. W91–22803 – R(A) (Tex. Crim. App.), p. 191, Record 193 (in t ernal quota

tion marks omitted). Smith acknowledged th e trial court tried to solve the pro b lem with the nullific ation charge, but he explained that “[i]t confounds comm on sense to suggest jur o rs—who are sworn to tell the truth—w ould ever understand that they were authorized to answer [special-iss ue] questions falsely.” Id. , at 193, Record 19 5. Smith conti nued: “Nothing in the specialissues the m selves l i n k ed the ‘nullification’ instructi on to the specific q u estions asked; nothing in the special is s u es themselves au

thorized th e jury to co nsider mitigating evid ence when answering the question s ; nothing i nthe special issues themselves authorized the jury to answer the ques

tions ‘no’ when the truthful answer was ‘yes’; in short, nothing in the special issues permitted the jur yto ap

ply the ‘nullification’ instruction.” Id. , at 194, Record 196. Smith conceded he had not objected to the nullification charge but confirmed that hehadchallengedthe special

issues statute and tha t the Court of Criminal Appeals had reached the merits of this claim on direct revie w . The State, relying upon a pr ocedural bar different from and indeed contradict ory to the one it now raises, r e sponded that “[t]his cl aim [was] procedurally barred as it was both raised and decided on the merits on direct ap

peal.” 1 App. 156; see also id., at 157 (describing Smith’s position as an “identical complaint” and a n“identica l argument” to his claim on di rect appeal). The State con

-10 SM ITH v. TE XAS Opinion of t h eCourt tended, in the alternative, that Smith’s position was meritless b e cause the nullification charge cu red any prob

lem with the special issues. Re spondent’ s Original An

swer and Response to Applicant ’s Application for Writ of Habeas Corpus in No. W91–22803 –R(A) (Te x . Crim. App.), pp. 136–139, Record 467–470. The state trial court denied habeas relief on the groun d Smith was procedura lly barred from raising the same claim denied on direct review absent “a subse q uent chan ge in the law so as to render the judgment void

. . . .” Ex parte Smith , No. W91 –22803–R, 86–87 (265th Dist. Ct. of Dallas Cty., Texas, Apr. 5, 2001). 3 Appeal f rom the Deni al of Sta t e Habeas Reli ef While Smith’s appeal from the sta t e trial cou rt’s denial of his second habeas petition was pending, this Court decided Penry II

. Smith filed a brief in the Court of Criminal Appeals explaining the relevance of Penry II to his habeas claim. He noted that the special-issue ques

tions in his case were for all relevant pur p oses the same as those in Pen r yI I

. Applicant’s Brief for Submission in View of the United States Supreme Court’s Opinion in Penry v. Johnsonin N o . W91–228 03–R (Tex. Crim. App.), pp. 4–5. He maintained the nu llification charges were also indisti n guishable, id. , at 5– 6, and had in Penry II been held insufficient “to cu re th e error created by th e Special Iss u es.” Appli c ant’s Brief for Submis sion, at 6–7

. Smith concl u ded by explaining that the proce d ural bar for raising an issue already resolved on direct review did no t apply “whe r e an intervening legal decision renders a previously rejected claim meritorious.” Id. , at 12 (citin g Ex parte Drake , 883 S. W. 2d 213 , 215 (Tex. Crim. App. 1994) (en b anc)). (We note the Court of Crim inal Appeals recently ad opted this position. See Ex parte Hood , 211 S. W.3d 767, 775-778 (Tex. Crim. App. 2007).)11 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt The Court of Criminal Appeals ordered supplemental briefing on the relevance of Penry II

. Given that Penry I I addressed the sufficiency of a nullification charge as a cure for in adequate special issues, Smith’s supplemental brief concentrated on the same issue. Nevertheless, his central argument remained that he “presented significant mitigating evidence th at was virtually indistinguishable from Penry’s and thus undeniably beyond the scope of the special iss u es.” Applicant’s Su pplemental Briefing on Submissionin No. 74,2 28 (Tex. Crim. App.), p. 12 (herein

after Applicant’s Supp. Briefing). The nullific ation charge was inadequate as well, in his view, because, based on the ethical dilemma, “there is a reas onable probability that the nullific ation instruction .

. . precluded [a juror wh o found that Smith’s personal culpab ility did not warran t a death sentence] from expre ssing that conclusion.” Id. , at 13. Alternatively, Smith argued he was “also entitled t o relief under Penry II ” because “[e]ven if the jury migh t have been able to giv eeffect to some of [his] mitigating evidence within the scope of [the] special issues, the con

fusing nullification instruction itself” may have prevented the jury fro mdoing so. Id. , at 14. As such, the nullifica

tion charge was “worse than no in struction at all.” Id

. , at 15–16 (emphasis deleted). The State responded that the special issues were ade

quate and, furthermore, that the null i fication charge, unlike the charge in Pe nr y II , cured any prob lem. State’s Brief in No. 74,228 (T ex. Crim. App.), pp. 2 –11. In re

sponse to Smith’s second argu ment the State contended “i t tests the bounds of reason to grant [Smith] re lief based on a good-faith attempt t ogive him a supplemental instruc

tion to which he was not constitutionally entitled.” Id. , at 11. Inrepl y Smith reiteratedhis two distinct arguments, devoting most of the brief to his original trial objection. Applicant’s Reply to Respondent ’s Response to Applicant’s Brief for Su bmission inNo. 74,228 (Tex. Crim. App.).12 SM ITH v. TE XAS Opinion of t h eCourt The Court of Criminal Appeals de nied the habeas peti

tion. It found no Penry error, reasoning that the special issues were adequate to consider the mitigating evidence. Ex parte S m ith , 132 S. W. 3d, at 412–415. Any eviden ce excluded fr om the purview of the jury, the court indicate d, was not “co nstitutionally significant.” Id., at 413, n. 21. In the alternative the court held the nullifi c ation charge and the argument at trial were distinguishable from those at issue in Penry II

. In Smith’s case, the court reasoned, the nullific ation charge would have been an adequate cure even if the special issu es were too narrow. 132 S. W. 3d, at 416–417. The majority did not adopt or address the reasoning of the two concurring opi n ions, which argued th at Smith had procedurally defaulted his “Penry II claim” b e cause while he had obj e cted to the special issu es at trial, he had not objected separately to the nullifica t ion charge. Id. , at 423– 424 (Hervey, J., concurring); id. , at 428 ( H olcomb, J., concurring). 4 Smith I The ruling of the Court of Criminal Appeals in Smith’s second state habeas pr oceeding was reversed by this Court in Smith I

. The Court’s summary disposition first rejecte d as unconstitutional the Texas court’s sc reening test f o r “constitutionally significant” evidence. 543 U. S., at 43 – 48; see al so Tennardv. Dre tke , 542 U. S. 274 (2004). The Smith I Court ne xt observed that altho u gh Smith had presented relevant mitigating evidence, the jury’s consideration was “tied by law to findings of deliberat e ness and future dangerousness tha thad little, if anything, to do with” that evidence. 543 U. S., at 45, 48. There wa s, in other words, a Penry error. As a final matter, despite differences between the nullif ication charges in Smith I and Penry II , the variances were “constituti onally insig

-13 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt nificant” because “Penry [II] identi fied a broad and intrac

table probl e m.” 543 U. S., at 46, 47 (citing Penry II , 532 U. S., at 79 9–800). The nullificati o n charge was therefore inadequate under Pen r y II

. The judgment was revers ed and the case remanded. 543 U. S., at 48–49. 5 Remand Following Sm ith I On reman dSmith’s brief urged that harmless-error review was inappropriate because under the nullification charge the jury proceedings became capricious. See Appli

cant’s Brief on Remand in No. 74,228 (Tex. Crim. App.), pp. 8–18. The State responded that Smithwas proce durally barred because he waited to raise his allegation of “jurychar g eerror” un der Penry I I

until the second state habeas peti tion nine years after his conviction. State’s Brief on Remand in No. 74,228 (Tex. Crim. App.), pp. 1, 2 (hereinafter State ’ s Brief on Remand). The State main

tained this was an adequate and independent state groun d for denying relief. Ibid. Smith’s motion and direct appeal, the State said, had been based on a challen g e to the stat

ute setting forth the sp ecial issues, not to the j u ry cha r ge. Id. , at 5–6. The State also mainta ined that th is Court had not address e d whether the special issues were “a sufficient vehicle for the juryto give e ffectto [Smith ’s] mitigation evidence.” Id. , at 12–16. Smith repli e d to the procedural-bar argument by notin g he had “consistently raised his claim regardin g the inade

quacy of the specialissues to permit constitutionally adequate consideration of his mitigating evidence and th is Court has consistently addressed the merits of [that] claim.” Applicant’s Reply Brief on Remand i nNo. 74,22 8 (Tex. Crim. App.), p. 1. The Court of Criminal Appeals denied relief. The court’s conf usion with the interplay between Penry I an d Penry II is evident from the beginning. Re asoning that14SM ITH v. TE XAS Opinion of t h eCourt “[t]he Supr eme Court did not add r ess our conclusion that the two special issues provided [S mith’s] jurywith a con

stitutionall ysufficient vehicle to give effect to his mitigat

ing evidence,” 185 S. W. 3d, at 463 (internal quotation marks omitted), the court agai n concluded that the specia l issues were adequate, id. , at 4 64–467. Nevertheless, because of its “uncertai n ty” rega rd ing this Court’s Pen r y II jurispruden c e, the Court of C r iminal Appeals went on t o “assume, for the sake of argument, that at least some of [Smith’s] e vidence wa s not fully encompassed bythe t w o special issu es” and tha t “ the jurycharge in t h is case wa s constitutionally deficient under Penry II .” 185 S. W. 3d, a t 467. The Court then applied the frameworkof Al ma nzav. Sta t e , 686 S. W. 2d 15 7 (Tex. Crim. App. 19 84) (en banc), to Smith’s claim of error. Under Almanza , Smith needed first to show instruc t ional error. Havingassumed Smit h had done so, the courtnext askedwhether t h e error wa s preserved for review. If so, Smith would need to establish some “actual,” not merely theoretical, harm resulting from the error. If Smith had not preserved the error, by co n trast, he would need to establish not merely some harm but also th at the harm was egregious. 185 S. W. 3d, a t 467. The court found Smith had not preserved his claim of instructional error. Smith’s only objection at trial, rea

soned the state court, was that th e statute authorizing th e special issu es was unconstitutional in light of Penry I

. 18 5 S. W. 3d, a t461–462, and n. 8. This objection did no t preserve a challenge to the nullif ication charge based on Penry II , so Smith was required to show egregious harm. That showing had not been addressed by this Court’s holding in Smith I , th e Court of Criminal Appeals indi

cated, because this Court only required that Smith dem

onstrate a reasonable probability of harm. In the view of the Court of Criminal Appeals there was little lik elih oo d15 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt that Smi t h’s juryhadfailed to consider th e mitigating evidence. 185 S. W. 3d, at 468– 473. On th is basi s th e court concluded Smith had fa iled to show egregious harm and, as such, habeas relief was foreclosed. We granted certiorari. 549 U. S. __ (2006). II A The special issues thro ugh which Smith’s jury sentence d him to dea t h did not meet constitutional standards, as held in Penry I ; and the nullif ication charge did not cure that error, as held in Penry II

. This was confirmed i n Smith I

. The Court of Criminal Appeals on remand denied relief, nonetheless, ba sed ontwo determinations: first, that Smith’s federal cl aim was not preserved; second, as a result, that Smith was required by Almanzato show egregious harm. As ageneral matter, and absent some important exceptions, when a s t ate court denies rel i e f because a party failed to comply with a regu larly applied and well-es tablished st ate procedural rule, a f e deral court will not consider that issue. Fordv. Geor g ia , 498 U. S. 411, 423–42 4 (1991). Smith disputes that the application of Almanzaon state habeas review is a “firmly established and regularly fol

lowed state practice.” Jamesv. K e ntucky , 46 6 U. S. 341, 348–349 (1984). The State a r gue s it is. We may assum e the State is correct on this point, for in our view the predi

cate finding of procedural failure that led th e Court of Criminal Appeals to apply the he ightened Almanzastan

dard is based on a misi nterpretati o n of federa l law. The State and the Court of Criminal Appeals read Smith I as having reversed because the nullification charge “p r e vented giving effe ctto [Smith’s] mitigating evidence be cause it placed the ju rors in an unconstitu

tional ethic a l quandary.” Brief for Respondent 28. It is true Smith ’ s second s t ate habeas petition included an16 SM ITH v. TE XAS Opinion of t h eCourt argument that the null i fication charge itself prevented th e jury from considering his mitigating evidence

. This, how

ever, was not the only, or eventhe primary, argument h e presented to the Court of Criminal Appeals and this Court. As d e tailed above, Smith’s c e ntral objection at each stage has been to the s p ecial issue s . In Smith I , this Court agreed th e special issues were inadequate and so reve rsed the Co urt of Crimi nal Appeals. In challenging the spe c ial issues Smith did contend th at the nullification charge was flawed. This Court engaged in much the same ana l y sis. That analysis was only neces

sary, however, because the Court of Criminal Appeals had twice rejec t ed Smith’s claim of Penry error b a sed on the mistak en idea that “regardless of whether [Smith’ s ] miti

gating e vidence was be yond the scope of the two statutory special issu es, the judge’s extensive supplemental [nullifi

cation] instruction pro vided a su fficient vehicle for th e jury to consider all of [Smith’s] m i tigating ev idence.” Ex parte Smith , 132 S. W. 3d, at 410

. In other words Smit h argued, and this Court agreed, that the special issu es prevented the jury from considering his mit i gating evi

dence; and the nullifi c ation charge failed to cure that error. In its opposition to certiora r i in SmithI , the State understood that under Penry II it was the special issues , not the nullification charge, that created th e error. See Brief in Opposition in Smith v. Texas, O. T. 2 004, No. 04– 5323, p. 17 (“In essenc e, the [null i f ication] ins truction did not crea tenew error; rather, the instruction simply failed to corre ctth e error identified in Penry I ”). The Court of Criminal Appeals’ mistaken belief that Penry II , and by exte nsion Smith I , rested on a separate error arising from the nullific ation charge may h ave stemmed from Smith’ s use of the term “Pen r y II error” in his supplemental brief and from this Court’s citation t o Penry II , r a ther than Penry I , in Smith I

. Applicant’s Supp. Briefing 11. Smith’s labeling of the claim in his17 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt supplemental brief, however, did not change its substance. See Ex parte Caldwell , 58 S. W. 3d 127, 130 (Tex. Cri m . App. 2000); Rawlin gs v. Sta t e , 874 S. W. 2d 7 40, 742 (Tex. App. Fort Worth 1994). And this Court’s reference to Penry II , rather than Penry I , ha s been explained above. As the parties’ post-trial filings, the state courts’ judg

ments, and this Court’s decision in Smith I make clear, Smith challenged the s p ecial issu es under Penry I at tri al and did no t abandon or transform that claim during h i s lengthy post-trial proce e dings. After Smi t h I , the State argued for the first time that Smith’s pretrial moti ons, and h i s argument on direct appeal, raised a “stat u tory” com p laint about the entir e Texas death penalty scheme different from his current theory. State’ s Brief on Remand 6. The State expanded on that claim in its arguments to this Court, in which it suggested Smith made a strategic decision to launch a broad attac kon the st ate system rather thanattempt to obtain adequate instructions in his own case. Brief for Respondent 28, 32–33; Tr. of Oral Arg. 40. Regardless of how the St ate now ch aracterizes it, Smith’s claim was treated by the Court of Criminal Appeals as a Penry chal

lenge to the adequacy o f the special issues in his case, and that is how it was treat ed by this Court in Smith I

. The Court of CriminalAppeals on remand misunder

stood the interplay of Pe nr y I and Penry II , and it mistook which of Smith’s claims furnished the basis for this Court’s opi n ion in Smith I

. These errors of fe deral law led the state court to conclude Smith had not preserved at trial the claim this Court vindicate din Smith I, even when the Court of Criminal Appeals previously had held Smith’s claim of Penry error w a s preserve d. The s t at e court’s err o r of federal law cannot be the predicate for re quiring Smi t h to show egregious har m. Akev. Oklahoma , 470 U. S. 68, 75 (1985).18SM ITH v. TE XAS Opinion of t h eCourt B Under Alm a nza , once Smith established the existence of instructional error that was preserved by a proper objec

tion, he needed only to show he suffered “someharm” fro m that error. In other wo rds re lief should be gra n ted so long as the error was not harmless. 6 86 S. W. 2 d , at 171. It would appear this lower standard applies to Smith’s pre

served challenge to the special issu es. The Court of CriminalAppeals explained in its recent decision in Penry v. State, 178 S. W. 3d 782 (2005), that once a state habeas petitioner es tablishes “ areasonabl e likelihood that the jury believed that it was not permitted to consider” some mitigating evide n ce, he has shown tha t the error was not har mless and therefore is grounds for reversal. Id., at 786–788 (citing Boydev. California , 4 94 U. S. 370 (1990)). We note that the Court of Criminal Appeals stated in dicta in this case that even assumin g Smith had establishedthat there was a reas onable prob

ability of error, he had not shown “ ‘actual ’ harm,” 185 S. W. 3d, at 468, and therefore would not even satisfy the lower Almanza standard. We must assume that this departure f r om the cle a r rule of Penry v. Sta t eresulted from the state court’ s confusion over our decis i on in Smith I

. The Court of CriminalAppeals is, of course, r e quired to defer to our finding of Penry error, which is to say our finding tha tSmith ha s shown there was a reasonab le likelihood that the jury interpreted the special issu es t o foreclose a d equate consideration of his mitigating e v i

dence. See Johnsonv. Texa s , 509 U. S. 350, 367 (1993). Accordin gly , it appear s Smith is entitled to relief under the state harmless-error framework

. * * * In light of our resolution of this case, we need not reach the question whether the nullifica t ion charge resulted in a19 Cite as: 55 0 U

. S. ____ (2007) Opinion of t h eCourt separate jury-confusion error, and if so whether that err o r is subject to harmless-error review. For the reasons we have stated, the judgm e nt of the Court of C r iminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion

. It is so orde red._________________

_________________ 1 Cite as: 55 0 U

. S. ____ (2007)
S OUTER , J ., co ncu rrin g 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 13 04
LAR O YCE LAT H AIR SMITH, P E TITIONE R v. TEXA S ON WRIT OF CERTIORARI TO THE COUR T OF CRIM I NAL APPEAL S OF TEXAS [Apr il 25, 20 0 7 ] J USTICE S OUTER , concu rring. I join the C o urt’s opinion. In some later case, we ma y b e required to consider whether har mless error review is ever appropriate in a case witherror as described in Penryv. Lynaugh , 4 92 U. S. 30 2 (1989). We do not and need not address that question h e re._________________

_________________ 1 Cite as: 55 0 U

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ALITO , J., dissenting 

## SUPREME CO URT O FTHE UNI TED STATES

No. 05–1 13 04
LAR O YCE LAT H AIR SMITH, P E TITIONE R v. TEXA S ON WRIT OF CERTIORARI TO THE COUR T OF CRIM I NAL APPEAL S OF TEXAS [Apr il 25, 20 0 7 ] J USTICE ALI T O , with w h om T HE C HIEF J USTI CE , J USTI CE S CALI A , and J USTICE T HOMASjoin, dissenting. The issue i nthis case is less complicated than the opin

ion of the C o urt sug g ests. The fed e ral constit u tional error that occurred at the penalty phase of petitioner’s trial and that was id entified in Smithv. Texas , 543 U. S. 37 (2004) (per curiam ) (Smith I) , concerned a flaw in the jury in

structions: Specifically, the instructions did not give th e jury an adequate opportunity to take some of petitioner’s mitigating evidence into a ccount. This error could hav e been avoided by changing the in structions. Indeed, our opinion in Penryv. Lynaugh , 492 U. S. 302, 322–3 23 (1989) (Penry I) , rather pointedly discussed how proper instructions might be crafted. But defens e counsel— facing evide n ce of aggravating fa ctors that mi ght ha ve led the juryto return a de ath ve rdic t no matter what instru c tions were given—nev e r objected to the text of the instruc

tions and declined the trial judge’s invitation to suggest modifications, choosin g instead to argue that PenryI precluded T e xas from applying its death penalty statu t e to petitioner at all. As a result of this failure to object, the Texa s Court o f Criminal Appeals (TCCA), in the decision now under review, Ex parte Smi t h , 185 S. W. 3d 455 (2006), held that petitioner could not ov erturnhis death sentence without surmounting a Texas rule that is analogous to the federal2 SM ITH v. TE XAS
ALITO , J., dissenting “plain error” rule. See United S t atesv. Ola n o , 507 U. S. 725, 731 (1 993). Under this Texas rule, ad opted in Al

manza v. State , 686 S. W. 2d 157, 171 (Tex. Crim. App. 1984) (en banc), a criminal defendant who fail s to object to a jury instruction cannot obtain a reversal simply on th e grounds th at the instruction was erroneous and the erro r was not harmless. Rather, the defendant must meet the heightened standard of “egregious harm.” Id. , at 17 4. Finding th at the erro r in petitio n er’s case did not me et this heightened standard, the TCCA held th at petitioner’s sentence must stand. 185 S. W. 3d, at 467. Because petitioner failed to raise an objecti on to the trial court’s attempt to cure the federal constitutional defect in the “special issues,” the TCCA was entitledto apply its s tricter Alm a nzarule, an altogether common

place type of procedural rulethat represents an adequate and independent state-law ground for the TCCA’s deci

sion. Accordingly, I would dismiss for want of j u risdiction. I A At the time of petition er’ s trial, Texas statutes provided that the jury at the pe nalty phase of a capital case had to answer two (and in some cases, three) questi o ns, known as the “special issues.” 1 The two questions tha thad to be answered in every cas ewere “(1) whethe r the condu ct of the def e ndant thatcaused the death of the deceased was committed deliberately and with the reasonabl e expectation that the death of the deceased or another would result; “(2) wheth e r there is a probability that the defendant

——————

1 A th ir d “spec i al issu e” app l i e s w h e n th e ev iden c e r a ises th e qu estion whether the killing was provoked by th e de ceased. See T e x. Code Crim

. Pr oc . An n., Ar t. 37.07 1, §(2 )(b) (Ver n o nSu pp. 19 92). Inpetit i on er ’s c a se, th at “spe c i al issu e” w a s in applic able.3 Cite as: 55 0 U

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ALITO , J., dissenting would commit criminal acts of violence that would cons ti tu te acon tinui n gth rea tto s o ciety. ” Te x. Code Cri m . P r oc. Ann ., Art. 3 7 .071 , §§2 (b )(1) an d (2) (Ve r non Su pp. 19 92). If the jury found unanimously that the answer to all the “special issues” was “ y es,” then the death sentence was imposed; otherwise, the sentence was life im prisonment. Art. 37.071(2)(e). In Jurekv. Texa s , 428 U. S. 262 (1976), the Court up

held the facial constitutiona lity of this sch e me, but i n Penry I , decided in 1989, the Court held that use of thi s scheme in Penry’ s case violated the Eighth Amendment because evi d ence of Pe nry’ s me nta lretardation and severe childhood abuse did not fit adequately into any of the “special issues” as submitted to t h e jury. With respect to the first of the “special issues,” the Court discussed at some length the possibility that an instruction broadly defining th e requirement of deliberateness might ha ve permitted s u fficient considerat ion of Penry’s mental retar

dation and abuse. The Court wrote: “In the abs ence of jury instructions defining ‘deliber

ately’ in a way that w o uld clearly direct the jury to consider fully Penry’s mitiga ting evidence as it bears on his personal culpability, we can n ot be sure that the jurywas ab le to give ef fect to the mitigating evidence of Penry’s mental retardation and history of abuse in answering t h e first spe c ial issue. Without such a spe

cial instruction, a juror who believed that Penry’s re

tardation a n d backgro und diminished his moral cul

pability and made imposition of the deathpenalty unwarran t ed would be unable to give effect to tha t conclusion if the juror al so b e lieved that Penry com

mitted the crime ‘deliberately.’ T hus, we ca nnot be sure that the jury’s answer to the first spec ial issue reflected a ‘reasoned moral response’ to Penry’s miti

-4 SM ITH v. TE XAS
ALITO , J., dissenting gating evidence.” 492 U. S., at 322–323 (emphasis added). Petitioner’s trial took place in 1991—that is, after Pen r y I

but before Penryv. Johnson , 532 U. S. 782 (2 001) (Penry II)

. At the guilt phase, petitioner was found to have com

mitted an exceptionally brutal a n d coldblooded murder. Petitioner, a former employee of a fast food restaurant, went wi th some friends to the r e staurant after closing hours when the employees were cleaning up and ask e d to be admitted to use the phone. The teenage sh ift manager, Jennifer Soto, let h i m in and gr eeted him with a hug. Petitioner followed her to he r offi ce and de manded th e combination of the safe. Soto told him she did not kno w the combin ation, but p e titioner beat her on th e head with the butt of a gun, de manding th e combination and con

tinuing until the gun h andle fell of f. Petitioner then shot Soto in the back, grab bed a knife from the kitchen an d inflicted w hat were d e scribed attrial as nu merous “ ‘to r ture’ woun ds,” and fi nally slit her throat. Brief for R e spondent 1. At the penalty phase, the prosecution reli ed o nevidence showing the brutal nature of the murder, as well as peti

tioner’ s history of violence. The defense off e red mitigation evidence, including some thatloosely resembled Penry’s, specifically low IQ and eviden ce of possible or ganic learn

ing and speech disorders. As the Cou rt relates, prior to tri al petitioner’s at torney contemporaneously filed three motions. The first, citin g Penry I , argued that the “special is sues” provided the jury with an in adequate vehicle to consider the mitigating effect of petitioner’ s age, and asked the court to declare the Texas capi tal sentencing sche me unconstitutional as applied to petitioner. 1 App. 7– 10. The second motion, also citing Penry I , likewise argued that the Texas death penalty wa s “unconstitutional because it does not pro vide5 Cite as: 55 0 U

. S. ____ (2007)
ALITO , J., dissenting for the introduction and subsequent use by the jury o f mitigating evidence which is not relevant or material to the special issues.” 1 App. 13. Neither motion requested that the tr ial judge give jury instructions bringing th e Texas scheme into compliance with the Eighth Amend

ment. Rather, petitioner’ s counsel argued that the judge could not provide “ any instru ctionwith rega r dto mitiga t

ing evidence” that would obviate th e constitutional prob

lem. Id., a t9 (emphasis added). The trial judge denied both these motions. In the thirdmotion, petitioner’s counsel asked for a co p y of the “miti g ation instructio[n]” that the court planned to give. Id., a t17–19. This motion anticipated that the tri al court wouldissue an instructionto “attempt t oresolve the [Penry I] pr oblem.” Id., at 18. The court granted thi s motion and invited defense counsel to offer suggest ed revisions. But although Penry I had explained how the jury instru ctions might be mo difi ed to obvia t e the erro r found in that case— i.e. , by bro a dly defining the term “deliberatel y” in the first “special issue,” 492 U. S., at 32 2– 323,—and despite the fact that all involved understood that the trial judge’s proposed instruction wa s intended t o cure the Pe nr y I pro b lem, petitioner’s counsel did not object thatthe proposed mitigation instructions were inadequate to cure the defect in the “spe cial issues. ” Rather, fac e d with th e aggr a v ati n g factors noted above, petitioner maintained that any submission of the “special issues” to the jury, regardle ss of any additional in struc

tions given, would violate Penry I

. Hearing no objection t othe instructions, the trial judg e went ahead and ga ve the instru ctions that he had pro

posed. After instructing the ju ryon the relevant “speci al issues,” the judge also gave a supplemental “mitigation” or “nullification” instruction. This instruction to ld the juror s that they s h ould take into account any evide n ce that th ey viewed as mitigating and that if this evidence convinced6 SM ITH v. TE XAS
ALITO , J., dissenting them that the defendant shouldnot be sentenced to death, they should answer “ n o” to one of the “special issues.” Instructed i nthis way, the ju ry ret u rned a death verdict. As our sub s equent opinions in Penry II an d Smi t h I held, the “nullification” instruction did not obviate th e problem found in Penry I

. Similar instructi ons were at issue in both Penry II and Smith I , and in both cases the Court held that this approach was flawed, noting that th e instructions on the “sp e cial issues” and the s u pplemental or “nullification” instructions were conflicting and that th e conflict cre ated an “et h ical problem” for the j u rors because they were “ ‘essentially instructed t o return a f a lse answer to a special issue in order to avoid a death sentence.’ ” Smith I , 54 3 U. S., at 47–48 (quoting Penry II, supra , a t 801). On remandafter Smith I , the TCCA, in th e relevant portion of its opinion, addressed the questi on whether petitioner was entitled to re versal of h i s d e ath sentence based on the federal constitutional error found in this Court’s pe rcuriam opinion. 185 S. W. 3d, at 467–468. The TCCA, having noted that petitioner did not object to the nullific ation instruction, id. , at 461, applied the unpre

served error prong of its Almanzarule, which represents the TCC A’s interpret a tion of a provision of the Tex a s Criminal Code addressing the review of claimed errors in jury instru ction. 185 S. W. 3d, at 467–468. Under Al

manza , once it is established that there was error in a jur y instruction,

“ ‘the next s t ep is to ma ke an evide n tiary review .

. . as well as a review of any other part of the record as a whole which may illu minate the actual, not just theo

retical, har m to the ac cused.’ If t h e defendant failed to object to the jury ch arge, he must show that the er

ror caused him such egregious harm that he did not have ‘a fair and imparti al trial.’ ” 1 85 S. W. 3d, at 4647 Cite as: 55 0 U

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ALITO , J., dissenting (quoting Almanza , 686 S. W. 2d, at 174). Finding th at the error in this case had not produced t h e requisite “egregious harm,” the TCCA he ld that pe ti

tioner’s death sentence must stand. B The Courttoday concludes that the federal constitu

tional error that we identified in Smith I was the very error that petitioner asserte d in his pretrial motions, ante , at 7, but this holdingis incorrec t

. While petitioner di d argue thatthe “speci al issues” precluded t h e jury fro m considering his mitigat i ng evidence, he never argued that the trial ju dge’s p r oposed instruct ions were insufficient to cure that defect. It wa s perfectly reasonabl e for the TCCA to hold that , by failing to object to the cure, petitioner has not preserv e d a claim that the cur e was ineffective. This case p e rfectly illu strates the wisdom of s u ch a rule. We have never held th at no instru ctionis cap able of curing the Penry I problem with the “special issues.” Indeed, we have sugge sted that the problem could have been avoided if the trial judge had n o t instructe d the jur yt ogive a false answer to one of the “special issues” but had i n stead taken the course discussed i n Penry I —defining the term “delib

erately” as used in the first “special issue” in a wa y tha t was broad enough to permit co ns ideration of the relevant mitigating evidence. 492 U. S., at 322–323. However, the trial court never thought to ta ke this route because peti

tioner never argued th at the nullification instruction wa s inadequate to satisfy federal law. Preventing the TCCA from applyi ng plain-err o r review inthese circu mstances is tantamount to holding that petitio n er had afederal right to sandbag the trial court. II Once it is recognized that petitioner did not preserve an objection to the federal adequacy of the trial judge’s pro

-8 SM ITH v. TE XAS
ALITO , J., dissenting posed instructions, there are seve ral remaining questions that must be considered. Because the Court does not address these, I addres s them in abbreviated form. A The first is whether the TCCAwas precl u ded fro m applying the Almanzarule in the decision now under review because the TCCA did n o t invoke that state-la w ground in Ex parte S m ith , 132 S. W. 3d 4 07 (2004), the decision that was reve rsed by this Court in Smi t h I

. Peti

tioner accuses the TCCA of engaging in “an impermissible ‘bait and switch,’ ” “a n unacceptable manip u lation of i t s proceduralrules to defeat this Court’s a d judicationof [petitioner’s] Penryclaim,” and “nothing less than an opportunistic invocation of state law to avoidcompliance with this Court’s decision.” Brief for Petitioner 43–44. This argument unjustifiably impu gns the good faith of the TCCA and rests on a fundamentally flawed premi s e, namely, that the majori ty of the TCCA in its 20 04 decision tacitly hel dthat pet i tioner’s claim regard ing the ju ry instructions had been fully preserved. In th e 2004 deci

sion, however, the TCCA majority said nothing whatso

ever on this point, choosing instead to rejectthe claim on the merits. While four concu rri ng jud g es argued tha t petitioner had procedu r ally defaulted this claim, Ex parte Smith , 132 S. W. 3d, at 423–424 (opinion of Hervey, J.); id. , at 428 (opinion of Holcomb, J.), the majority did not respond and was un der no obligation to do so. Nor wa s the majority under any obligation to decide the preserva

tion issue b e fore addressing the m e rits. There are a few nonmerits i ssues that a court mu st address before pro

ceeding to the merits, see, e.g. , Steel Co. v. Citizens fo r Better Envi ronment , 523 U. S. 83 (1998) (holding that a federal court generally must assu re itself of its jurisdiction before proceeding to t h e merits), but petitio n er does not argue thaterror-pres ervation is regarded in this way9 Cite as: 55 0 U

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ALITO , J., dissenting under Texa s law. In the abs ence of an y legal obl i gation to consider a preliminary nonmerits issue, a court may cho o se in some circumstan c es to bypass the preliminary issue and rest its decision onthe merits

. See, e.g. , 28 U. S. C. §2254(b)(2 ) (federal habeas court may reje ct claim on merits without reaching qu estion of exhaustion). Among other things, th e court may believe thatthe merits question is easier, an d the court may think that the pa rties and t h e public are more likely to be satisfied thatjustice has been done if the decision is based on the merits i n stead of what may be viewed as a legal technicality. Thus, the TCCA’s 20 04 opinion can n ot be rea das holdin g that petitioner’s jury instructions argument was unencumbered with procedural defects or limitations. Even if th at earlier TCCAdeci sion did not hold that petitioner’s jury inst ructions argument was properly preserved, petitioner suggest s that where a state court originally rejects a federal claim on the merits and that decision is reversed bythis Court, the state c o urt may n o t impose the state-law procedural bar on remand to reach the same result. But whether it m a y be advis able for state courts to a pply sta t e l a w befo re r e aching fed e ral constitu

tional ques t ions, see Massa chuse tts v. Up t o n , 466 U. S. 727, 736 (1 984) (S TEVENS , J., con c urring in j u dgment), we have never held that States are required to follow this sequence. And in cases in which this Court has reversed a state-court decision based ona possible federal constitu

tional viola t ion, it is not uncommon for the state court o n remand to reinstate the same judgment on state-law grounds. See id. , at 7 35, n. 2. See als o State v. Wed ge worth , 127 P. 3d 1033 (Kan. 2006) (per cu ria m ) (conclud

ing on reconsideration that hearsay statements were unobjected to and harmless); Saldano v. State , 70 S. W. 3d 873, 890 (Tex. Crim. App. 2002) (en banc) (concluding on remand that error confessed in this Court had not been10 SM ITH v. TE XAS
ALITO , J., dissenting preserved for appellate review); Sta t e v. Hallum , 606 N. W. 2d 351, 353 (Iowa 2000) (en banc) (concluding on remand th at defendant had fo rf eited his right to invo ke the confrontation clause becaus e he had procured the witness’ unavailability at trial in the first instance); Ga s kinv. State , 615 So. 2d 679, 680 (Fla. 1993) (holding on remand in a capital proceeding that defendant had failed to object p r operly to u n constitutionally vague aggr avatin g factors instruction); Happ v. State , 618 So. 2d 205, 20 6 (Fla. 1993) (per curiam ) (same); Bookerv. Sta t e , 511 So. 2 d 1329, 1331 (Miss. 1987 ) (en banc) (h olding on remand that defendant failed to obj e ct contemporaneousl y to prosecu

tor’s statem ents). B The secondquestion is whethe r th e Almanza“egr egious harm” s t an dard is an adequate and indepe ndent state groun dsufficient to su pport a sta t e judgmen tthat pre cludes consi d eration of a federal ri ght. Cole m a nv. Thomp

son , 501 U. S. 722, 729 (1991). I a msatisfied that i tis. In order to be “adequate,” a state rule must be a “firmly establishedand regul a rly fo llowed state practice,” an d should further a legitimate state interest. Jam e sv. Ken

tucky , 466 U. S. 341, 3 48–349 (1984). The Almanza “egr e gious harm” rule meets these requirements. In Almanza , the TCCA exhaustively reviewed the history of the Texas statute 2governing objections to jury-cha rge error. 686

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2 At th e ti me o f Almanza , the Texas Code of Criminal Procedure of 196 5 An n o ta t e d, Ar tic l e 3 6 .19, pr ov ided: “Wh e n e v e rit appear s byth e r e c o r di nan y c r i min a l ac tionu p on appeal th at an yr e qu ir emen t [re

ga rding ce rt a i n j ury ins t ru c t ions ] ha s b e en dis r ega r ded, t h e j u dgment s h a ll notb erevers ed unles s t h e erro r a ppea r ing from t h e reco rd wa s c a lc u l ated to in ju r eth e r i ghts of defen d an t, or u n l ess it appear s fr o m the record that the defendan thas not ha d a fair and imp a rtial trial. All objec t ion s to t h e ch ar g ean d to th e r e fu sal of spec ial c h ar g e s sh all be ma de a tt h e t i me of t h e t r ia l.” This provi s ion cont inuesin effect una mended through the p r esent day. See ibid. (Ver n o n 1991 ).11 Cite as: 55 0 U

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ALITO , J., dissenting S. W. 2d, a t160–161. The court concluded that the sta t

ute imposed a two-pa rt standar d : If there was a timely objection a ttrial, the objecting party need show onl y “some harm”; but if no proper objection was made th e party claim i ng error must de monstrate that t h e “error is so egregiou s and created such harm that he has not had a fair and im partial trial—in short, egregious harm.” Id. , at 171 (internal quotati on marks omitted and emphasis deleted). Petitioner argues tha tthe Alm a nzastandard is n o t adequate but rather i s arbitrary and discretionary for three reasons: that it was intended to be applied on dir e c t review, not on habeas review; th at it was i n tended to control only nonconstitutional clai ms; and th at it has no t been applied to Pe nr yclaims. Brief for P e titioner 47, n. 16. None of these grounds is borne out. Immediatel y following Almanza , the TCCA applied it in state habeas proceedings. See Ex parte Tuan Van Truong , 770 S. W. 2d 810, 81 3 (1989) (en banc) (per curiam); Ex parte Pa tterson , 740 S. W. 2d 766, 776–777 (1987) (en banc); Ex p a rte Wh ite , 726 S. W. 2d 149, 150 (1987) (en banc); Ex p a rte Maldo n ado , 688 S. W. 2d 11 4, 116 (198 5) (en banc). 3 Moreover, the TCCA has applied Almanzain cases raisi n g Penry -type claims, which are, of cours e , based on th e Eighth Amendment. See, e.g. , Turner v. Sta t e , 87 S. W. 3d 111, 117 (2002) (showing of “egregious harm” required by statute to support claim that unob

jected-to ju ry-cha rge error res tric t ed jury’s c o nsideration of mitigating evidence); Ov alle v. Sta t e , 13 S. W. 3d 774, 786 (2000) (en banc) (per curi am) (applying Almanzato preserved mitigation charge erro r); Can t uv. Sta t e , 93 9

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3 Petition erar g u es th at Tex a s h a s n o t ap p lied Almanzainh abea s proceedings more rece nt ly. Butpet i t i oner fa ils t ocit e any ca s ewhere Texa s ha s a p plied a more permis s ive form of review t osuch acla i m in state habe as proceedings, nor would it be logical for Texas to afford more deferenti al review in habeas proceedings than on direct re view.12 SM ITH v. TE XAS
ALITO , J., dissenting S. W. 2d 62 7, 647–648 (1997) (en banc) (citing Almanzafor requiremen tthat unobjected-to cl aim of mitigation char ge error is waived but for “egregi o us error”); Coleman v. Sta t e , 881 S. W. 2d 34 4, 356–357 (1994) (en banc) (citin g Almanzain rejecting cl aim of Penryerror); Flores v. Sta t e , 871 S. W. 2 d714, 723 (1993) (en banc) (citin g Almanzain connection with a reverse- Penry error claim, that giving a mitigation charge wa s inappropriate where defendant intentionall yforewent in trodu cing anymitigating evidence). The Alman zarule was adopted in1986, six years prior to petitioner’s 1991 trial. That the TCCA h a s not cited Almanza in every singl ecase re garding jury- c harge error is not dispositive. Unl i ke the juri sprudential novelties at issue in For dv. Geor g i a , 498 U. S. 411 (1991), and NAACP
v. Alabam a ex rel. Patterson , 357 U. S. 449, 457–4 58 (1958), it was unremarkable at the time of petitioner’s trial, and equally un remarkable today, that the TCCA would appl y those sta n dards to govern his claim of in

structional error. Finally, the Almanza rule, in imposing a contemporane

ous-objection requirement, serves a well-recognized an d legitimate state interest: avoiding flawed trial s and mini

mizing costly retrials. See Colema n , supra, at 746; United Sta t esv. Young , 470 U. S. 1 (19 85). Accord, Fed. Rul e s Crim. Proc. 51(b) and 52(b). This case itself bears out the basis for such a rule. Despite being directly solicited for suggested changes by the trial judge, petition er never on ce objected to the text of the juryinstructions. Knowing fu ll well that the trial court believed that the nullification charge had cured the Pe nr y I errorinherent in the “specia l issues,” petitioner’s attorney elected to sitquietly by

. Because the Almanza rule is regularly followed and serv es important state interests, it is an “adequate” state ground. The Almanza rule is also “independent” of federal law. The determ ination by the TCC A that petitio n er failed t o13 Cite as: 55 0 U

. S. ____ (2007)
ALITO , J., dissenting object to the nullificati o n instruction, and was therefore required to prove “egre gious harm,” rested pur e ly on state statutory la w. C Finally, I consider petitioner’s argument that the grounds on which the TCCA relied in concluding that petitioner was not entitled to relief under Alm a nzawere inconsistent with the Smith I mandate, most notabl y because, while Smith I h e ld th at the “nul lification” i n struction did not eliminate the Eighth Amen dment prob

lem identifi ed in PenryI , the TCC A noted on remand tha t the jurors’ statements during voir diresuggeste dthat they would be able to take all mitigating evidence into accoun t in rendering their verdict. See 185 S. W. 3d, at 468. Petitioner’s argument confuses the question decided in Smith I (w hether the jury instruc t ions violated the Eight h Amendment) with the separate question dec i ded by the TCCA on r e mand (wh e ther the instructions caused “egr e gious harm”). A penalty phase instruction violates the Eighth Am endment if “there is a reasonab le likelih ood that the jury has applied the challenged inst ruction in a way that prevents t h e consideration of constitutionally relevant evidence.” Boyde v. Califo rnia , 494 U. S. 370, 380 (1990). But as we made clear in Ca lderonv. Coleman , 52 5 U. S. 141, 147 (1998) (per curiam ) , “[t]he Boydeanalysis does not inquire into the actual effect of the error on the jury’s ver d ict; it merely asks whether constitutional error has occurre d.” Te xas law similarly bifurcate s these in

quiries. In Almanza , the TCCA h e ld that “finding er ror in the court’s cha r ge to the jury be

gins—not ends—the inquiry; the next step is t omake an evidentiary review [of the who l e record to ] illumi

nate the actual, not ju st [the] theoretical, harm to the14SM ITH v. TE XAS
ALITO , J., dissenting accused.” 6 86 S. W. 2d, at 174. 4 At this sta g e, Texas law maywell be more forgiving tha n federal law. Under Almanza , a petitioner seeking a rever

sal for unpr e served instructional e rror musts h ow thatth e error deprived him of a “fair and impartial tr ial,” working “egregious harm.” Ibid. By contrast, under Olano , 507 U. S., at 7 34–735, in federal court unpres e rved erro r merits reversal only when it constitutes “plain error.” B u t whatever the standard, it is cl ear that this Court’s finding of constitutional penaltyphase error in Smith I i nn ow a y foreclosed the second and subsequent step, undertaken by the TCCA on remand, of determining whether that error required reversal. Accordin gly, the TCCA’s Alman za analysis does not confli ct with the Smith I mandate. Fo r these reaso n s, Iwo uld dism i s s for want of juri sdiction .

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4 Reading the TCCA’s more recent decision in Penry v. State , 178 S. W. 3d 78 2 (200 5), to me anth atTex a s l a wr e qu ir es r e sen t en c i n g upon afindingof pres erved j ury i n s t ruct ion erro r, t h e Courtin t h is ca s e effectively orders the TCCA to require p e titioner to be resentenced. Ante , at 17–1 8. Because the TCCA is be t t er equipped than are we to an aly z e an d a pplyTex a s la w , I w o u l d leav e applic ation of its pr oc edu r al defa ultrules t ot h a tcourt

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