(Slip Opinion) OCTOBER TERM, 2006 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SMITH v. TEXAS 

CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS 

No. 05–11304. Argued January 17, 2007—Decided April 25, 2007 

Smith’s trial took place in the interim between Penry v. Lynaugh, 492 

U. S. 302 (Penry I), and Penry v. Johnson, 532 U. S. 782 (Penry II). 

At that time, Texas capital juries were still given the special-issue 

questions found constitutionally inadequate in Penry I. Texas courts 

attempted to cure that inadequacy by instructing the jury that if it 

felt death should not be imposed but also felt the special issues satisfied, it should falsely answer “no” to one of the special-issue questions, thus nullifying the special issues. This nullification charge was

later found inadequate to cure the special issues in Penry II. Before 

his trial, Smith objected to the constitutionality of the special issues,

but his challenges were denied. At sentencing, Smith’s jury received 

the special issues and the nullification charge. The jury sentenced

Smith to death. In his appeal and postconviction state proceedings, 

Smith continued to argue his sentencing was unconstitutional because of the defects in the special issues. At each stage, the argument was either rejected on the merits, or else held procedurally 

barred because it had already been addressed on direct appeal. The 

Texas Court of Criminal Appeals (hereinafter appeals court) affirmed

the denial of relief, distinguishing Smith’s case from the Penry precedents. This Court reversed, Smith v. Texas, 543 U. S. 37 (per curiam) 

(Smith I), finding there was Penry error and that the nullification 

charge was inadequate under Penry II. On remand, the appeals 

court denied relief once more. Relying on its Almanza decision, it 

held that Smith had not preserved a Penry II challenge to the nullification charge, since he only made a Penry I challenge at trial; and

that this procedural defect required him to show not merely some

harm, but egregious harm, a burden he could not meet. 

Held: 

1. The appeals court made errors of federal law that cannot be the 
2 SMITH v. TEXAS 

Syllabus 

predicate for requiring Smith to show egregious harm. Smith I confirmed that the special issues did not meet constitutional standards

and that the nullification charge did not cure that error. The basis 

for relief was error caused by the special issues, not some separate 

error caused by the nullification charge. On remand from Smith I, 

the appeals court mistook this Court’s holding as granting relief in 

light of an error caused by the nullification charge and concluded that

Smith had not preserved that claim because he never objected to the 

nullification charge. Although Smith’s second state habeas petition

included an argument that the nullification charge itself prevented 

the jury from considering his mitigating evidence, that was not the 

only, or even the primary, argument he presented to the appeals

court and this Court. The parties’ post-trial filings, the state courts’ 

judgments, and Smith I make clear that Smith challenged the special 

issues before trial and did not abandon or transform that claim during lengthy post-trial proceedings. Regardless of how the State now 

characterizes it, Smith’s pretrial claim was treated by the appeals 

court as a Penry challenge to the adequacy of the special issues in his 

case, that is how this Court treated it in Smith I, and that was the 

error on which this Court granted relief. The appeals court’s misinterpretation of federal law on remand from Smith I cannot form the 

basis for the imposition of an adequate and independent state procedural bar. Ake v. Oklahoma, 470 U. S. 68, 75. Pp. 15–17.

2. The state courts that reviewed Smith’s case did not indicate that 

he failed to preserve his claim that the special issues were inadequate in his case. Under the appeals court’s application of Almanza, 

preserved error is subject only to normal harmless-error review. The 

appeals court has indicated elsewhere that so long there is a reasonable likelihood the jury believed it was not permitted to consider

relevant mitigating evidence, the lower Almanza standard is met. 

Because the state court must defer to this Court’s finding of Penry error, which is a finding that there is a reasonable likelihood the jury

believed it was not permitted to consider Smith’s relevant mitigating

evidence, Johnson v. Texas, 509 U. S. 350, 367, it appears Smith is

entitled to relief under the state harmless-error framework. Pp. 18– 

19. 

185 S. W. 3d 455, reversed and remanded. 

KENNEDY, J., delivered the opinion of the Court, in which STEVENS, 

SOUTER, GINSBURG, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, 

C. J., and SCALIA and THOMAS, JJ., joined. 
_________________ 

_________________ 

Cite as: 550 U. S. ____ (2007) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 05–11304 

LAROYCE LATHAIR SMITH, PETITIONER v. TEXAS 

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[April 25, 2007] 

JUSTICE KENNEDY delivered the opinion of the Court. 

The jury in a Texas state court convicted petitioner

LaRoyce Lathair Smith of first-degree murder and determined he should receive a death sentence. This Court now 

reviews a challenge to the sentencing proceeding for a 

second time. 

The sentencing took place in the interim between our 

decisions in Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry 

I), and Penry v. Johnson, 532 U. S. 782 (2001) (Penry II). 

In Penry I the Court addressed the special-issue questions

then submitted to Texas 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 mitigating evidence. Following a pretrial challenge to the special issues by Smith,

the trial court issued a charge instructing the jury to

nullify the special issues if the mitigating evidence, taken 

as a whole, convinced the jury Smith did not deserve the 

death penalty. After Smith’s trial, Penry II held a similar 

nullification charge insufficient to cure the flawed special 

issues. Smith, on state collateral review, continued to 

seek relief based on the inadequacy of the special issues, 
2 SMITH v. TEXAS 

Opinion of the Court 

arguing that the nullification charge had not remedied the 

problem identified in his pretrial objection. The Texas 

Court of Criminal Appeals affirmed the denial of relief, 

distinguishing Smith’s case from the Penry precedents. Ex 

parte Smith, 132 S. W. 3d 407 (2004).

This Court, by summary disposition, reversed. Smith v. 

Texas, 543 U. S. 37 (2004) (per curiam) (Smith I). On 

remand the Court of Criminal Appeals again denied Smith 

relief. It held, for the first time, that Smith’s pretrial 

objections did not preserve the claim of constitutional 

error he asserts. Under the Texas framework for determining whether an instructional error merits reversal, the 

state court explained, this procedural default required 

Smith to show egregious harm—a burden the court held 

he did not meet. Ex parte Smith, 185 S. W. 3d 455, 467– 

473 (Tex. Crim. App. 2006). The requirement that Smith

show egregious harm was predicated, we hold, on a misunderstanding of the federal right Smith asserts; and we 

therefore reverse. 

I 

A 

The Special Issues 

Under Texas law the jury verdict form provides specialissue questions to guide the jury in determining whether

the death penalty should be imposed. At the time of 

Smith’s trial, Texas law set forth three special issues. The 

first addressed deliberateness; the second concerned future dangerousness; and the third asked whether the 

killing was an unreasonable response to provocation by 

the victim. Provocation was not applicable to Smith’s case

so the third question was not included in the instructions.

If the jury answered the two applicable special-issue

questions in the affirmative, the death penalty would be 

imposed.

In Penry I, the Court held that neither of these special-
Cite as: 550 U. S. ____ (2007) 3 

Opinion of the Court 

issue instructions was “broad enough to provide a vehicle 

for the jury to give mitigating effect” to the evidence at

issue in that case. Penry II, supra, at 798 (citing, and

characterizing, Penry I, supra, at 322–325). We refer to 

the inadequacy of the special issue instructions as “Penry 

error.” 

For the brief period between Penry I and the Texas 

Legislature’s addition of a catchall special issue, Texas 

courts attempted to cure Penry error with a nullification 

charge. In Smith’s case the trial court instructed that if a 

juror was convinced the correct answer to each specialissue question was “yes,” but nevertheless concluded the

defendant did not deserve death in light of all the mitigating evidence, the juror must answer one special-issue 

question “no.” The charge was not incorporated into the 

verdict form. See, e.g., 1 App. 123–124. In essence the 

jury was instructed to misrepresent its answer to one of

the two special issues when necessary to take account of

the mitigating evidence.

In Penry II, the Court concluded that a nullification 

charge created an ethical and logical dilemma that prevented jurors from giving effect to the mitigating evidence 

when the evidence was outside the scope of the special 

issues. As the Court explained, “because the supplemental [nullification] instruction had no practical effect, the

jury instructions . . . were not meaningfully different from

the ones we found constitutionally inadequate in Penry I.” 

532 U. S., at 798. In other words, Penry II held that the 

nullification charge did not cure the Penry error. 

Penry II and Smith I recognized the ethical dilemma, 

the confusion, and the capriciousness introduced into jury

deliberations by directing the jury to distort the meaning 

of an instruction and a verdict form. Penry II, supra, at 

797–802; Smith I, supra, at 45–48. These are problems 

distinct from Penry error and may be grounds for reversal

as an independent matter; but we need not reach that 
4 SMITH v. TEXAS 

Opinion of the Court 

issue here, just as the Court did not need to reach it in 

Penry II or Smith I. 

When this Court reversed the Court of Criminal Appeals 

in Smith I, it did so because the nullification charge had 

not cured the underlying Penry error. See Smith I, 543 

U. S., at 48 (holding that “the burden of proof . . . was tied 

by law to findings of deliberateness and future dangerousness that had little, if anything, to do with” the mitigating

evidence). While the ethical and logical quandary caused

by the jury nullification charge may give rise to distinct

error, this was not the basis for reversal in Smith I. On 

remand the Court of Criminal Appeals misunderstood this

point. Its interpretation of federal law was incorrect. 

In light of our decision in Smith I, our review of the 

facts need not restate the brutality of the murder Smith

committed or the evidence he offered in mitigation. See 

id., at 38–43. We need only address the conclusion of the 

Court of Criminal Appeals that the constitutional error

asserted by Smith was caused by the nullification charge 

and that, having failed to alert the trial court to that error, 

Smith was required to demonstrate egregious harm to 

obtain relief. 

B 

The Trial 

Before voir dire, Smith filed three written motions 

addressing the jury instructions. In the first, he argued 

that Jurek v. Texas, 428 U. S. 262 (1976), and Penry I

established the constitutional inadequacy of the special

issues. The motion maintained that Texas law denied the 

trial court power to cure the problem because “[t]he exclusive methodology for submission to the jury of special 

issues with regard to infliction of the death penalty [is]

contained in” Article 37.071 of the Texas Code of Criminal 

Procedure Annotated (Vernon 2006 Supp. Pamphlet), 

which did not authorize the trial court to add an addi-
Cite as: 550 U. S. ____ (2007) 5 

Opinion of the Court 

tional special issue on mitigation. 1 App. 9. The trial 

court, the objection stated, would not be able to provide 

“any instruction with regard to mitigating evidence which 

would permit the jury to make a moral reasoned response 

to” mitigating evidence not covered by the special issues. 

Ibid. Smith would offer such evidence. 

The second pretrial motion raised a related but distinct 

argument. Smith began by noting that in Jurek the Supreme Court had found Article 37.071 constitutional on its

face. He argued, however, it did so with the understanding that the Texas courts would give broad construction to

terms in the special issues such as “‘deliberately.’” 1 App. 

12. They had not done so and therefore “[t]here [was] no

provision in Texas for the jury to decide the appropriateness of the death penalty taking into consideration the 

personal moral culpability of the [d]efendant balanced by 

mitigating evidence which is not directly or circumstantially probative in answering the special issues.” Id., at 

13. Smith therefore reasoned that Article 37.071 was 

unconstitutional. 

The third pretrial motion asked the court to state the 

contents of the mitigation charge prior to voir dire so 

Smith could exercise his jury challenges intelligently. Id., 

at 17–19. 

The trial court denied the first two motions. Id., at 21. 

In response to the third it provided Smith a copy of its

proposed mitigation charge. That charge, which we will

refer to as “the nullification charge,” defined mitigating

evidence broadly before explaining to the jury, in relevant 

part: 

“[I]f 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 Defendant should not be

sentenced to death, then you shall answer at least one 
6 SMITH v. TEXAS 

Opinion of the Court 

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.” 

Smith I, supra, at 40 (internal quotation marks and 

citation omitted). 

The nullification charge did not define or describe the

special issues. 1 App. 105–110. The judge told counsel: “If 

you see something in that charge that you’d like worded

differently or you think could be made clearer or better,

I’m always willing to entertain different wording or different ways of putting the idea. So if you come up with something you like better, just let me know and I’ll look at it.” 

Id., at 21. Smith raised no additional objection and did 

not suggest alternative wording for the nullification 

charge.

The jury received the nullification charge from the

judge, but the verdict form did not incorporate it. The 

form was confined to the special issues of deliberateness 

and future dangerousness. Id., at 123–124. The jury

unanimously answered “yes” to both special-issue questions, and Smith was sentenced to death. 

C 

Post-Trial Proceedings 

The State does not contest the validity of Smith’s challenge to the special issues in his pretrial motion. It does 

contend that since Smith did not object to the nullification 

charge, his state habeas petition rests on an unpreserved

claim, namely that the nullification charge excluded his

mitigating evidence. The State’s formulation of the federal right claimed by Smith, a formulation accepted by the 

Court of Criminal Appeals, is based on an incorrect read-
Cite as: 550 U. S. ____ (2007) 7 

Opinion of the Court 

ing of federal law and this Court’s precedents. Considering Smith’s first two pretrial motions together, as the trial

court did, it is evident Smith’s objection was that the 

special-issue framework violated 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 narrow, the trial court was 

unable to promulgate a new catchall special issue, and the

Texas courts did not define “deliberately” in broad terms. 

The State is correct that this was an objection based on 

Penry error, not one based on the confusion caused by the

nullification instruction. 

A review of Smith’s post-trial proceedings shows that 

the central argument of his habeas petition, and the basis 

for this Court’s decision in Smith I, is the same constitutional error asserted at trial. 

1 

Direct Appeal 

On direct appeal from the trial court, Smith renewed his 

argument that the special issues were unconstitutional: 

“[I]n [Penry I], the Supreme Court held that there

was an Eighth Ame[n]dment violation where there 

was mitigating evidence not relevant to the special

verdict questions, or that had relevance to the defendant’s moral culpability beyond the scope of the special verdict questions, and the jury instructions would 

have provided the jury with no vehicle for expressing 

its reasoned moral response to that evidence. 

. . . . . 

“By its extremely narrow interpretation of the requirements of Penry, this Court has unconstitutionally narrowed the sentencer’s discretion to consider 

relevant mitigating evidence . . . . The special issues

. . . do not in reality provide a vehicle for individual-
8 SMITH v. TEXAS 

Opinion of the Court 

ized consideration of the appropriateness of assessment of the death penalty and [the article establishing

them] is unconstitutional as applied.” 1 App. 133–

134. 

Both the Court of Criminal Appeals, in its most recent

opinion, and the State, in its brief on direct appeal, recognized Smith’s pretrial motions preserved this argument. 

185 S. W. 3d, at 462, and n. 9 (holding Smith’s directappeal argument that “the jury was 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. 62, Record 674 (“[Smith] 

reiterates his [pretrial] claim that the statute is unconstitutional as applied since it fails to provide an effective 

vehicle for the jury to apply mitigating evidence”). 

In its opinion affirming the sentence on direct review

the Court of Criminal Appeals held that the “instruction

complied with Penry and provided a sufficient vehicle for 

the jury to consider any mitigating evidence [Smith] offered.” Smith v. State, No. 71,333 (Tex. Crim. App., June

22, 1994), p. 11, 1 App. 147. 

2 

First and Second State Habeas 

In 1998, Smith sought state habeas 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 equitable tolling. Ex parte 

Smith, 977 S. W. 2d 610 (Tex. Crim. App. 1998) (en banc); 

see id., at 614 (Overstreet, J., dissenting). Texas then 

amended its filing rules to allow the exception the Court of

Criminal Appeals had declined to create. The statutory 

change permitted Smith to file for habeas relief. 

Smith filed his second habeas petition before this

Court’s decision in Penry II. He argued once more that the

special issues were inadequate: “In Penry [I], the Supreme 
Cite as: 550 U. S. ____ (2007) 9 

Opinion of the Court 

Court . . . held that the former Texas capital sentencing

statute did not provide an adequate vehicle for expressing

its reasoned moral response to [mitigating] evidence in

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 (internal quotation marks omitted). Smith acknowledged the trial court 

tried to solve the problem with the nullification charge, 

but he explained that “[i]t confounds common sense to 

suggest jurors—who are sworn to tell the truth—would

ever understand that they were authorized to answer

[special-issue] questions falsely.” Id., at 193, Record 195. 

Smith continued: 

“Nothing in the special issues themselves linked the

‘nullification’ instruction to the specific questions

asked; nothing in the special issues themselves authorized the jury to consider mitigating evidence when 

answering the questions; nothing in the special issues

themselves authorized the jury to answer the questions ‘no’ when the truthful answer was ‘yes’; in short, 

nothing in the special issues permitted the jury to apply the ‘nullification’ instruction.” Id., at 194, Record 

196. 

Smith conceded he had not objected to the nullification

charge but confirmed that he had challenged the specialissues statute and that the Court of Criminal Appeals had 

reached the merits of this claim on direct review. 

The State, relying upon a procedural bar different from

and indeed contradictory to the one it now raises, responded that “[t]his claim [was] procedurally barred as it 

was both raised and decided on the merits on direct appeal.” 1 App. 156; see also id., at 157 (describing Smith’s

position as an “identical complaint” and an “identical 

argument” to his claim on direct appeal). The State con-
10 SMITH v. TEXAS 

Opinion of the Court 

tended, in the alternative, that Smith’s position was 

meritless because the nullification charge cured any problem with the special issues. Respondent’s Original Answer and Response to Applicant’s Application for Writ of 

Habeas Corpus in No. W91–22803–R(A) (Tex. Crim. App.), 

pp. 136–139, Record 467–470.

The state trial court denied habeas relief on the ground

Smith was procedurally barred from raising the same 

claim denied on direct review absent “a subsequent change 

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 from the Denial of State Habeas Relief 

While Smith’s appeal from the state trial court’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 questions in his case were for all relevant purposes the same as

those in Penry II. Applicant’s Brief for Submission in 

View of the United States Supreme Court’s Opinion in 

Penry v. Johnson in No. W91–22803–R (Tex. Crim. App.), 

pp. 4–5. He maintained the nullification charges were 

also indistinguishable, id., at 5–6, and had in Penry II

been held insufficient “to cure the error created by the 

Special Issues.” Applicant’s Brief for Submission, at 6–7. 

Smith concluded by explaining that the procedural bar for 

raising an issue already resolved on direct review did not

apply “where an intervening legal decision renders a 

previously rejected claim meritorious.” Id., at 12 (citing 

Ex parte Drake, 883 S. W. 2d 213, 215 (Tex. Crim. App. 

1994) (en banc)). (We note the Court of Criminal Appeals 

recently adopted this position. See Ex parte Hood, 211 

S. W.3d 767, 775-778 (Tex. Crim. App. 2007).) 
Cite as: 550 U. S. ____ (2007) 11 

Opinion of the Court 

The Court of Criminal Appeals ordered supplemental 

briefing on the relevance of Penry II. Given that Penry II

addressed the sufficiency of a nullification charge as a

cure for inadequate special issues, Smith’s supplemental 

brief concentrated on the same issue. Nevertheless, his 

central argument remained that he “presented significant

mitigating evidence that was virtually indistinguishable 

from Penry’s and thus undeniably beyond the scope of the

special issues.” Applicant’s Supplemental Briefing on 

Submission in No. 74,228 (Tex. Crim. App.), p. 12 (hereinafter Applicant’s Supp. Briefing). The nullification charge 

was inadequate as well, in his view, because, based on the

ethical dilemma, “there is a reasonable probability that 

the nullification instruction . . . precluded [a juror who 

found that Smith’s personal culpability did not warrant a

death sentence] from expressing that conclusion.” Id., at 

13. Alternatively, Smith argued he was “also entitled to

relief under Penry II” because “[e]ven if the jury might

have been able to give effect to some of [his] mitigating 

evidence within the scope of [the] special issues, the confusing nullification instruction itself” may have prevented

the jury from doing so. Id., at 14. As such, the nullification charge was “worse than no instruction at all.” Id., at 

15–16 (emphasis deleted).

The State responded that the special issues were adequate and, furthermore, that the nullification charge, 

unlike the charge in Penry II, cured any problem. State’s 

Brief in No. 74,228 (Tex. Crim. App.), pp. 2–11. In response to Smith’s second argument the State contended “it 

tests the bounds of reason to grant [Smith] relief based on

a good-faith attempt to give him a supplemental instruction to which he was not constitutionally entitled.” Id., at 

11. In reply Smith reiterated his 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 Submission in No. 74,228 (Tex. Crim. App.). 
12 SMITH v. TEXAS 

Opinion of the Court 

The Court of Criminal Appeals denied the habeas petition. It found no Penry error, reasoning that the special

issues were adequate to consider the mitigating evidence. 

Ex parte Smith, 132 S. W. 3d, at 412–415. Any evidence

excluded from the purview of the jury, the court indicated, 

was not “constitutionally significant.” Id., at 413, n. 21. 

In the alternative the court held the nullification charge

and the argument at trial were distinguishable from those

at issue in Penry II. In Smith’s case, the court reasoned, 

the nullification charge would have been an adequate cure

even if the special issues were too narrow. 132 S. W. 3d, 

at 416–417. 

The majority did not adopt or address the reasoning of

the two concurring opinions, which argued that Smith had 

procedurally defaulted his “Penry II claim” because while 

he had objected to the special issues at trial, he had not 

objected separately to the nullification charge. Id., at 423– 

424 (Hervey, J., concurring); id., at 428 (Holcomb, J., 

concurring). 

4 

Smith I 

The ruling of the Court of Criminal Appeals in Smith’s

second state habeas proceeding was reversed by this Court 

in Smith I. The Court’s summary disposition first rejected

as unconstitutional the Texas court’s screening test for 

“constitutionally significant” evidence. 543 U. S., at 43– 

48; see also Tennard v. Dretke, 542 U. S. 274 (2004). 

The Smith I Court next observed that although Smith

had presented relevant mitigating evidence, the jury’s

consideration was “tied by law to findings of deliberateness and future dangerousness that had little, if anything,

to do with” that evidence. 543 U. S., at 45, 48. There was, 

in other words, a Penry error. As a final matter, despite

differences between the nullification charges in Smith I 

and Penry II, the variances were “constitutionally insig-
Cite as: 550 U. S. ____ (2007) 13 

Opinion of the Court 

nificant” because “Penry [II] identified a broad and intractable problem.” 543 U. S., at 46, 47 (citing Penry II, 532 

U. S., at 799–800). The nullification charge was therefore 

inadequate under Penry II. The judgment was reversed 

and the case remanded. 543 U. S., at 48–49. 

5 

Remand Following Smith I 

On remand Smith’s brief urged that harmless-error 

review was inappropriate because under the nullification

charge the jury proceedings became capricious. See Applicant’s Brief on Remand in No. 74,228 (Tex. Crim. App.),

pp. 8–18. The State responded that Smith was procedurally barred because he waited to raise his allegation of 

“jury charge error” under Penry II until the second state 

habeas petition 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 maintained this was an adequate and independent state ground

for denying relief. Ibid. Smith’s motion and direct appeal,

the State said, had been based on a challenge to the statute setting forth the special issues, not to the jury charge. 

Id., at 5–6. The State also maintained that this Court had 

not addressed whether the special issues were “a sufficient

vehicle for the jury to give effect to [Smith’s] mitigation

evidence.” Id., at 12–16. 

Smith replied to the procedural-bar argument by noting

he had “consistently raised his claim regarding the inadequacy of the special issues to permit constitutionally 

adequate consideration of his mitigating evidence and this 

Court has consistently addressed the merits of [that]

claim.” Applicant’s Reply Brief on Remand in No. 74,228

(Tex. Crim. App.), p. 1.

The Court of Criminal Appeals denied relief. The 

court’s confusion with the interplay between Penry I and 

Penry II is evident from the beginning. Reasoning that 
14 SMITH v. TEXAS 

Opinion of the Court 

“[t]he Supreme Court did not address our conclusion that 

the two special issues provided [Smith’s] jury with a constitutionally sufficient vehicle to give effect to his mitigating evidence,” 185 S. W. 3d, at 463 (internal quotation

marks omitted), the court again concluded that the special

issues were adequate, id., at 464–467. Nevertheless, 

because of its “uncertainty” regarding this Court’s Penry II

jurisprudence, the Court of Criminal Appeals went on to

“assume, for the sake of argument, that at least some of 

[Smith’s] evidence was not fully encompassed by the two

special issues” and that “the jury charge in this case was 

constitutionally deficient under Penry II.” 185 S. W. 3d, at 

467. 

The Court then applied the framework of Almanza v. 

State, 686 S. W. 2d 157 (Tex. Crim. App. 1984) (en banc), 

to Smith’s claim of error. Under Almanza, Smith needed 

first to show instructional error. Having assumed Smith

had done so, the court next asked whether the error was 

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 contrast, he would need to establish not merely some harm

but also that the harm was egregious. 185 S. W. 3d, at 

467. 

The court found Smith had not preserved his claim of 

instructional error. Smith’s only objection at trial, reasoned the state court, was that the statute authorizing the 

special issues was unconstitutional in light of Penry I. 185 

S. W. 3d, at 461–462, and n. 8. This objection did not 

preserve a challenge to the nullification 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, the Court of Criminal Appeals indicated, because this Court only required that Smith demonstrate a reasonable probability of harm. In the view of 

the Court of Criminal Appeals there was little likelihood 
Cite as: 550 U. S. ____ (2007) 15 

Opinion of the Court 

that Smith’s jury had failed to consider the mitigating

evidence. 185 S. W. 3d, at 468–473. On this basis the 

court concluded Smith had failed to show egregious harm 

and, as such, habeas relief was foreclosed. 

We granted certiorari. 549 U. S. __ (2006). 

II 

A 

The special issues through which Smith’s jury sentenced 

him to death did not meet constitutional standards, as 

held in Penry I; and the nullification charge did not cure 

that error, as held in Penry II. This was confirmed in 

Smith I. The Court of Criminal Appeals on remand denied

relief, nonetheless, based on two determinations: first, 

that Smith’s federal claim was not preserved; second, as a

result, that Smith was required by Almanza to show 

egregious harm. As a general matter, and absent some 

important exceptions, when a state court denies relief 

because a party failed to comply with a regularly applied

and well-established state procedural rule, a federal court 

will not consider that issue. Ford v. Georgia, 498 U. S. 

411, 423–424 (1991). 

Smith disputes that the application of Almanza on state 

habeas review is a “firmly established and regularly followed state practice.” James v. Kentucky, 466 U. S. 341, 

348–349 (1984). The State argues it is. We may assume

the State is correct on this point, for in our view the predicate finding of procedural failure that led the Court of 

Criminal Appeals to apply the heightened Almanza standard is based on a misinterpretation of federal law. 

The State and the Court of Criminal Appeals read 

Smith I as having reversed because the nullification 

charge “prevented giving effect to [Smith’s] mitigating 

evidence because it placed the jurors in an unconstitutional ethical quandary.” Brief for Respondent 28. It is 

true Smith’s second state habeas petition included an 
16 SMITH v. TEXAS 

Opinion of the Court 

argument that the nullification charge itself prevented the 

jury from considering his mitigating evidence. This, however, was not the only, or even the primary, argument he

presented to the Court of Criminal Appeals and this

Court. As detailed above, Smith’s central objection at each

stage has been to the special issues. 

In Smith I, this Court agreed the special issues were 

inadequate and so reversed the Court of Criminal Appeals. 

In challenging the special issues Smith did contend that 

the nullification charge was flawed. This Court engaged 

in much the same analysis. That analysis was only necessary, however, because the Court of Criminal Appeals had 

twice rejected Smith’s claim of Penry error based on the 

mistaken idea that “regardless of whether [Smith’s] mitigating evidence was beyond the scope of the two statutory 

special issues, the judge’s extensive supplemental [nullification] instruction provided a sufficient vehicle for the

jury to consider all of [Smith’s] mitigating evidence.” Ex 

parte Smith, 132 S. W. 3d, at 410. In other words Smith 

argued, and this Court agreed, that the special issues 

prevented the jury from considering his mitigating evidence; and the nullification charge failed to cure that 

error. In its opposition to certiorari in Smith I, the State 

understood that under Penry II it was the special issues, 

not the nullification charge, that created the error. See 

Brief in Opposition in Smith v. Texas, O. T. 2004, No. 04– 

5323, p. 17 (“In essence, the [nullification] instruction did 

not create new error; rather, the instruction simply failed 

to correct the error identified in Penry I”).

The Court of Criminal Appeals’ mistaken belief that 

Penry II, and by extension Smith I, rested on a separate

error arising from the nullification charge may have

stemmed from Smith’s use of the term “Penry II error” in 

his supplemental brief and from this Court’s citation to 

Penry II, rather than Penry I, in Smith I. Applicant’s

Supp. Briefing 11. Smith’s labeling of the claim in his 
Cite as: 550 U. S. ____ (2007) 17 

Opinion of the Court 

supplemental brief, however, did not change its substance. 

See Ex parte Caldwell, 58 S. W. 3d 127, 130 (Tex. Crim. 

App. 2000); Rawlings v. State, 874 S. W. 2d 740, 742 (Tex. 

App. Fort Worth 1994). And this Court’s reference to 

Penry II, rather than Penry I, has been explained above. 

As the parties’ post-trial filings, the state courts’ judgments, and this Court’s decision in Smith I make clear, 

Smith challenged the special issues under Penry I at trial 

and did not abandon or transform that claim during his 

lengthy post-trial proceedings. 

After Smith I, the State argued for the first time that

Smith’s pretrial motions, and his argument on direct 

appeal, raised a “statutory” complaint about the entire

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 attack on the state system rather than attempt to

obtain adequate instructions in his own case. Brief for 

Respondent 28, 32–33; Tr. of Oral Arg. 40. Regardless of

how the State now characterizes it, Smith’s claim was 

treated by the Court of Criminal Appeals as a Penry challenge to the adequacy of the special issues in his case, and 

that is how it was treated by this Court in Smith I. 

The Court of Criminal Appeals on remand misunderstood the interplay of Penry I and Penry II, and it mistook 

which of Smith’s claims furnished the basis for this 

Court’s opinion in Smith I. These errors of federal law led 

the state court to conclude Smith had not preserved at 

trial the claim this Court vindicated in Smith I, even when 

the Court of Criminal Appeals previously had held Smith’s

claim of Penry error was preserved. The state court’s error 

of federal law cannot be the predicate for requiring Smith

to show egregious harm. Ake v. Oklahoma, 470 U. S. 68, 

75 (1985). 
18 SMITH v. TEXAS 

Opinion of the Court 

B 

Under Almanza, once Smith established the existence of 

instructional error that was preserved by a proper objection, he needed only to show he suffered “some harm” from 

that error. In other words relief should be granted so long 

as the error was not harmless. 686 S. W. 2d, at 171. It 

would appear this lower standard applies to Smith’s preserved challenge to the special issues. 

The Court of Criminal Appeals explained in its recent 

decision in Penry v. State, 178 S. W. 3d 782 (2005), that 

once a state habeas petitioner establishes “a reasonable 

likelihood that the jury believed that it was not permitted 

to consider” some mitigating evidence, he has shown that

the error was not harmless and therefore is grounds for

reversal. Id., at 786–788 (citing Boyde v. California, 494 

U. S. 370 (1990)). We note that the Court of Criminal 

Appeals stated in dicta in this case that even assuming

Smith had established that there was a reasonable probability 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 from the clear rule of Penry v. State resulted 

from the state court’s confusion over our decision in Smith 

I. 

The Court of Criminal Appeals is, of course, required to 

defer to our finding of Penry error, which is to say our

finding that Smith has shown there was a reasonable 

likelihood that the jury interpreted the special issues to

foreclose adequate consideration of his mitigating evidence. See Johnson v. Texas, 509 U. S. 350, 367 (1993). 

Accordingly, it appears 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 nullification charge resulted in a 
Cite as: 550 U. S. ____ (2007) 19 

Opinion of the Court 

separate jury-confusion error, and if so whether that error 

is subject to harmless-error review.

For the reasons we have stated, the judgment of the

Court of Criminal Appeals is reversed, and the case is

remanded for further proceedings not inconsistent with

this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 550 U. S. ____ (2007) 1 

SOUTER, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 05–11304 

LAROYCE LATHAIR SMITH, PETITIONER v. TEXAS 

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[April 25, 2007] 

JUSTICE SOUTER, concurring. 

I join the Court’s opinion. In some later case, we may be

required to consider whether harmless error review is ever 

appropriate in a case with error as described in Penry v. 

Lynaugh, 492 U. S. 302 (1989). We do not and need not 

address that question here. 
_________________ 

_________________ 

Cite as: 550 U. S. ____ (2007) 1 

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 05–11304 

LAROYCE LATHAIR SMITH, PETITIONER v. TEXAS 

ON WRIT OF CERTIORARI TO THE COURT OF CRIMINAL

APPEALS OF TEXAS

[April 25, 2007] 

JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE 

SCALIA, and JUSTICE THOMAS join, dissenting. 

The issue in this case is less complicated than the opinion of the Court suggests. The federal constitutional error 

that occurred at the penalty phase of petitioner’s trial and

that was identified in Smith v. Texas, 543 U. S. 37 (2004) 

(per curiam) (Smith I), concerned a flaw in the jury instructions: Specifically, the instructions did not give the

jury an adequate opportunity to take some of petitioner’s

mitigating evidence into account. This error could have 

been avoided by changing the instructions. Indeed, our 

opinion in Penry v. Lynaugh, 492 U. S. 302, 322–323 

(1989) (Penry I), rather pointedly discussed how proper

instructions might be crafted. But defense counsel— 

facing evidence of aggravating factors that might have led 

the jury to return a death verdict no matter what instructions were given—never objected to the text of the instructions and declined the trial judge’s invitation to suggest

modifications, choosing instead to argue that Penry I 

precluded Texas from applying its death penalty statute to 

petitioner at all.

As a result of this failure to object, the Texas Court of

Criminal Appeals (TCCA), in the decision now under

review, Ex parte Smith, 185 S. W. 3d 455 (2006), held that 

petitioner could not overturn his death sentence without 

surmounting a Texas rule that is analogous to the federal 
2 SMITH v. TEXAS 

ALITO, J., dissenting 

“plain error” rule. See United States v. Olano, 507 U. S. 

725, 731 (1993). Under this Texas rule, adopted in Almanza v. State, 686 S. W. 2d 157, 171 (Tex. Crim. App. 

1984) (en banc), a criminal defendant who fails to object to 

a jury instruction cannot obtain a reversal simply on the 

grounds that the instruction was erroneous and the error

was not harmless. Rather, the defendant must meet the 

heightened standard of “egregious harm.” Id., at 174. 

Finding that the error in petitioner’s case did not meet 

this heightened standard, the TCCA held that petitioner’s

sentence must stand. 185 S. W. 3d, at 467. 

Because petitioner failed to raise an objection to the

trial court’s attempt to cure the federal constitutional 

defect in the “special issues,” the TCCA was entitled to

apply its stricter Almanza rule, an altogether commonplace type of procedural rule that represents an adequate

and independent state-law ground for the TCCA’s decision. Accordingly, I would dismiss for want of jurisdiction. 

I 

A 

At the time of petitioner’s trial, Texas statutes provided 

that the jury at the penalty phase of a capital case had to

answer two (and in some cases, three) questions, known as 

the “special issues.”1 The two questions that had to be

answered in every case were 

“(1) whether the conduct of the defendant that caused 

the death of the deceased was committed deliberately

and with the reasonable expectation that the death of 

the deceased or another would result; 

“(2) whether there is a probability that the defendant 

—————— 

1A third “special issue” applies when the evidence raises the question

whether the killing was provoked by the deceased. See Tex. Code Crim. 

Proc. Ann., Art. 37.071, §(2)(b) (Vernon Supp. 1992). In petitioner’s 

case, that “special issue” was inapplicable. 
Cite as: 550 U. S. ____ (2007) 3 

ALITO, J., dissenting 

would commit criminal acts of violence that would 

constitute a continuing threat to society.” Tex. Code 

Crim. Proc. Ann., Art. 37.071, §§2(b)(1) and (2) (Vernon

Supp. 1992). 

If the jury found unanimously that the answer to all the

“special issues” was “yes,” then the death sentence was

imposed; otherwise, the sentence was life imprisonment. 

Art. 37.071(2)(e).

In Jurek v. Texas, 428 U. S. 262 (1976), the Court upheld the facial constitutionality of this scheme, but in 

Penry I, decided in 1989, the Court held that use of this 

scheme in Penry’s case violated the Eighth Amendment 

because evidence of Penry’s mental retardation and severe

childhood abuse did not fit adequately into any of the

“special issues” as submitted to the jury. With respect to

the first of the “special issues,” the Court discussed at

some length the possibility that an instruction broadly 

defining the requirement of deliberateness might have 

permitted sufficient consideration of Penry’s mental retardation and abuse. The Court wrote: 

“In the absence of jury instructions defining ‘deliberately’ in a way that would clearly direct the jury to 

consider fully Penry’s mitigating evidence as it bears

on his personal culpability, we cannot be sure that the

jury was able to give effect to the mitigating evidence 

of Penry’s mental retardation and history of abuse in 

answering the first special issue. Without such a special instruction, a juror who believed that Penry’s retardation and background diminished his moral culpability and made imposition of the death penalty 

unwarranted would be unable to give effect to that

conclusion if the juror also believed that Penry committed the crime ‘deliberately.’ Thus, we cannot be 

sure that the jury’s answer to the first special issue 

reflected a ‘reasoned moral response’ to Penry’s miti-
4 SMITH v. TEXAS 

ALITO, J., dissenting 

gating evidence.” 492 U. S., at 322–323 (emphasis 

added). 

Petitioner’s trial took place in 1991—that is, after Penry 

I but before Penry v. Johnson, 532 U. S. 782 (2001) (Penry 

II). At the guilt phase, petitioner was found to have committed an exceptionally brutal and coldblooded murder. 

Petitioner, a former employee of a fast food restaurant, 

went with some friends to the restaurant after closing

hours when the employees were cleaning up and asked to 

be admitted to use the phone. The teenage shift manager, 

Jennifer Soto, let him in and greeted him with a hug. 

Petitioner followed her to her office and demanded the 

combination of the safe. Soto told him she did not know 

the combination, but petitioner beat her on the head with

the butt of a gun, demanding the combination and continuing until the gun handle fell off. Petitioner then shot 

Soto in the back, grabbed a knife from the kitchen and 

inflicted what were described at trial as numerous “‘torture’ wounds,” and finally slit her throat. Brief for Respondent 1.

At the penalty phase, the prosecution relied on evidence 

showing the brutal nature of the murder, as well as petitioner’s history of violence. The defense offered mitigation 

evidence, including some that loosely resembled Penry’s, 

specifically low IQ and evidence of possible organic learning and speech disorders.

As the Court relates, prior to trial petitioner’s attorney

contemporaneously filed three motions. The first, citing 

Penry I, argued that the “special issues” provided the jury 

with an inadequate vehicle to consider the mitigating

effect of petitioner’s age, and asked the court to declare the

Texas capital sentencing scheme unconstitutional as 

applied to petitioner. 1 App. 7–10. The second motion, 

also citing Penry I, likewise argued that the Texas death

penalty was “unconstitutional because it does not provide 
Cite as: 550 U. S. ____ (2007) 5 

ALITO, J., dissenting 

for the introduction and subsequent use by the jury of

mitigating evidence which is not relevant or material to 

the special issues.” 1 App. 13. Neither motion requested

that the trial judge give jury instructions bringing the

Texas scheme into compliance with the Eighth Amendment. Rather, petitioner’s counsel argued that the judge 

could not provide “any instruction with regard to mitigating evidence” that would obviate the constitutional problem. Id., at 9 (emphasis added). The trial judge denied

both these motions. 

In the third motion, petitioner’s counsel asked for a copy

of the “mitigation instructio[n]” that the court planned to 

give. Id., at 17–19. This motion anticipated that the trial 

court would issue an instruction to “attempt to resolve the 

[Penry I] problem.” Id., at 18. The court granted this

motion and invited defense counsel to offer suggested

revisions. But although Penry I had explained how the

jury instructions might be modified to obviate the error 

found in that case—i.e., by broadly defining the term 

“deliberately” in the first “special issue,” 492 U. S., at 322–

323,—and despite the fact that all involved understood 

that the trial judge’s proposed instruction was intended to

cure the Penry I problem, petitioner’s counsel did not 

object that the proposed mitigation instructions were 

inadequate to cure the defect in the “special issues.”

Rather, faced with the aggravating factors noted above,

petitioner maintained that any submission of the “special 

issues” to the jury, regardless of any additional instructions given, would violate Penry I. 

Hearing no objection to the instructions, the trial judge

went ahead and gave the instructions that he had proposed. After instructing the jury on the relevant “special 

issues,” the judge also gave a supplemental “mitigation” or

“nullification” instruction. This instruction told the jurors

that they should take into account any evidence that they

viewed as mitigating and that if this evidence convinced 
6 SMITH v. TEXAS 

ALITO, J., dissenting 

them that the defendant should not be sentenced to death, 

they should answer “no” to one of the “special issues.”

Instructed in this way, the jury returned a death verdict. 

As our subsequent opinions in Penry II and Smith I 

held, the “nullification” instruction did not obviate the 

problem found in Penry I. Similar instructions were at 

issue in both Penry II and Smith I, and in both cases the 

Court held that this approach was flawed, noting that the 

instructions on the “special issues” and the supplemental 

or “nullification” instructions were conflicting and that the

conflict created an “ethical problem” for the jurors because 

they were “‘essentially instructed to return a false answer 

to a special issue in order to avoid a death sentence.’” 

Smith I, 543 U. S., at 47–48 (quoting Penry II, supra, at 

801).

On remand after Smith I, the TCCA, in the relevant 

portion of its opinion, addressed the question whether 

petitioner was entitled to reversal of his death sentence

based on the federal constitutional error found in this 

Court’s per curiam opinion. 185 S. W. 3d, at 467–468. 

The TCCA, having noted that petitioner did not object to

the nullification instruction, id., at 461, applied the unpreserved error prong of its Almanza rule, which represents

the TCCA’s interpretation of a provision of the Texas 

Criminal Code addressing the review of claimed errors in 

jury instruction. 185 S. W. 3d, at 467–468. Under Almanza, once it is established that there was error in a jury

instruction, 

“‘the next step is to make an evidentiary review . . . as

well as a review of any other part of the record as a

whole which may illuminate the actual, not just theoretical, harm to the accused.’ If the defendant failed 

to object to the jury charge, he must show that the error caused him such egregious harm that he did not

have ‘a fair and impartial trial.’” 185 S. W. 3d, at 464 
Cite as: 550 U. S. ____ (2007) 7 

ALITO, J., dissenting 

(quoting Almanza, 686 S. W. 2d, at 174). 

Finding that the error in this case had not produced the 

requisite “egregious harm,” the TCCA held that petitioner’s death sentence must stand. 

B 

The Court today concludes that the federal constitutional error that we identified in Smith I was the very

error that petitioner asserted in his pretrial motions, ante, 

at 7, but this holding is incorrect. While petitioner did 

argue that the “special issues” precluded the jury from

considering his mitigating evidence, he never argued that

the trial judge’s proposed instructions were insufficient to 

cure that defect. It was perfectly reasonable for the TCCA 

to hold that, by failing to object to the cure, petitioner has 

not preserved a claim that the cure was ineffective. 

This case perfectly illustrates the wisdom of such a rule. 

We have never held that no instruction is capable of curing 

the Penry I problem with the “special issues.” Indeed, we 

have suggested that the problem could have been avoided 

if the trial judge had not instructed the jury to give a false 

answer to one of the “special issues” but had instead taken

the course discussed in Penry I—defining the term “deliberately” as used in the first “special issue” in a way that

was broad enough to permit consideration of the relevant 

mitigating evidence. 492 U. S., at 322–323. However, the 

trial court never thought to take this route because petitioner never argued that the nullification instruction was

inadequate to satisfy federal law. Preventing the TCCA

from applying plain-error review in these circumstances is

tantamount to holding that petitioner had a federal 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 SMITH v. TEXAS 

ALITO, J., dissenting 

posed instructions, there are several remaining questions 

that must be considered. Because the Court does not 

address these, I address them in abbreviated form. 

A 

The first is whether the TCCA was precluded from

applying the Almanza rule in the decision now under 

review because the TCCA did not invoke that state-law 

ground in Ex parte Smith, 132 S. W. 3d 407 (2004), the 

decision that was reversed by this Court in Smith I. Petitioner accuses the TCCA of engaging in “an impermissible 

‘bait and switch,’” “an unacceptable manipulation of its 

procedural rules to defeat this Court’s adjudication of 

[petitioner’s] Penry claim,” and “nothing less than an

opportunistic invocation of state law to avoid compliance

with this Court’s decision.” Brief for Petitioner 43–44. 

This argument unjustifiably impugns the good faith of 

the TCCA and rests on a fundamentally flawed premise, 

namely, that the majority of the TCCA in its 2004 decision

tacitly held that petitioner’s claim regarding the jury

instructions had been fully preserved. In the 2004 decision, however, the TCCA majority said nothing whatsoever on this point, choosing instead to reject the claim on 

the merits. While four concurring judges argued that

petitioner had procedurally 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 under no obligation to do so. Nor was 

the majority under any obligation to decide the preservation issue before addressing the merits. There are a few 

nonmerits issues that a court must address before proceeding to the merits, see, e.g., Steel Co. v. Citizens for 

Better Environment, 523 U. S. 83 (1998) (holding that a 

federal court generally must assure itself of its jurisdiction

before proceeding to the merits), but petitioner does not 

argue that error-preservation is regarded in this way 
Cite as: 550 U. S. ____ (2007) 9 

ALITO, J., dissenting 

under Texas law. 

In the absence of any legal obligation to consider a

preliminary nonmerits issue, a court may choose in some 

circumstances to bypass the preliminary issue and rest its 

decision on the merits. See, e.g., 28 U. S. C. §2254(b)(2) 

(federal habeas court may reject claim on merits without 

reaching question of exhaustion). Among other things, the

court may believe that the merits question is easier, and 

the court may think that the parties and the public are

more likely to be satisfied that justice has been done if the

decision is based on the merits instead of what may be 

viewed as a legal technicality. Thus, the TCCA’s 2004 

opinion cannot be read as holding that petitioner’s jury 

instructions argument was unencumbered with procedural

defects or limitations. 

Even if that earlier TCCA decision did not hold that 

petitioner’s jury instructions argument was properly

preserved, petitioner suggests that where a state court

originally rejects a federal claim on the merits and that 

decision is reversed by this Court, the state court may not

impose the state-law procedural bar on remand to reach

the same result. But whether it may be advisable for state 

courts to apply state law before reaching federal constitutional questions, see Massachusetts v. Upton, 466 U. S. 

727, 736 (1984) (STEVENS, J., concurring in judgment), 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 on a possible federal constitutional violation, it is not uncommon for the state court on 

remand to reinstate the same judgment on state-law 

grounds. See id., at 735, n. 2. See also State v. Wedgeworth, 127 P. 3d 1033 (Kan. 2006) (per curiam) (concluding 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 been 
10 SMITH v. TEXAS 

ALITO, J., dissenting 

preserved for appellate review); State v. Hallum, 606 

N. W. 2d 351, 353 (Iowa 2000) (en banc) (concluding on

remand that defendant had forfeited his right to invoke 

the confrontation clause because he had procured the 

witness’ unavailability at trial in the first instance); Gaskin v. State, 615 So. 2d 679, 680 (Fla. 1993) (holding on

remand in a capital proceeding that defendant had failed

to object properly to unconstitutionally vague aggravating

factors instruction); Happ v. State, 618 So. 2d 205, 206 

(Fla. 1993) (per curiam) (same); Booker v. State, 511 So. 2d 

1329, 1331 (Miss. 1987) (en banc) (holding on remand that 

defendant failed to object contemporaneously to prosecutor’s statements). 

B 

The second question is whether the Almanza “egregious

harm” standard is an adequate and independent state

ground sufficient to support a state judgment that precludes consideration of a federal right. Coleman v. Thompson, 501 U. S. 722, 729 (1991). I am satisfied that it is. 

In order to be “adequate,” a state rule must be a “firmly

established and regularly followed state practice,” and

should further a legitimate state interest. James v. Kentucky, 466 U. S. 341, 348–349 (1984). The Almanza “egregious harm” rule meets these requirements. In Almanza, 

the TCCA exhaustively reviewed the history of the Texas 

statute2 governing objections to jury-charge error. 686 

—————— 

2At the time of Almanza, the Texas Code of Criminal Procedure of 

1965 Annotated, Article 36.19, provided: “Whenever it appears by the 

record in any criminal action upon appeal that any requirement [regarding certain jury instructions] has been disregarded, the judgment 

shall not be reversed unless the error appearing from the record was 

calculated to injure the rights of defendant, or unless it appears from

the record that the defendant has not had a fair and impartial trial. All 

objections to the charge and to the refusal of special charges shall be 

made at the time of the trial.” This provision continues in effect unamended through the present day. See ibid. (Vernon 1991). 
Cite as: 550 U. S. ____ (2007) 11 

ALITO, J., dissenting 

S. W. 2d, at 160–161. The court concluded that the statute imposed a two-part standard: If there was a timely

objection at trial, the objecting party need show only

“some harm”; but if no proper objection was made the 

party claiming error must demonstrate that the “error is 

so egregious and created such harm that he has not had a

fair and impartial trial—in short, egregious harm.” Id., at 

171 (internal quotation marks omitted and emphasis 

deleted).

Petitioner argues that the Almanza standard is not 

adequate but rather is arbitrary and discretionary for

three reasons: that it was intended to be applied on direct

review, not on habeas review; that it was intended to 

control only nonconstitutional claims; and that it has not 

been applied to Penry claims. Brief for Petitioner 47, 

n. 16. None of these grounds is borne out.

 Immediately following Almanza, the TCCA applied it in

state habeas proceedings. See Ex parte Tuan Van Truong, 

770 S. W. 2d 810, 813 (1989) (en banc) (per curiam); Ex 

parte Patterson, 740 S. W. 2d 766, 776–777 (1987) (en 

banc); Ex parte White, 726 S. W. 2d 149, 150 (1987) (en 

banc); Ex parte Maldonado, 688 S. W. 2d 114, 116 (1985) 

(en banc).3 Moreover, the TCCA has applied Almanza in 

cases raising Penry-type claims, which are, of course, 

based on the Eighth Amendment. See, e.g., Turner v. 

State, 87 S. W. 3d 111, 117 (2002) (showing of “egregious

harm” required by statute to support claim that unobjected-to jury-charge error restricted jury’s consideration

of mitigating evidence); Ovalle v. State, 13 S. W. 3d 774, 

786 (2000) (en banc) (per curiam) (applying Almanza to 

preserved mitigation charge error); Cantu v. State, 939 

—————— 

3Petitioner argues that Texas has not applied Almanza in habeas 

proceedings more recently. But petitioner fails to cite any case where

Texas has applied a more permissive form of review to such a claim in

state habeas proceedings, nor would it be logical for Texas to afford

more deferential review in habeas proceedings than on direct review. 
12 SMITH v. TEXAS 

ALITO, J., dissenting 

S. W. 2d 627, 647–648 (1997) (en banc) (citing Almanza for 

requirement that unobjected-to claim of mitigation charge

error is waived but for “egregious error”); Coleman v. 

State, 881 S. W. 2d 344, 356–357 (1994) (en banc) (citing 

Almanza in rejecting claim of Penry error); Flores v. State, 

871 S. W. 2d 714, 723 (1993) (en banc) (citing Almanza in 

connection with a reverse-Penry error claim, that giving a 

mitigation charge was inappropriate where defendant 

intentionally forewent introducing any mitigating

evidence).

The Almanza rule was adopted in 1986, six years prior 

to petitioner’s 1991 trial. That the TCCA has not cited 

Almanza in every single case regarding jury-charge error

is not dispositive. Unlike the jurisprudential novelties at 

issue in Ford v. Georgia, 498 U. S. 411 (1991), and NAACP 

v. Alabama ex rel. Patterson, 357 U. S. 449, 457–458 

(1958), it was unremarkable at the time of petitioner’s

trial, and equally unremarkable today, that the TCCA 

would apply those standards to govern his claim of instructional error. 

 Finally, the Almanza rule, in imposing a contemporaneous-objection requirement, serves a well-recognized and

legitimate state interest: avoiding flawed trials and minimizing costly retrials. See Coleman, supra, at 746; United 

States v. Young, 470 U. S. 1 (1985). Accord, Fed. Rules 

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, petitioner never once 

objected to the text of the jury instructions. Knowing full

well that the trial court believed that the nullification 

charge had cured the Penry I error inherent in the “special

issues,” petitioner’s attorney elected to sit quietly by.

Because the Almanza rule is regularly followed and serves 

important state interests, it is an “adequate” state ground.

The Almanza rule is also “independent” of federal law.

The determination by the TCCA that petitioner failed to 
Cite as: 550 U. S. ____ (2007) 13 

ALITO, J., dissenting 

object to the nullification instruction, and was therefore

required to prove “egregious harm,” rested purely on state 

statutory law. 

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 Almanza were 

inconsistent with the Smith I mandate, most notably 

because, while Smith I held that the “nullification” instruction did not eliminate the Eighth Amendment problem identified in Penry I, the TCCA noted on remand that 

the jurors’ statements during voir dire suggested that they 

would be able to take all mitigating evidence into account

in rendering their verdict. See 185 S. W. 3d, at 468. 

Petitioner’s argument confuses the question decided in 

Smith I (whether the jury instructions violated the Eighth

Amendment) with the separate question decided by the

TCCA on remand (whether the instructions caused “egregious harm”). A penalty phase instruction violates the

Eighth Amendment if “there is a reasonable likelihood 

that the jury has applied the challenged instruction in a

way that prevents the consideration of constitutionally

relevant evidence.” Boyde v. California, 494 U. S. 370, 380 

(1990). But as we made clear in Calderon v. Coleman, 525 

U. S. 141, 147 (1998) (per curiam), “[t]he Boyde analysis

does not inquire into the actual effect of the error on the

jury’s verdict; it merely asks whether constitutional error

has occurred.” Texas law similarly bifurcates these inquiries. In Almanza, the TCCA held that 

“finding error in the court’s charge to the jury begins—not ends—the inquiry; the next step is to make 

an evidentiary review [of the whole record to] illuminate the actual, not just [the] theoretical, harm to the 
14 SMITH v. TEXAS 

ALITO, J., dissenting 

accused.” 686 S. W. 2d, at 174.4 

At this stage, Texas law may well be more forgiving than

federal law. Under Almanza, a petitioner seeking a reversal for unpreserved instructional error must show that the 

error deprived him of a “fair and impartial trial,” working

“egregious harm.” Ibid. By contrast, under Olano, 507 

U. S., at 734–735, in federal court unpreserved error 

merits reversal only when it constitutes “plain error.” But 

whatever the standard, it is clear that this Court’s finding 

of constitutional penalty phase error in Smith I in no way

foreclosed the second and subsequent step, undertaken by 

the TCCA on remand, of determining whether that error 

required reversal. Accordingly, the TCCA’s Almanza 

analysis does not conflict with the Smith I mandate. 

For these reasons, I would dismiss for want of jurisdiction. 

—————— 

4Reading the TCCA’s more recent decision in Penry v. State, 178 

S. W. 3d 782 (2005), to mean that Texas law requires resentencing

upon a finding of preserved jury instruction error, the Court in this case

effectively orders the TCCA to require petitioner to be resentenced. 

Ante, at 17–18. Because the TCCA is better equipped than are we to 

analyze and apply Texas law, I would leave application of its procedural

default rules to that court.