SMITH v. TEXAS

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
37 OCTOBER TERM, 2004
Per Curiam
SMITH v. TEXAS
on petition for writ of certiorari to the court of
criminal appeals of texas
No. 04–5323. Decided November 15, 2004
The supplemental nullification instruction given at the punishment phase
of petitioner’s capital murder trial allowed the Texas jury to give effect
to his mitigation evidence only by negating what would otherwise be
affirmative responses to two special issues relating to deliberateness and
future dangerousness. Pursuant to this instruction, the jury sentenced
petitioner to death. The Texas Court of Criminal Appeals denied him
postconviction relief, reasoning that the instruction either was irrele-
vant because petitioner did not proffer “constitutionally significant” mit-
igation evidence, or was distinguishable from the instruction in Penry
v. Johnson, 532 U. S. 782, 797 (Penry II), which this Court found consti-
tutionally inadequate because it did not allow a jury to give “full con-
sideration and full effect to mitigating circumstances” in choosing an
appropriate sentence.
Held: Petitioner’s evidence was relevant mitigation evidence under Ten-
nard v. Dretke, 542 U. S. 274, and Penry v. Lynaugh, 492 U. S. 302;
therefore, the nullification instruction was constitutionally inadequate
under Penry II. In rejecting the precise threshold “constitutionally
significant” test used here, the Tennard Court held that a jury must be
given an effective vehicle with which to weigh mitigating evidence so
long as the defendant has met a “low threshold for relevance.” 542
U. S., at 285. Because petitioner’s proffered evidence was relevant
under this Court’s precedents, the Eighth Amendment required the trial
court to empower the jury with a vehicle capable of giving effect to that
evidence. In Penry II, the Texas courts’ supplemental instruction did
not give the jury an adequate vehicle for expressing a “reasoned moral
response” to all of the evidence relevant to the defendant’s culpability.
532 U. S., at 796. Any distinctions between that supplemental instruc-
tion and the one here are constitutionally insignificant.
Certiorari granted; 132 S. W. 3d 407, reversed and remanded.
Per Curiam.
Petitioner LaRoyce Lathair Smith was convicted of capital
murder and sentenced to death by a jury in Dallas County,
Texas. Before the jury reached its sentence, the trial judge

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
38 SMITH v. TEXAS
Per Curiam
issued a supplemental “nullification instruction.” Ex parte
Smith, 132 S. W. 3d 407, 409 (Tex. Crim. App. 2004). That
instruction directed the jury to give effect to mitigation evi-
dence, but allowed the jury to do so only by negating what
would otherwise be affirmative responses to two special is-
sues relating to deliberateness and future dangerousness.
In Penry v. Johnson, 532 U. S. 782 (2001) (Penry II), we held
a similar “nullification instruction” constitutionally inade-
quate because it did not allow the jury to give “ ‘full consid-
eration and full effect to mitigating circumstances’ ” in
choosing the defendant’s appropriate sentence. Id., at 797
(quoting Johnson v. Texas, 509 U. S. 350, 381 (1993) (O’Con-
nor, J., dissenting)). Despite our holding in Penry II, the
Texas Court of Criminal Appeals rejected petitioner’s re-
quest for postconviction relief. The court reasoned that the
instruction either was irrelevant because petitioner did not
proffer “constitutionally significant” mitigation evidence, or
was sufficiently distinguishable from the instruction in Penry
II to survive constitutional scrutiny. 132 S. W. 3d, at 413,
n. 21. We grant the petition for certiorari and petitioner’s
motion for leave to proceed in forma pauperis, and reverse.
I
In 1991, petitioner was convicted of brutally murdering
one of his former co-workers at a Taco Bell in Dallas County.
The victim and one of her co-workers were closing down the
restaurant when petitioner and several friends asked to be
let in to use the telephone. The two employees recognized
petitioner and let him in. Petitioner then told his former
co-workers to leave because he wanted to rob the restaurant.
When they did not leave, petitioner killed one co-worker by
pistol-whipping her and shooting her in the back. Petitioner
also threatened, but did not harm, his other former co-
worker before exiting with his friends. The jury found peti-
tioner guilty of capital murder beyond a reasonable doubt.

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
39 Cite as: 543 U. S. 37 (2004)
Per Curiam
At the punishment phase, the jury was instructed on two
special issues: first, whether the killing was deliberate; and
second, whether the defendant posed a continuing danger to
others.1 Approximately two years prior to the trial, we had
held that presenting only these two special issues, with-
out additional instructions regarding the jury’s duty to con-
sider mitigation evidence, violated the Eighth Amendment.
Penry v. Lynaugh, 492 U. S. 302, 328 (1989) (Penry I).
Shortly af ter petitioner ’s trial, the Texas Leg islature
amended its capital sentencing scheme to require juries to
take “into consideration all of the evidence, including the cir-
cumstances of the offense, the defendant’s character and
background, and the personal moral culpability of the de-
fendant” in deciding whether there are sufficient mitigating
circumstances to warrant a sentence of life imprisonment
rather than a death sentence. Penry II, supra, at 803 (quot-
ing Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)(1) (Vernon
Supp. 2001)). Petitioner, however, did not receive the bene-
fit of the new statutory instruction at his trial. Instead, just
as in Penry II, petitioner was sentenced pursuant to a sup-
plemental instruction provided to the jury by the trial
judge.2 That instruction read:
1 The text of the special issues given to the jury was as follows: “(1) Was
the conduct of the defendant that caused the death of the deceased com-
mitted deliberately, and with the reasonable expectation that the death of
the deceased or another would result? (2) Is there a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society?” Pet. for Cert. 5.
2 The supplemental instruction in Penry II stated: “ ‘You are instructed
that when you deliberate on the questions posed in the special issues, you
are to consider mitigating circumstances, if any, supported by the evidence
presented in both phases of the trial, whether presented by the state or
the defendant. A mitigating circumstance may include, but is not limited
to, any aspect of the defendant’s character and record or circumstances of
the crime which you believe could make a death sentence inappropriate in
this case. If you find that there are any mitigating circumstances in this
case, you must decide how much weight they deserve, if any, and there-

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
40 SMITH v. TEXAS
Per Curiam
“ ‘You are instructed that you shall consider any evi-
dence which, in your opinion, is mitigating. Mitigating
evidence is evidence that reduces the Defendant’s per-
sonal or moral culpability or blameworthiness, and may
include, but is not limited to, any aspect of the Defend-
ant’s character, record, background, or circumstances of
the offense for which you have found him guilty. Our
law does not specify what may or may not be considered
as mitigating evidence. Neither does our law provide
a formula for determining how much weight, if any, a
mitigating circumstance deserves. You may hear evi-
dence which, in your judgment, has no relationship to
any of the Special Issues, but if you find such evidence
is mitigating under these instructions, you shall consider
it in the following instructions of the Court. You, and
each of you, are the sole judges of what evidence, if any,
is mitigating and how much weight, if any, the mitigating
circumstances, if any, including those which have no re-
lationship to any of the Special Issues, deserves.
“ ‘In answering the Special Issues submitted to you
herein, if you believe that the State has proved beyond
a reasonable doubt that the answers to the Special Is-
sues are “Yes,” and you also believe from the mitigating
evidence, if any, that the Defendant should not be sen-
tenced to death, then you shall answer at least one of
the Special Issues “No” in order to give effect to your
belief that the death penalty should not be imposed due
to the mitigating evidence presented to you. In this re-
gard, you are further instructed that the State of Texas
fore, give effect and consideration to them in assessing the defendant’s
personal culpability at the time you answer the special issue. If you de-
termine, when giving effect to the mitigating evidence, if any, that a life
sentence, as reflected by a negative finding to the issue under consider-
ation, rather than a death sentence, is an appropriate response to the per-
sonal culpability of the defendant, a negative finding should be given to
one of the special issues.’ ” 532 U. S., at 789–790 (emphasis added).

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
41 Cite as: 543 U. S. 37 (2004)
Per Curiam
must prove beyond a reasonable doubt that the death
sentence should be imposed despite the mitigating evi-
dence, if any, admitted before you.
“ ‘You are instructed that you may deliberate as a
body about mitigating circumstances, but you are not
required to reach a unanimous verdict as to their exist-
ence or weight. When you vote about the Special
Issues, each of you must decide for yourself whether
mitigating circumstances exist and, if so, how much
weight they deserve.’ ” 132 S. W. 3d, at 409.
Employing the framework of special issues modified by the
supplemental nullification instruction, the jury considered a
variety of mitigation evidence. Petitioner presented evi-
dence that (1) he had been diagnosed with potentially organic
learning disabilities and speech handicaps at an early age;
(2) he had a verbal IQ score of 75 and a full IQ of 78 and, as
a result, had been in special education classes throughout
most of his time in school; (3) despite his low IQ and learning
disabilities, his behavior at school was often exemplary;
(4) his father was a drug addict who was involved with gang
violence and other criminal activities, and regularly stole
money from family members to support a drug addiction; and
(5) he was only 19 when he committed the crime.
In response, the prosecution submitted evidence demon-
strating that petitioner acted deliberately and cruelly. The
prosecution emphasized that petitioner knew his victim, yet
stabbed her repeatedly in numerous places on her body.
With respect to petitioner’s future dangerousness, the prose-
cution stressed that petitioner had previously been convicted
of misdemeanor assault and proffered evidence suggesting
that he had violated several drug laws.
During closing arguments at the punishment phase, the
prosecution reminded the jury of its duty to answer truth-
fully the two special issues of deliberateness and future
dangerousness.

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
42 SMITH v. TEXAS
Per Curiam
“Now, when we talked to you on voir dire, we talked to
you about—and we spent a lot of time talking to you to
determine whether or not you could follow the law.
You told us two very important things when we talked
to you. First of all, you told us that in the appropriate
case that you could give the death penalty. Secondly,
you said, ‘Mr. Nancarrow, Ms. McDaniel, if you prove to
me that the answers to those special issues should be
yes, then I can answer them yes.’ If you wavered, if
you hesitated one minute on that, then I guarantee you,
you weren’t going to be on this jury. We believed you
then, and we believe you now.” Pet. for Cert. 6.
The jury verdict form tracked the final reminders the
prosecution gave the jury. The form made no mention of
nullification. Nor did it say anything about mitigation evi-
dence. Instead, the verdict form asked whether petitioner
committed the act deliberately and whether there was a
probability that he would commit criminal acts of violence
that would constitute a continuing threat to society. The
jury was allowed to give “Yes” or “No” answers only. The
jury answered both questions “Yes” and sentenced petitioner
to death. App. 4 to Pet. for Cert.
On direct appeal, petitioner argued that our holding in
Penry I rendered his jury instructions unconstitutional be-
cause the special issues did not allow the jury to give ef-
fect to his mitigation evidence. The Texas Court of Crim-
inal Appeals affirmed petitioner’s sentence, reasoning that
the nullification instruction provided an adequate vehicle
through which the jury could consider petitioner’s evidence.
We denied certiorari on May 15, 1995. Smith v. Texas, 514
U. S. 1112.
Petitioner filed an original writ of habeas corpus in the
trial court in 1998. That suit was dismissed as untimely, but
the Texas Legislature amended its criminal code in such a
way as to allow petitioner to file a timely writ. Petitioner
did so, claiming that his jury was instructed in violation of

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
43 Cite as: 543 U. S. 37 (2004)
Per Curiam
the Eighth Amendment. Before the Texas Court of Crimi-
nal Appeals, petitioner argued that the jury instructions in
his case ran afoul of our holding in Penry II. The court
denied petitioner’s application on the merits. 132 S. W. 3d
407 (2004).3
II
The Texas Court of Criminal Appeals issued its opinion
just prior to our decision in Tennard v. Dretke, 542 U. S. 274
(2004). In Tennard, we reversed the Fifth Circuit’s refusal
to grant a certificate of appealability to a defendant who was
sentenced under the Texas capital sentencing scheme prior
to the legislative revisions which took place in the aftermath
of Penry I. Tennard, relying upon Penry I, argued that
Texas’ two special issues—deliberateness and future danger-
ousness—did not allow the jury to give effect to his mitiga-
tion evidence and that the trial court’s failure to issue a sup-
plemental mitigation instruction that would allow the jury
to give full effect to his evidence rendered his death sentence
unconstitutional. The state court and the Fifth Circuit both
held that the lack of an adequate mitigation instruction was
irrelevant. The courts both determined that Tennard had
failed to satisfy the Fifth Circuit’s threshold standard for
“ ‘constitutionally relevant’ mitigating evidence, that is, evi-
dence of a ‘uniquely severe permanent handicap with which
the defendant was burdened through no fault of his own,’
and evidence that ‘the criminal act was attributable to this
severe permanent condition.’ ” 542 U. S., at 281 (some inter-
nal quotation marks omitted).
Our rejection of that threshold test was central to our de-
cision to reverse in Tennard. We held that “[t]he Fifth Cir-
cuit’s test has no foundation in the decisions of this Court.
Neither Penry I nor its progeny screened mitigating evi-
3 Four judges would have found petitioner’s claim procedurally de-
faulted. See 132 S. W. 3d, at 417 (Hervey, J., concurring); id., at 428 (Hol-
comb, J., concurring). The majority of the court, however, declined to
adopt this holding and reached petitioner’s claims on the merits.

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
44 SMITH v. TEXAS
Per Curiam
dence for ‘constitutional relevance’ before considering
whether the jury instructions comported with the Eighth
Amendment.” Id., at 284. Rather, we held that the jury
must be given an effective vehicle with which to weigh miti-
gating evidence so long as the defendant has met a “low
threshold for relevance,” which is satisfied by “ ‘ “evidence
which tends logically to prove or disprove some fact or cir-
cumstance which a fact-finder could reasonably deem to have
mitigating value.” ’ ” Id., at 284–285 (quoting McKoy v.
North Carolina, 494 U. S. 433, 440 (1990)).
The Texas Court of Criminal Appeals relied on precisely
the same “screening test” we held constitutionally inade-
quate in Tennard. 132 S. W. 3d, at 413 (holding that mitiga-
tion evidence requires a special instruction only when that
evidence passes the threshold test of “whether the defend-
ant’s criminal act was ‘due to the uniquely severe permanent
handicaps with which the defendant was burdened through
no fault of his own’ ” (quoting Robertson v. Cockrell, 325 F. 3d
243, 251 (CA5 2003) (en banc))). Employing this test, the
court concluded that petitioner’s low IQ and placement in
special-education classes were irrelevant because they did
not demonstrate that he suffered from a “severe disability.”
132 S. W. 3d, at 414. But, as we explained in Tennard, “[e]v-
idence of significantly impaired intellectual functioning is ob-
viously evidence that ‘might serve as a basis for a sentence
less than death.’ ” 542 U. S., at 288 (quoting Skipper v.
South Carolina, 476 U. S. 1, 5 (1986); some internal quotation
marks omitted). There is no question that a jury might well
have considered petitioner’s IQ scores and history of partici-
pation in special-education classes as a reason to impose a
sentence more lenient than death. Indeed, we have held
that a defendant’s IQ score of 79, a score slightly higher than
petitioner’s, constitutes relevant mitigation evidence. See
Wiggins v. Smith, 539 U. S. 510, 535 (2003); cf. Tennard,
supra, at 288.

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
45 Cite as: 543 U. S. 37 (2004)
Per Curiam
The state court also held that petitioner had offered “no
evidence of any link or nexus between his troubled childhood
or his limited mental abilities and this capital murder.” 132
S. W. 3d, at 414. We rejected the Fifth Circuit’s “nexus”
requirement in Tennard, supra, at 287 (noting that none of
our prior opinions “suggested that a mentally retarded indi-
vidual must establish a nexus between her mental capacity
and her crime before the Eighth Amendment prohibition on
executing her is triggered” and holding that the jury must
be allowed the opportunity to consider Penry evidence even
if the defendant cannot establish “a nexus to the crime”).
That petitioner’s evidence was relevant for mitigation pur-
poses is plain under our precedents, even those predating
Tennard. See, e. g., Penry I, 492 U. S., at 319–322; Payne v.
Tennessee, 501 U. S. 808, 822 (1991); Boyde v. California, 494
U. S. 370, 377–378 (1990); Eddings v. Oklahoma, 455 U. S.
104, 114 (1982). The state court, however, erroneously re-
lied on a test we never countenanced and now have un-
equivocally rejected. We therefore hold that the state court
“assessed [petitioner’s legal] claim under an improper legal
standard.” Tennard, supra, at 287. Because petitioner’s
proffered evidence was relevant, the Eighth Amendment re-
quired the trial court to empower the jury with a vehicle
capable of giving effect to that evidence. Whether the “nul-
lification instruction” satisfied that charge is the question to
which we now turn.
III
The Texas Court of Criminal Appeals held that even if
petitioner did proffer relevant mitigation evidence, the sup-
plemental “nullification instruction” provided to the jury ad-
equately allowed the jury to give effect to that evidence.
The court found it significant that the supplemental instruc-
tion in this case “told the jury that it ‘shall’ consider all miti-
gating evidence, even evidence unrelated to the special
issues, [and] it also told the jury how to answer the special
issues to give effect to that mitigation evidence.” 132 S. W.

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
46 SMITH v. TEXAS
Per Curiam
3d, at 416. The court also concluded that the nullification
instruction made it clear to the jury that a “No” answer was
required if it “believed that the death penalty was not war-
ranted because of the mitigating circumstances.” Ibid.
In Penry II, we held that “the key under Penry I is that
the jury be able to ‘consider and give effect to [a defendant’s
mitigation] evidence in imposing sentence.’ ” 532 U. S., at
797 (quoting Penry I, supra, at 319); see 532 U. S., at 797
(“ ‘[A] sentencer [must] be allowed to give full consideration
and full effect to mitigating circumstances’ ” (quoting John-
son v. Texas, 509 U. S., at 381 (O’Connor, J., dissenting);
emphasis in Johnson)). We explained at length why the
supplemental instruction employed by the Texas courts did
not provide the jury with an adequate vehicle for expressing
a “reasoned moral response” to all of the evidence relevant
to the defendant’s culpability. 532 U. S., at 796. Although
there are some distinctions between the Penry II supple-
mental instruction and the instruction petitioner’s jury re-
ceived, those distinctions are constitutionally insignificant.
Penry II identified a broad and intractable problem—a
problem that the state court ignored here—inherent in any
requirement that the jury nullify special issues contained
within a verdict form.
“We generally presume that jurors follow their in-
structions. Here, however, it would have been both
logically and ethically impossible for a juror to follow
both sets of instructions. Because Penry’s mitigating
evidence did not fit within the scope of the special issues,
answering those issues in the manner prescribed on the
verdict form necessarily meant ignoring the command
of the supplemental instruction. And answering the
special issues in the mode prescribed by the supplemen-
tal instruction necessarily meant ignoring the verdict
form instructions. Indeed, jurors who wanted to an-
swer one of the special issues falsely to give effect to
the mitigating evidence would have had to violate their
oath to render a ‘ “true verdict.” ’

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
47 Cite as: 543 U. S. 37 (2004)
Per Curiam
“The mechanism created by the supplemental instruc-
tion thus inserted ‘an element of capriciousness’ into the
sentencing decision, ‘making the jurors’ power to avoid
the death penalty dependent on their willingness’ to ele-
vate the supplemental instruction over the verdict form
instructions. There is, at the very least, ‘a reasonable
likelihood that the jury . . . applied the challenged in-
struction in a way that prevent[ed] the consideration’ of
Penry’s mental retardation and childhood abuse. The
supplemental instruction therefore provided an inade-
quate vehicle for the jury to make a reasoned moral re-
sponse to Penry’s mitigating evidence.” Id., at 799–800
(citations omitted).
It is certainly true that the mandatory aspect of the nul-
lification instruction made petitioner’s instruction distinct
from Penry’s. Indeed, the “shall” command in the nullifi-
cation instruction resolved the ambiguity inherent in the
Penry II instruction, which we held was either a nullification
instruction or an instruction that “ ‘shackled and confined’ ”
Penry’s mitigating evidence within the scope of the imper-
missibly narrow special issues. Id., at 798. That being
said, the clearer instruction given to petitioner’s jury did not
resolve the ethical problem described supra, at 46 and this
page. 4 To the contrary, the mandatory language in the
4 The concurring opinions below straightforwardly recognized this prob-
lem. See 132 S. W. 3d 407, 427 (Tex. Crim. App. 2004) (Hervey, J., concur-
ring) (concluding that the “ ‘nullification’ instruction would, as a matter of
federal constitutional law, suffer from the same defect as the one in Penry
II had applicant presented any mitigating evidence that was beyond ‘the
effective reach of the sentencer’ ” and conceding that the instruction given
to petitioner may have been inadequate “as a matter of federal constitu-
tional law”); id., at 428 (Holcomb, J., concurring) (“The nullification instruc-
tion provided to Smith’s jury contained the same defects the Supreme
Court identified in Penry II. Therefore, the jury was unconstitution-
ally precluded from considering and giving effect to Smith’s mitigating
evidence”).

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
48 SMITH v. TEXAS
Per Curiam
charge could possibly have intensified the dilemma faced by
ethical jurors. Just as in Penry II, petitioner’s jury was re-
quired by law to answer a verdict form that made no mention
whatsoever of mitigation evidence. And just as in Penry II,
the burden of proof on the State was tied by law to findings
of deliberateness and future dangerousness that had little, if
anything, to do with the mitigation evidence petitioner pre-
sented.5 Even if we were to assume that the jurors could
easily and effectively have comprehended an orally delivered
instruction directing them to disregard, in certain limited
circumstances, a mandatory written instruction given at a
later occasion, that would not change the fact that the “jury
was essentially instructed to return a false answer to a spe-
cial issue in order to avoid a death sentence.” Penry II, 532
U. S., at 801.
There is no principled distinction, for Eighth Amendment
purposes, between the instruction given to petitioner’s jury
and the instruction in Penry II. Petitioner’s evidence was
relevant mitigation evidence for the jury under Tennard and
Penry I. We therefore hold that the nullification instruction
was constitutionally inadequate under Penry II. The judg-
ment of the Texas Court of Criminal Appeals is reversed,
5 There is another similarity between this case and Penry II. In Penry
II, we found it significant that the prosecutor admonished the jury to “ ‘fol-
low your oath, the evidence and the law’ ” prior to the deliberations in
which the jury was required to fill out the verdict form. 532 U. S., at
802. We held that this statement sent the jury “mixed signals” and “only
reminded the jurors that they had to answer the special issues dishonestly
in order to give effect to Penry’s mitigating evidence.” Ibid. The prose-
cutor here similarly reminded the jury that each and every one of them
had promised to “follow the law” and return a “Yes” answer to the special
issues so long as the State met its burden of proof. Pet. for Cert. 6.
Thus, the nullification instruction presented the same ethical dilemma
here and, what is more, it seems that despite the inclusion of the manda-
tory “shall” language, the nullification instruction may have been more
confusing for the jury to implement in practice than the state court
assumed.

543US1 Unit: $$U3 [03-06-07 11:38:09] PAGES PGT: OPIN
49 Cite as: 543 U. S. 37 (2004)
Scalia, J., dissenting
and the case is remanded for further proceedings not incon-
sistent with this opinion.
It is so ordered.
Justice Scalia, with whom Justice Thomas joins,
dissenting.
I would affirm the judgment of the Texas Court of Crimi-
nal Appeals. See Walton v. Arizona, 497 U. S. 639, 673
(1990) (Scalia, J., concurring in part and concurring in
judgment).