SMITH v. TEXAS

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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 ques
tions found constitutionally inadequate in Penry I. Texas courts at
tempted 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 chal
lenges 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 chal
lenge 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
predicate for requiring Smith to show egregious harm. Smith I con
firmed 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. Al

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though 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, argu
ment 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. Regard
less 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 ap
peals 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. 312–315.
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, pre
served error is subject only to normal harmless-error review. The ap
peals court has indicated elsewhere that so long as 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. 315–316.
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 concur
ring opinion, post, p. 316. Alito, J., filed a dissenting opinion, in which
Roberts, C. J., and Scalia and Thomas, JJ., joined, post, p. 316.
Jordan M. Steiker, by appointment of the Court, 549 U. S.
1029, argued the cause for petitioner. With him on the
briefs were Carol S. Steiker and Maurie A. Levin.
R. Ted Cruz, Solicitor General of Texas, argued the cause
for respondent. With him on the brief were Greg Abbott,
Attorney General, Kent C. Sullivan, First Assistant Attor
ney General, Eric J. R. Nichols, Deputy Attorney General,
Sean D. Jordan, Deputy Solicitor General, Adam W. Aston

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and Michael P. Murphy, Assistant Solicitors General, and
Kimberly A. Schaefer.
Gene C. Schaerr argued the cause for the State of Califor
nia et al. as amici curiae urging affirmance. With him on
the brief were Bill Lockyer, Attorney General, Ward A.
Campbell, Supervising Deputy Attorney General, Steffen N.
Johnson, and Kevin T. Kane, Chief State’s Attorney of Con
necticut, and the Attorneys General for their respective
States as follows: Troy King of Alabama, Terry Goddard of
Arizona, John W. Suthers of Colorado, Charlie Crist of Flor
ida, Thurbert E. Baker of Georgia, Phill Kline of Kansas,
Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Loui
siana, Jim Hood of Mississippi, Mike McGrath of Montana,
George J. Chanos of Nevada, Jim Petro of Ohio, Hardy
Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania,
Henry D. McMaster of South Carolina, Lawrence E. Long of
South Dakota, Mark L. Shurtleff of Utah, Robert F. McDon
nell of Virginia, and Rob McKenna of Washington.*
Justice Kennedy delivered the opinion of the Court.
The jury in a Texas state court convicted petitioner La-
Royce Lathair Smith of first-degree murder and determined
he should receive a death sentence. This Court now re
views a challenge to the sentencing proceeding for a second
time.
The sentencing took place in the interim between our deci
sions 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 determi
nations in capital cases. The decision held that the Texas
special issues were insufficient to allow proper consideration
*Seth P. Waxman and Virginia E. Sloan filed a brief for the Constitu
tion Project as amicus curiae urging reversal.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda
tion as amicus curiae urging affirmance.

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of some forms of mitigating evidence. Following a pretrial
challenge to the special issues by Smith, the trial court is
sued a charge instructing the jury to nullify the special is
sues 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 in
sufficient to cure the flawed special issues. Smith, on state
collateral review, continued to seek relief based on the inade
quacy of the special issues, arguing that the nullification
charge had not remedied the problem identified in his pre
trial objection. The Texas Court of Criminal Appeals af
firmed 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 re
mand the Court of Criminal Appeals again denied Smith
relief. It held, for the first time, that Smith’s pretrial ob
jections 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 (2006).
The requirement that Smith show egregious harm was predi
cated, 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 special
issue 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 dan

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gerousness; 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
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 charac
terizing, Penry I, supra, at 322–325). We refer to the in
adequacy of the special-issue instructions as “Penry error.”
For the brief period between Penry I and the Texas Legis
lature’s addition of a catchall special issue, Texas courts at
tempted 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 special-issue 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] in
struction had no practical effect, the jury instructions . . .
were not meaningfully different from the ones we found con
stitutionally 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 delib

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erations 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 independ
ent matter; but we need not reach that 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 interpre
tation 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 com
mitted 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 re
quired to demonstrate egregious harm to obtain relief.
B
The Trial
Before voir dire, Smith filed three written motions ad
dressing 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 mo
tion 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 inflic
tion of the death penalty [is] contained in” Article 37.071 of

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the Texas Code of Criminal Procedure Annotated (Vernon
2006 Supp. Pamphlet), which did not authorize the trial court
to add an additional 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 re
sponse 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 Su
preme 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 there
fore reasoned that Article 37.071 was unconstitutional.
The third pretrial motion asked the court to state the con
tents 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 pro
posed 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 rea
sonable 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 of the Special
Issues ‘No’ in order to give effect to your belief that the

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death penalty should not be imposed due to the mitigat
ing 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 (inter
nal quotation marks omitted).
The nullification charge did not define or describe the spe
cial issues. 1 App. 105–110. The judge told counsel: “If you
see something in that charge that you’d like worded differ
ently or you think could be made clearer or better, I’m al
ways 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 al
ternative 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 an
swered “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 chal
lenge 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 miti
gating 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 reading of fed
eral law and this Court’s precedents. Considering Smith’s
first two pretrial motions together, as the trial court did, it

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is evident Smith’s objection was that the special-issue frame
work violated the Eighth Amendment because it prevented
the court from formulating jury instructions that would en
sure 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 miti
gating evidence not relevant to the special verdict ques
tions, or that had relevance to the defendant’s moral
culpability beyond the scope of the special verdict
questions, and the jury instructions would have pro
vided the jury with no vehicle for expressing its rea
soned moral response to that evidence.
. . . . .
“By its extremely narrow interpretation of the re
quirements 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 individualized consider
ation of the appropriateness of assessment of the death
penalty and [the article establishing them] is unconstitu
tional as applied.” 1 App. 133–134.

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Both the Court of Criminal Appeals, in its most recent opin
ion, 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 direct-appeal argu
ment that “the jury was unable to give effect to his mitigat
ing 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 [pre
trial] 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 com
plied with Penry and provided a sufficient vehicle for the
jury to consider any mitigating evidence [Smith] offered.”
Smith v. State, No. 71,333 (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 Ap
peals, over a dissent, rejected an argument that neglect by
Smith’s counsel merited equitable tolling. Ex parte Smith,
977 S. W. 2d 610 (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 spe
cial issues were inadequate: “In Penry [I], the Supreme
Court . . . held that the former Texas capital sentencing stat
ute did not provide an adequate vehicle for expressing its
reasoned moral response to [mitigating] evidence in render
ing its sentencing decision.” Application for Writ of Habeas

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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 ‘nullifica
tion’ instruction.” Id., at 194, Record 196.
Smith conceded he had not objected to the nullification
charge but confirmed that he had challenged the special
issues 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 contended, in the alter
native, that Smith’s position was meritless because the nulli
fication 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.

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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, pp. 86–87 (265th Dist. Ct. of Dallas
Cty., Tex., 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 Ap
peals 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, 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 (2007).)
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 con
centrated on the same issue. Nevertheless, his central ar
gument remained that he “presented significant mitigating
evidence that was virtually indistinguishable from Penry’s

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and thus undeniably beyond the scope of the special issues.”
Applicant’s Supplemental Briefing on Submission in
No. 74,228, 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 evi
dence 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 (em
phasis 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 Submis
sion in No. 74,228 (Tex. Crim. App.).
The Court of Criminal Appeals denied the habeas peti
tion. 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

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Penry II. In Smith’s case, the court reasoned, the nullifica
tion 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 (opin
ion of Hervey, J.); id., at 428 (opinion of Holcomb, J.).
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 “con
stitutionally 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 consider
ation was “tied by law to findings of deliberateness and fu
ture 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 insignificant” 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

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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 Re
mand). The State maintained this was an adequate and in
dependent 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 inade
quacy of the special issues to permit constitutionally ade
quate consideration of his mitigating evidence and this Court
has consistently addressed the merits of [that] claim.” Ap
plicant’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 “[t]he Su
preme 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 argu
ment, that at least some of [Smith’s] evidence was not fully
encompassed by the two special issues” and that “the jury

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312 SMITH v. TEXAS
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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 pre
served 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 con
trast, 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 in
structional 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 probabil
ity of harm. In the view of the Court of Criminal Appeals
there was little likelihood that Smith’s jury had failed to con
sider the mitigating evidence. 185 S. W. 3d, at 468–473. On
this basis the court concluded Smith had failed to show egre
gious harm and, as such, habeas relief was foreclosed.
We granted certiorari. 549 U. S. 948 (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,

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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 mis
interpretation of federal law.
The State and the Court of Criminal Appeals read Smith
I as having reversed because the nullification charge “pre
vented 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 ha
beas petition included an argument that the nullification
charge itself prevented the jury from considering his mitigat
ing 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 inad
equate and so reversed the Court of Criminal Appeals. In
challenging the special issues Smith did contend that the nul
lification charge was flawed. This Court engaged in much
the same analysis. That analysis was only necessary, how
ever, because the Court of Criminal Appeals had twice re
jected Smith’s claim of Penry error based on the mistaken
idea that “regardless of whether [Smith’s] mitigating evi
dence was beyond the scope of the two statutory special is

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314 SMITH v. TEXAS
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sues, the judge’s extensive supplemental [nullification] in
struction 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 certio
rari in Smith I, the State understood that under Penry II it
was the special issues, not the nullification charge, that cre
ated 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 aris
ing 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 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 sys

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tem 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 Crimi
nal 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).
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 chal
lenge to the special issues.
The Court of Criminal Appeals explained in its recent de
cision 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

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316 SMITH v. TEXAS
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“ ‘actual’ harm,” 185 S. W. 3d, at 468, and therefore would
not even satisfy the lower Almanza standard. We must as
sume that this departure from the clear rule of Penry v.
State resulted from the state court’s confusion over our deci
sion 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 find
ing that Smith has shown there was a reasonable likelihood
that the jury interpreted the special issues to foreclose ade
quate 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
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.
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 ad
dress that question here.
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

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was identified in Smith v. Texas, 543 U. S. 37 (2004) (per cu
riam) (Smith I), concerned a flaw in the jury instructions:
Specifically, the instructions did not give the jury an ade
quate opportunity to take some of petitioner’s mitigating evi
dence 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 aggravat
ing factors that might have led the jury to return a death
verdict no matter what instructions were given—never ob
jected 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 “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 independ

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318 SMITH v. TEXAS
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ent 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 an
swered 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
would commit criminal acts of violence that would con
stitute a continuing threat to society.” Tex. Code Crim.
Proc. Ann., Art. 37.0711, §§ 3(b)(1) and (2) (Vernon 2006).
If the jury found unanimously that the answer to all the
“special issues” was “yes,” then the death sentence was im
posed; 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 evi
dence 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 pos
1 A 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.

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sibility that an instruction broadly defining the requirement
of deliberateness might have permitted sufficient consider
ation of Penry’s mental retardation and abuse. The Court
wrote:
“In the absence of jury instructions defining ‘deliber
ately’ 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 spe
cial instruction, a juror who believed that Penry’s retar
dation 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 ‘de
liberately.’ Thus, we cannot be sure that the jury’s an
swer to the first special issue reflected a ‘reasoned moral
response’ to Penry’s mitigating 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 em
ployees 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 peti
tioner beat her on the head with the butt of a gun, demand
ing 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

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320 SMITH v. TEXAS
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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 peti
tioner’s history of violence. The defense offered mitigation
evidence, including some that loosely resembled Penry’s, spe
cifically 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 peti
tioner. 1 App. 7–10. The second motion, also citing Penry
I, likewise argued that the Texas death penalty was “uncon
stitutional because it does not provide 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 ar
gued that the judge could not provide “any instruction with
regard to mitigating evidence” that would obviate the consti
tutional 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 mo
tion and invited defense counsel to offer suggested revisions.
But although Penry I had explained how the jury instruc
tions 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

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fact that all involved understood that the trial judge’s pro
posed instruction was intended to cure the Penry I problem,
petitioner’s counsel did not object that the proposed mitiga
tion 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 “nullifi
cation” 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 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” in
structions were conflicting and that the conflict created an
“ethical problem” for the jurors because they were “ ‘essen
tially 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 por
tion 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 in
struction, id., at 461, applied the unpreserved error prong of

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its Almanza rule, which represents the TCCA’s interpreta
tion 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 theoreti
cal, harm to the accused.’ If the defendant failed to ob
ject 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 (quoting
Almanza, 686 S. W. 2d, at 174).
Finding that the error in this case had not produced the req
uisite “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 305, 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 “deliber

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ately” as used in the first “special issue” in a way that was
broad enough to permit consideration of the relevant mitigat
ing 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 inade
quate to satisfy federal law. Preventing the TCCA from
applying plain-error review in these circumstances is tanta
mount to holding that petitioner had a federal right to sand
bag 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
posed instructions, there are several remaining questions
that must be considered. Because the Court does not ad
dress these, I address them in abbreviated form.
A
The first is whether the TCCA was precluded from apply
ing the Almanza rule in the decision now under review be
cause 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 invoca
tion of state law to avoid compliance with this Court’s deci
sion.” 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 procedur

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ally defaulted this claim, Ex parte Smith, 132 S. W. 3d, at
423–424 (opinion of Hervey, J.); id., at 428 (opinion of Hol
comb, J.), the majority did not respond and was under no
obligation to do so. Nor was the majority under any obliga
tion 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) (hold
ing 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 under Texas law.
In the absence of any legal obligation to consider a prelimi
nary nonmerits issue, a court may choose in some circum
stances to bypass the preliminary issue and rest its decision
on the merits. See, e. g., 28 U. S. C. § 2254(b)(2) (federal ha
beas 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 tech
nicality. Thus, the TCCA’s 2004 opinion cannot be read as
holding that petitioner’s jury instructions argument was un
encumbered with procedural defects or limitations.
Even if that earlier TCCA decision did not hold that peti
tioner’s jury instructions argument was properly preserved,
petitioner suggests that where a state court originally re
jects a federal claim on the merits and that decision is re
versed 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) (Ste
vens, J., concurring in judgment), we have never held that

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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 uncom
mon 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, 281 Kan. –––, 127 P. 3d 1033 (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 preserved for appellate review); State v. Hallum,
606 N. W. 2d 351, 353 (Iowa 2000) (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 unconstitu
tionally 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) (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 consid
eration 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. Ken
tucky, 466 U. S. 341, 348–349 (1984). The Almanza “egre
gious harm” rule meets these requirements. In Almanza,
the TCCA exhaustively reviewed the history of the Texas

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statute 2 governing objections to jury-charge error. 686
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; emphasis deleted).
Petitioner argues that the Almanza standard is not ade
quate but rather is arbitrary and discretionary for three rea
sons: 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
2 At 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 re
versed unless the error appearing from the record was calculated to injure
the rights of defendant, or unless it appears from the record that the de
fendant 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).
3 Petitioner argues that Texas has not applied Almanza in habeas pro
ceedings 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 defer
ential review in habeas proceedings than on direct review.

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Alito, J., dissenting
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 re
stricted 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 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 in
tentionally 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 Al
manza 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. Ala
bama 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 legiti
mate 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

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328 SMITH v. TEXAS
Alito, J., dissenting
trial court believed that the nullification charge had cured
the Penry I error inherent in the “special issues,” petition
er’s attorney elected to sit quietly by. Because the Al
manza 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 ob
ject to the nullification instruction, and was therefore re
quired 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 “egre
gious 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 evi
dence.” 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

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“finding error in the court’s charge to the jury begins—
not ends—the inquiry; the next step is to make an evi
dentiary review [of the whole record to] illuminate the
actual, not just [the] theoretical, harm to the 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 rever
sal 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 what
ever the standard, it is clear that this Court’s finding of con
stitutional penalty phase error in Smith I in no way fore
closed the second and subsequent step, undertaken by the
TCCA on remand, of determining whether that error re
quired 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.
4 Reading 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 effec
tively orders the TCCA to require petitioner to be resentenced. Ante, at
315–316. 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.