EX PARTE MARK ROBERTSON (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

AP-74,720

EX PARTE MARK ROBERTSON

ON APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. W89-85961-L(B) FROM THE

CRIMINAL DISTRICT COURT NO. 5 OF DALLAS COUNTY

Per Curiam. COCHRAN, J., not participating.

OPINION

Applicant was convicted on February 11, 1991, for the capital murder of Edna Brau, committed during a robbery on August 19, 1989. We affirmed the conviction and sentence on direct appeal. Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993) cert. denied, 513 U.S. 853 (1994). On applicant's initial application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, we denied relief. Ex parte Robertson, WR-30,077-01 (Tex. Crim. App. November 18, 1998). In each state and federal court, applicant asserted that he had been denied a vehicle for the jury to consider his mitigating evidence because he had received what has come to be called a "nullification instruction." In every venue his requests for relief were denied. Just before the date set for his execution in August 2003, applicant filed a subsequent application, again raising the claim that the nullification instruction impermissibly limited the jury's ability to consider and give effect to mitigating evidence presented during trial. On August 19, 2003, this Court stayed his execution while we considered an identical claim in Ex parte Laroyce Lathair Smith, 132 S.W.3d 407 (Tex. Crim. App. 2004). However, on June 24, 2004, the United States Supreme Court decided Tennard v. Dretke, 124 S. Ct. 2562 (2004), and specifically disapproved of the test used by the Fifth Circuit in Penry (1) claims; the same test used in the Fifth Circuit decision in the case before us, Robertson v. Cockrell, 325 F.3d 243 (5th Cir. 2003), and also applied by this Court in Ex parte Smith. As a result, the Supreme Court also reversed our decision in Smith v. Texas, 125 S. Ct. 400 (2004), holding that this Court assessed the claim under an improper legal standard. Applying the holding in Smith v. Texas to this case, we held that the claim was unavailable on the date applicant filed his initial application and that applicant met the requirements for consideration of his subsequent claim under Article 11.071, Section 5. The case was remanded to the convicting court for consideration of the claim. The convicting court made detailed findings and conclusions. The convicting court found that applicant presented mitigating evidence, for which under Penry I there had to be an adequate means for the jury to consider beyond the limits of the special issues, that applicant had requested such a means, and that when presented with the nullification instruction, applicant objected that it still did not give the jury a proper means to consider his mitigating evidence. Based on our review of the record, we adopt those findings and agree that relief should be granted.

Applicant's sentence is reversed, and the case is remanded to the convicting court for a new trial on punishment.

Delivered: March 12, 2008

Do Not Publish

1. Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I).