784
Syllabus
402. It therefore cannot be said that it was objectively unreasonable for the Texas court to conclude that Penry is not entitled to relief on his Fifth Amendment claim. See Williams, supra, at 409. Even if the Court's precedent were to establish squarely that use of the Peebles report violated the Fifth Amendment, that error would justify overturning Penry's sentence only if he could establish that the error had a substantial and injurious effect or influence in determining the jury's verdict. E. g., Brecht v. Abrahamson, 507 U. S. 619, 637. There is considerable doubt that Penry could make such a showing. The excerpt from the Peebles report was neither the first nor the last expert opinion the jury heard to the effect that Penry posed a future danger and was by no means the key to the State's case on future dangerousness. Pp. 793-796.
2. The jury instructions at Penry's resentencing, however, did not comply with the Court's mandate in Penry I. To the extent the Texas appellate court believed that Penry I was satisfied merely because a supplemental instruction was given, the court clearly misapprehended that prior decision. The key under Penry I is that the jury be able to "consider and give effect to [a defendant's mitigating] evidence in imposing sentence." 492 U. S., at 319. To the extent the state court concluded that the substance of the jury instructions given at Penry's resentencing satisfied Penry I, that determination was objectively unreasonable. The three special issues submitted to the jury were identical to the ones found inadequate in Penry I. Although the supplemental instruction mentioned mitigating evidence, the mechanism it purported to create for the jurors to give effect to that evidence was ineffective and illogical. The jury was clearly instructed that a "yes" answer to a special issue was appropriate only when supported by the evidence beyond a reasonable doubt, and that a "no" answer was appropriate only when there was a reasonable doubt as to whether the answer to a special issue should be "yes." The verdict form listed the three special issues and, with no mention of mitigating circumstances, confirmed and clarified the jury's two choices with respect to each special issue. In the State's view, however, the jury was also told that it could ignore these clear guidelines and—even if there was in fact no reasonable doubt as to the matter inquired about—answer any special issue in the negative if the mitigating circumstances warranted a life sentence. In other words, the jury could change one or more truthful "yes" answers to an untruthful "no" answer in order to avoid a death sentence for Penry. The supplemental instruction thereby made the jury charge as a whole internally contradictory, and placed law-abiding jurors in an impossible situation. The comments of the prosecutor and defense counsel, as well as the comments of the court during voir dire, did
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