806
Opinion of Thomas, J.
gument, and in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence." Id., at 326.
At Penry's second sentencing, the court read to the jury the same three special issues. In contrast to the first sentencing, however, the court instructed the jury at length that it could consider Penry's proffered evidence as mitigating evidence and that it could give mitigating effect to that evidence. See ante, at 789-790. The Texas Court of Criminal Appeals concluded that this supplemental instruction "allow[ed] [the jury] to consider and give effect to" Penry's proffered mitigating evidence and therefore was "sufficient to meet the constitutional requirements of [Penry I]." 2 Penry v. State, 903 S. W. 2d 715, 765 (1995). In my view, this decision is not only objectively reasonable but also compelled by this Court's precedents and by common sense.
"In evaluating the instructions, [a court should] not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would—with a 'commonsense understanding of the instructions in the light of all that has taken place at the trial.' " Johnson v. Texas, 509 U. S. 350, 368 (1993) (quoting Boyde v. California, 494 U. S. 370, 381 (1990)). The Texas court's instruction, read for common sense, or, even after a technical parsing, tells jurors that they may consider the
2 This Court's suggestion that the Texas court may have believed that any supplemental instruction, regardless of its substance, would satisfy Penry I's requirement, see ante, at 796-797, is specious. The Texas court explained that a "jury must be given a special instruction in order to allow it to consider and give effect to such evidence"; it quoted the full text of the supplemental instruction; and it concluded that "a nullification instruction such as this one is sufficient to meet the constitutional requirements of [Penry I]." Penry v. State, 903 S. W. 2d 715, 765 (1995) (emphasis added). It is quite obvious that the court based its legal conclusion on the content of the supplemental instruction.
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