I. In Smith v. Texas, 543 U.S. 37 (2004), this Court summarily reversed the Texas Court of Criminal Appeals and found constitutional error under Penry v. Lynaugh, 492 U.S.302 (1989) (Penry I), and Penry v. Johnson, 532 U.S. 782 (2001) (Penry II). Is it consistent with this Court's remand in this case for the Texas Court of Criminal Appeals to deem the error in petitioner's case harmless based on its view that jurors were in fact able to give adequate consideration and effect to petitioner's mitigating evidence notwithstanding this Court's conclusion to the contrary?
II. Can the Texas Court of Criminal Appeals, based on a procedural determination that it declined to adopt in its original decision that this Court then summarily reversed, impose on remand a daunting standard of harm ("egregious harm") to the constitutional violation found by this Court?Question:
1) Was the Texas Court of Criminal Appeals correct in holding that the improper instruction given to Smith's jury was harmless error and not sufficient to invalidate his death sentence? 2) Was the Texas court correct to require a standard of "egregious harm" when evaluating whether an unconstitutional jury instruction should invalidate a death sentence?