Ex Parte Hathorn

OPINION

in which PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Applicant was convicted of capital murder and sentenced to death in 1985. On direct appeal, we affirmed his conviction and sentence. Hathorn v. State, 848 S.W.2d 101 (Tex.Crim.App.1992). While Applicant’s direct appeal was pending before us, the United States Supreme Court handed down an opinion in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In his initial application for writ of habeas corpus, Applicant argued that his jury was not instructed to consider mitigating circumstances in…