Smith, Ex Parte Laroyce Lathair

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,228

EX PARTE LAROYCE LATHAIR SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Holcomb, J., filed a concurring opinion in which Price, J., joined.

O P I N I O N

I agree with the majority that the petitioner is not entitled to relief on habeas corpus. However, I do so only because I am compelled by the facts to agree with the concurrence that Smith procedurally defaulted the claim he now raises, that his nullification instruction was insufficient under Penry II, (1) precluding the jury from giving effect to his mitigating…