In the 1976 case of Jurek v. Texas, the Supreme Court said that the Texas capital sentencing system of having the jury answer three special issues provided sufficient discretion to make its statute an allowable "guided discretion" statute rather than a forbidden "mandatory" one.

In the 1989 case of Penry v. Lynaugh, the court said that in the context of the particular mitigation case that Penry presented (a claim of mental retardation that a later jury eventually found was false)  the special issues didn't do the job.  Texas had to add a fourth issue, many well-deserved sentences were overturned, and there was general chaos from the Supreme Court's contradiction of itself.  That was par for the course in the 70s and 80s, which is a big part of the reason there were few executions.

Not only did Penry make a radical change to capital sentencing law, but the Court denied it was doing so.  It adopted the anti-retroactivity rule of Teague v. Lane in a majority opinion, with Justice White coming around, but then gutted the rule with an excessively narrow view of what is a "new rule."  The latter problem was fixed in later cases for the Teague rule generally, but Penry's retroactivity rule has never been overruled.

The CCA disposed of Bower's claims last June:

We have reviewed the record and the trial court's findings of fact and conclusions of law. Based upon our own review, we deny relief on applicant's first two claims regarding actual innocence and Brady violations. We reject the trial court's findings and conclusions recommending relief on applicant's third claim. We have previously held that, unlike the double-edged evidence in Penry v. Lynaugh,² the mitigating evidence presented by applicant during the punishment phase of his trial - evidence of his good and non-violent character, his good deeds, and the absence of a prior criminal record - was not outside the scope of the special issues given, nor did it have an aggravating effect when considered within the scope of the special issues. Ex parte Bower, 823 S.W.2d at 286. The promulgation of more recent case law by the United States Supreme Court has not changed the definition or nature of what is considered mitigating evidence; thus, applicant was not constitutionally entitled to a separate jury instruction at the punishment phase of trial. See, e.g., Penry, 492 U.S. 302 (1989), and Ex parte Jones, No. AP-75,896 (Tex. Crim. App. June 10, 2009)(not designated for publication)(holding positive personal characteristics are the sorts of evidence that can be considered within the scope of the former special issues - no Penry issue required). Accordingly, the relief applicant seeks is denied.

Applicant's fourth allegation is dismissed.

2.  Penry v. Lynaugh, 492 U.S. 302 (1989).

I sure hope that a long-overdue execution is not being held up while the Supreme Court tinkers yet again with an old decision that was wrong in the first place.

Update:  Michael Graczyk has this story for AP.

Update 2:  For the reasons why Penry was wrongly decided, see Justice Thomas's concurring opinion in Graham v. Collins (1993), beginning on page 478.

Update 3:  Amy Howe has this post at SCOTUSblog with a link to the certiorari petition.  Bower's lawyers have dropped the actual innocence claim and are going with the other three.  The case is 14-292, Bower v. Texas.