In point of error thirteen, appellant argues that the Texas capital murder sentencing scheme is unconstitutional because there is no meaningful review of the special issues. The majority is correct that this Court has previously rejected this argument and has held that it is not necessary to conduct a factual sufficiency review of the jury's answers to the future dangerousness and mitigation special issues. McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998). However, in light of the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), holding that the execution of mentally retarded individuals is cruel and unusual punishment, the Court will be forced to conduct both legal and factual sufficiency reviews for the mitigation special issue. Prior to Atkins, the weight that was given to a particular piece of evidence depended upon the influence it had on each juror. Now, however, jurors are required to consider evidence of mental retardation offered in mitigation of punishment. The Court can no longer summarily dismiss requests to review the sufficiency of the evidence in support of the jury's answers to the special issues.

There are also possible situations where this Court should conduct a factual sufficiency review of the future dangerousness special issue. If a defendant is granted a retrial after serving several years as a model prisoner, this Court should be able to conduct a factual sufficiency review of the future dangerousness special issue. Because the evidence in this case is factually sufficient, I therefore concur as to point of error thirteen and join the remainder of the opinion. Meyers, J.

Filed: June 11, 2003

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