The application for stay of execution of the sentence of death, presented to Justice WHITE and by him referred to the Court, is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227, 2950, 49 L. Ed.2d 859 (1976), I would grant the application for a stay and vacate the death sentence in this case. Even if I did not hold this view, for the reasons stated below I still would be compelled to vote to overturn this sentence.

Streetman was convicted in Texas of murder and sentenced by a jury to die. Pursuant to Texas law, Tex.Code of Crim.Proc.Ann., [484 U.S. 992, 993] Art. 37.071(b) (Vernon 1981, and Supp. 1988), the jury was told that if they answered "yes" to two special questions, Streetman would automatically be sentenced to death.

The first question asked "whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result." As Justice BLACKMUN has observed, an affirmative answer to this question is generally a foregone conclusion because intent is usually an element of the underlying crime of capital murder. Barefoot v. Estelle, 463 U.S. 880, 916-917, and n. 1, 3406-3407, and n. 1 (1983) (dissenting opinion). Thus, Streetmans life hinged on the second question: "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society."

The jury returned with their answers: "Yes" to both questions. The sentence was accordingly fixed at death, and the Texas Court of Criminal Appeals affirmed the judgment. 698 S.W.2d 132 (1985). Streetmans first state and federal habeas corpus petitions (raising issues unrelated to the issue discussed below) were denied. 634 F.Supp. 290 (ED Tex.1986); 812 F. 2d 950 (CA5 1987); 818 F.2d 865 (CA5 1987). He then filed a second state habeas corpus petition in the state court calling into question, inter alia, the constitutionality of the Texas death penalty schemes treatment of mitigating evidence. The petition was denied in state court, and the subsequent second federal habeas corpus petition was denied by the District Court and the Court of Appeals. 674 F.Supp. 229; 835 F.2d 1519; 835 F.2d 1521 (1988). This application for a stay followed.

In 1976, this Court approved generally the Texas death penalty scheme . Jurek v. Texas, 428 U.S. 262 (1976). In the course of its analysis, the Court considered the treatment of mitigating evidence during the sentencing phase. The joint opinion announcing the judgment found that the Texas courts had construed the second special question "so as to allow a defendant to bring to the jurys attention whatever mitigating circumstances he may be able to show." Id., at 272 (opinion of Stewart, Powell, and STEVENS, JJ.). [484 U.S. 992, 994] In Lockett v. Ohio, 438 U.S. 586, 604, 2964-2965, 57 L. Ed.2d 973 (1978), the plurality held that "the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Ibid. (opinion of Burger, C.J.). The Court has applied and explained Lockett in the nine years since it was announced. In Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869 (1982), the Court applied Lockett to strike a state statute that precluded the sentencer from considering certain relevant mitigating evidence, in support of mitigating factors. Later, in Skipper v. South Carolina, 476 U.S. 1 (1986), the Court expressly s