In Penry’s second trial for capital murder, the trial court did not err when it admitted, over defense objection, the opinion of an examining psychiatrist that Penry would be dangerous if he were released. The case was distinguishable from Estelle v. Smith (1981) 451 U.S. 454 which held that the admission of a psychiatrist’s testimony on future dangerousness violated the Fifth Amendment because the testimony was based on the defendant’s un-counseled statements. Even if there were a Fifth Amendment violation, Penry did not show that the error had a substantial and injurious effect in determining the jury’s verdict. The excerpt from the psychiatrist’s report was not the only opinion the jury heard on the topic of future dangerousness. J. Rehnquist, Scalia and Thomas dissented on the mental retardation issue.