UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 92-2291

_____________________________________

BILLY WAYNE WHITE,

Petitioner-Appellant,

VERSUS

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

______________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

______________________________________________________ (April 21, 1992)

Before JOLLY, DAVIS and SMITH, Circuit Judges.

DAVIS, Circuit Judge:

Billy Wayne White is under a sentence of death and is

scheduled for e xecution by the State of Texas on April 23, 1992.

The district court rejected White's habeas petition and he seeks a

certificate of probable cause (CPC) and stay of execution from this

court. Because White has made no substantial showing of a denial

of a federal right nor demonstrated a likelihood of success on the

merits of his claims, we deny White's motions both for CPC and for

stay of execution.

I.

On August 23, 1976, at approximately 6:00 p.m., White robbed

the Right Price Fur niture and Appliance store in Houston, Texas.2

The owners of the store, Martha and Alge Spinks, were getting ready

to close for the day when Whi te entered. After looking over the

merchandise, White indicated that he wan ted to buy two lamps.

Spinks asked his wife to write up the sales slip and the three of

them proceeded to the off ice at the rear of the store. As they

entered the office, White pulled a gun and demanded that they give

him their money. Alge Spinks gave White his wallet and the store's

receipts for the day. Then, without warning, White reached back

and shot Martha Spinks in the face at point blank range. Spinks

did not see or hear his wife do anything before White shot her.

After fir ing the fatal shot, White wheeled back around and

shot again, this time hitting a desk. After ordering Spinks to

open the safe, White had him lie on the floor. White went through

the safe and then asked Spinks about his watch and whether his wife

had any jewelry. Spinks informed him that he didn't know where his

watch was and that his wife's watches and rings were on her arms.

White put the gun on the floor with his foot on the barre l, told

Spinks to "be still," and lifted Martha Spinks' arm to remove her

jewelry. Spinks took this opportunity to grab the gun from under

White's foot. During the scuffle that ensued, Spinks fired the gun

twice, hitting White in the groin and emptying the gun. Spinks got

up, ran from the building and hid behind his car. He shouted to

Mack Alford, who worked across the street from the Spinks' store,

asking him to call the police.

Alford heard gunfire and then saw White run from the alley

between the Spinks' furniture sto re and the neighboring liquor1 The jury answered the following special issues affirmatively:

(1) Was the conduct of the Defendant that caused the

death of the deceased committed deliberately and

w ith the reasonable expectation that the death of

the deceased would result?

(2) Is there a probability that the defendant would commit

criminal acts of violence that would constitute a

continuing threat to society?

3 store. White was hopping on one leg as he ran. Almost immediately

after hearing Spinks shouts for help, Alford flagged down a passing

police car. The officers broadcast on police radio a pickup

bulletin based on Alford's description of the suspect.

Officers Neito and Sanford responded to the radio call. When

they were less than a minute's drive from the scene, an individual,

matching the broadcasted description and identified at trial as

White, walked into the intersection in front of their vehicle.

White w as stopped. The gun in his possession at this time was

later found to have fired the bullet recovered from the office desk

at the furniture store. The police recovered $269.62 from White,

an amount nearly identical to the day's receipts turned over to him

by Spinks.

II.

In October 1977, a Harris County, Texas jury found White

guilty of the capital murder of M artha Laura Spinks. At the

punishment phase of the tria l which followed, the jury answered

affirmatively the two special issues su bmitted pursuant to the

Texas Code of Criminal Procedure, art. 37.071, and White was

sentenced to death. 1 The Court of Criminal Appeals affirmedVernon's Ann. Texas C.C.P. art. 37.071 (b), (1981).

4 White's conviction and sentence on September 23, 1981. W hite v.

State

, 629 S.W.2d 701 (Tex. C rim. App. 1981). The United States

Supreme Court denied certiorari on April 19, 1982. W hite v. Texas

,

456 U.S. 938, 102 S. Ct. 1995 (1982).

White filed his first petition for habeas relief in state

court on October 30, 1984. Following an evidentiary hearing, the

trial court entered findings of fact and conclusions of law

rejecting all relief on Decembe r 31, 1985. The Texas Court of

Crimina l Appeals denied White's habeas application in February

1990. White's second state habeas application was filed in April

1990. In January 1992, the presiding judge in the convicting court

entered his findings of fact and conclusions of law rejecting all

claims. The Court of Criminal Appeals in February 1992 also

rejected relief and denied White's second state habeas application

on the basis of the trial court's findings and co nclusions. The

trial court set White's execution for April 23, 1992. White filed

his first federal habeas petition on April 5, 1992. White raised

three claims including those raised in this appeal. The federal

district court on April 15 filed a written opinion and order

rejecting all of White's habeas claims and denying all relief. The

district court also denied White's motion to stay his execution and

denied a certificate of probable cause. White then filed a notice

of appeal to this court and on April 17 filed an application for

certificate of probable cause and for a stay of execution.5 III.

A.

Under Fed. R. App. P. 22(b), we will not grant a certificate

of probable cause unl ess the habeas petitioner has made a

substantial showing of the denial of a federal right. B arefoot v.

Estelle , 463 U.S. 880, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983);

Rault v. Butler

, 826 F.2d 299 302 (5 th Cir.), c ert. denied

, 483

U.S. 1042, 108 S. Ct. 14 (1987). This requires the petitioner to

"demonstrate that the issues are debatable among jurists of reason;

that a court could resolve the issues [in a different manner]; or

that the ques tions are `adequate to deserve encouragement to

proceed further.'" B arefoot

, 46 3 U.S. at 893 n.4, 103 S.Ct. at

3394 n.4, ( quoting Gordon v. Willis

, 516 F. Supp. 911, 913 (N.D. Ga

1980)) (emphasis in Gordon ; brackets in Barefoot ). Although in a

capital case the court may properly consider the nature of the

penalty in deciding whether to grant a certificate, "the severity

of the penalty does not in itself suffice to warrant the automatic

issuing of a certificate." B arefoot

, 463 U.S. at 893, 103 S.Ct. at

3395.

In reviewing an application for a stay of execution, the court

must consider:

(1) whether the movant has made a showing of likelihood

of success on the merits; (2) whether the movant has made

a showing of irreparable injury i f the stay is not

granted, (3) whether the granting of the stay would

substantially harm the other parties, and (4) whether the

granting of a stay would serve the public interest.

Byrne v. Roemer

, 847 F.2d 1130, 1133 (5th Cir. 1988), ( quoting

Streetman v. Lynaugh

, 835 F.2d 1521, 1524 (5th Cir. 1988)).6

Although the movant in a capital case "'need not always show a

probability of success on the merits, he must present a substantial

c ase on the merits when a serious legal question is involved and

show that the balance of equities [i.e. the other three factors]

weighs heavily in favor of granting the stay.'" C elestine v.

Butler

, 823 F.2d 74, 77 (5th Cir.) ( quoting O'Bryan v. McKaskle

,

729 F.2d 991, 993 (5th Cir. 1987), cert. denied

, 465 U.S. 1013, 104

S. Ct. 1015 (1984)), cert. deni ed , 483 U.S. 1036, 108 S. Ct. 6

(1987).

B.

Relying on Franklin v. Lynaugh , 487 U.S. 164, 108 S.Ct. 2320

(1988 ), and P enry v. Lynaugh

, 492 U.S. 302, 109 S. Ct. 2934, 106

L.Ed.2d 256 (1989), White contends that the special issues

established in the Texas statutory scheme impermissibly prevented

the jury from considering and giving mitigating effect to his youth

and provocation by the victim.

In Penry

, the Supreme Court held that, where a capital

defendant introduces evidence about his background, character, or

circumstances of the offense that reflects a reduced personal

culpability, and the jury cannot give effect to the mitigating

force of that evidence in responding to Texas' statutory punishment

phase issues, the trial court must, upon request, provide

instructions which allow the jury to consider and give mitigating

effect to such evidence. 492 U.S. at 319-328, 109 S.Ct. at 2947-

2952.7

However, our en banc opinion in Graham v. Collins makes it

clear that Penry does not require that a sentencer be able to give

effect to a defendant's mitigating evidence in whatever manner or

to wh atever extent the defendant desires. " P enry does not

invalidate the Texas statutory scheme, and [] Jurek [v. Texas

, 428

U.S. 262, 96 S.Ct. 2950 (1976),] continues to apply, in instances

where no major mitigation thrust of the evidence is substantially

beyond the scope of the special issues." G raham v. C ollins , 950

F.2d 1009, 1027 (5th Cir. 1992) (en banc), petition for cert.

filed

, (U.S. Mar. 9, 1992) (No. 91-7580); see also Saffle v. Parks

,

494 U.S. 484, 492, 110 S.Ct. 1257, 1261-62, 108 L.Ed.2d 415, 426-27

(1990); Cordova v. Collins

, 953 F.2d 167 (5th Cir. 1992), stay

denied

,

___ U.S.

___, cert. denied

,

___ U.S.

___ (Jan. 21, 1992).

Thus, where the jury is able to give effect to the major mitigating

thrust of evidence in responding to the statutory pun ishment

issues, the fact that a defendant can identify mitigat ing value

beyond the scope of the statutory issues does not require the

submission of an additional issue or instruction allowing the jury

to give further mitigating effect to the evidence. G raham

, 950

F.2d at 1026-27, 1031 n.27; Saffle , 494 U.S. at 492, 110 S.Ct. at

1261, 108 L.Ed.2d at 426; B oyde v. California

, 494 U.S. 370, 382

n.5, 110 S. Ct. 1190, 1199 n.5, 108 L.Ed.2d 316, 330 n.5 (1990)

(The defendant is entitled only to a fair v ehicle by which the

sentencer can give effect to the mitigating force of his evidence.)

With this background, we now consider White's specific

arguments that the Texas capital sentencing scheme as administered2 Art icle 37.071 of the Texas Code of Criminal Procedure is

cited above as it was in effect at the time of White's trial. The

article has since been amended, see Vernon's Ann. Texas C.C.P. art.

37.071 (Supp. 1991).

8 in his case d id not permit the jury to adequately consider the

mitigating effect of (1) provocation by the victim and (2) his

youth.

1.

The Texas capital sentencing s cheme authorizes the court to

submit a third special issue to the jury:

(3) if raised by t he evidence, whether the conduct of the

defendant in killing the deceased was unreason able in

response to the provocation, if any, by the deceased.

Vernon's Ann. Texas C.C.P. art 37.071 (b), (1981). 2 White did not

request the court to propound the third issue to the jury.

White argues that because the third statutory punishment issue

was not submitted to the jury, the jury was unable to give effect

to the fact that the victim allegedly provoked her murder by

spraying him with mace. In findings and conclusions adopted by the

Court of Criminal Appeals, the state trial court found that White

was procedurally barred from challenging the trial court's failure

to include the third special issue. This was predicated on White's

failure to request that the third special issue be propounded to

the jury or object to the punishment charge which did not include

this special issue. At the time of trial, White was entitled to

have the third statutory punishment phase issue submitted to the

jury. Therefore, his claim clearly does not come within Texas'

"right not recognized" exception to the requireme nt that a3 Although the trial court addressed the merits of the federal

claim as an alternative basis for denying relief, fed eral habeas

review is nonetheless foreclosed by his "pl ain statement" or

reliance on a state procedural bar. H arris v. Reed

, 489 U.S. 255,

264 n.10, 109 S. Ct. 1038, 1044 n.10, 103 L.Ed.2d 308, 318 n.10

(1989).

9 defendant comply with procedural rules for preserving alleged error

for review. Cf. B lack v. Sta te , 816 S.W.2d 350 (Tex. Crim. App.

1991). The state courts' reliance on a procedural bar is

consistent with state law.

The district court correctly concluded that the procedural

default doctrine forecloses federal habeas review of this claim

because the state court rejected it on the basis of his failure to

comply with state procedural rules. The Texas Court of Criminal

Appeals in denying White's requested relief expressly adopted the

trial court's findings of fact and conclusions of law. Under these

circumstances, "federal habeas review is barred unless the prisoner

can demonstrate cause for the default and actual prejudice as a

result of the alleged violation of the federal law, or demonstrate

that failure to consider the claims will result in a fundamental

miscarriage of justice." Coleman v. Thompson , 501 U.S. ___, ___,

111 S.Ct. 2546, 2565, 115 L.Ed.2d 640, 669 (1991). White does not

allege cause for his failure to comply with state procedural rules

for preserving error nor has he demonstrated that he was prejudiced

by the alleged constitutional violation.

We also agree with the district court's alternative rejection

of this cla im on the merits. 3 The only evidence at trial

concerning mace was the testimony of Officer Lynn that he was at10

the scene of the crime a few minutes after the shooting and saw a

small canister of what could have been mace in the hand of the

deceased. There was no evidence that the victim sprayed White with

mace or that White saw the canister in the victim's hand. Indeed,

Alge Spinks t estified that he didn't see or hear his wife do

anything before White shot her. Spinks didn't see a canister of

mace in his wife's hand, wasn't blinded during the robbery, and

didn't smell anything unusual. Although White argues that the

t ears in his eyes when he sat in the back seat of the police

vehicle following his apprehension were caused by mace, there was

no evidence that he was crying as he ran from the scene or at the

time of his apprehension. Moreover, the evidence showed that White

was shot in the crotch during the scuffle with Spinks.

If the jury believed White shot Mrs. Spinks as a reflex after

she sprayed him with mace, the jury was able to give effect to the

mitigating value of this perception. First, it could have given

effect to provocation by finding that ordinarily, absent such

provocation, White would be nonviolent. Such an understanding of

the evidence would support a negative response to the second issue

on future dangerousness. Also, if the jury believed White

discharged the gun accidentally or by reflex action because he was

suffering from the caustic effect of mace, as he now hypothesizes,

the jury could have responded to this evidence in two additional

ways. The jury could have answered "no" to the deliberateness

inquiry of the first puni shment phase issue. It could have also

determined at the guilt-innocence phase of the trial that White had4 Although this aspect of the P enry claim is arguably

procedurally barred, we do not rest our decision on this ground.

11 no intent to kill. In fact, White's defense attorney made this

argument to the jury at the guilt-innocence phase of the trial.

The special issues submitted to the jury thus provided an adequate

vehicle for the jury to respond to the mitigating e ffect of the

alleged provocation by the victim.

2.

White also argues that the Texas special issues did not allow

the jury to give effect to the mitigating aspect of h is youth at

the time of the offense. At the time of the offense, White was two

months away from his twentieth birthday. We agree with the

district court that this claim should be rejected on the merits. 4

The first and second statutory punishment issues (on deliberateness

and future dangerousness) provided a constitutionally adequate

vehicle by which the jury could give mitigating effect to White's

youthful age. "To the extent that [a defendant's] criminal conduct

was a product of his youth he was for that reason not only less

culpable but, to the same extent, also less likely to be dangerous

when no longer young." Graham v. Collins , 950 S.W.2d 1009, 1031

(5th Cir. 1992) (en banc).

CONCLUSION

We conclude that White has not made a substantial showing of

the denial of a federal right, Barefoot v. Estelle . We therefore

deny his application for certificate of probable cause. We also

conclude that he has failed to make a showing of a li kelihood of12

substantial chance of success on the merits, Byrne v. Roemer . We

therefore deny White's application for a stay of execution.