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 execution 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 Furniture and Appliance store in Houston, Texas.
The owners of the store, Martha and Alge Spinks, were getting ready
to close for the day when White entered. After looking over the
merchandise, White indicated that he wanted to buy two lamps.
Spinks asked his wife to write up the sales slip and the three of
them proceeded to the office 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 firing 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 barrel, 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 store and the neighboring liquor
2
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 was 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 Martha Laura Spinks. At the
punishment phase of the trial which followed, the jury answered
affirmatively the two special issues submitted pursuant to the
Texas Code of Criminal Procedure, art. 37.071, and White was
sentenced to death.1 The Court of Criminal Appeals affirmed
1
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
with 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
White's conviction and sentence on September 23, 1981. White v.
State, 629 S.W.2d 701 (Tex. Crim. App. 1981). The United States
Supreme Court denied certiorari on April 19, 1982. White 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 December 31, 1985. The Texas Court of
Criminal 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 conclusions. 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.
Vernon's Ann. Texas C.C.P. art. 37.071 (b), (1981).
4
III.
A.
Under Fed. R. App. P. 22(b), we will not grant a certificate
of probable cause unless the habeas petitioner has made a
substantial showing of the denial of a federal right. Barefoot v.
Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983);
Rault v. Butler, 826 F.2d 299 302 (5th Cir.), cert. 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 questions are `adequate to deserve encouragement to
proceed further.'" Barefoot, 463 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." Barefoot, 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 if 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)).
5
Although the movant in a capital case "'need not always show a
probability of success on the merits, he must present a substantial
case 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.'" Celestine 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. denied, 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 Penry 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.
6
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 whatever extent the defendant desires. "Penry 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." Graham v. Collins, 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 punishment
issues, the fact that a defendant can identify mitigating 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. Graham, 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; Boyde 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 vehicle 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 administered
7
in his case did 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 scheme authorizes the court to
submit a third special issue to the jury:
(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable 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 requirement that a
2
Article 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
defendant comply with procedural rules for preserving alleged error
for review. Cf. Black v. State, 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 claim on the merits.3 The only evidence at trial
concerning mace was the testimony of Officer Lynn that he was at
3
Although the trial court addressed the merits of the federal
claim as an alternative basis for denying relief, federal habeas
review is nonetheless foreclosed by his "plain statement" or
reliance on a state procedural bar. Harris 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
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 testified 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
tears 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 punishment phase issue. It could have also
determined at the guilt-innocence phase of the trial that White had
10
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 effect 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 his 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 likelihood of
4
Although this aspect of the Penry claim is arguably
procedurally barred, we do not rest our decision on this ground.
11
substantial chance of success on the merits, Byrne v. Roemer. We
therefore deny White's application for a stay of execution.
12