Billy Wayne White,
James A. Collins, Director,
Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Circuits, 5th Cir.
April 21, 1992
Appeal from the
United States District Court for the Southern
District of Texas.
Before JOLLY, DAVIS and SMITH,
W. EUGENE DAVIS, Circuit
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.
On August 23, 1976, at
approximately 6:00 p.m., White robbed the Right
Price Furniture and Appliance store in Houston,
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
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
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.
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.
The Court of Criminal Appeals
affirmed 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, 72 L.Ed.2d
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.
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.
483 U.S. 1042 , 108 S.Ct. 14, 97 L.Ed.2d
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)).
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, 79 L.Ed.2d
245 (1984)), cert. denied,
483 U.S. 1036 , 108 S.Ct. 6, 97 L.Ed.2d
Relying on Franklin v.
Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d
155 (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.
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.
428 U.S. 262 , 96 S.Ct. 2950, 49 L.Ed.2d
929 (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.), stay and cert. denied, --- U.S.
----, 112 S.Ct. 959, 117 L.Ed.2d 125 (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
in his case did not permit the jury to
adequately consider the mitigating effect of (1)
provocation by the victim and (2) his youth.
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
Vernon's Ann. Texas C.C.P.
art 37.071(b), (1981).
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 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
We also agree with the
district court's alternative rejection of this
claim on the merits.
The only evidence at trial concerning mace was
the testimony of Officer Lynn that he was at 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
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 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.
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
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 F.2d 1009, 1031 (5th Cir.1992) (en
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
substantial chance of success on the merits,
Byrne v. Roemer. We therefore deny White's
application for a stay of execution.
(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
(2) Is there a probability
that the defendant would commit criminal acts of
violence that would constitute a continuing
threat to society?
Vernon's Ann. Texas C.C.P.
art. 37.071(b), (1981).