                     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
