                 IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT



                                  No. 95-10976



EARL RUSSELL BEHRINGER,
                                                   Petitioner-Appellant,

                                     versus

GARY L. JOHNSON, Director,
Texas Department of
Criminal Justice,
Institutional Division,
                                                   Respondent-Appellee.




            Appeal from the United States District Court
                 for the Northern District of Texas


                                February 5, 1996

Before GARWOOD, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:

     Earl Russell Behringer seeks a stay of his execution scheduled

for February 15, 1996, and a certificate of probable cause to allow

his appeal from a denial of his application for a writ of habeas

corpus by     the    United    States   District     Court   for   the   Northern

District of Texas.       We deny the request for stay of execution and

certificate of probable cause.

     This   is      Behringer’s    first   federal    habeas   petition.      He

asserted five claims in his petition to the United States District

Court.   Our question is whether Behringer has made a substantial
showing of the denial of a federal right in any of these five

claims:

     (a)   Whether Behringer was denied effective assistance
           of counsel, his right to a trial by jury, and due
           process by the trial court’s sua sponte excusal of
           veniremembers David Wayne Wright, Doris Odle
           Simmons, and Irma K. Warters in the absence of
           Behringer and his counsel.

     (b)   Whether Behringer was denied due process of law and
           subjected to cruel and unusual punishment by the
           jury’s affirmative answer to special issue two
           based on insufficient evidence.

     (c)   Whether Texas’ statutory scheme requiring direct
           appeal of death penalty cases to the Texas Court of
           Criminal Appeals denied Behringer due process of
           law and equal protection under the law.

     (d)   Whether the Texas death penalty scheme denied
           Behringer due process of law and imposed cruel and
           unusual punishment by preventing Behringer from
           informing the jury of the parole implications of a
           life sentence while authorizing a jury instruction
           not to consider parole eligibility in deciding the
           answer to special issue two.

     (e)   Whether the Texas death penalty scheme denied
           Behringer due process of law and imposed cruel and
           unusual punishment by simultaneously restricting
           the jury’s discretion to impose the death penalty
           while allowing the jury unlimited discretion to
           consider mitigating evidence.

     The United States District Court, Judge John McBryde, filed a

detailed Memorandum and Order on October 2, 1995, denying the

petition   for   writ   of   habeas   corpus   and   vacating   a   stay   of

execution.   The district court granted leave to appeal in forma

pauperis, but denied petitioner’s application for certificate of

probable cause.    The district court rejected each of these claims.

We have reviewed the district court’s detailed Order and considered

the briefs and record before us.          We reach the same conclusion as


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the district court for essentially the reasons stated in its order

of October 2.   The details of the crime and the treatment of the

claims are set out in the Order, and we will not restate them.

     The application for Stay of Execution and Certificate of

Probable Cause are DENIED.




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