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Earl Russell BEHRINGER





Classification: Murderer
Characteristics: Robbery
Number of victims: 2
Date of murder: September 14, 1986
Date of birth: January 3, 1964
Victims profile: Janet Hancock, 21, and fiancé, Daniel Brennon Meyer, 22
Method of murder: Shooting
Location: Tarrant County, Texas, USA
Status: Executed by lethal injection in Texas on June 11, 1997


Date of Execution:
June 11, 1997
Earl Behringer #914
Last Statement:

It’s a good day to die. I walked in here like a man and I am leaving here like a man. I had a good life. I have known the love of a good woman, my wife. I have a good family. My grandmother is the pillar of the community. I love and cherish my friends and family. Thank you for your love.

To the Hancock family, I am sorry for the pain I caused you. If my death gives you any peace, so be it.

I want my friends to know it is not the way to die, but I belong to Jesus Christ. I confess my sins. I have…

Earl Russell BEHRINGER

On June 11, 1997, after spending 8 years incarcerated, Earl Russell Behringer was given a lethal injection for the murders of Janet Hancock and fiancé, Daniel Brennon Meyer.

On Sep. 14, 1986 when Behringer was 22 years old, he shot and killed the young couple in a $15 robbery attempt in the small town of Mansfield, Texas.  Meyer was a 22-year-old finance and accounting major at Texas A&M.  Hancock was an education major at  the University of Texas in Arlington.  The two were shot less than a mile from Hancock’s home.

Residents of Mansfield had reason to be stunned by the murders.  Behringer and Hancock attended Mansfield Highschool together and were friendly acquaintances.  Detective D.N. Looney was a friend of Behringer’s during high school and after they graduated.  “Earl and I were in band and Janet was on the drill team.  That’s really how they knew each other.  We all worked a lot together on routines,”  Looney said.  Furthermore, Behringer had grown up a clean-cut quiet young man.  He made good grades, attended church, and had never been in trouble with the law.  “Most have extensive records before they get to capital crime,”  said Marc Barta, the former Tarrant County assistant District Attorney who prosecuted the case.

Behringer’s lack of criminal history leaves the reasons for his actions to speculation.  Looney said during Behringer’s last couple of years of high school that he became more outgoing. But Behringer may have gone through a far more significant change after graduating from high school.  “When he went into the army and came out, he became infatuated with weaponry and got into the Dungeons and Dragons game,” said Looney. “It seemed to change him a lot.”

Behringer had an accomplice, 18-year-old Lawrence Rouse, who turned himself and Behringer in just hours after the murders.  Rouse received a 40-year jail sentence in exchange for his testimony regarding the murders.  The prosecution relied solely on Rouse’s testimony and the defense put Rouse as the perpetrator and Behringer as the accomplice. 

During the trial, Barta said Behringer was “very clean-cut.”  However, when he stood to make his plea, “he clicked his heels together and said, ‘not guilty.’  It was very unusual,” said Barta.  The trial lasted a week and a half and after two to three hours of jury deliberation, Behringer was found guilty. He was then sentenced to death.

Behringer filed several appeals.  In one he claimed his innocence of the crime, stating that Rouse admitted to another death row inmate, Jerry Hogue, that he killed the couple.  Hogue would not provide sworn statements.  Behringer also claimed he was denied effective assistance of counsel at trial, his right to trial by jury and due process.  His appeals were repeatedly turned down. 

Behringer was 33 years old when he was executed and was the 21st inmate to be executed that year. 

For his last meal, he requested scrambled eggs, hash browns, toast, gravy, sausage, and grape juice. 

The victim’s families and his own watched as he was given a lethal injection.  After thanking family members and friends, Behringer turned to the victim’s families and said, “I am sorry for any pain I have caused you.  If my death gives you peace, so be it.”  He took his last gasps of air and said his final words, “ I’m going home.”  Behringer died 7 minutes after receiving the injection.


75 F.3d 187

Earl Russell Behringer, Petitioner-Appellant,
Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division,

No. 95-10976

Federal Circuits, 5th Cir.

March 18, 1996

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

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.


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 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.


75 F.3d 189

Earl Russell Behringer, Petitioner-appellant,
Gary L. Johnson, Director, Texas Department of Criminaljustice, Institutional Division,

United States Court of Appeals, Fifth Circuit.

Feb. 5, 1996.
Certiorari Denied March 18, 1996.
See 116 S.Ct. 1284

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

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.



* Earl Russell Behringer is now scheduled to be executed on February 15, 1996. We have today in Cause No. 95-10976 denied Behringer's application for stay of execution and refused to issue a certificate of probable cause. Behringer filed his notice of appeal from the judgment in No. 95-10976 on October 18, 1995. On December 21, 1995, while his motion for stay of execution pending appeal and application for certificate of probable cause were pending before this court, Behringer filed a motion for relief from judgment and brief in support thereof under Fed.R.Civ.P. 60(b) in the district court. Judge McBryde denied the motion on December 27, 1995, and on January 2, 1996, petitioner filed his notice of appeal from that order. Behringer also seeks a stay of execution and a certificate of probable cause in his appeal from the district court's denial of relief under Rule 60(b).


Behringer's motion for relief under Rule 60(b) asserted his actual innocence of the capital offense; that he was denied effective assistance of counsel at trial when his attorney failed to introduce the testimony of Jerry Hogue. Jerry Hogue is also on death row in Texas. Behringer asserts that Hogue will testify that Scott Rouse, Behringer's co-defendant, admitted to Hogue that he, Rouse, killed both the murder victims. The contention is that although aware of Hogue's testimony, petitioner's trial counsel failed to offer the evidence at trial. Behringer's counsel in the habeas proceeding approached Hogue in 1994, but according to Behringer, Hogue refused to provide sworn statements regarding his claimed conversations with Rouse. Behringer asserted that on November 27, 1995, Hogue told his lawyer in a telephone call that he would cooperate, and on December 12, gave his affidavit to the effect that Rouse had admitted killing the two murder victims. Behringer asserts that Hogue "notified Larry Moore, petitioner's trial attorney, that Rouse had acknowledged his own guilt of the double murder."


We review denial of relief under 60(b) by an abuse of discretion standard. See Fackelman v. Bell, 564 F.2d 734, 736 (5th Cir.1977).

We begin by noting that petitioner may not add new claims after the district court has entered final judgment. Briddle v. Scott, 63 F.3d 364, 376 (5th Cir.) cert. denied --- U.S. ----, 116 S.Ct. 687, 133 L.Ed.2d 531 (Dec. 11, 1995). Relatedly, a motion raising new claims after entry of a final judgment is properly viewed as a second federal petition. Williams v. Whitley, 994 F.2d 226, 230-31, n. 2 (5th Cir.1993).

Accepting the facts stated by Behringer's petition, Hogue's testimony is not newly discovered. Behringer's counsel interviewed Hogue in June 1994 regarding Hogue's conversations with Rouse. Indisputably, Behringer knew of the factual basis of his present claim before he filed his amended state habeas application on October 25, 1994 and before he filed his second state habeas application on March 9, 1995. Behringer's first habeas petition was filed in the district court on May 30, 1995. None of these state or federal petitions presented the present claim or asserted that he could not do so because Hogue was not willing to provide an affidavit.


On these facts, we cannot find that the district court abused its discretion in denying Rule 60(b) relief. Further, whatever be the merit of Behringer's present claims regarding the testimony of Hogue, he must assert them in a newly filed habeas petition after exhausting his claim in the state courts. We decide nothing today regarding the merit of this unexhausted claim. The application for stay of execution and certificate of probable cause in this appeal are denied. We decline to consolidate the appeal in this case with the appeal in No. 95-10976.



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