IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT

                              _______________

                                 No. 94-10302
                              Summary Calendar
                               _______________


                            JOHNNY LOGAN HICKS,

                                                       Petitioner-Appellant,


                                    VERSUS

                            WAYNE SCOTT,
           Director, Texas Department of Criminal Justice,
                       Institutional Division,

                                                       Defendant-Appellant.


                        _________________________

             Appeal from the United States District Court
                  for the Northern District of Texas
                            (4:93 CV 392 Y)
                       _________________________
                             March 20, 1995


Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*


      The petition for rehearing is GRANTED.            The court withdraws

its prior opinion issued on October 13, 1994, and substitutes the

following:




      *
        Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
     Johnny Hicks appeals the denial of his petition for writ of

habeas corpus for procedural default in the state courts.                Because

the state concedes that the Texas abuse-of-the-writ doctrine is not

followed    regularly   by   the   state   courts,    see    Lowe   v.   Scott,

No. 93-1276 (5th Cir. Mar. 20, 1995), issued contemporaneously

herewith, we affirm on the merits and not because of procedural

default.

     Hicks has not demonstrated a substantive basis for a Batson

claim. Five black veniremen were excluded at trial.            Hicks did not

object to the exclusion of four of them, challenging only that of

the fifth, Williams.

     A claim under Batson cannot be asserted on appeal where the

defendant did not object at trial, as Hicks did not with regard to

the first four.    See, e.g., Wilkerson v. Collins, 

,

1063 (5th Cir.), cert. denied, 

(1992).              The fifth,

Williams, was successfully challenged for cause by the prosecution

because of absenteeism.

     Williams was nowhere to be found when the jury was called into

the courtroom to be sworn.         Nor was he present at 9:00 a.m. the

next day.   At 9:25 a.m., the judge proceeded without Williams.                At

about 11:00    a.m.,    Williams   appeared   in     court   pursuant     to   an

attachment that had been issued the day before, when he was first

discovered missing.      The state objected to Williams on the basis

that he had missed the court's instructions and the state's initial

voir dire, and the objection was sustained by the court.             Batson is

inapplicable to an exclusion for cause in a case such as this,


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where a venireman's erratic behavior and absences have inconve-

nienced the court and where the reasons for the exclusion appear on

the face of the record.

     AFFIRMED.




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