Hernandez v. Dretke , 125 F. App'x 528 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 16, 2005
Charles R. Fulbruge III
Clerk
No. 03-51236
Summary Calendar
ALVARO LUNA HERNANDEZ,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-01-CV-21
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Following the denial of his 28 U.S.C. § 2254 petition
wherein he challenged his state-court conviction for aggravated
assault of a public servant, Alvaro Luna Hernandez (TDCJ
# 255735) was granted a certificate of appealability (COA)
“solely with respect to his claim that he was denied due process
when Sheriff Jack McDaniel gave prejudicial testimony concerning
his prior bad acts.”
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-51236
-2-
A habeas application may not be granted with respect to any
claim that was “adjudicated on the merits in State court
proceedings” unless the state decision was “contrary to” or an
“unreasonable application” of clearly established federal law as
determined by the Supreme Court. 28 U.S.C. § 2254(d)(1). “The
applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” § 2254(e)(1). We
review the district court findings of fact for clear error and
its conclusions of law de novo. See Roberts v. Dretke, 381 F.3d
491, 497 (5th Cir. 2004).
The trial court’s denial of Hernandez’s motion for a
mistrial justifies federal habeas corpus relief only if it was
“error . . . so extreme that it constitutes a denial of
fundamental fairness under the Due Process Clause.” See Bridge
v. Lynaugh, 838 F.2d 770, 772 (5th Cir. 1998). In order to
obtain relief, Hernandez must show that the trial court’s error
had a “substantial and injurious effect or influence in
determining the jury’s verdict.” See Brecht v. Abrahamson, 507
U.S. 619, 623 (1993). Hernandez must show that “there is more
than a mere reasonable possibility that [the error] contributed
to the verdict. It must have had a substantial effect or
influence in determining the verdict.” Woods v. Johnson, 75 F.3d
1017, 1026 (5th Cir. 1996)(emphasis omitted). In determining
harm, this court should consider (1) the importance of the
witness’s testimony; (2) whether the testimony was cumulative,
No. 03-51236
-3-
corroborated, or contradicted; and (3) the overall strength of
the prosecution’s case. See Sherman v. Scott, 62 F.3d 136, 142
n.6 (5th Cir. 1995).
McDaniel testified that Hernandez grabbed his weapon and
leveled it at his chest. McDaniel’s testimony was corroborated
by that of bail bondsman Dan Cook. McDaniel’s testimony also was
corroborated, in part, by the testimony of Hernandez’s wife.
Given the overall strength of the prosecution’s case, Hernandez
has not shown that the offending testimony has a substantial and
injurious effect in determining the jury’s verdict. See Brecht,
507 U.S. at 623. Moreover, the jury is presumed to have followed
the trial court’s instruction not to consider the offending
testimony. See Galvan v. Cockrell, 293 F.3d 760, 766 (5th Cir.
2002). Accordingly, we conclude that the denial of the motion
for a mistrial did not violate Hernandez’s right to due process,
and we affirm the denial of Hernandez’s 28 U.S.C. § 2254
petition.
AFFIRMED.