De La O v. Quarterman , 324 F. App'x 307 ( 2009 )


Menu:
  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    April 14, 2009
    No. 07-50711
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    CARLOS DE LA O
    Petitioner-Appellant
    v.
    NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
    CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
    Respondent-Appellee
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 5:06-CV-1031
    Before KING, DENNIS, and OWEN, Circuit Judges.
    PER CURIAM:*
    Carlos De La O, Texas prisoner # 1111343, appeals the district court’s
    denial of his 28 U.S.C. § 2254 application challenging his conviction for four
    counts of aggravated sexual assault of a child, three counts of sexual assault of
    a child, and two counts of indecency with a child. The district court granted De
    La O a certificate of appealability on his claim that the trial court violated his
    constitutional rights by excluding the testimony of his DNA expert, Dr. Paul
    Goldstein.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-50711
    Federal habeas relief may not be granted upon any claim that was
    “adjudicated on the merits in State court” unless the adjudication “resulted in
    a decision that was contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme Court of the
    United States” or “resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented in the State court
    proceeding.” § 2254(d)(1) & (2); see Williams v. Taylor, 
    529 U.S. 362
    , 409 (2000).
    We review the district court’s findings of fact for clear error and rulings on issues
    of law de novo. Hardemon v. Quarterman, 
    516 F.3d 272
    , 274 (5th Cir. 2008).
    A state court’s evidentiary rulings justify the granting of habeas relief only
    if they violate a specific constitutional right or render the trial fundamentally
    unfair. Johnson v. Puckett, 
    176 F.3d 809
    , 820 (5th Cir. 1999). Even if an
    evidentiary ruling is found to be a constitutional violation, the applicant must
    show actual prejudice; i.e., that the trial error had a “substantial and injurious
    effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 
    507 U.S. 619
    , 637 (1993) (internal quotation marks and citation omitted).             In
    determining whether an erroneous evidentiary ruling had a substantial and
    injurious effect on the jury verdict, we consider the following: (1) the importance
    of the witness’s testimony; (2) whether the testimony was cumulative;
    (3) whether there was evidence corroborating or contradicting the testimony; and
    (4) the overall strength of the prosecution’s case. Cupit v. Whitley, 
    28 F.3d 532
    ,
    539 (5th Cir. 1994).
    The highest state court to consider this claim ruled that the exclusion of
    Dr. Goldstein’s testimony was erroneous but that De La O was not entitled to
    relief because he had not shown a substantial and injurious effect on the jury
    verdict due to the overall strength of the prosecution’s case. De La O v. State,
    
    127 S.W.3d 799
    , 803-04 (Tex. App. 2003). The district court denied De La O’s
    claim on the ground that the state court’s denial of the claim was not contrary
    to, or an unreasonable application of, federal law.
    2
    No. 07-50711
    Although the record shows that the testimony of Dr. Goldstein was at least
    somewhat important and that his testimony was not cumulative, “the strength
    of the prosecution’s case is probably the single most important factor in
    determining whether the error was harmless.” 
    Cupit, 28 F.3d at 539
    . The
    prosecution’s case was very strong even in the absence of the DNA evidence. The
    victim’s testimony painted a haunting picture of repeated and escalating sexual
    abuse committed by De La O. She testified that De La O provided her with gifts,
    money, cigarettes, alcohol, and marijuana.        The victim’s testimony was
    corroborated by photographs showing her and De La O in compromising
    positions wearing little clothing. One photograph showed them kissing. Other
    photographs showed the victim smoking and drinking with De La O. De La O’s
    daughter admitted that she told a friend and a school counselor that she thought
    the victim was De La O’s girlfriend, and she admitted that the victim would
    sleep in De La O’s room. De La O’s daughter conceded that the victim would pull
    up her shirt and pull down her pants around De La O, that the victim and De La
    O would spend time together alone in his room, and that the victim drank
    alcohol provided by De La O.
    Given the strength of the prosecution’s case, De La O has not shown that
    the exclusion of Dr. Goldstein’s testimony had a substantial and injurious effect
    on the jury’s verdict. See 
    id. at 539-42.
    De La O has not shown that the state
    court’s finding of harmless error was contrary to, or an unreasonable application
    of, federal law. See § 2254(d).
    AFFIRMED.
    3