                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                    _______________________________

                              No. 00-50720
                    _______________________________


DIONICIO A. CRUZ,

                                                 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 Western District of Texas
                              (SA-96-CV-155)
         _________________________________________________
                              August 8, 2001

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM*:

     Petitioner-Appellant Dionicio A. Cruz appeals the district

court’s denial of his petition for habeas corpus pursuant to 28

U.S.C. § 2254.     We affirm the decision of the district court.

                                  I.

                         FACTS AND PROCEEDINGS

     Cruz was convicted in 1977 of aggravated assault on a peace

officer and two counts of attempted capital murder for firing on


     *
        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that this opinion should not be published and is not precedent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.
law enforcement officers who had come to his home to serve a

narcotics   search    warrant,    seriously     wounding    one   officer   and

hitting another’s jacket.        His state convictions were affirmed on

direct appeal by the Fourth Court of Appeals1 and the Texas Court

of   Criminal    Appeals;2     two    state     habeas     applications     were

unsuccessful.    Cruz was sentenced to three concurrent fifty-year

prison terms and was paroled in 1984.

     In 1993, Cruz was convicted on federal drug charges and

sentenced   to   96   months     in   federal    prison.      Based   on    this

conviction, the State of Texas lodged a detainer against Cruz for

violation of his parole.       While serving his federal sentence, Cruz

filed this § 2254 habeas petition attacking his 1977 convictions.

Cruz now has been released from federal prison, but parole on his

state conviction runs until October 2011.

     In his federal habeas corpus petition, Cruz asserts two

constitution violations concerning the testimony of police officer

Ray Hernandez, who was involved in Cruz’s arrest and discovered a

balloon containing heroin inside a shampoo bottle in Cruz’s



bathroom.   Cruz alleges that Hernandez planted the heroin in his

home.

     While on the witness stand at his trial, the prosecution asked

     1
         Cruz v. State, 645 S.W.2d 498 (Tex. App. —— San Antonio
1982).
     2
         Cruz v. State, 770 S.W.2d 778 (Tex. Crim. App. 1984).

                                       2
Cruz whether he had spoken to Hernandez since his arrest.       Cruz

testified first that he had not, and then that he could not

remember. When called by the prosecutor to rebut Cruz’s testimony,

Hernandez testified that Cruz approached him twice during pretrial

proceedings at the county courthouse approximately six months after

the shootout and two years before trial.     According to Hernandez,

Cruz first asked him whether he was the officer who had discovered

heroin in the house, and later said:      “You know, we are going to

have to take a lot of tests. . . . I’ll get you.      We’ll get you.”

     Defense counsel objected that Hernandez’s testimony, and a

written report he made regarding Cruz’s statements, had not been

disclosed pretrial.   The objection was overruled.3   Cruz then asked

to be allowed (1) to present evidence that he had taken (and

passed) a polygraph examination, as the prosecution had opened the

door by eliciting testimony regarding “tests,” and (2) to offer

surrebuttal testimony to explain his statements to Hernandez. Cruz

stated on the record but outside the presence of the jury that he

vaguely recalled the conversation, and that what he meant was that

he and Hernandez would have to “take a polygraph test to prove who

is telling the truth” about the heroin.    Cruz stated that he meant

that he would “get” the officer in court.     The trial court denied

Cruz’s requests, and the prosecution referred to the alleged threat

     3
        Subsequently, the Texas Fourth Court of Appeals ruled
that Hernandez’s statements should not have been admitted because
they were not disclosed to the defense. Cruz v. State, 645
S.W.2d at 503.

                                 3
twice during closing arguments, using it to portray Cruz as a liar

who had threatened Hernandez with bodily harm.

      Cruz alleges that these events denied his rights to due

process and a fair trial by (1) violating his Sixth Amendment right

to testify in his own behalf through surrebuttal testimony, and (2)

the   prosecution’s      failure   to       disclose     pretrial      Hernandez’s

testimony concerning Cruz’s statements, in violation of Brady v.

Maryland4 and Jackson v. Denno.5            The district court denied Cruz’s

habeas petition, finding that Cruz had merely raised a state

evidentiary question, not a constitutional violation.

      More than ten days after the district court’s judgment, Cruz

filed a motion for reconsideration.               The district court again

denied the habeas petition, but this time on different grounds.6

The district    court    concluded      that    the    state   trial    court   had

committed constitutional error by impeding Cruz’s right to testify

on his own behalf through the surrebuttal testimony.7                   The court

nonetheless denied habeas relief, concluding that the error did not

render Cruz’s    trial    fundamentally        unfair,    because      Hernandez’s

testimony was not central to the case.8


      4
          373 U.S. 83 (1963).
      5
          378 U.S. 368 (1964).
      6
        Cruz v. Johnson, No. SA-96-CA-155-EP, 2000 WL 33349965
(W.D. Tex. June 19, 2000).
      7
          Id. at *4.
      8
          Id.

                                        4
     Cruz was late in filing his notice of appeal, which he filed

simultaneously with a motion for extension of time to file his

notice of appeal; and the district court granted the motion.                    The

district court granted Cruz a certificate of appealability (“COA”)

with respect to its decision that his trial was not rendered

fundamentally unfair by the trial court’s refusal to allow Cruz to

explain Hernandez’s testimony on surrebuttal.               The district court

denied COA on all other issues.

                                        II.

                                     ANALYSIS

A.   Standard of Review

     Cruz filed this petition on February 29, 1996, before the

April 24, 1996 effective date of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”).                 Pre-AEDPA habeas law therefore

applies    to   his    §    2254     petition.        As   Cruz’s      motion   for

reconsideration       was   not    timely    filed,   it   must   be    considered

pursuant to Rule 60(b).9          Denial of a Rule 60(b) motion is reviewed

for abuse of discretion.10

B.   Constitutional Claim

     Raising the issue of our jurisdiction sua sponte, we first

note that we have jurisdiction over this § 2254 appeal because

Cruz, as    a   parolee,     remains    “in    custody”    for    federal   habeas

     9
        Halicki v. La. Casino Cruises, Inc., 151 F.3d 465, 470
(5th Cir. 1998).
     10
          Id.

                                         5
purposes.11   We further note that, because a releasee is in the

legal custody of the Texas Department of Criminal Justice (“TDCJ”)

Pardons and Paroles Division while he is on parole,12 TDCJ Director

Wayne Scott continues to be the appropriate respondent in this

habeas corpus petition.13

     A criminal defendant has a fundamental constitutional right to

testify in his own defense.14   We hold that, although under Texas

law Cruz could not have discussed whether he took a polygraph test

or its results,15 his Sixth Amendment rights were violated by the

trial court’s refusal to allow him to explain Hernandez’s testimony

through surrebuttal.

     To determine whether the district court was correct in finding

that the constitutional error was harmless, we must review the

entire trial record de novo to ascertain that “‘the error did not

influence the jury,’ and that ‘the judgment was not substantially




     11
          Jones v. Cunningham, 371 U.S. 236, 242-43 (1963).
     12
          Tex. Gov’t Code Ann. § 508.143(a) (Vernon 1999).
     13
          See Jones v. Cunningham, 371 U.S. at 242-43.
     14
        Rock v. Arkansas, 483 U.S. 44, 49 (1987); Emery v.
Johnson, 139 F.3d 191, 198 (5th Cir. 1997).
     15
         See, e.g., Castillo v. Johnson, 141 F.3d 218, 222 (5th
Cir. 1998) (holding that state trial court’s exclusion of results
of polygraph test based on Texas evidentiary rule that polygraph
results are inadmissible did not violate federal constitutional
rights).

                                 6
swayed by the error.’”16            We have complied with that mandate,

reviewing    de   novo   the   entire      record,        including    the   complete

transcript of the four days of evidence presented in Cruz’s trial.

As a result of that review, we agree with the district court that

the error was harmless:        Ample other evidence was adduced at trial

to show that Cruz was guilty of the offenses of which he was

convicted —— attempted capital murder and aggravated assault on a

peace officer.      The statements that Cruz made to Hernandez more

than a year after the shootout cannot be considered central to his

conviction.       We do not perceive that they had any substantial

effect on the jury or its verdict.

     Cruz presented evidence at trial that the plainclothes police

officers    involved     in   the   raid       on   his   home   did   not   identify

themselves as such before they awakened him that morning by banging

on his front and back doors and breaking his windows.                           Cruz

testified that he fired only in fright and self-defense, and

stopped shooting immediately when an officer threw his badge into

the house in response to Cruz’s request for identification.

     The jury nonetheless was entitled to believe contradictory

testimony from the law enforcement officers involved in the raid

that they had announced their identity before Cruz began shooting

at them, and that he fired again after looking at the badge.                      Two


     16
        Lowery v. Collins, 996 F.2d 770, 773 (5th Cir. 1993)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 642 (1993) (Stevens,
J., concurring)).

                                           7
officers also testified that they heard a toilet inside the house

flush repeatedly during the shooting, which could have led jurors

to conclude that Cruz was holding the police at bay with gunfire

while his wife, also in the house, attempted to destroy drug

evidence.     Our careful review of the record does not convince us

that the jury was swayed in assessing guilt for the shootout based

on Cruz’s after-the-fact courthouse comments to Hernandez, or on

any    alleged     vendetta      against        the    police.      The   twenty-page

transcript of the prosecutor’s summation includes just over one

page of comments on Cruz’s courthouse encounter with Hernandez. We

do    not   find   that    the    jury    was     substantially      swayed   by    this

unrebutted evidence.             To the contrary, we can “‘say with fair

assurance, after pondering all that happened without stripping the

erroneous     action      from    the    whole,       that   the   judgment   was   not

substantially swayed by the error.’”17

                                           III.

                                        CONCLUSION

       For the foregoing reasons, the district court’s denial of

habeas corpus relief is

AFFIRMED.




       17
        O’Neal v. McAninch, 513 U.S. 432, 437-38 (1995) (quoting
Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)).

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