              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT
                      _____________________

                             No. 95-10058
                           Summary Calendar
                        _____________________

                        Gregory Warren Staats,

                                             Petitioner/Appellant,

                                versus

                      Wayne Scott, Director,
              Texas Department of Criminal Justice,
                     Institutional Division

                                             Respondent/Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                         (4:94-CV-126-Y)
_________________________________________________________________

                           (July 14, 1995)

Before JOHNSON, GARWOOD and SMITH, Circuit Judges.*

PER CURIAM:

     State prisoner filed habeas corpus action pursuant to 28

U.S.C. § 2254 alleging that the improper admission of certain

testimony at his trial for aggravated sexual assault violated his

right to due process.    The district court denied relief and we

AFFIRM.

I.   FACTS AND PROCEDURAL HISTORY

     A Texas jury found Gregory Warren Staats guilty of the

     *
        Local Rule 47.5 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that this opinion should not be published.
aggravated sexual assault of Betty Smith1 and the trial court

assessed punishment at forty years of imprisonment.    In affirming

this conviction, the state appellate court addressed the

admission of challenged testimony by Teresa Adair, an emergency

room nurse.    Adair testified, without objection from defense

counsel, that Smith, who was with Adair for an extended period of

time in the emergency room just following the event, was crying,

fidgeting and agitated.    Further, Adair testified, without

objection, that Smith's hair was messed up, that there was

foreign matter on her, that her makeup was smeared and that she

was a wreck.    The state appellate court found no error in the

admission of this testimony as to Smith's emotional and physical

disarray.

      The court did find error, however, when, over defense

counsel's objection, Adair told the jury that she felt "that

[Smith] had been violated in some way that she did not want to

be.   She was very upset about it and was in emotional disarray,

and I felt like things had happened to her that were not what she

wanted that particular night."    This statement, the state

appellate court reasoned, did not present Adair's observations

but rather her opinion as to what had happened to Smith.      Even

though the state appellate court found that the district court

erred in overruling defense counsel's objection as to this

statement, the court found this error to be harmless due to the

wealth of other competent testimony in the record on this issue.

      1
          Betty smith was the victim's pseudonym.

                                  2
      As the Texas Court of Criminal Appeals refused his petition

for discretionary review, Staats turned to the federal courts

seeking habeas corpus relief.2    In his section 2254 petition,

Staats contended that the admission of Adair's lay opinion

testimony violated his right to due process.    The district court

denied relief, however, and Staats timely appealed to this Court.

II.   DISCUSSION

      A state court's erroneous evidentiary ruling is a ground for

habeas corpus relief only if the error violated a specific

constitutional right or deprived the defendant of due process by

rendering the trial fundamentally unfair.    Cupit v. Whitley, 28

F.3d 532, 536 (5th Cir. 1994), cert. denied, 115 S.Ct. 1128

(1995).    Thus, even the erroneous admission of prejudicial

testimony does not justify habeas corpus relief unless it is

material in the sense of a crucial, critical, highly significant

factor in the context of the entire trial.     Thomas v. Lynaugh,

812 F.2d 225, 230 (5th Cir.), cert. denied, 108 S.Ct. 132 (1987);

Skillhern v. Estelle, 720 F.2d 839, 8512 (5th Cir. 1983), cert.

denied, 105 S.Ct. 224 (1984).

      In this case, Adair's challenged opinion testimony goes to

the issue of whether Smith consented to have sex with Staats.       In

light of the significant amount of other evidence in the record

relevant to the issue of consent, the district court found that

the challenged statement was not crucial, critical and highly

significant.    We agree.

      2
          Staats did not apply for state habeas corpus relief.

                                  3
       This other evidence included the testimony of Charla

Erskine, a motel manager, who testified that Smith ran into the

motel lobby exclaiming that she had been raped and that a man was

after her.    It further included the testimony of Officer Sutton

that Smith's emotional state and physical appearance were

consistent with Smith's report of rape to the police.     Dr. Daniel

Naberhaus also testified, based on his physical examination of

Smith and on her emotional state, that it was his conclusion that

Smith had been raped.    Finally, the victim herself testified that

she had not consented.

       The testimony of all four of these witnesses was

substantially similar to Adair's challenged statement.    Given

this considerable duplicative evidence, we cannot conclude that,

in the context of the trial as a whole, this statement was

crucial, critical and highly significant.    Thomas, 812 F.2d at

230.    Thus, Staats claim must fail.

III. CONCLUSION

       For the reasons stated above, the judgment of the district

court is AFFIRMED.




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