                                                       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.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        USDC No. P-01-CV-21
                       --------------------

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this opinion should not be published and is not precedent except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.
