                           Revised August 26, 1998

                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit
                      ___________________________

                                 No. 97-20890
                         ___________________________


                             DANIEL LEE CORWIN,

                                                     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 Southern District of Texas
        ___________________________________________________
                          August 7, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

     Daniel   Lee   Corwin,     a   Texas    death   row   inmate,   seeks   a

certificate of appealability (“COA”) to review the district court’s

denial of his application for writ of habeas corpus.                 For the

reasons that follow, we deny Corwin's application for a COA.

                                      I.

                    A.    Facts & Procedural History

     Corwin was sentenced to death following his state court

conviction for murdering more than one person pursuant to the same

scheme or course of conduct.        TEX. PENAL CODE ANN. § 19.03(a)(7)(B)
(West 1994).1   His conviction and sentence were affirmed by the

Texas Court of Criminal Appeals.    Corwin v. State, 870 S.W.2d 23

(Tex. Crim. App. 1993) (en banc).     The Texas Court of Criminal

Appeals summarized the facts supporting Corwin’s conviction and

sentence, and Corwin has acknowledged that this summary of the

facts is accurate.

          Over the course of nine months in 1987 [Corwin]
     abducted, sexually assaulted, and killed two women, and
     then attempted to abduct, and when he could not, killed,
     a third. In July of 1987 he abducted twenty-six year old
     Debra Ewing from the Huntsville Vision Center, where she
     worked.   He apparently drove her to a remote area of
     Montgomery County, raped her in the front seat of his
     truck, and then strangled her with a ligature of some
     sort and stabbed her twice in the chest. In February of
     the same year [Corwin] had abducted a seventy-two year
     old Alice Martin, who was taking her daily walk along a
     farm to market road in Madison County. He apparently
     drove her to a more remote area in Robertson County,
     raped her in the front seat of his truck, and then
     strangled her with a ligature and stabbed her four times
     in the back. On Halloween evening of 1987 [Corwin] tried
     to force thirty-six year old Mary Risinger into his truck
     at a car wash in Huntsville. When she put up a struggle,
     he stabbed her in the throat, severing every major blood
     vessel in her neck.

          At the punishment phase it was shown [Corwin] had
     committed similar offenses both before and after the
     three offenses in 1987. In 1975 [Corwin] abducted a high
     school classmate and drove her in her own car to a gravel
     pit, where he raped her. He then forced her out of the
     car, slashed her throat, stabbed her in the heart, and
     left her for dead. Miraculously, she lived. [Corwin]
     was assessed a forty year prison sentence for this
     offense. In October of 1988 [Corwin] abducted a Texas A
     & M co-ed in her own vehicle and drove her to a park.
     There he sexually assaulted her, then tied her arms
     around a tree and slashed and stabbed her throat. She


     1
          When Corwin was convicted, this section was codified at
§ 19.03(a)(6)(B). For purposes of clarity, we will refer to the
new codification--§ 19.03(a)(7)(B)--as the provision under which he
was convicted.

                                2
     also survived. [Corwin] was serving time for this last
     offense during the instant prosecution.

Id. at 27.

     Corwin filed an application for writ of habeas corpus in the

state trial court, in which he made several claims.       The trial

court addressed these claims, made findings of fact and conclusions

of law, and recommended that Corwin be denied habeas relief. Ex

parte Daniel Lee Corwin, No. 89-05-00404-CR-(1) (Tex. D. Ct.

Montgomery Cty. Mar. 10, 1997).

     The Texas Court of Criminal Appeals’ opinion issued in April

of 1997, which summarily adopted the trial court’s findings and

conclusions.   Ex parte Daniel L. Corwin, No. 33570-01 (Tex. Crim.

App. Apr. 23, 1997) (en banc).   The Texas Court of Criminal Appeals

stated that “[t]he trial court’s findings of fact and conclusions

of law are supported by the record and upon such basis the relief

sought is denied.” Id.

     In August 1997, Corwin filed an application for federal habeas

corpus relief pursuant to 28 U.S.C.A. § 2254 (Supp. 1998).   Corwin

raised the same issues in his federal habeas petition that he

raised in his state petition.     The Respondent answered Corwin’s

application and moved for summary judgment.      The district court

issued a memorandum and order in September of 1997, granting the

Respondent’s motion for summary judgment and denying both Corwin’s

§ 2254 application and his application for a COA.         Corwin v.

Johnson, No. H-97-2667 (S.D. Tex. Sept. 18, 1997).   Corwin filed a

timely notice of appeal.   He seeks a COA from this Court on eight


                                  3
of the issues he raised in his petition to the district court.

Before discussing the merits of this appeal, we consider the effect

of the recently enacted Antiterrorism and Effective Death Penalty

Act (“AEDPA”) of 19962 on this case.

                     B.   Application of the AEDPA

     Corwin filed his § 2254 federal habeas petition on August 13,

1997.     The AEDPA was signed into law by the President on April 24,

1996.     In Nobles v. Johnson, this Court held that the AEDPA’s

provisions apply to a habeas petition when the habeas petition was

filed after the enactment of the AEDPA.       127 F.3d 409, 414 (5th

Cir. 1997), cert. denied, 118 S. Ct. 1845 (1998).       The AEDPA is

therefore applicable in this case.

     Under the AEDPA, the petitioner must obtain a Certificate of

Appealability (COA) to proceed with his appeal.       A COA will be

issued if the movant makes a substantial showing of the denial of

a constitutional right.     28 U.S.C.A. § 2253(c)(2) (Supp. 1998).

     Corwin first challenges this Circuit’s interpretation of the

AEDPA.3     Corwin argues that this Circuit’s interpretation of the


     2
             Pub. L. No. 104-132, 110 Stat. 1218.
     3
             The AEDPA provides:

     (d)     An application for a writ of habeas corpus on
             behalf of a person in custody pursuant to the
             judgment of a State court shall not be granted with
             respect to any claim that was adjudicated on the
             merits in State court proceedings unless the
             adjudication of the claim
             --
             (1) resulted in a decision that was contrary
                  to,   or    involved   an    unreasonable
                  application   of,   clearly   established

                                   4
AEDPA’s language violates the Supremacy Clause because it requires

federal courts to give deference to state court decisions regarding

the    validity     of   trial   practices        under    the    United    States

Constitution.

       In this Circuit, provided the state court conducted a full and

fair adjudication of the petitioner’s claims, pure questions of law

and    mixed   questions    of   law        and   fact    are    reviewed   under

§     2254(d)(1),    and   questions        of    fact    are    reviewed    under

§ 2254(d)(2).       Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.

1996), cert. denied, 117 S. Ct. 1114 (1997).               Under § 2254(d)(1),

“an application of law to facts is unreasonable only when it can be

said that reasonable jurists considering the question would be of

one view that the state court ruling was incorrect.”                 Id. at 769.

“In other words, we can grant habeas relief only if a state court

decision is so clearly incorrect that it would not be debatable

among reasonable jurists.”        Id.



                    Federal law, as determined by the Supreme
                    Court of the United States; or
             (2)    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.
       (e)
             (1)    In a proceeding instituted by an application
                    for a writ of habeas corpus by a person in
                    custody pursuant to the judgement of a State
                    court, a determination of a factual issue made
                    by a State court shall be presumed to be
                    correct. The applicant shall have the burden
                    of rebutting the presumption of correctness by
                    clear and convincing evidence.

28 U.S.C.A. § 2254 (Supp. 1998).

                                        5
        Corwin   argues   that   these   interpretations   of   §   2254   are

unconstitutional and that all state court determinations of federal

constitutional issues in habeas proceedings should be subject to de

novo review by the federal courts.           Even if we agreed with this

conclusion--which we do not--one panel of this Court may not

overrule another panel.      See United States v. Taylor, 933 F.2d 307,

313 (5th Cir. 1991).      As a result, Corwin’s appeal must be reviewed

in accordance with this Circuit’s interpretations of the AEDPA, as

established in Drinkard.         Drinkard, 97 F.3d at 769.

        We now turn to a consideration of the issues Corwin raises in

his application for a COA.

                                      II.

    A.     Corwin’s Absence from the First Day of Jury Selection

        Corwin first argues that his Sixth Amendment right to the

effective assistance of counsel and his Fourteenth Amendment right

to a fair trial were violated because he was not physically present

in the courtroom during the preliminary qualification of jurors.

Corwin was absent from the initial day of jury selection, during

which exemptions and excuses were considered and the venirepersons

were asked to answer a questionnaire.         Corwin raised this argument

in his state application for habeas corpus.        The state trial court4


    4
          In considering Corwin’s state habeas petition, the trial
court made the following findings of fact:

        19.   The Court judicially knows and notices that
              potential jurors in Montgomery County are permitted
              to be excused or exempted by returning their jury
              summons to the clerk, indicating the type of

                                         6
concluded that Corwin had waived any error regarding his absence

from the proceeding because after he appeared for voir dire, he

failed to object to the disqualification of any juror while he was

absent from the courtroom.   Ex parte Daniel Lee Corwin, No. 89-05-

00404-CR-(1), at 7 (Tex. D. Ct. Montgomery Cty. Mar. 10, 1997).

The trial court alternately determined that Corwin’s absence from

the preliminary jury qualification proceeding constituted harmless

error and that Corwin had no right to be at the proceeding because

his presence would not have contributed to the fundamental fairness

of the proceeding.     The state trial court’s conclusions were

summarily adopted by the Texas Court of Criminal Appeals. Ex parte

Daniel L. Corwin, No. 33570-01 (Tex. Crim. App. Apr. 23, 1997) (en

banc).     The district court concluded that Corwin’s failure to

object to the disqualification of jurors in his absence constituted

an independent and adequate state ground which procedurally barred

federal review of his claim.

     If a state court decision rejecting a federal habeas
     petitioner's constitutional claim “rests on an adequate
     and independent state procedural bar, and does not fairly
     appear to rest primarily on federal law, we may not


           exemption    to   be  exercised    or    providing
           documentation for an excuse.    Said actions are
           routinely   completed without   participation   by
           attorneys, parties, and judges in the affected
           cases.

     20.   The excuse of legally exempted jurors involves no
           discretion on the part of the judge or any affected
           party.

Ex parte Daniel Lee Corwin, No. 89-05-00404-CR-(1), at 5 (Tex. D.
Ct. Montgomery Cty. Mar. 10, 1997).


                                 7
       review the merits of the federal claim absent a showing
       of cause and prejudice for the procedural default, or a
       showing that our failure to review the claim would result
       in a complete miscarriage of justice."

Boyd v. Scott, 45 F.3d 876, 879-80 (5th Cir. 1994) (quoting Young

v. Herring, 938 F.2d 543, 546 (5th Cir. 1991)) (other citations

omitted).

       Corwin challenges the district court’s ruling on a number of

grounds.     Corwin first argues that because the contemporaneous

objection rule is not regularly followed in Texas, the procedural

bar fails.    See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995)

(holding that the presumption that a state procedural rule may bar

review of a claim for federal habeas relief may be rebutted by the

fact that the state procedural rule is not strictly or regularly

followed).     The Supreme Court has held that “a state procedural

ground that is strictly or regularly applied evenhandedly to the

vast majority of similar claims” suffices as an adequate procedural

bar.    Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995) (citing

Dugger v. Adams, 489 U.S. 401, 410 n.6, 109 S.Ct. 1211, 1217 n.6,

103 L.Ed.2d 435 (1989)).          This Circuit has held that the Texas

contemporaneous objection rule is strictly or regularly applied

evenhandedly    to   the   vast   majority   of   similar   claims,   and   is

therefore an adequate procedural bar. Id. Corwin’s first argument

therefore fails.

       Corwin also argues that the trial court did not clearly state

that it was dismissing the issue due to a procedural default.               We

disagree.    The trial court found that Corwin had not objected to


                                      8
being absent from the preliminary jury qualification. In addition,

regarding Corwin’s absence from the proceeding, the trial court

found that Corwin “failed to object to any venireperson and waived

any error.”      Although the trial court based its ruling on two

alternative grounds, this does not detract from the court’s primary

holding--that Corwin’s failure to object constituted a procedural

default.   This argument therefore fails as well.

     Corwin further contests the procedural bar by arguing that the

Court of Criminal Appeals did not “expressly adopt the written

findings and conclusions of the trial court, but merely held that

such findings and conclusions” were supported by the record.      When

the last state court decision regarding a claim summarily affirms

a lower court judgment denying relief, the federal court looks to

the last explained decision to determine whether it was decided

primarily upon a state procedural bar.        Ylst v. Nunnemaker, 501

U.S. 797, 802-04 & n.3, 111 S.Ct. 2590, 2595-96 & n.3, 115 L.Ed.2d

706 (1991).   Corwin argues that this panel cannot look through the

opinion of the Texas Court of Criminal Appeals to the trial court’s

conclusions because the Court of Criminal Appeals chose language

different from that of a previous court to express its summary

affirmance.   It is inescapable that the Court of Criminal Appeals

summarily affirmed the state trial court’s findings of fact and

conclusions of law, which held that Corwin cannot raise this

argument   due    to   a   procedural   default.   Corwin’s   semantic

distinction is meritless.

     Finally, Corwin argues that because the trial court provided

                                    9
alternative holdings, including a decision denying the claim on its

merits, the procedural bar is no longer operative.          See Ylst, 501

U.S. at 801, 111 S.Ct. at 2593.         Corwin ignores the fact that the

trial court made it clear that its merits discussion was in support

of its alternative holding.           It is clear in this Circuit that

alternative rulings do not operate to vitiate the validity of a

procedural bar that constitutes the primary holding.              Rogers v.

Scott, 70 F.3d 340, 342 (5th Cir. 1995), cert. denied, 517 U.S.

1235 (1996).

     The   Petitioner    makes   no    arguments   that   would   otherwise

preserve his right to raise this issue in a habeas petition.             In

addition, the Petitioner failed to show that a federal court’s

unwillingness to consider the claim will result in a complete

miscarriage of justice.      Because Corwin has not claimed actual

innocence, the “fundamental miscarriage of justice” exception is

inapplicable.   See Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)

(confining the fundamental miscarriage of justice exception to

instances in which “the petitioner shows, as a factual matter, that

he did not commit the crime of conviction”).

     Not only does Corwin not argue innocence, he does not show any

error.   Corwin speculates that his presence may have resulted in a

different jury pool, but he does not assert that the jury chosen

was improper.    “The defense has no constitutional right to be

present at every interaction between a judge and juror.”             United

States v. Gagnon,       470 U.S. 522, 526 (1985).         The Due Process

Clause guarantees a defendant "the right to be present at any stage

                                      10
of the criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure."

Kentucky v. Stincer, 482 U.S. 730, 745 (1987).      In Gagnon, the

Supreme Court explained that the "presence of a defendant is a

condition of due process to the extent that a fair and just hearing

would be thwarted by his absence, and to that extent only."    470

U.S. at 526 (internal quotations omitted).

     We conclude that Corwin has not made a substantial showing of

deprivation of a constitutional right, and is not entitled to a COA

on this issue.

                  B.   Excusal of Potential Juror

     Corwin’s second claim is that the trial court improperly

excused a potential juror in violation of Witherspoon v. Illinois.5

The trial court excused Gloria Dawn Northam was excused because she

expressed a reluctance to impose the death penalty. In considering

the propriety of excluding a juror, “the decisive question is

whether the juror’s views would prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.”   Mann v. Scott, 41 F.3d 968, 980 (5th

Cir. 1994) (internal quotations and citations omitted).

     Corwin argues that Northam should not have been excluded

because she did not explicitly state that she would not impose the



     5
          391 U.S. 510, 522 (1968) (holding “that a sentence of
death cannot be carried out if the jury that imposed or recommended
it was chosen by excluding veniremen for cause simply because they
voiced general objections to the death penalty or expressed
conscientious or religious scruples against its infliction”).

                                 11
death penalty.6


     6
          On voir dire, Northam made the following statements:

     Q.   And, then later, in response to Mr. Speers’
          questions about whether you personally could render
          a decision that might result in the death penalty,
          if I’m not mistaken, you began to say that that
          would be very difficult for you; is that true?

     A.   Yes.

     Q.   Then, I think I heard you say also, that in your own
          mind, you would probably change the burden of proof, in
          other words, rather than making Mr. Speers or the State
          prove its case beyond a reasonable doubt, that you, in
          your own mind, would require a heavier burden than that
          before you could answer yes to those questions?

     A.   Yes.    More than reasonable.

                  * * *

     Q.   Okay. Now, what is your feeling about that? I’m
          just clarifying for you that that’s the law as I
          anticipate it would be submitted to you. Do you
          still have those same feelings, that you are --
          notwithstanding those instructions and that law,
          that you would apply some other standard?        Of
          course, I’m referring to what you said about having
          to be absolutely convinced, or words to that
          effect, and that you would not follow the
          reasonable doubt standard.

     A.   That’s what gives me a problem.      Well, I would
          really have to be very convinced.

     Q.   Does that mean you would be, would have to be
          convinced beyond all doubt, or what does it mean?

     A.   Beyond all doubt to myself, yes.

     Q.   Well, I just want to make sure I understand whether
you’re willing -- now, bear in mind it’s, I would not, and the law
does not require persons who could not follow the law to be made
part of the jury. So, that if you tell me now you couldn’t follow
the law, then I wouldn’t put you in the position where you had to
violate your conscience or to cause a terrible problem for the
lawyers or the county.


                                 12
A.   The law as defined, I would have to follow my own
     conscience, which might be in contradiction to
     that.

Q.   You say it might be in contradiction, but if I
     understand you correctly, your conscience would be
     in contradiction because you told us, I believe,
     that beyond a reasonable doubt is not enough. It
     would have to be stronger than that?

A.   Right, yes.

Q.   That’s what you’re telling me?

A.   Yes.

Q.   Okay.

             * * *

Q.   All right, and what this all stems from, this
     entire discussion, is the fact that when you were
     asked yesterday if you personally could participate
     in decisions that might cause the death penalty to
     be imposed, as I understand you, you told us that
     you felt that you could not at one point?

A.   Right.

Q.   You felt that, whereas you didn’t have a huge
     objection against the Capital Murder law, when it
     came down to you personally --

A.   Right.

Q.   -- as a matter of conscience, if I’m not mistaken -
     -

A.   Uh-huh.

Q.   -- that you did not think you personally could do
     it?

A.   Right.

Q.   Is that how you still feel today?

A.   I still feel that that’s a big question with me and
     I cannot answer it absolutely for you, that I could

                          13
     Northam’s statements on voir dire repeatedly expressed her

discomfort, if not unwillingness, to apply the appropriate legal

standard for    imposition   of    the    death    penalty.        Instead,   she

expressed a conviction to apply her own higher standard of proof,

in keeping with her conscience.          The state trial court found that

Northam would “require a higher burden of proof to answer the

special issues than the law required, and would be unable to

faithfully and impartially apply the law.”                Ex parte Daniel Lee

Corwin, No. 89-05-00404-CR-(1), at 6 (Tex. D. Ct. Montgomery Cty.

Mar. 10, 1997).

     In Drew v. Collins, we held that where a potential juror

“stated on numerous occasions during voir dire questioning that he

would apply a standard higher than what he understood as the

reasonable    doubt   standard,”    a     trial    court    “could    correctly

determine that [the potential juror’s] insistence on such a high

burden of proof would substantially impair his performance as a

juror.”   964 F.2d 411, 417 (5th Cir. 1992).                  Given Northam's

response to    questioning   in    voir    dire,    the    state    trial   court

reasonably applied the law to the facts and federal habeas relief

is not appropriate.    Corwin is not entitled to a COA on this issue.



          indeed do that.

     Q.   All right.

     A.   And that’s after a lot of thought that I realized
          that I don’t know that I could.


                                    14
 C.     The Constitutionality of Texas Penal Code § 19.03(a)(7)(B)

      Corwin next argues that Texas Penal Code § 19.03(a)(7)(B) is

unconstitutionally vague under the Eighth and Fourteenth Amendments

to the United States Constitution.                   This provision makes it a

capital crime to murder more than one person during different

criminal transactions, where the murders are committed pursuant to

the   same     scheme    or    course    of    conduct.     TEX.   PENAL    CODE    ANN.

§ 19.03(a)(7)(B) (West 1994).

      The Texas Court of Criminal Appeals addressed this question in

Corwin’s direct appeal. The Court of Criminal Appeals rejected the

idea that the statute “is indefinite simply because it fails to

specify that the different transactions during which one or more

person [sic] are killed must occur over a definite period of time

or in a definite location.”             Corwin v. State, 870 S.W.2d 23, 27

(Tex. Crim. App. 1993).

      In      Anderson    v.    Collins,       this     Court      considered        the

constitutionality of a related section of the Texas Penal Code’s

capital sentencing provisions--§ 19.03(a)(2)--which makes it a

capital crime to commit a murder “in the course of committing”

enumerated      felonies.       18    F.3d    1208   (5th   Cir.    1994).         After

considering Supreme Court precedent, this Court found that “‘in the

course of committing . . . robbery’ is grounded in the objective

proof    of    the   particular       case;    it    does   not    appeal     to     the

sensibilities of the jurors or invite imposition of a subjective

standard.”       Id. at 1222.        This Court further found that “both the

nature of the phrase and the practice of Texas courts prevent the

                                          15
jury from being given unbridled discretion.”                  Id.     The panel

distinguished the provision’s language from impermissibly vague

phrases   such    as   “outrageously     or   wantonly    vile,     horrible   or

inhuman.” Id. Although the Anderson panel admitted that there was

room for uncertainty with respect to the temporal proximity or the

factual connection between the crimes associated according to the

statutory language, it concluded that the Texas Court of Criminal

Appeals   had     adequately      narrowed      such     discretion     in     its

interpretation and construction of the language.              Id. at 1222-23.

     Similarly in this case, the sentencing provision itself--

killing more than one person during different criminal transactions

where the murders are committed pursuant to the same scheme or

course of conduct--is much more specific than language previously

rejected by the Supreme Court--“outrageously or wantonly vile,

horrible or inhuman.”         See Godfrey v. Georgia, 446 U.S. 420, 432

(1980).   The language of § 19.03(a)(7)(B) operates like an element

of the substantive offense.            In addition, the Texas Court of

Criminal Appeals’ interpretation and construction of the provision

is   sufficiently       narrow    to     eliminate     the    possibility       of

unconstitutional applications. See Corwin, 870 S.W.2d at 27-29.

     The Supreme Court has held that “[f]or purposes of vagueness

analysis, . . . in examining the propositional content of a factor,

our concern is that the factor have some ‘common-sense core of

meaning   .   .   .    that   criminal      juries   should   be    capable     of

understanding.’”       Tuilaepa v. California, 512 U.S. 967, 975 (1994)

(citing Jurek v. Texas, 428 U.S. 262, 279 (1979) (White, J.,

                                       16
concurring)).   We are satisfied that § 19.03(a)(7)(B) has such a

common-sense core of meaning that juries are able to comprehend.

Corwin is not entitled to a COA on this issue because he has not

made a substantial showing that the decision on the merits by the

state appellate court is "contrary to clearly established federal

law, as determined by the Supreme Court.”      Carter v. Johnson, 110

F.3d 1098, 1103 (5th Cir. 1997), vacated in part on other grounds,

118 S. Ct. 409 (1997).

     Relatedly, Corwin argues that due to the vagueness of the

statutory sentencing language, the evidence is insufficient to show

that he committed serial capital murder as defined by the statute.

Corwin concedes that the evidence is sufficient to support a

finding that he killed three women in the manner described by the

Texas Court of Criminal Appeals, but argues that the evidence

cannot be sufficient in light of the unconstitutional vagueness of

the statutory language.   Because we have already rejected Corwin’s

vagueness   argument,   that   assertion   alone   cannot   support   his

insufficiency of the evidence argument.      Corwin’s application for

a COA on this issue is denied.

      D. Introduction of the Painting and the Prosecution’s
                 Allegedly Prejudicial Statements

     Finally, Corwin argues that the introduction of a painting by

Corwin and the Prosecutor’s accompanying statements deprived him of

his constitutional rights to a fair trial and due process of law.

Corwin painted a vivid tempera-on-butcher paper painting, which is

six feet tall, at the request of a vocational instructor who worked


                                   17
at the prison. The instructor requested the picture as a Halloween

decoration, and he displayed it on his door.                The painting depicts

a serpentine body with a human torso.               The figure’s grotesque face

has fangs and its ears are composed of snake-like fangs and fish

fins.      One hand of the figure holds a bloody axe and the other

holds a detached scalp.            Near the serpent figure is a severed

bloody arm.7

      The    prosecution      introduced     the     painting    as    evidence     of

Corwin’s future dangerousness.          The State argued:

      . . . Presented the, what I call the self portrait. A
      real indication . . . I submit to you this shows what
      [Corwin] comes up when he’s asked to create something on
      his own devices. Not following or copying some model.
      He comes up with a monster. That creature lives within
      [Corwin].   We don’t have any way available to us to
      exorcise [sic] that demon from within [Corwin]. But we
      certainly have a way, and you have a way, by answering
      yes and yes to those special issues of exorcising [sic]
      [Corwin] from our society.    I submit that’s what you
      should do.

Corwin did not object to the Prosecutor’s statements at the time

they were made. The Texas Court of Criminal Appeals concluded that

the painting was relevant to the second special issue--whether

Corwin was a continuing threat to society.                  Other members of the

Texas      Court   of   Criminal    Appeals        concurred    in    the    opinion,

concluding that the admission of the painting was in error, but

constituted harmless error.

      On habeas review, the trial court concluded that the admission

of   the    painting    was   proper.        The    trial   court     held    in   the


     7
          The painting is reprinted at Corwin v. State, 870 S.W.2d
23, 40 (Tex. Crim. App. 1993) (en banc).

                                        18
alternative that its admission was harmless beyond a reasonable

doubt.

     We need not decide whether admission of the painting was

error.     Assuming without deciding that it was error to admit the

painting, we agree with the district court that the error was

harmless.    Corwin is not entitled to federal habeas relief due to

trial error unless “the error ‘had substantial and injurious effect

or influence in determining the jury’s verdict.’”                  Brecht v.

Abrahamson, 507 U.S. 619, 637, 637-38 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)).              The evidence against

Corwin was overwhelming.          As profiled above, the jury heard strong

evidence that Corwin killed three different women in a brutal,

gruesome manner. In light of the extensive and convincing evidence

of his guilt, we conclude that the introduction of the painting,

even coupled with the Prosecutor’s statements, did not have a

“substantial and injurious effect or influence in determining the

jury’s verdict.” Because Corwin has not made a substantial showing

of the denial of a constitutional right, he is not entitled to a

COA on this issue.

           E.    The Prosecutor’s Statement Referring to the
                 Potential of Additional Undiscovered Victims

     In his closing argument, the Prosecutor stated: “I think you

can reasonably assume from the evidence that there are more dead

women out there that we just haven’t found out about.”            At Corwin’s

objection, the trial court ordered the jury to disregard the

comment.        Corwin   claims    that   the   Prosecutor’s   remark   was   so


                                          19
prejudicial that it was incapable of being cured by an instruction.

The Texas Court of Criminal Appeals concluded on direct appeal that

the instruction was adequate to cure the error.

     As noted above, the evidence of Corwin's multiple crimes was

overwhelming.   Given this evidence and the presumption that jurors

follow their instructions, the Texas Court of Criminal Appeals

reasonably applied the law to the facts and federal habeas relief

is not appropriate.   See Green v. Johnson, 116 F.3d 1115, 1119-20

(5th Cir. 1997).   Corwin is not entitled to a COA on this issue.

F. Collective Prejudice of Errors that are Individually Harmless

     Finally, Corwin argues that even if they don’t individually

constitute a substantial showing of deprivation of a substantial

constitutional right,     the introduction of the painting, the

accompanying statements by the prosecution, and the statement

regarding the potential of additional victims collectively make a

substantial showing that he was deprived of a fundamentally fair

trial. Although there may be cases in which a collection of errors

are individually harmless but collectively deprive the defendant of

a fair trial, this is not such a case.   Corwin fails to demonstrate

how these errors combine to rise to the level of a substantial

showing of the denial of a constitutional right.      Corwin is not

entitled to a COA on this ground.

                            CONCLUSION

     For reasons discussed above, we deny Corwin's application for

a COA and vacate the stay of execution granted by this Court.



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