           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.




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