COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

EX PARTE: J AMES CROOK § § § § § § No. 08-08-00313- CR

Appea l from 383rd District Court of El Paso County , Texas (TC # 20010D03480-02)

O P I N I O N J ames Crook appea ls from an order deny ing habea s c o rpus relief

. For the rea sons that follow,

we a ffirm.
P ROCEDURAL AND F ACTUAL SUMMA RY The evidence submitt ed to the t rial court ref lected that I rma E s ca n d o n was employ ed by a chiropra ctor’s office

. Pursuant to an arr ang ement betwee n Crook and Escand o n ’s employ er, Escandon solicited clients who had been in car acc idents by teleph o n e af t er revie wing acc ident
repor ts. Escandon ref

err ed all of the prospec tive clients to Crook’s law office , who in turn ref err ed them back to the c hiroprac tor’s off ice. On Aug ust 9, 2002, a jury found Crook g uilty of thirteen counts of barr atry and assessed his punishment a t imprisonment for a term of ten y ear s, probate d for seven y ear s, and a $10,000 fine. The trial court order ed both the probationar y terms and t h e fi n es to run concur rently

. Both Crook and the State appea led. We aff irmed Crook’s conviction on J une 30, 2005. Crook v. State , No. 08-02-00382- CR, 2005 WL 1539187 (Tex.App.--El Paso J une 30, 2005, pet. ref ’d). By separ ate opinion issued that same date, we reje cted the St at e’s arg ument that the sentenc e was illega lbeca

use the trial cour t o rd er ed the fines to run concur rently rathe r than consec utively

. State v. Crook , No. 08-02-00383- CR, 2005 WL 1536230 (Tex.App.--El Paso J une 30, 2005, pet. ref ’d). The Court of Criminal Appea ls g rante d Crook’s petition for discretionar y revie w and rema

nded the cause for considera

tion of Crook’s arg ument that the court did not have jurisdiction to enter tain the State’s
appea l. On remand, we found that there wa s a j u ri sdictional basis for the State’s appeal. State v. Crook , No. 08-02-00383- CR, 2006 WL 3234089 (Tex.App.--El Paso Marc h 21, 2007, pet. ref ’d). The Court of C riminal Appea ls gr anted the State’s petition for discretionary revie w and aff irmed, holding that the trial court was statutorily require d to order Crook’s fines on eac h count of barr atry
to run concur

rently wher e the counts arose out of the same criminal episode and wer e prosec uted in a sing le cr iminal action. State v. Crook , 248 S.W .3d 172 (Tex.Crim.App. 2008). After the m andate issued, Crook filed an application fo r writ of habeas corpus pursuant to Article 11.072 raising ineffe ctive assistance of counse l based on a lleg ations that trial counsel (1) 1 failed to convey a favor able plea b ar g ain to him, (2) failed to reque st an acc omplice-witness instruction, and (3) failed to secur e an investiga tor to interview the primary witness, I rma Escandon, and others to establish that he did not commit barr atry

. Crook attache d his own aff idavit to his writ application. The State filed an answe r and attache d pertinent portions of the trial rec ord as well as the aff idavits from th e fo l l o wi n g people: the assistant district attorney s who prosec uted the case (Patricia Acosta an d Ky le L asley ); trial counsel; the detec tive who investiga ted the case ; and the investiga tor reta ined by trial counsel. On October 28, 2008, the trial court enter ed an order deny ing habea s corpus re lief. The or der inc ludes the cour t’s finding s of fa ct and c onclusions of law. This
appea l follows. INEF F ECTIVE ASS ISTANCE

T E X
. C O D E C R IM
. P R O C
. A N N
. a r t

. 1 1

. 0 7 2 ( V e r n o n 2 0 0 5 )

. 1I n I ssue One, Crook challeng es the trial court’s denial of habea s corpus relief

. Crook contends that he was denied the eff ective assistance of counsel beca use trial counsel objected to the inclusion of an acc omplice witness inst ru ct i o n i n the char g e and failed to convey or seek a plea barg ain o ff

er . Crook has not challeng ed the trial court’s ruling on the failure to investiga te alleg ation. I n a habea s corpus proc eeding broug ht under Ar ticle 11.072, it is the applicant’ s burden to
prove his claim by a preponde ranc e of the evidenc e. See State v. W ebb , 2 4 4 S

. W

. 3 d 543, 547 (Tex.App.--Houston [1st Dist.] 2007, no pet.). The two-prong analy sis adopted by the United States Supreme Court in Strickland v. W ashington is the standard for deter mination of claims of ineffe ctive assistance of counsel under the Six th Amendment. Strickland v. W ashing t o n , 466 U.S. 668, 104 S.C t

. 2 0 5 2 , 80 L .Ed. 2d 674 (1984). See Hernande z v. State , 988 S.W .2d 770, 771-72 (Tex.Crim.App. 1999). First, he must prove that his counsel’s repr esenta tion fell below an objective standard of rea sonablene ss. Strickland , 466 U.S. at 687-88, 104 S.Ct

. at 2064; Ex parte McFarland , 163 S.W .3d 743, 753 (Tex.Crim.App. 2005). Particularly , the habea s applicant must pro v e b y a preponde ra nce of the evidenc e that his counsel’s repr esenta tion fell below the standard of
p ro fe s s i onal norms. Mitchell v. State , 68 S.W .3d 640, 642 (Tex.Crim.App. 2002). Second, th e applicant must show that the defic ient perf ormanc e prejudice d his defe nse. Strickland , 466 U.S. at 687, 104 S.Ct

. at 2064. To establish prejudice , the habea s applicant must show that there is a

rea sonable probability that, but for the counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent. Id

. at 694, 104 S.Ct

. at 2068. A rea sonable probability is a probability “s u ff i ci ent to undermine confide nce in the outcome.” Id

. This two-prong ed test is used to judge whether counsel’s conduct so compromised the proper functioning of t he advers ar i al proce ss that the trial produc ed unre liable re sults. Mallett v. State , 65 S.W .3d 59, 63 (Tex.Crim.App. 2001).When conducting a revie w of a claim of ineffe ctive assistance of counsel under the first

prong of Strickland , there is a strong presumption that defe nse counsel’s conduct was rea sonable and constituted sound trial strateg y . Jack son v. State , 877 S.W .2d 768, 771 (Tex.Crim.App. 1994). I n order to overc ome this strong presumption, claims raising ineffe ctive assistance of counsel must be firmly founded and aff

irmatively demonstrated in the rec ord. Thompson v. State , 9 S.W .3d 808, 813- 14 (Tex.Cr i m . Ap p. 1999). The defe ndant must overc ome the presumption that, under the circ umstances, the challeng ed action might be considere d sound trial strateg y . Jack son , 877 S.W .2d
at 771, citing Strickland , 466 U.S. at 6 8 7 , 1 0 4 S.Ct

. at 2064. This highly defe rential revie w is employ ed to avoid “the distorting eff ect of hindsight.” McFarland , 163 S.W .3d at 7 5 3 , quoting Strickland , 466 U.S. at 689, 104 S.Ct . at 2065. Gene rally , we revie w a trial court’s decision to g rant or deny relief on a writ of habea s corpus for abuse of discretion. Ex parte W heele r , 203 S.W .3d 317, 324 (Tex.Crim.App. 2006); W ebb , 244 S.W .3d at 547; Jaime v. State , 8 1 S.W .3d 920, 924 (Tex.App.--El Paso 2002, pet.re f’d)

. The revie wing court acc ords g rea t de fer ence to the trial court’s finding s and conclusions and views the evidenc e in a light most favor able to the ruling

. Jaime , 81 S.W .3d at 924. Such defe renc e must be
g iven even when all of the evidenc e is submitt ed by aff idavits. See Ex parte W

heele r , 203 S.W .3d at 325-26. Acc omplice W itness Instruction The trial court included an acc omplice-w i tness instruction in its proposed jury char g e reg arding Escandon’s t es t i m o ny , but remove d it beca use trial counsel objected to its inclusion. Crook asser

ts that this amounts to deficie nt perfor mance which pre

judiced his defe nse. An acc omplice witness is one who acte d as an acc omplice to a defe ndant befor e, during , or afte r the commission of a cr i m e an d testifies ag ainst the defe ndant conce rning that same crime.Villarreal v. State , 576 S.W .2d 51, 56 (Tex.Crim.App. 1978). Acc omplice-witness testimony must

be corr oborate d by other evidenc e befo re a co n viction may be had upon it. T E X .C O D E C R I M
. P R O C
. A N N
. art. 38.14 (Ve rnon 2005). This rule is meant to assure that the jury does not consider an acc omplice witness’s testimony unless it finds that the acc omplice witness is telling the truth based on other evidenc e corr oborating the witnes s ’s testimony

. See McD uff v. State , 943 S.W .2d 517, 520 (Tex.App.--Austin 1997, pet. re f’d)

. At trial, Crook relied on the defe nsive t h eo ry that he was not g uilty of barr atry beca use Escandon w as not his employ ee and t hat any solicitation of cases by her was for the chiropra ctors who employ ed her. I n his aff idavit, trial counsel explained that this was a tactica l decision made to avoid leaving the jury with the impression that Crook was culpable beca use Escandon had violated the law and was an acc omplice. Trial counsel felt the evidenc e was clea r that Escandon did not violate the barr atry statute under a Fifth Circuit ca s e, an d as such, she could not have been an

acc omplice. Trial counsel believed the instruction would have cause d far more harm than any

2 benef it which might have been g ained by inclusion of the instruction in the char g e. The trial court found that: [T] rial counsel made a well-c onsidered strateg ic ch oice to not reque st an acc omplice-witness instruction, and indeed to object to it, and such choice was made afte r thoroug h investiga tion of the fac ts and the law. That s t ra t egy was not outside the wide rang e of profe ssionally competent assistance

. Trial couns el ’s d ecision and strateg y was rea sonable acc ording to preva iling prof

essional norms. I n his br ief, Crook asser

ts tha t E scandon was an acc omplice. The issue is not whether trial counsel was ultimately corr ect in his conclusion that Escandon was not an acc omplice, but rathe r we
must deter

mine whether counsel was acting as “a rea sonably competent attorney ” would under the

T r i a l c o u n s e l d i d n o t i n c l u d e a c a s e c i t a t i o n i n h i s a f f i d a v i t , b u t t h e F i f

t h C i r c u i t f

o u n d S e c t i o n 3 8

. 1 2 o f t h e 2 P e n a l C o d e u n c o n s t i t u t i o n a l a s a p p l i e d t o c h i r o p r a c t o r s b e c a u s e i t i n f r i n g e d o n t h e i r r i g h t t o c o m m e r c i a l f r e e s p e e c h

. B a i l e y v
. M o r a l e s , 1 9 0 F

. 3 d 3 2 0 , 3 2 3

- 2 6 ( 5 t h C i r . 1 9 9 9 )

.circ umstances. McFarland , 163 S.W .3d at 753. I n assessing t h i s , we l o o k to see if counsel was

acting as “a rea sonably competent attorney ” would under the circ umstances. Id

. Trial counsel deter mined the defe nsive theory he would pursue in defe nding Crook and he had a leg al and fac tual basis for that defe nse. Counsel deter mined that permitting the instruction to rema in in the charg e would underc ut the defe nsive strateg y . The rec ord supports the trial court’s finding that trial counsel made a well-c onsidered and strateg ic choice to cause the ac co m plice witness instruction to be excluded from the char g e. Crook has failed to prove the first prong of the Strickland analy sis. I t is there fore unnece ssary to addre ss the second prong . See Strickland , 466 U.S. at 687, 104 S.Ct

. 2064; Jack son , 877 S.W .2d at 771. Failure to Convey Ple a Offer Crook also claimed that tria l c o u n s e l’ s p e r f o rmanc e was defic ient beca use he failed to convey

a plea offe r. A failure by trial counsel to inf orm Crook about a plea offe r made by the State would constitute defic ient perf

ormanc e. Ex parte Lemke , 13 S.W .3d 791, 795-96 (Tex.Crim.App. 2000). I n his aff idavit, Crook asser

ts that a plea offe r was made, that it was conce aled from him by his trial counsel, and that all this was admitted to him later by trial counsel. Crook’s aff idavit is contra dicted by the aff idavits of one of the prosec uting attorney s and trial counsel. Patricia Acosta, the assistant district attorney who prosec u ted the case , aver red that trial counsel told her, “that J ames Crook would not be able to acc ept any plea offe r as any plea of g uilty would jeopar dize Mr. Crook’s license
to prac tice law,” and that, there fore , “no plea offe r was extended.” Def ense counsel’s rec ollection is consistent with Acosta’ s. I n his af fi davit, he called the contention that he failed to convey a favor able plea barg ain “an absolute f al s eh o o d ,” and that “[i] t was Mr. Crook’s pos ition that short of an outrig ht dismiss al he would not acc ept an y plea offe r.” The trial court made a cre dibilit y deter mination based on the conflicting aff idavits and deter

mined that “[t] here was no failure by trialcounsel to convey a plea offe r to Crook from the State be cause no plea of fer was e ver made,” and “[a]ll information conce rning plea barg aining was convey ed to Crook by trial counsel in a t i m el y

manner .” Our defe rential standard of re view applies to a cre dibilit y deter mination made on af fi d av i t s. See Ex parte W heele r , 203 S.W .3d at 325-26; Manzi v. State , 88 S.W .3d 240, 244 (Tex.Cri m . Ap p . 2002). The trial court’s finding s are supported by the evidenc e. Crook failed to establish by a preponde ranc e of the evidenc e that his att o rn ey rende red objectively defic ient perf ormanc e. Consequently , his ineffe ctive assistance of counsel claim fails. The trial court did not abus e i t s discretion by deny ing habea s corpus relief on the g rounds prese nted. I ssue One is

overr uled. NO HEARING I n I s s u e Two, Crook arg ues that the trial court err ed by deciding the writ based on the aff idavits and other attache d evidenc e rathe r than holding an evidentiar y hear ing. He contends that

an evidentiar

y hear ing was nece ssary for him to “fully ex p l o re t h e depths of trial counsels [si c] ineffe ctiveness.” This application for Writ of Habe as Corpus is g overne d by T E X .C O D E C R I M .P R O C .AN N
. art. 11.072, which provide s: (b) I n making its deter

mination, the court may order aff idavits, depositions, interrog atories, or a hea ring , and may re ly on the cour t’s persona l rec ollection. (c) If a hea

ring is ordere d . . . . [Emphasis added]. T E X .C O D E C R I M .P R O C .AN N
. art. 11.072, §§ 6(b)- (c) (Ve rnon 2005). Fr om the plain lang uag e of the
statute it is clea

r that the decision whether to hold a hear ing is within the discretion of the trial court. See Ex parte Carbajal , No. 08-03-00297- CR, 2 0 0 4 W L 1772113, at *7-8 (Tex.App.--El Paso, Aug . 5, 2004, pet.re f’d) (not desig nated f or publication).I n support of his arg ument, Crook cites Hall v

. Quartermain , 534 F.3d 365 (5th Cir. 2008)

which neither adds t o nor subtracts from the trial court’s discretion under T E X .C O D E C R I M .P R O C .AN N
. art. 11.072. Hall discusses hear ings on applications for habea s corpus under U N I T E D S T A T E S C O D E , Title 28, sec. 2254(e) (2), not T E X .C O D E C R I M .P R O C .AN N
. art. 11.072. Hall 3 is there fore not controlling

. Crook also relies on Ex Parte Varelas , 45 S.W .3d 627 (Tex.Crim.App. 2001) and Thompson v. State , 9 S.W .3d 808 (Tex.Crim.App. 1999) to support his arg ument that he

was entitled to a hear ing. These cases s t an d fo r the proposition that on an application for habea s corpus a trial court has the opportunity to develop the rec ord by holding a hear ing. Ex parte Varelas , 45 S.W .3d at 630; Thompson , 9 S.W .3d at 814-15. The se ca ses do not make evidentiary hear ings mandatory

in habea s corpus proc eeding s. Crook has failed to show that the trial court abused it s d i s cr etion by making its decision based on aff

idavits rathe r t han an evidentiar y hear ing. I ssue Two is o v err uled. Having overr

uled both issues for re view, we aff irm the judg ment of the trial c ourt.

J uly 28, 2010 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)

S e c t i o n 2 2 5 4 ( e ) ( 2 ) o f U n i t e d S t a t e s C o d e T i t l e 2 8 o n l y a p p l i e s t o h a b e a s c o r p u s p r o c e e d i n g s i n f e d e r a l c o u r t 3 b a s e d o n a s t a t e c o u r t d e c i s i o n s w h e r e a n i s s u e w a s n o t f u l l y d e v e l o p e d i n t h e s t a t e c o u r t t r i a l

. I t i s f u r t h e r l i m i t e d t o s i t u a t i o n s w h e r e t h e p a r t y i s r e l y i n g o n a n e w r u l e o f c o n s t i t u t i o n a l l a w a n d / o r n e w f a c t u a l p r e d i c a t e s t h a t w e r e p r e v i o u s l y u n d i s c o v e r a b l e .