                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

                                                 §
                                                                 No. 08-08-00313-CR
                                                 §
                                                                      Appeal from
                                                 §
 EX PARTE: JAMES CROOK                                            383rd District Court
                                                 §
                                                               of El Paso County, Texas
                                                 §
                                                               (TC # 20010D03480-02)
                                                 §

                                          OPINION

       James Crook appeals from an order denying habeas corpus relief. For the reasons that follow,

we affirm.

                        PROCEDURAL AND FACTUAL SUMMARY

       The evidence submitted to the trial court reflected that Irma Escandon was employed by a

chiropractor’s office. Pursuant to an arrangement between Crook and Escandon’s employer,

Escandon solicited clients who had been in car accidents by telephone after reviewing accident

reports. Escandon referred all of the prospective clients to Crook’s law office, who in turn referred

them back to the chiropractor’s office.

       On August 9, 2002, a jury found Crook guilty of thirteen counts of barratry and assessed his

punishment at imprisonment for a term of ten years, probated for seven years, and a $10,000 fine.

The trial court ordered both the probationary terms and the fines to run concurrently. Both

Crook and the State appealed. We affirmed Crook’s conviction on June 30, 2005. Crook v. State,

No. 08-02-00382-CR, 2005 WL 1539187 (Tex.App.--El Paso June 30, 2005, pet. ref’d). By separate

opinion issued that same date, we rejected the State’s argument that the sentence was illegal
because the trial court ordered the fines to run concurrently rather than consecutively. State v.

Crook, No. 08-02-00383-CR, 2005 WL 1536230 (Tex.App.--El Paso June 30, 2005, pet. ref’d). The

Court of Criminal Appeals granted Crook’s petition for discretionary review and remanded the cause

for consideration of Crook’s argument that the court did not have jurisdiction to entertain the State’s

appeal. On remand, we found that there was a jurisdictional basis for the State’s appeal. State v.

Crook, No. 08-02-00383-CR, 2006 WL 3234089 (Tex.App.--El Paso March 21, 2007, pet. ref’d).

The Court of Criminal Appeals granted the State’s petition for discretionary review and affirmed,

holding that the trial court was statutorily required to order Crook’s fines on each count of barratry

to run concurrently where the counts arose out of the same criminal episode and were prosecuted in

a single criminal action. State v. Crook, 248 S.W.3d 172 (Tex.Crim.App. 2008).

       After the mandate issued, Crook filed an application for writ of habeas corpus pursuant to

Article 11.0721 raising ineffective assistance of counsel based on allegations that trial counsel (1)

failed to convey a favorable plea bargain to him, (2) failed to request an accomplice-witness

instruction, and (3) failed to secure an investigator to interview the primary witness, Irma Escandon,

and others to establish that he did not commit barratry. Crook attached his own affidavit to his writ

application. The State filed an answer and attached pertinent portions of the trial record as well as

the affidavits from the following people: the assistant district attorneys who prosecuted the case

(Patricia Acosta and Kyle Lasley); trial counsel; the detective who investigated the case; and the

investigator retained by trial counsel. On October 28, 2008, the trial court entered an order denying

habeas corpus relief. The order includes the court’s findings of fact and conclusions of law. This

appeal follows.

                                         INEFFECTIVE ASSISTANCE

       1
           T EX .C O D E C RIM .P RO C .A N N . art. 11.072 (Vernon 2005).
       In Issue One, Crook challenges the trial court’s denial of habeas corpus relief. Crook

contends that he was denied the effective assistance of counsel because trial counsel objected to the

inclusion of an accomplice witness instruction in the charge and failed to convey or seek a plea

bargain offer. Crook has not challenged the trial court’s ruling on the failure to investigate

allegation.

       In a habeas corpus proceeding brought under Article 11.072, it is the applicant’s burden to

prove his claim by a preponderance of the evidence. See State v. Webb, 244 S.W.3d 543, 547

(Tex.App.--Houston [1st Dist.] 2007, no pet.). The two-prong analysis adopted by the United States

Supreme Court in Strickland v. Washington is the standard for determination of claims of ineffective

assistance of counsel under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed. 2d 674 (1984).          See Hernandez v. State, 988 S.W.2d 770, 771-72

(Tex.Crim.App. 1999). First, he must prove that his counsel’s representation fell below an objective

standard of reasonableness. 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 habeas applicant must prove by a

preponderance of the evidence that his counsel’s representation fell below the standard of

professional norms. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). Second, the

applicant must show that the deficient performance prejudiced his defense. Strickland, 466 U.S. at

687, 104 S.Ct. at 2064. To establish prejudice, the habeas applicant must show that there is a

reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding

would have been different. Id. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability

“sufficient to undermine confidence in the outcome.” Id. This two-pronged test is used to judge

whether counsel’s conduct so compromised the proper functioning of the adversarial process that

the trial produced unreliable results. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001).
       When conducting a review of a claim of ineffective assistance of counsel under the first

prong of Strickland, there is a strong presumption that defense counsel’s conduct was reasonable and

constituted sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In

order to overcome this strong presumption, claims raising ineffective assistance of counsel must be

firmly founded and affirmatively demonstrated in the record. Thompson v. State, 9 S.W.3d 808, 813-

14 (Tex.Crim.App. 1999).       The defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy. Jackson, 877 S.W.2d

at 771, citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This highly deferential review is

employed to avoid “the distorting effect of hindsight.” McFarland, 163 S.W.3d at 753, quoting

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

       Generally, we review a trial court’s decision to grant or deny relief on a writ of habeas corpus

for abuse of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex.Crim.App. 2006); Webb, 244

S.W.3d at 547; Jaime v. State, 81 S.W.3d 920, 924 (Tex.App.--El Paso 2002, pet.ref’d). The

reviewing court accords great deference to the trial court’s findings and conclusions and views the

evidence in a light most favorable to the ruling. Jaime, 81 S.W.3d at 924. Such deference must be

given even when all of the evidence is submitted by affidavits. See Ex parte Wheeler, 203 S.W.3d

at 325-26.

                                  Accomplice Witness Instruction

       The trial court included an accomplice-witness instruction in its proposed jury charge

regarding Escandon’s testimony, but removed it because trial counsel objected to its inclusion.

Crook asserts that this amounts to deficient performance which prejudiced his defense.

       An accomplice witness is one who acted as an accomplice to a defendant before, during, or

after the commission of a crime and testifies against the defendant concerning that same crime.
Villarreal v. State, 576 S.W.2d 51, 56 (Tex.Crim.App. 1978). Accomplice-witness testimony must

be corroborated by other evidence before a conviction may be had upon it.                                    TEX .CODE

CRIM .PROC .ANN . art. 38.14 (Vernon 2005). This rule is meant to assure that the jury does not

consider an accomplice witness’s testimony unless it finds that the accomplice witness is telling the

truth based on other evidence corroborating the witness’s testimony. See McDuff v. State, 943

S.W.2d 517, 520 (Tex.App.--Austin 1997, pet. ref’d).

         At trial, Crook relied on the defensive theory that he was not guilty of barratry because

Escandon was not his employee and that any solicitation of cases by her was for the chiropractors

who employed her. In his affidavit, trial counsel explained that this was a tactical decision made to

avoid leaving the jury with the impression that Crook was culpable because Escandon had violated

the law and was an accomplice. Trial counsel felt the evidence was clear that Escandon did not

violate the barratry statute under a Fifth Circuit case, and as such, she could not have been an

accomplice.2 Trial counsel believed the instruction would have caused far more harm than any

benefit which might have been gained by inclusion of the instruction in the charge. The trial court

found that:

         [T]rial counsel made a well-considered strategic choice to not request an accomplice-witness
         instruction, and indeed to object to it, and such choice was made after thorough investigation
         of the facts and the law. That strategy was not outside the wide range of professionally
         competent assistance. Trial counsel’s decision and strategy was reasonable according to
         prevailing professional norms.

         In his brief, Crook asserts that Escandon was an accomplice. The issue is not whether trial

counsel was ultimately correct in his conclusion that Escandon was not an accomplice, but rather we

must determine whether counsel was acting as “a reasonably competent attorney” would under the


         2
           Trial counsel did not include a case citation in his affidavit, but the Fifth Circuit found Section 38.12 of the
Penal Code unconstitutional as applied to chiropractors because it infringed on their right to commercial free speech.
Bailey v. Morales, 190 F.3d 320, 323-26 (5th Cir. 1999).
circumstances. McFarland, 163 S.W.3d at 753. In assessing this, we look to see if counsel was

acting as “a reasonably competent attorney” would under the circumstances. Id. Trial counsel

determined the defensive theory he would pursue in defending Crook and he had a legal and factual

basis for that defense. Counsel determined that permitting the instruction to remain in the charge

would undercut the defensive strategy. The record supports the trial court’s finding that trial counsel

made a well-considered and strategic choice to cause the accomplice witness instruction to be

excluded from the charge. Crook has failed to prove the first prong of the Strickland analysis. It is

therefore unnecessary to address the second prong. See Strickland, 466 U.S. at 687, 104 S.Ct. 2064;

Jackson, 877 S.W.2d at 771.

                                    Failure to Convey Plea Offer

        Crook also claimed that trial counsel’s performance was deficient because he failed to convey

a plea offer. A failure by trial counsel to inform Crook about a plea offer made by the State would

constitute deficient performance. Ex parte Lemke, 13 S.W.3d 791, 795-96 (Tex.Crim.App. 2000).

In his affidavit, Crook asserts that a plea offer was made, that it was concealed from him by his trial

counsel, and that all this was admitted to him later by trial counsel. Crook’s affidavit is contradicted

by the affidavits of one of the prosecuting attorneys and trial counsel. Patricia Acosta, the assistant

district attorney who prosecuted the case, averred that trial counsel told her, “that James Crook

would not be able to accept any plea offer as any plea of guilty would jeopardize Mr. Crook’s license

to practice law,” and that, therefore, “no plea offer was extended.” Defense counsel’s recollection

is consistent with Acosta’s. In his affidavit, he called the contention that he failed to convey a

favorable plea bargain “an absolute falsehood,” and that “[i]t was Mr. Crook’s position that short

of an outright dismissal he would not accept any plea offer.” The trial court made a credibility

determination based on the conflicting affidavits and determined that “[t]here was no failure by trial
counsel to convey a plea offer to Crook from the State because no plea offer was ever made,” and

“[a]ll information concerning plea bargaining was conveyed to Crook by trial counsel in a timely

manner.” Our deferential standard of review applies to a credibility determination made on

affidavits. See Ex parte Wheeler, 203 S.W.3d at 325-26; Manzi v. State, 88 S.W.3d 240, 244

(Tex.Crim.App. 2002). The trial court’s findings are supported by the evidence. Crook failed to

establish by a preponderance of the evidence that his attorney rendered objectively deficient

performance. Consequently, his ineffective assistance of counsel claim fails. The trial court did not

abuse its discretion by denying habeas corpus relief on the grounds presented. Issue One is

overruled.

                                             NO HEARING

        In Issue Two, Crook argues that the trial court erred by deciding the writ based on the

affidavits and other attached evidence rather than holding an evidentiary hearing. He contends that

an evidentiary hearing was necessary for him to “fully explore the depths of trial counsels [sic]

ineffectiveness.”

        This application for Writ of Habeas Corpus is governed by TEX .CODE CRIM .PROC.ANN . art.

11.072, which provides:

        (b) In making its determination, the court may order affidavits, depositions, interrogatories,
        or a hearing, and may rely on the court’s personal recollection.

        (c) If a hearing is ordered . . . . [Emphasis added].

TEX .CODE CRIM .PROC.ANN . art. 11.072, §§ 6(b)-(c) (Vernon 2005). From the plain language of the

statute it is clear that the decision whether to hold a hearing is within the discretion of the trial court.

See Ex parte Carbajal, No. 08-03-00297-CR, 2004 WL 1772113, at *7-8 (Tex.App.--El Paso,

Aug. 5, 2004, pet.ref’d)(not designated for publication).
         In support of his argument, Crook cites Hall v. Quartermain, 534 F.3d 365 (5th Cir. 2008)

which neither adds to nor subtracts from the trial court’s discretion under TEX .CODE

CRIM .PROC.ANN . art. 11.072. Hall discusses hearings on applications for habeas corpus under

UNITED STATES CODE , Title 28, sec. 2254(e)(2), not TEX .CODE CRIM .PROC.ANN . art. 11.072.3 Hall

is therefore 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 argument that he

was entitled to a hearing. These cases stand for the proposition that on an application for habeas

corpus a trial court has the opportunity to develop the record by holding a hearing. Ex parte Varelas,

45 S.W.3d at 630; Thompson, 9 S.W.3d at 814-15. These cases do not make evidentiary hearings

mandatory in habeas corpus proceedings.

         Crook has failed to show that the trial court abused its discretion by making its decision

based on affidavits rather than an evidentiary hearing. Issue Two is overruled. Having overruled

both issues for review, we affirm the judgment of the trial court.


July 28, 2010
                                                                  ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)




         3
            Section 2254(e)(2) of United States Code Title 28 only applies to habeas corpus proceedings in federal court
based on a state court decisions where an issue was not fully developed in the state court trial. It is further limited to
situations where the party is relying on a new rule of constitutional law and/or new factual predicates that were previously
undiscoverable.
