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James Crook v. State ( 2005 )


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  • COURT OF APPEALS

    COURT OF APPEALS

    EIGHTH DISTRICT OF TEXAS

    EL PASO, TEXAS

     

    JAMES CROOK,                                                 )

                                                                                  )     No.  08-02-00382-CR

    Appellant,                          )

                                                                                  )                    Appeal from the

    v.                                                                           )

                                                                                  )     383rd District Court

    THE STATE OF TEXAS,                                     )

                                                                                  )     of El Paso County, Texas

    Appellee.                           )

                                                                                  )     (TC# 20010D03480)

                                                                                  )

     

     

    O P I N I O N

     

    Appellant James Crook appeals from separate convictions of thirteen counts of barratry. A jury found Appellant guilty and assessed punishment at 10 years= confinement, probated for 7 years= community supervision, with the sentences to run concurrently, and a $10,000 fine.  On appeal, Appellant raises fourteen issues, in which he challenges the legal and factually sufficiency of the evidence, asserts that the trial court erred in admitting extraneous offense evidence, erred in judicial notice rulings, and erred in permitting improper jury argument, complains of jury charge error, and raises a double jeopardy claim.  We affirm.

    FACTUAL SUMMARY

    Appellant and Dr. Alejandro Jimenez, a chiropractor in El Paso, established a relationship in the beginning of 1998.  Dr. Jimenez had several offices around town; he also worked with several other chiropractors, in particular, Dr. Monteiro and Dr. Ruja. Sometime in February or March of 1998, Dr. Jimenez contacted Appellant=s law office by mail and requested a meeting.  Dr. Jimenez=s letter stated that he wanted to meet with Appellant in order to start referring cases to each other.  Appellant=s office manager set up an appointment with Dr. Jimenez and shortly thereafter, Appellant=s office began receiving phone calls from Irma Escandon in which she referred clients to Appellant.  At that time, Appellant also notified his office staff that they would start receiving referrals from Ms. Escandon and that they, in turn, would be sending these individuals to Dr. Jimenez for medical treatment; additionally the individuals= vehicles would go to County Club Body Shop for needed repairs.  On a weekly basis, Appellant, Dr. Jimenez, and Mario Munoz, the owner of Country Club Body Shop, would meet at the Bombay Bicycle Club.

    At trial, Ms. Escandon testified that in 1996, she was employed by Dr. Jimenez.  She described her job as general telemarketing for Dr. Jimenez=s offices; she would call individuals whose names she obtained from zip code rolls or from police reports, which contained the names of individuals who were involved in car accidents.  She gathered police reports from the police department at a cost of $4 per report, a fee that either Dr. Jimenez or Dr. Monteiro would pay.  When she first started telemarketing for Dr. Jimenez=s office, she worked out of the Zaragosa location. Her salary was $3,000 per month plus a bonus of $25 for each person that attended the clinic.  According to Ms. Escandon, after the law changed in


    mid-1997, making it illegal to solicit people involved in car accidents from a chiropractor=s office, she was moved to an office on Alameda that was rented by Dr. Jimenez and Dr. Monteiro.  From the new location, Ms. Escandon continued to telemarket for Dr. Jimenez=s office.  When yet another law went into effect, Dr. Jimenez moved her to another office located on the 7200 block of North Mesa.  This office was actually the Country Club Body Shop, a business owned by Mario and John Munoz.  Ms. Escandon knew that under this arrangement, Dr. Jimenez paid the Country Club Body Shop to rent office space from which she worked, and that he also provided the Body Shop with the funds for her salary.  Specifically, Dr. Jimenez deposited money into Mr. Munoz=s account and Mr. Munoz would then write a personal check to pay Ms. Escandon=s salary.  While at this location, Ms. Escandon continued to solicit individuals from police reports. 

    Per Dr. Jimenez=s orders, Ms. Escandon began soliciting clients from the police reports for Appellant. She recalled that Dr. Jimenez told her, AIrma, go ahead and call the accidents, but refer all to Crook.  He=s to get all the patients to call him, make appointments for him, and then he will then make appointments for me, [for Dr. Monteiro and Dr. Ruja].@ With regard to the procedure for soliciting clients for Appellant, Ms. Escandon recalled that she would call the individuals listed on the police reports and ask them if they needed any assistance with their vehicle or if they were hurt.  If they responded affirmatively, she would tell them to call Appellant=s office.  Within moments, Ms. Escandon would then call Appellant=s office and notify his staff that a particular individual would be calling their office in a few minutes.  If the individual failed to call, someone from Appellant=s office would call her back and let her know that no one had called, and would ask her to please call the individual again to find out why he or she had not called.

    Under this arrangement, Ms. Escandon had telephone conversations with Appellant, but never met him in person.  During their conversations, Ms. Escandon discussed with Appellant how many clients she had referred to him and she recalled that he made comments like, Awe had a good day yesterday.  Can we have a good day today@ and Aget more clients in@ the office?  During one conversation, Appellant mentioned that he had received twelve of her referrals in one day.  Appellant also told her that he wanted accidents with high ratings because he would be able to get a better settlement. 

    Ms. Escandon recalled that at that time there was a lot of competition among attorneys to procure clients who had been involved in car accidents.  She remembered that on one occasion, a woman named Cynthia was also obtaining accident reports, but was making contact with victims before she was able to do so. Appellant instructed Ms. Escandon to wait for Cynthia outside the police station and to follow her.  Ms. Escandon recalled that she and Alma, one of Appellant=s secretaries, waited outside the police station for Cynthia and then followed her as Appellant had instructed.

    On several occasions, Ms. Escandon complained to Appellant about being paid late or about not having enough money to purchase the police reports.  With regard to Ms. Escandon being paid late, Appellant told her to call him if she needed anything.  He also instructed her to talk to Dr. Jimenez because he was her boss.  Regarding the police reports, Appellant also told her to contact Dr. Jimenez.

    Notably, Ms. Escandon recalled one particular case involving a fatal accident, which had received newspaper coverage.  Appellant specifically asked Ms. Escandon to pursue the case vigorously because he wanted to sign that client.  When she first contacted the family, they indicated that they were not interested, but Appellant instructed Ms. Escandon to call again.  Once again, the family stated that they were not interested, but Appellant insisted Ms. Escandon try again and try another method as well.  On direct examination, Ms. Escandon testified that Appellant told her he would pay a lot of money for that client, however during

    cross-examination, she clarified that Appellant never told her that he would pay her a lot of money, but rather he had simply stated he would pay a lot of money.  Ms. Escandon maintained throughout her testimony that Dr. Jimenez was her boss and that Appellant never paid her any money. 

    Maria Del Carmen Gonzalez, Appellant=s employee, testified that she worked for the Appellant from December 26, 1996 to December 14, 1998.  Her duties included setting up the files and working on the cases.  She would interview clients and obtain retainer agreements for Appellant to represent them in their personal injury cases.

    Ms. Gonzalez knew Ms. Escandon and knew that she called Appellant=s office from Country Club Body Shop on a daily basis, sometimes up to six or seven times a day, in order to provide them with the names of accident victims who were going to call the office.  At times, Ms. Escandon let them know that the person she was referring to them was a very good case and that she had details of the case because she had the police report of the accident.  According to Ms. Gonzalez, the following procedure was put into place.  Ms. Escandon would call Appellant=s office with the name of the person that would be calling their office.  Ms. Escandon would also fax the police report to the Appellant=s office and this information would then be given to Appellant.  Once the person called, Appellant immediately took the call.  Appellant would obtain the person=s address and while Appellant was still on the phone with the potential client, he would give Ms. Gonzalez the address and she would then go pick up the person and bring him or her back to the office for an interview.

    Appellant also maintained a tracking system for clients referred to him by Ms. Escandon.  The files of the clients referred to by Ms. Escandon were labeled ACC@ which stood for Country Club Body Shop.  Appellant also kept a log of the referred clients in a steno pad, which he kept in his bottom right hand desk drawer.

    According to Ms. Gonzalez, the clients who had been referred by Ms. Escandon were then always referred to Dr. Jimenez or to one of the other two doctors with whom he worked; depending on which office location was most convenient to the client.  Ms. Gonzalez also recalled that when clients could not go to Appellant=s office to sign a retainer agreement, one of Appellant=s staff would take the contract to wherever the client was located, whether it was the body shop or at his or her residence. Sometimes clients were picked up from the body shop or from Dr. Jimenez=s office and retrieved immediately. 


    Alma Correa-Holmes, another employee of Appellant, testified that she worked for Appellant from December 1997 through September 1999.  As office manager, her responsibilities included handling client interviews, settlement packages, and settlement pay outs.  Ms. Correa-Holmes knew Ms. Escandon and believed that her job was to refer clients to Appellant.  She also knew Ms. Escandon worked out of the Country Club Body Shop. Ms. Correa-Holmes offered similar testimony to Ms. Gonzalez=s testimony regarding the procedure used to refer clients to Appellant.  Ms. Correa-Holmes testified that there was what she described as a Aten second rule@ that applied to clients referred to their office by Ms. Escandon.  Once a client referred by Ms. Escandon called, Appellant=s staff had ten seconds to be on their way to that person=s house; this was to ensure that no one else reached the potential client before Appellant.  Ms. Correa-Holmes stated that sometimes they would go to the client=s house before the person had actually called Appellant=s office and would wait either down the street or around the corner until someone from Appellant=s office called to say that it was okay to pick up that person.  According to Ms. Correa-Holmes, this was all done per Appellant=s instruction. 

    Similar to Ms. Gonzalez=s testimony, Ms. Correa-Holmes stated that files of clients that had been referred by Ms. Escandon were labeled ACC@ and that clients referred to Appellant by Ms. Escandon were to be referred to Dr. Jimenez or one of the chiropractors working with him.  She also testified that those clients had to be referred to Country Club Body Shop.

    Ms. Correa-Holmes recalled that Appellant stopped getting referrals from Ms. Escandon in May or June 1999.  At that time, Appellant met with his staff and told them that they would no longer be accepting new clients.  It was also during this time that she saw Appellant remove from the office files of cases that were up for settlement. 

    Valerie Forti, another one of Appellant=s employees, testified that she worked for Appellant for about eight months beginning in January 1999.  Ms. Forti did not know Ms. Escandon personally, but she knew of her.  She knew that Ms. Escandon worked for Country Club Body Shop and that her job was to refer clients to Appellant.  Ms. Forti recalled that at first, Ms. Escandon would call every morning, but then her calls to the office started to dwindle.  Towards the end of her employment with Appellant, Ms. Forti noted that Ms. Escandon was no longer calling the office.

    Ms. Forti provided further details concerning the referral procedure between Appellant=s office and Ms. Escandon.  Specifically, she recalled that Ms. Escandon would fax copies of the police reports to Appellant for his review.  As soon as a client referred by Ms. Escandon called, Appellant wanted the client scheduled for an appointment or brought in as soon as possible, within one hour if possible.  If the referred client did not call, then one of Appellant=s staff would need to follow up.  Ms. Forti stated that Appellant referred the clients to Dr. Jimenez or one of his affiliated chiropractors and that clients were not given a choice as to which chiropractor to see.  She recalled that Appellant, Dr. Jimenez, and someone from the Country Club Body Shop met once a week at the Bombay Bicycle Club.  In the mornings, Appellant would ask if anything had come in from Ms. Escandon and according to Ms. Forti, 90 percent of Appellant=s clientele came from Ms. Escandon=s referrals.

    At some point, Appellant held a meeting with the staff and told them that they were no longer going to receive referrals from Ms. Escandon and that they were not going to work with Dr. Jimenez.  After this meeting, Ms. Forti noticed that numerous files were being pulled and that Ms. Gonzalez and Ms. Correa-Holmes were making copies of them.  In addition, Appellant took some of the files and put them into his car, but she did not know where he took the files. 

    LEGAL AND FACTUAL SUFFICIENCY

    Standards of Review

    In reviewing the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788‑89, 61 L. Ed. 2d 560 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.‑-El Paso 1996, pet. ref=d).  Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421‑22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

    In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004).  There are two ways in which we may find the evidence to be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt.  Id. at 484-85.  AThis standard acknowledges that evidence of guilt can >preponderate= in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.@ Id. at 485.  In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt.  See id. at 481-82; Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).  An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant=s complaint on appeal.  Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).

     

    Solicit Employment under Section 38.12

    In Issue One, Appellant challenges the legal sufficiency of the evidence to prove the essential element of Asolicit employment@ required by Section 38.12(a) of the Texas Penal Code.

    Appellant was indicted in Counts II through VII and Counts IX through XIV of knowingly accepting to represent different named individuals for each count and that Asuch employment resulted from the solicitation of employment by IRMA ESCANDON in violation of section 38.12(a) of the Texas Penal Code, and the Defendant=s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.@  Texas Penal Code Section 38.12(b)(3) states:

    (b)        A person commits an offense if the person:

     

                                                                  .               .               .

     

    (3)        is a professional who knowingly accepts employment within the scope of the person=s license . . . that results from the solicitation of employment in violation of Subsection (a).

     

    See Tex.Pen.Code Ann. ' 38.12(b)(3)(Vernon 2003).

    Section 38.12(a)(2) of the Texas Penal Code states:

    (a)        a person commits an offense if, with intent to obtain an economic benefit the person:

                                                                  .               .               .

     

    (2)        solicits employment, either in person or by telephone, for himself or another. 

     

    See Tex.Pen.Code Ann. ' 38.12(a)(2). 

    Section 38.01(11) states in relevant part:


    >Solicit employment= means to communicate in person or by telephone with a prospective client or a member of the prospective client=s family concerning professional employment within the scope of a professional=s license . . . arising out of a particular occurrence or event, or series of occurrences or events . . . for the purpose of providing professional services to the prospective client, when neither the person receiving the communication nor anyone acting on that person=s behalf has requested the communication.

     

    See Tex.Pen.Code Ann. ' 38.01(11)(Vernon 2003). 

    Appellant concedes in his brief that Ms. Escandon did contact the individuals named in Counts II through XIV of Appellant=s indictments.  Appellant, however, argues that Ms. Escandon did not solicit on behalf of him, but rather, her solicitations were on behalf of Dr. Jimenez.  Appellant asserts Section 38.01(12) of the Texas Penal Code does not include chiropractors in its definition of professionals and thus, Ms. Escandon Adid not solicit employment as defined by Section 38.01(11)@ of the Texas Penal Code.

    Viewing the evidence in a light favorable to the verdict, we conclude that there was ample evidence to support the jury=s finding that Ms. Escandon solicited employment for Appellant.  While Ms. Escandon testified that she was employed by Dr. Jimenez and was paid by Dr. Jimenez through his arrangement with the Country Club Body Shop, she never met with Appellant in person, and was instructed by Dr. Jimenez to refer clients to Appellant.  The evidence clearly showed that Ms. Escandon=s job was to refer clients to Appellant so he could procure contracts with those individuals for the purpose of providing legal representation to them in their personal injury cases.  Further, in conversations between Ms. Escandon and Appellant, he indicated that more referrals were desired, particularly those with higher rating accidents.

    Moreover, there was extensive testimony concerning the referral procedure between Ms. Escandon, Appellant, and his office staff, from which the jury could reasonably infer that Ms. Escandon was soliciting employment for Appellant.  For instance, after Ms. Escandon referred clients to Appellant=s office, Appellant required his staff to follow up with any client who did not call the office momentarily.  On one occasion, Appellant instructed Ms. Escandon to pursue vigorously a case involving a fatal accident and told her that he would pay a lot of money for it.  Ms. Forti also testified that 90 percent of Appellant=s case load came from Ms. Escandon=s referrals.  Finally, there was testimony from the clients named in each of the indictments, in which they testified that they would have not contacted Appellant had they not been solicited by Ms. Escandon.

    After reviewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could have reasonably found that Ms. Escandon solicited employment for Appellant.  We find that the evidence was legally sufficient to sustain Appellant=s convictions under Section 38.12(b)(3). Issue One is overruled.  Given our disposition of Issue One, we need not reach Appellant=s Issue Two, in which he argues that the evidence was likewise legally insufficient to convict him under the theory of the law of parties. 

    Pay or Offer to Pay to Solicit Employment

    In Issues Three and Four, Appellant challenges the legal and factual sufficiency of the evidence to prove that Appellant paid or offered to pay Ms. Escandon to solicit employment.  These two issues pertain only to Appellant=s Count XVII, which states that on or about the 1st day of February, 1998 through on or about the 17th day of September, 1999, Appellant Adid then and there, with intent to obtain economic benefit, pay and offer to pay to IRMA ESCANDON money to solicit employment, and the Defendant=s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court.@ The charge however read as follows: Apay or offer to pay.@


    Appellant argues that he never offered to pay nor did he pay Ms. Escandon any money.  The State argues that the evidence is legally and factually sufficient to show that Appellant offered to pay Ms. Escandon for soliciting the clients involved in the fatality accident.  Alternatively, the State contends that the evidence is legally and factually sufficient under the law of parties.

    The evidence at trial showed that under the arrangement with Dr. Jimenez, Ms. Escandon was never paid directly by Appellant. Rather, Ms. Escandon was at first paid by Dr. Jimenez directly, and then indirectly through funds funneled to her via the auto body shop.  Further, Ms. Escandon testified that on the few occasions that she mentioned to the Appellant any problems she was having regarding her pay, Appellant told her to talk to Dr. Jimenez, her boss.  We note that the record is silent as to where Dr. Jimenez received the funds to pay Ms. Escandon in the first place.  Ms. Escandon did testify, however, that on one occasion when she complained about her salary, Appellant told her that if she needed anything, to tell him.  Ms. Escandon also testified that in the case of the fatality accident, Appellant told her he would pay good money for that client, but he did not explicitly say he would pay her.  The jury could have reasonably inferred from Appellant=s intimations that he was involved in securing payment for Ms. Escandon=s beneficial solicitations.  Moreover, there was extensive testimony concerning the existence of an on-going relationship between Dr. Jimenez, Appellant, and the auto body shop, and the development of a system of automatic referral between the entities, such that the jury could reasonably infer that Appellant was a party to the arrangement to pay Ms. Escandon for the solicitation of employment for Appellant, which, in turn, benefitted Dr. Jimenez.[1]  Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence to sustain Appellant=s conviction of Count XVII is legally sufficient.  Reviewing the evidence in a neutral light, we observe that Ms. Escandon never claimed that Appellant paid her directly nor did she claim that she was employed by Appellant.  However, this contrary evidence, is not so strong that guilt could not be proven beyond a reasonable doubt.  Further, the evidence supporting the verdict, considered by itself, is not too weak to support the guilty finding beyond a reasonable doubt.  Therefore, we conclude that the evidence regarding this challenged element of the offense is legally and factually sufficient.  Issues Three and Four are overruled.

    Conduct Not Authorized by the Texas Disciplinary Rules of Professional Conduct

    In Issues Five and Six, Appellant challenges the legal and factual sufficiency of the evidence to prove that Appellant=s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct as alleged in the indictment for Count XVII.  Appellant argues that there was no evidence that he ever paid or offered to pay money for the referrals and that the only payment given to Dr. Jimenez, was payments for the medical treatment he provided the clients.  Appellant further argues that the evidence was factually insufficient because the testimony of Mario Martinez, a Texas attorney who testified without objection on the Texas Disciplinary Rules of Professional Conduct, indicated that there was no violation of the disciplinary rules if an attorney accepts a client from a chiropractor when the attorney does not pay a fee to either the chiropractor or the chiropractor=s employee.

    Rule 7.03(a) provides in part:

    A lawyer shall not by in-person or telephone contact seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer=s advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer=s doing so is the lawyer=s pecuniary gain. 

     

    Tex. R. Disciplinary P.  7.03(a), reprinted in Tex.Gov=t Code Ann., tit. 2, subtit. G (Vernon 2005).

    Rule 8.04 states in pertinent part:

    (a) A lawyer shall not:

     

    (1)        violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client-lawyer relationship.

     

    Tex. R. Disciplinary P. 8.04(a)(1).

    As we discussed above, the evidence was legally and factually sufficient to show that Appellant paid or offered to pay Ms. Escandon money to solicit employment for his economic benefit.  We also observe that there was testimony from several of Appellant=s staff that at Appellant=s behest, they were specifically instructed to require Ms. Escandon to follow-up with solicited clients who later failed to call his office.  There was also evidence that Appellant was involved in Ms. Escandon=s activities at the early stages of client contact, including reviewing the police reports which she faxed to his office. In one particular instance, the fatality accident case, Appellant wanted to Asign@ that client and insisted that Ms. Escandon continue to contact the family, despite their lack of interest in procuring legal representation.  Appellant told Ms. Escandon that he would pay a lot of money for that client. Viewing the evidence in a light favorable to the verdict, the evidence was legally sufficient to find that Appellant=s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct. 

    With regard to his factual sufficiency challenge, Appellant directs our attention to Mr. Martinez=s testimony at trial.  While Mr. Martinez=s testimony may have indicated that there was no violation of the disciplinary rules if an attorney accepts a client from a chiropractor when the attorney does not pay a fee to either the chiropractor or the chiropractor=s employee, Mr. Martinez also testified that it would be a violation of the disciplinary rules if an attorney had an arrangement with a doctor where they referred each other cases.  According to Mr. Martinez, this would be a violation because both parties would be getting something of value in the joint referral system.  The jury, as the sole judge of the weight and credibility given to any witness=s testimony, could have reasonably accepted Mr. Martinez=s testimony that a joint referral system, such as the one presented through the evidence admitted at trial, was a violation of the disciplinary rules of professional conduct.  Applying the applicable standards of review, we conclude that the evidence was both legally and factually sufficient to show that Appellant violated the Texas Disciplinary Rules of Professional Conduct.  Issues Five and Six are overruled.

    EXTRANEOUS OFFENSE EVIDENCE

    In Issue Seven, Appellant contends the trial court erred in admitting evidence of an extraneous offense involving Ida Nava.  Relatedly, in Issue Eight, Appellant argues that the trial court erred in admitting the testimony of Ida Nava when the Appellant had not received notice of this extraneous evidence.  In response, the State asserts that Ms. Nava=s testimony did not constitute an extraneous offense.  We agree.

    Standard of Review

    We review the trial court=s ruling on the admission or exclusion of evidence under an abuse of discretion standard.  See Montgomery v. State, 810 S.W.2d 372, 379‑80 (Tex.Crim.App. 1990).  Texas Rules of Evidence 402 states that all relevant evidence is admissible.  See Tex.R.Evid. 402.

    Witness Ida Nava=s Testimony

    The State called Ida Nava to testify at trial.  Appellant=s counsel objected on the grounds that her testimony concerned an extraneous offense, specifically arguing that Ms. Nava was not a named party in any of the indictments and that her testimony did not offer evidence that Appellant paid or offered to pay Ms. Escandon to solicit employment for him.  The State responded that the testimony was relevant to the allegations in Count XVII.  The trial court initially sustained the objection, stating that it was not persuaded that Ms. Nava=s testimony was necessary and that the State had not demonstrated the basis on which the extraneous offense was admissible.  The State=s attorney responded that it was its contention that the offense was not extraneous, but rather proved that Ms. Escandon solicited employment for the Appellant, which was an element of Count XVII.  The trial court conducted a voir dire examination of Ms. Nava, after which it overruled Appellant=s objection. 


    In her testimony, Ms. Nava stated that she was in a car accident in October 1998 and a few days following the accident she receive a telephone call from a woman at the Country Club Body Shop.  Ms. Nava identified Ms. Escandon as the woman that called her. Ms. Escandon asked her if she needed someone to repair her vehicle and apparently had enough information about the accident to suggest to Ms. Nava that she see a chiropractor.  Ms. Escandon told her that someone from the Appellant=s office would be contacting her to make arrangements to have her go into the office.  Someone from Appellant=s office called her, picked her up, and took her to Appellant=s office, where she agreed to retain him as her attorney.  She also testified that she was not given a choice as to which attorney to see; and that once she met with the Appellant, he did not give her an option as to which chiropractor to see[2] or to which body shop to take her vehicle.

    Section 38.12(a)(4) of theTexas Penal Code states:

    (a)        A person commits an offense if with intent to obtain an economic benefit the person:

                                                                  .               .               .

     

    (4)        pays or gives or offers to pay or give a person money or anything of value to solicit employment

     

    Tex.Pen.Code Ann. ' 38.12(a)(4).

    Clearly, Ms. Nava=s testimony provided evidence relevant to one of the offenses with which Appellant was charged, namely soliciting employment.  We conclude the trial court did not abuse its discretion in admitting this evidence.  Accordingly, we overrule Issues Seven and Eight.

    JURY CHARGE ERROR

    In Issue Nine, Appellant argues that the trial judge erred by not further restricting the definition of Aprofessional@ under Section 38.01(12) of the Texas Penal Code.  During trial, Appellant=s attorney made the following objection:

    [T]he last phrase under the definition that talks about, >Registered by a State agency that regulates a health care profession,= I would ask the Court to consider putting in, >Excluding chiropractors,= because a chiropractor is arguably an individual that would be registered by a State agency that regulates a health care profession.

    I=m going to argue a chiropractor is not covered by the definition to the jury, but I=m afraid that the jury might believe that a chiropractor is covered by the last phrase in that definition of >professional.=

     

    The trial court overruled the objection and denied Appellant=s request.  On appeal, Appellant argues that the harm from this error was clear in that Athe jury could have accepted the first part of Appellant=s defensive theory, namely that Escandon solicited the accident victims on behalf of Jimenez, but rejected the second part of his defensive theory, namely that the solicitation was not a violation of Section 38.12(a) because Jimenez was not a >professional.=@  Appellant asserts that the definition of professional provided in the jury charge, necessarily found that Dr. Jimenez was, in fact, a professional.

    In reviewing the jury charge for any alleged error, an appellate court must examine the charge as a whole and not as a series of isolated and unrelated statements.  Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 832, 116 S. Ct. 106, 133 L. Ed. 2d 59 (1995).  The function of the jury charge is to instruct the jury on the law applicable to the case.  Tex.Code Crim.Proc.Ann. art. 36.14 (Vernon Supp. 2004-2005).  If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is Acalculated to injure the rights of defendant,@ which means no more than some harm must result from the error.  Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).  A trial court has broad discretion in submitting proper definition and explanatory phrases to the jury.  Macias v. State, 959 S.W.2d 332, 336-37 (Tex.App.--Houston [14th Dist.] 1997, pet. ref=d). If a term or word is statutorily defined, the trial court must submit the statutory definition to the jury.  See Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex.Crim.App. 1986)(statutorily defined word must be included in the charge as part of the law applicable to the case); Roise v. State, 7 S.W.2d 225, 242 (Tex.App.--Austin 1999, pet. ref=d)(statutory definition should be submitted).

    Texas Penal Code Section 38.01(12) states:

    >Professional= means an attorney, chiropractor, physician, surgeon, private investigator, or any other person licensed, certified, or registered by a state agency that regulates a health care profession.

     

    See Tex.Pen.Code Ann. ' 38.01(12).  [Emphasis added].

    The trial court=s charge defined Aprofessional@ using the definition provided by the Texas Penal Code except it left out the italicized portion above.[3]  Appellant objected to the use of the word chiropractor, which the trial court sustained. We find no error in the trial court=s decision to include the definition of professional as it did in the jury charge.  The definition used by the trial court was that which was statutorily mandated and as such there was no abuse of discretion.  We therefore overrule Issue Nine.

    In Issue Ten, Appellant argues that the trial judge erred in refusing Appellant=s requested jury instructions.  Appellant requested that the charge include the following two instructions:

    A chiropractor or employee of a chiropractor has a right under the First Amendment to the United States Constitution to solicit employment from prospective clients for the chiropractor as a legitimate marketing technique. 

     

    A chiropractor or employee of a chiropractor has a right under the First Amendment to the United States Constitution to solicit employment from prospective clients for the chiropractors as a legitimate marketing technique and refer said clients to an attorney unless said attorney pays or gives or offers to pay or give the person soliciting employment money or anything of value to solicit employment.

     

    The trial court denied Appellant=s requests.

    We find no abuse of discretion on the trial court=s part in refusing to include the Appellant=s requested instructions.  Appellant=s requested instructions were merely the holding of Bailey v. Morales, 190 F.3d 320 (5th Cir. 1999).  Such an instruction was not relevant to the applicable law in this case.  We therefore overrule Issue Ten.

    JUDICIAL NOTICE

    In Issue Eleven, Appellant argues that the trial court erred by not taking judicial notice of Bailey v. Morales, 190 F.3d 320 (5th Cir. 1999). In response, the State argues that Bailey is a legislative fact and therefore there is no requirement to take judicial notice of it.

    There is no mandatory requirement for the trial court to take judicial notice of Bailey. 

    Tex.R.Evid. 201(d) states, A[a] court shall take judicial notice if requested by a party and supplied with the necessary information.@  However, the rule explicitly states it applies only to judicial notice of Aadjudicative@ facts. Tex.R.Evid. 201(a).  If the fact requested to be judicially noticed is a Alegislative@ fact rather than adjudicative, a court=s decision whether to take judicial notice of the fact is within that court=s discretion.  See Aguirre v. State, 948 S.W.2d 377, 380 (Tex.App.‑‑Houston [14th Dist.] 1997, pet. ref=d).

    Adjudicative facts are those facts concerning a Aparticular event which gave rise to the lawsuit and . . . help explain who did what, when, where, how, and with what motive and intent.@ See Emerson v. State, 880 S.W.2d 759, 765 (Tex.Crim.App.), cert. denied, 513 U.S. 931, 115 S. Ct. 323, 130 L. Ed. 2d 284 (1994).  Legislative facts are facts that are general, related to the content of law and policy, and do not concern only the parties involved in the case at hand.  Id.  In this case, Bailey was not an adjudicative fact.  Given the content of the request, the court did not abuse its discretion in refusing to take judicial notice of the requested matter. Appellant=s Issue Eleven is overruled.

    In Issue Twelve, Appellant contends that the trial judge erred by taking judicial notice of Rule 1.08(d), Rule 7.03, and Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct.  Appellant argues that if this Court found Bailey was not an adjudicative fact, then the Texas Disciplinary Rules of Professional Conduct are similarly not adjudicative facts.  As we noted in our discussion of Issue Eleven, if the fact requested to be judicially noticed is a Alegislative@ fact rather than adjudicative, a court=s decision whether to take judicial notice of the fact is within that court=s discretion.  See Aguirre, 948 S.W.2d at 380.  We find no abuse of discretion in the trial court taking judicial notice of the applicable Texas Disciplinary Rules of Professional Conduct.  Such rules were applicable in the Appellant=s charge.  Issue Twelve is overruled.

    JURY ARGUMENT

    In Issue Thirteen, Appellant argues that the trial court erred in permitting the State to argue a theory of criminal liability not alleged in the indictment or authorized in the charge.  Specifically, Appellant is referring to the following statement made by the State during its closing argument:

    [Appellant] does not have to be the one to pay [Ms. Escandon] to solicit clients to him, just a person.  And in this case the person was a chiropractor, and he knew about it.

     

    We find that Appellant failed to object to this portion of the jury argument and, as such, has forfeited his right to complain about the argument on appeal. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996), cert. denied, 520 U.S. 1173, 117 S. Ct. 1442, 137 L. Ed. 2d 548 (1997).  Any error has therefore been waived.  Accordingly, we overrule Issue Thirteen.

    DOUBLE JEOPARDY CLAIM

    In Issue Fourteen, Appellant asserts that he should be acquitted for his conviction under Count XVII because it causes him to be punished twice for the same offense for which he was convicted under Counts II through VII and IX through XIV, in violation of the double jeopardy clause of the Fifth Amendment of the U.S. Constitution. 

    Appellant failed to make a timely request, objection, or motion before the trial on the issue of double jeopardy.  See Tex.R.App.P. 33.1.  A double jeopardy claim is forfeited if it is raised for the first time on appeal unless the double jeopardy violation is clearly apparent on the face of the record and when enforcement of usual rules of procedural default serves no legitimate state interests.  Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).  Appellant must satisfy both prongs of Gonzalez in order to have his double jeopardy claim, raised for the first time on appeal, considered by this Court.  See Roy v. State, 76 S.W.3d 87, 93 (Tex.App.-- Houston [14th Dist.] 2002, no pet.).  For the reasons stated below, we find that the Appellant has failed to meet the first prong of Gonzalez.

    The double jeopardy clauses of the United States Constitution and the Texas Constitution protect against three abuses:  (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishment for the same offense.  Ex Parte Rhodes, 974 S.W.2d 735, 738 (Tex.Crim.App. 1998); Moncada v. State, 960 S.W.2d 734, 741 (Tex.App.--El Paso 1997, pet. ref=d).  The argument raised by the Appellant in this case involves the third protection.  In determing whether two statutes constitute the same offense for double jeopardy purposes, we rely on the Asame elements@ test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).  The same elements test involves determining whether each statutory provision under which a defendant would be prosecuted requires proof of a fact that the other does not.  Id. at 304, 52 S. Ct. at 182.  When applying the same elements test, our double jeopardy analysis must focus on the elements alleged in the charging instrument and not merely on penal statute.  Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App. 1994), citing United State v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed. 2d 556, 573 (1993).

    In this case, Appellant was charged in Count XVII with:

    If you believe from the evidence, beyond a reasonable doubt that on or about the 1st day of February, 1998 through on or about the 17th day of September, 1999 in El Paso County, Texas, the Defendant, JAMES CROOK, did then and there with intent to obtain economic benefit, pay or offer to pay to IRMA ESCANDON money to solicit employment, and the Defendant=s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court, then you will find the defendant . . . .

     

    The Charge for the remaining counts read in pertinent part as follows:

    If you believe from the evidence, beyond a reasonable doubt that on or about . . . in El Paso County, Texas, the Defendant, JAMES CROOK, did then and there knowingly accept employment to wit:  to represent [NAMED PERSON][4] in [his/her] claim resulting out of an automobile accident, within the scope of the Defendant=s license to-wit:  an attorney licensed to practice law in the State of Texas, and such employment resulted from the solicitation of employment by IRMA ESCANDON in violation of section 38.12(a) of the Texas Penal Code, and the Defendant=s conduct was not authorized by the Texas Disciplinary Rules of Professional Conduct or any rule of court, then you will find the Defendant . . . .

     

    Both charges allege that Appellant agreed to accept employment solicited by Ms. Escandon.  However, Count XVII required proof of a fact that the other counts did not, that is, the factual element of payment to Ms. Escandon.  As such, based on the face of the record, we do not find a double jeopardy violation.  Appellant=s convictions did not violate the double jeopardy clause.  Accordingly, we overrule Issue Fourteen.

    The judgment of the trial court is affirmed. 

     

     

    June 30, 2005

    DAVID WELLINGTON CHEW, Justice

     

    Before Panel No. 1

    Larsen, McClure, and Chew, JJ.

    Larsen, J., (Not Participating)

     

    (Do Not Publish)


    [1] We note again Ms. Escandon=s testimony, in which she stated that the scheme as outlined to her was for her to Ago ahead and call the accidents, but refer all to Crook.  He=s to get all the patients to call him, make appointments for him, and then he will then make appointments for me.@

    [2] Ms. Nava was referred to Dr. Montiero, a chiropractor in Dr. Jimenez=s Zaragosa office.

    [3] The trial court=s charge provided the following definition:

     

    >Professional= means an attorney, physician, surgeon, private investigator, or any other person licensed, certified, or registered by a state agency that regulates a health care profession.

    [4] Counts II through VII and IX through XIV each named different persons.