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UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-2455
_____________________________________
DENTON ALAN CRANK,
Petitioner-Appellant,
VERSUS
JAMES A. COLLINS, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
______________________________________________________
On Application for a Certificate of Probable Cause
to Appeal an Order of the United States District Court
for the Southern District of Texas
______________________________________________________
(April 5, 1994)
Before KING, DAVIS, and WIENER, Circuit Judges.
DAVIS, Circuit Judge:
Denton Alan Crank was convicted of capital murder for which
the death penalty was imposed. The district court denied his
application for a Certificate of Probable Cause ("CPC"), and we
likewise deny his application for a CPC to appeal the district
court's order.
I.
On January 16, 1984, Crank and another masked gunman abducted
Terry Oringderff from his apartment and took him to the Rice Cash
Saver's Store, where Oringderff was one of the managers. After
robbing a number of the store employees, the gunmen forced

Oringderff and the courtesy booth operator to open the store's
safes. The gunmen then left with the money and Oringderff, who was
found later that day on a remote road in Houston, shot to death
near his car.1
Crank was convicted of capital murder and sentenced to death.
The Texas Court of Criminal Appeals affirmed his conviction and
sentence. On October 2, 1989, the United States Supreme Court
denied certiorari, and Crank's conviction became final.
Crank then applied for state habeas relief, which the state
trial court recommended be denied. The Court of Criminal Appeals
initially accepted the trial court's recommendation, but later
granted rehearing to reconsider Crank's claim under Penry v.
Lynaugh, 492 U.S. 302 (1989), only to deny him habeas relief on
this claim in April 1992. Crank then filed a second state habeas
petition alleging that his trial counsel had labored under a
conflict of interest. In June 1993, the Court of Criminal Appeals
accepted the state trial court's recommendation that habeas relief
be denied on that ground as well.
On June 14, 1993, less than fifteen hours before his scheduled
execution, Crank filed a petition for habeas relief in federal
district court. His petition presented eighteen separate claims,
along with a motion for a stay of execution and a request for a
CPC. Later that day, the district court issued a memorandum
opinion and order denying Crank's habeas petition, his motion for
1
The details of the crime are more fully set forth in
Crank v. State, 761 S.W.2d 328 (Tex. Crim. App. 1988), cert.
denied, 493 U.S. 874 (1989).
2

a stay of execution, and his request for a CPC. We granted a stay
of execution to allow us sufficient time to consider Crank's
appeal. His application to this court for a CPC has been carried
with the case.
II.
We have no jurisdiction to hear an appeal in this case unless
we first grant a CPC. Fed. R. App. P. 22(b); see Black v. Collins,
962 F.2d 394, 398 (5th Cir.), cert. denied, 112 S.Ct. 2983 (1992).
To obtain a CPC, Crank must make a substantial showing that he has
been denied a federal right. See Barefoot v. Estelle, 463 U.S.
880, 893 (1983). He must "demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate
to deserve encouragement to proceed further." Id. at 893 n.4
(internal quotations and citations omitted). Applying this
standard, we conclude that Crank is not entitled to a CPC to appeal
the district court's order.
III.
A.
Crank contends first that Texas's capital sentencing scheme in
effect at the time of his sentencing, Art. 37.071 of the Texas Code
of Criminal Procedure, deprived him of the right to an
individualized sentencing determination under Penry v. Lynaugh, 492
U.S. 302 (1989). He makes two arguments: (1) the jury could
neither consider nor give mitigating effect to evidence of his
background and character under the state's capital sentencing
3

statute; and (2) the statute precluded his counsel from developing
and presenting mitigating evidence.
Crank's first point involves testimony from a former employer,
a long-time friend, and family members regarding his positive
character traits, including his trustworthiness, well-disciplined
nature, caring and loving character, calm and non-violent
personality, and family values. Crank argues that the jury was not
able to give mitigating effect to this evidence because it was
beyond the scope of, or not relevant to, the two special issues
presented to the jury.2 Crank contends that the state trial
court's failure to provide the jury with an additional instruction
authorizing the jury to give mitigating effect to this good
character evidence violated his rights under the Eighth and
Fourteenth Amendments as articulated in Penry.
Even if we were to accept Crank's argument, it would require
us to announce a "new rule" under Teague v. Lane, 489 U.S. 288, 301
(1989), because the outcome requested by Crank was not dictated by
precedent in existence at the time his conviction became final on
October 2, 1989. Stated differently, if "reasonable jurists
reading the case law in [October 1989] could have concluded that
[Crank's] sentencing was not constitutionally infirm," Teague
2 The jury was asked to determine: (1) whether the conduct
of the defendant that caused the death of the deceased was
committed deliberately and with the reasonable expectation that
death would result; and (2) whether there was a probability that
the defendant would commit criminal acts of violence that would
constitute a continuing threat to society. See Vernon's Ann. Texas
C.C.P. art. 37.071(b)(1). The jury had to answer both questions in
the affirmative for Crank to be sentenced to death.
4

precludes us from granting relief. See Graham v. Collins, 113
S.Ct. 892, 903 (1993). Thus, relief on Crank's Penry claim is
barred by Teague's non-retroactivity limitation.
Crank's claim fares no better on the merits. So long as the
proffered mitigating evidence is within "the effective reach of the
sentencer," the Eighth Amendment is satisfied and supplemental
mitigation instructions are not constitutionally required. See
Johnson v. Texas, 113 S.Ct. 2658, 2669 (1993). The evidence of
Crank's good character tended to show that his crime was an
aberration, which would have supported a negative answer to the
second special issue. See Graham, 113 S.Ct. at 902. Indeed, at
the punishment hearing, Crank's counsel argued that the evidence of
Crank's good character reflected that he would not commit future
violent criminal acts:
What I brought you by way of evidence at this hearing is
the testimony of . . . a number of good people who have known
Denton Crank in many instances all of his life, all of whom
have known him for years. . . . And those people are telling
the truth when they say that he's not a violent man, that he's
good to his family, that he's good to his wife, that he loves
them and that they love him back. And that's not the kind of
man who probably would continue to commit criminal acts of
violence that would constitute a threat to society.
Because the jury was able to give mitigating effect to this
evidence, Crank's Penry claim also fails on the merits.
Crank argues next that his rights under the Sixth, Eighth, and
Fourteenth Amendments were infringed because the Texas capital
sentencing statute precluded counsel from developing and presenting
mitigating evidence. According to Crank, evidence pertaining to
his background, including child abuse and neurological damage
5

stemming from a brain aneurysm, either would have been irrelevant
to the special issues or would have been considered only as
aggravating evidence. He contends that, as a result, he was
effectively precluded from presenting this evidence. We find this
argument meritless.
We must also reject Crank's second Penry argument - that the
Texas statute precluded him from developing and presenting
mitigating evidence. We have held that a federal habeas petitioner
cannot base a Penry claim on evidence that could have been, but was
not, proffered at trial. See Barnard v. Collins, 958 F.2d 634, 637
(5th Cir. 1992), cert. denied, 113 S.Ct. 990 (1993). As Crank
admits in his brief, and as the state trial court found in
reviewing Crank's habeas petition, Crank's trial counsel made a
tactical decision not to offer evidence that Crank was abused as a
child and that he suffered a leaking brain aneurysm which caused
neurological damage.
The addition of a Sixth Amendment gloss to this contention
does not help. Even if Texas's sentencing scheme caused Crank's
trial counsel to make tactical decisions which he might not
otherwise have made, this does not amount to unconstitutional
government interference with counsel's ability to conduct the
defense of a case. See May v. Collins, 948 F.2d 162, 167-68 (5th
Cir. 1991) (If every substantive criminal statute and death penalty
statute triggered the rule against government interference with
counsel's ability to conduct a defect, "that rule would be
virtually unlimited and would convert every criminal statute and
6

capital sentencing scheme into a predicate for a Sixth Amendment
claim for ineffective assistance of counsel."), cert. denied, 112
S.Ct. 907 (1992). For the reasons stated above, Crank's Penry
claim lacks arguable merit.
B.
Finally, Crank argues that he did not knowingly and
intelligently waive his Sixth Amendment right to conflict-free
counsel. In United States v. Garcia, 517 F.2d 272, 278 (5th Cir.
1975), we established that a valid waiver of a defendant's Sixth
Amendment right to conflict-free counsel requires: (l) that the
defendant be aware that a possible conflict of interest exists; (2)
that the defendant realize the consequences to his defense that
continuing with conflicted counsel would have; and (3) that the
defendant be aware of his right to obtain other counsel.
The facts underlying Crank's claim are undisputed. Crank's
original trial counsel, Bob Tarrant, concurrently represented
another suspect in the murder for which Crank was ultimately
convicted.3 After Crank appeared in state court with Tarrant and
pled not guilty, the court identified the conflict of interest and
explained to Crank that he could waive the conflict. When Crank
indicated that he was not sure that he understood the situation, he
conferred with Tarrant. The court then recessed to allow Crank to
3
Tarrant represented Bobby Bartoo on an unrelated robbery
charge. Bartoo also was a suspect in the January 16, 1984 robbery;
a witness had identified Bartoo as the masked gunman. Tarrant
therefore would have had to defend one client (Crank) by
implicating another (Bartoo) in the capital murder of Oringderff.
7

confer with his family and his family's civil attorney before
making any decision.
More than a week later, at a pretrial hearing, Crank appeared
with Don Ervin, his newly-retained counsel, and the court resumed
its discussion with Crank concerning counsel's potential conflict
of interest. The court asked Crank whether he wanted Ervin to
replace Tarrant as his attorney and whether he understood that
Ervin and Tarrant were law partners. Crank responded affirmatively.
The court also asked whether Crank understood that a possible
conflict of interest existed because of Ervin and Tarrant's
relationship. After conferring with Ervin off the record, Crank
again responded affirmatively. The court then explained what it
meant to waive the right to conflict-free counsel, and Crank agreed
to the waiver.
The state court reviewing Crank's habeas petition found that
he understood his rights and the potential conflict, and that he
made a knowing and intelligent decision to be represented by Mr.
Ervin. The record amply supports these findings, and the district
court properly accorded them a presumption of correctness. See 28
U.S.C. � 2234(d). We therefore conclude that Crank's right-to-
conflict-free-counsel claim lacks arguable merit.
IV.
Because Crank has failed to demonstrate that the issues he
presents are debatable among jurists of reason, his application for
a CPC is DENIED, and the stay of execution previously entered is
VACATED.
8