                                                                                       06/02/2017




       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                           Assigned on Briefs May 2, 2017

            TRAVARIOUS D. WHITE v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Madison County
                      No. C-15-351        Kyle Atkins, Judge
                     ___________________________________

                          No. W2016-01773-CCA-R3-PC
                      ___________________________________


The petitioner, Travarious D. White, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel at trial. Following our review, we affirm the denial of the petition.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT L. HOLLOWAY, JR., JJ., joined.

Christie R. Hopper, Jackson, Tennessee, for the appellant, Travarious D. White.

Herbert H. Slatery III, Attorney General and Reporter; Breanne N. Hataway, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Ben Mayo, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS

       In 2007, the petitioner crashed a stolen vehicle during a high-speed chase with
police, and then fled the scene. Prior to the crash, the petitioner stole the vehicle and
robbed two victims at gunpoint. Consequently, a jury convicted the petitioner of
carjacking, felony evading arrest, and two counts of aggravated robbery. The trial court
imposed an effective twenty-five year sentence to be served at thirty-five percent.
       The petitioner subsequently challenged the sufficiency of the evidence supporting
his convictions on direct appeal. This Court summarized the underlying facts leading to
the petitioner’s convictions as follows:

              On August 26, 2007, between 10:00 and 10:30 p.m., James Walker
      picked up Natalie Bouie from her job at Red Robin. Mr. Walker then drove
      to a parking lot behind North Side School, where he and Ms. Bouie stepped
      out of the vehicle to talk. As the two talked, a man approached them and
      asked what time the last bus would arrive. Mr. Walker informed the man
      that the last bus had already departed.

             After turning to leave, the man quickly turned back around, pulled
      out a black handgun, and announced that he was robbing the couple. Mr.
      Walker ran from the scene in an effort to lead the assailant away from Ms.
      Bouie. However, the assailant caught up with him and forced Mr. Walker
      to hand over his wallet, his cell phone, and the keys to his green GMC
      Denali Yukon. The assailant then stepped into the Denali and drove off
      with Mr. Walker’s belongings around 10:45 p.m. Ms. Bouie’s purse, left
      inside the vehicle, was also taken when the assailant drove away.

             Following the robbery, Mr. Walker and Ms. Bouie walked to a gas
      station and called the police. At approximately 11:00 p.m., Officer Jerod
      Cobb of the Jackson Police Department responded to the call. After
      meeting the victims at the gas station, he issued a be on the lookout
      (BOLO) for the stolen vehicle.

             Sergeant Shane Barnes of the Madison County Sheriff’s Department
      was on patrol the night of the robbery. At approximately 11:05 p.m.,
      shortly after receiving the BOLO dispatch describing Mr. Walker’s stolen
      vehicle, Sergeant Barnes observed a vehicle matching the description
      turning from Sweetbay Drive onto North Parkway heading east. Sergeant
      Barnes pursued the vehicle. The driver of the vehicle attempted to turn
      west onto Allen Avenue at a high rate of speed but lost control and crashed,
      flipping the stolen vehicle several times. Sergeant Barnes witnessed the
      crash from approximately 200 to 300 feet away.

             As he approached the accident, Sergeant Barnes witnessed a single
      individual emerge from the wrecked vehicle and flee the scene. Sergeant
      Barnes pursued the individual on foot but was unable to apprehend him.



                                         -2-
       Lieutenant Mike Turner of the Jackson Police Department
supervised the collection and documentation of evidence from the scene of
the crash. Along with a camouflage colored hat and a black handgun,
Lieutenant Turner collected three blood swabs from the vehicle.

        Less than twenty-four hours after the robbery, Mr. Walker and Ms.
Bouie were shown a photo lineup including a photograph of the
[petitioner]. Neither victim was able to positively identify the man who
robbed them from the lineup.

       At trial, Mr. Walker and Ms. Bouie both testified to being within
arm’s length of their assailant. They recalled that the man who robbed
them wore a camouflage hat with a soft, full brim, similar to the hat
recovered at the scene of the wreck. Both victims testified that their
assailant wore his hat pulled down low on his head. Additionally, both
victims stated that their assailant carried a black handgun similar to the gun
recovered from Mr. Walker’s vehicle. When asked to describe their
assailant, Mr. Walker and Ms. Bouie admitted to being scared and to
focusing primarily on the weapon being pointed at them. However, they
both described the man as approximately five feet six to five feet seven
inches tall, with a slender build and dark complexion. Neither victim
noticed any facial hair on the assailant.

       Though neither victim could say positively whether the [petitioner]
was the man who robbed them on August 26, 2007, Mr. Walker testified
that his assailant was of a similar height and build as the [petitioner]. Mr.
Walker also testified that, prior to the robbery, there were no blood stains,
camouflage hats, or handguns in his vehicle.

       Captain Mike Holt of the Jackson Police Department testified that in
August 2007, he worked in the department’s Violent Crimes Unit and was
assigned with investigating the case. Captain Holt testified that the
Tennessee Bureau of Investigation (TBI) Crime Lab was able to generate a
DNA profile based on blood swabbed from the front center console of Mr.
Walker’s vehicle. However, at the time, the profile did not match any
existing profiles in the TBI database.

       In March 2012, the TBI notified Captain Holt of a DNA match to the
2007 DNA sample taken from Mr. Walker’s vehicle. The match identified
the [petitioner] as the source of the DNA collected from Mr. Walker’s
stolen vehicle. Captain Holt testified that on March 15, 2012, he obtained a
                                    -3-
       search warrant for a buccal swab of the [petitioner]. He testified that he
       collected the buccal swab from the [petitioner] and that the TBI’s
       subsequent testing of the swab confirmed the [petitioner] as the source of
       the DNA from the stolen vehicle.

              Special Agent Charles Hardy, supervisor of the TBI’s DNA data
       base, was qualified as an expert witness in the area of DNA collection and
       matching. He testified that the sample taken from the victim’s vehicle in
       2007 matched the sample taken from the [petitioner] in 2012. Agent Hardy
       confirmed that the [petitioner’s] blood was in the victim’s vehicle following
       the 2007 crash.

             Following the testimony of Agent Hardy, the State concluded its
       case. The [petitioner] then elected not to testify, and the case was
       submitted to the jury, which returned a verdict of guilty as to all charges.


State v. Travarious Dejuan White, No. W2014-01348-CCA-R3-CD, 2015 WL 4719683,
at *1-2 (Tenn. Crim. App. Aug. 7, 2015), perm. app. denied (Tenn. Nov. 25, 2015).
After its review, this Court upheld the rulings of the trial court, noting the evidence
produced at trial was sufficient to support the petitioner’s convictions. Id. at *4.

        Subsequently, the petitioner filed a pro se petition for post-conviction relief. The
trial court appointed counsel who filed an amended petition. In his amended petition, the
petitioner alleged trial counsel was ineffective in that he: (1) failed to adequately
communicate with the petitioner; (2) failed to properly investigate the charges against the
petitioner; (3) failed to call alibi witnesses at trial; (4) failed to properly cross-examine
the State’s witnesses; and (5) failed to request a mistrial or curative instruction regarding
Captain Holt’s testimony allegedly commenting on the petitioner’s refusal to give a
statement or provide a DNA swab.

       The petitioner, trial counsel, and the petitioner’s purported alibi witness, Randall
Forrest, testified at the post-conviction evidentiary hearing. The post-conviction court
summarized the evidence produced during the hearing, as follows:

              [The petitioner] testified that he only spoke with [trial counsel] on
       the day he was appointed and two days before trial. On cross-examination,
       he admitted that he met with [trial counsel] at least three times. [The
       petitioner] further testified that he tried to get counsel to put off the trial.
       [The petitioner] testified that he had an alibi witness by the name of
       Randall Forrest. However, [the petitioner] testified that he did not give trial
                                            -4-
counsel Mr. Forrest’s name because he did not want to get Mr. Forrest into
trouble.

        [The petitioner] testified at trial that he was in the SUV that flipped.
[The petitioner] testified he was not driving. [The petitioner] also testified
that after the accident, he got out of the SUV and ran. Further, [the
petitioner] testified that he did not tell the police who else was in the truck
because he did not want to get anyone else in trouble. [The petitioner]
testified that trial counsel did not cross-examine Sergeant Bowen, of the
Jackson Police Department, effectively about the fact Sgt. Bowen could not
have identified [the petitioner] from the distance he saw him fleeing the
vehicle. [The petitioner] also testified that trial counsel did not effectively
cross-examine Captain Mike Holt regarding the refusal to submit to the
DNA swab.

        Upon cross-examination, [the petitioner] admitted that he did not
give his attorney names because he did not want to get anyone in trouble.
He testified that he and his attorney had talked about the blood in the car
and their trial strategy was that someone else was in the car. He went on to
testify that the trial strategy was to say other people committed the robbery,
he was just in the car.

        On re-direct examination, [the petitioner] reiterated that [trial
counsel] asked him about witnesses and if they would get in trouble. When
[trial counsel] stated they might get in trouble, [the petitioner] did not give
names because he did not want to get anyone in trouble.

       Randall Forrest also testified. He testified that he was a friend of
[the petitioner’s] since they were 10 years old. He stated that [the
petitioner] was at a barbecue at his brother’s house on the day of the
incident, that [the petitioner] was picked up around 10:00 or 11:00 by [a]
SUV, and that he never spoke to an attorney about testifying in [the
petitioner’s] trial.

       During cross-examination, Mr. Forrest testified that the [p]etitioner
told him there was a high-speed chase and that the [p]etitioner had run from
the police.

       [Trial] counsel [] also testified. [Trial counsel] testified that he was
appointed to represent [the petitioner]. He testified that he met with [the
petitioner] four times before trial. Most of those meetings took place at the
                                     -5-
       jail in Jackson. [Trial counsel] testified that he met with the [p]etitioner for
       as long as they needed to meet and that he never left with the [p]etitioner
       saying that there were additional matters that they needed to discuss. [Trial
       counsel] testified that he did not discuss alibi witnesses with the [p]etitioner
       because the [p]etitioner did not recall where he was previously on the day
       of the incident. [Trial counsel] testified that the trial strategy was to admit
       [the petitioner] was in the vehicle and with other people. The trial strategy
       was to dispute the identification by the police officer and insinuate other
       people were in the vehicle. According to [trial counsel], the victim had
       given a description of the people who committed the crime but could not
       positively ID them. Further, the victims testified the crime was committed
       by one person. Therefore, the trial strategy was to admit being in the car
       but allege that the crime was committed by the other people in the vehicle
       who picked [the petitioner] up from a party shortly before the high-speed
       chase.

              With regard to the testimony concerning the refusal to take a DNA
       swab, [trial counsel] testified that he thought Captain Holt was trying to
       make an implication due to having a weak case. Therefore, he thought
       dealing with the issue on cross-examination would be better than to object.
       He wanted to get Captain Holt, a veteran police officer, to tell the jury that
       the [petitioner] had no obligation to consent or help with their investigation.
       By approaching the issue this way, he could impeach Captain Holt’s
       credibility.

      After its review of the evidence presented, the post-conviction court held it was
“unable to determine that the advice given or the services rendered to [the petitioner]
were not within the range of confidence demanded of attorneys in criminal cases.”
Further, the post-conviction court found the petitioner “was not prejudiced as a result of
any deficiency” by trial counsel. The court denied post-conviction relief, and this appeal
followed.

                                        ANALYSIS

        On appeal, the petitioner asserts the outcome of his trial would have been different
absent the deficiencies of trial counsel. First, the petitioner argues trial counsel failed to
“competently communicate” with him and, thus, failed to discover potential alibi
witnesses. The petitioner also argues trial counsel “was ineffective for failing to move
the [t]rial [c]ourt for a mistrial or a curative instruction” when Captain Holt testified
concerning the petitioner’s refusal to give a statement or provide a DNA swab. The
petitioner also takes issue with the trial court’s failure to declare a mistrial, sua sponte,
                                            -6-
for the alleged improper testimony. Following our review of the record and submissions
of the parties, we affirm the judgment of the post-conviction court.

       The petitioner bears the burden of proving his post-conviction allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of fact
established at a post-conviction evidentiary hearing are conclusive on appeal unless the
evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). This Court will not reweigh or reevaluate evidence of purely factual issues. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate review of a trial
court’s application of the law to the facts is de novo, with no presumption of correctness.
See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of
counsel presents mixed questions of fact and law. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations
de novo, affording a presumption of correctness only to the post-conviction court’s
findings of fact. See id.; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687
(1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the standard for determining ineffective assistance of counsel applied in federal cases is
also applied in Tennessee). The Strickland standard is a two-prong test:

              First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by
       the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “counsel’s acts or omissions were so
serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688;
                                           -7-
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

        Initially, we note the petitioner has waived his claim that the trial court should
have sua sponte declared a mistrial or issued a curative instruction subsequent to Captain
Holt’s testimony. It is well-settled in the context of post-conviction relief that any “issue
raised for the first time on appeal is waived.” Cauthern v. State, 145 S.W.3d 571, 599
(Tenn. Crim. App. 2004) (internal citations omitted). The petitioner failed to assert the
“sua sponte” claims in both his original and amended petitions for post-conviction relief.
Accordingly, the petitioner is not entitled to relief on appeal. Furthermore, the petitioner
could have argued his “sua sponte” claim in a motion for new trial or on direct appeal,
and his failure to do so, again, results in a waiver of the issue. The petitioner is not
entitled to relief. Tenn. Code Ann. §§ 40-30-106(g); -110(f).

        Similarly, the petitioner alleges trial counsel was ineffective in his handling of
Captain Holt’s testimony at trial. The petitioner asserts trial counsel was ineffective for
failing to object to Captain Holt’s testimony, ask for a curative instruction addressing the
alleged improper testimony, or request a mistrial. In contrast, the State asserts trial
counsel “made a reasonable strategic decision to cross-examine [Captain] Holt vigorously
on the testimony in question.” Upon our review, we agree with the State.

       The evidence produced at the post-conviction hearing details trial counsel’s
strategy regarding Captain Holt’s testimony. Regarding trial counsel’s strategy, the post-
conviction court explained:

                Trial counsel testified that he felt this was a credibility case. By
       showing Captain Holt clearly knew the testimony he gave was improper,
       [trial] [c]ounsel could discredit Captain Holt’s credibility. Thus, implying
       the case was weak because Captain Holt willingly offered improper
       testimony. The [p]etitioner put on no proof showing that this trial strategy
       was prejudicial to him in anyway. Further, this was trial strategy that the
       [c]ourt will not second guess.

                                            -8-
       Our review of the record mirrors that of the post-conviction court. Trial counsel
provided a reasoned explanation of his trial strategy wherein he detailed why he chose to
impeach Captain Holt’s credibility during cross-examination. Specifically, trial counsel
stated he cross-examined Captain Holt “quite harshly” because “[h]e was making an
implication where there was no implication to be made.” In contrast, in support of his
argument, the petitioner testified that he did not remember if trial counsel cross-examined
Captain Holt, but he did “remember them trying to make it seem like just because I didn’t
make – make no statement, I was guilty.” The post-conviction court accredited trial
counsel’s testimony, and we will not disturb this on appeal. See Tidwell, 922 S.W.2d at
500. Additionally, the post-conviction court noted the trial court “instructed the jury
clearly on the [petitioner’s] right not to testify.” As such, the petitioner has failed to
show that trial counsel’s strategy regarding Captain Holt’s testimony amounted to
deficient performance. See Tenn. Code Ann. § 40-30-110(f); Goad, 938 S.W.2d at 369.
The petitioner is not entitled to any relief.

        Next, the petitioner contends trial counsel failed to communicate with him. The
record, however, does not support this assertion. At the evidentiary hearing, the
petitioner stated he met with trial counsel three times prior to trial but they “never talked
about the case.” Conversely, trial counsel stated he met with the petitioner four times
prior to trial, “for as long as [they] needed to.” Trial counsel also explained that during
the pre-trial meetings, he and the petitioner discussed trial strategy, stating because the
petitioner’s blood was found in the vehicle, “[p]art of the trial strategy was basically to
admit the felony evading” charge. As stated above, the post-conviction court accredited
trial counsel’s testimony, and nothing in the record preponderates against the factual
findings of the post-conviction court. See Tidwell, 922 S.W.2d at 500. The evidence
produced at the evidentiary hearing supports that the substance of the meetings between
trial counsel and the petitioner involved detailed discussions of the petitioner’s case and
the trial strategy for the same. Accordingly, the petitioner has not proven trial counsel
was ineffective in this respect.

        Finally, the petitioner asserts trial counsel failed to properly investigate his case by
failing to call witnesses on his behalf at trial. However, the petitioner admitted that he
did not disclose any potential witnesses to trial counsel for fear of getting them in trouble,
specifically mentioning Randall Forrest as an unnamed witness. The petitioner even
admitted that when trial counsel told him “it’s a possibility” that witnesses could get in
trouble, he decided not to mention any names. The post-conviction court explained,

              The [p]etitioner clearly testified that he did not give his trial counsel
       the names of the people in the vehicle or Mr. Forrest’s information because
       he did not want to get anyone in trouble. Therefore, trial counsel could not

                                             -9-
       have gathered witnesses or presented an alibi defense without the
       defendant’s cooperation in getting those names.


Further, Mr. Forrest’s testimony during the post-conviction hearing, wherein he discussed
being with the petitioner on the night in question, does not save this claim as the post-
conviction court accredited the testimony of trial counsel. See Tidwell, 922 S.W.2d at
500. Therefore, the petitioner has failed to present evidence showing trial counsel was
deficient in investigating the petitioner’s case by failing to call undisclosed witnesses at
trial. See Tenn. Code Ann. § 40-30-110(f). The petitioner has failed to meet the burden
required of him and is, therefore, not entitled to any relief as to this issue.

        In denying post-conviction relief, the post-conviction court stated, “the [p]etitioner
was not prejudiced as a result of any deficiency by [trial counsel].” We agree with the
trial court’s assessment of the petitioner’s claims. No evidence exists in the record to
support his attack on trial counsel’s performance or how the alleged deficient
performance affected the outcome of his trial. See Strickland, 466 U.S. at 687. The
petitioner is not entitled to post-conviction relief for his claim of ineffective assistance of
counsel.

                                      CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.



                                               ____________________________________
                                               J. ROSS DYER, JUDGE




                                            - 10 -
