        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Jackson January 6, 2015

               NAZARIO ARAGUZ v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                   No. 2009-B-1141     Steve R. Dozier, Judge



              No. M2014-01131-CCA-R3-PC – Filed February 24, 2015



Petitioner, Nazario Araguz, was convicted by a jury of conspiracy to deliver 300 grams or
more of cocaine in a drug-free school zone and possession with intent to deliver 300
grams or more of cocaine in a drug-free school zone. He received concurrent seventeen-
year sentences. Petitioner filed a petition for post-conviction relief alleging that he
received ineffective assistance of counsel. After a hearing, the post-conviction court
denied relief. On appeal, petitioner argues that he received ineffective assistance of
counsel because trial counsel did not properly advise him regarding his right to testify.
Following our review, we affirm the judgment of the post-conviction court.

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

ROGER A. PAGE, J., delivered the opinion of the court, in which ALAN E. GLENN and
CAMILLE R. MCMULLEN, JJ., joined.

Elaine Hurd, Nashville, Tennessee, for the appellant, Nazario Araguz.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and John C. Zimmerman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        I. Facts

       This case stems from a controlled cocaine buy. See State v. Alejandro Neave
Vasquez and Nazario Araguz, No. M2010-02538-CCA-R3-CD, 2012 WL 5989875, at *1
(Tenn. Crim. App. Nov. 28, 2012), perm. app. denied (Tenn. Mar. 20, 2013). The police
planned for an informant to ask for a kilogram of cocaine from a source but then return
the cocaine to the source, claiming that it was impure, so that the police could follow the
cocaine back to what they called a “stash house.” Id. The police observed two Hispanic
men arrive at the buy location in a Volkswagen Jetta, bring cocaine to the informant, and
then leave the location with the cocaine. Id. at *1-2. The police followed the Jetta to an
apartment complex and watched as the driver removed a dark-colored block from the
trunk and placed it in a white bag. Id. at *3. The Jetta was driven to a gas station, where
the driver removed the white bag from the Jetta and placed it in a Tahoe. Id. at *2-4. The
Tahoe was driven by co-defendant Jose Aragus. Id. at *4. Aragus drove the Tahoe to a
home on Strand Fleet Drive. Id. Thereafter, petitioner and co-defendant Alejandro
Vasquez arrived at the Strand Fleet Drive house in a brown Ford F-150 with a license
plate reading, “Araguz.” Id. The police observed Vasquez carrying a white bag that he
placed in the engine compartment of the F-150. Id. Petitioner and Vasquez then left
Strand Fleet Drive with petitioner driving the F-150. Id. The police stopped petitioner
and Vasquez on Richards Road after petitioner had driven past an elementary school. Id.
at *2, *4-5. At a hearing on petitioner‟s motion to suppress, one of the police officers
noted that he did not offer an interpreter to petitioner because he communicated
sufficiently in English. Id. at *2. The police recovered a block of cocaine from the
engine compartment of the truck, as well as approximately $123,000 from the interior of
the truck. Id. Subsequently, petitioner was indicted, tried, and convicted of conspiracy to
deliver 300 grams or more of cocaine in a drug-free school zone and possession with
intent to deliver 300 grams or more of cocaine in a drug-free school zone. Id. at *1.
Petitioner unsuccessfully appealed his convictions to this court. Id. at *8-14.

       Petitioner filed his original petition for post-conviction relief on April 4, 2013. The
post-conviction court appointed counsel, who filed an amended petition for relief on
August 6, 2013.

        At the post-conviction evidentiary hearing, trial counsel testified that his practice
was ninety-nine percent criminal work. He said that prior to petitioner‟s trial, he had
participated in approximately twenty felony jury trials. Trial counsel stated that
petitioner‟s family retained him to represent petitioner. He recalled meeting with
petitioner both in jail and at the courthouse. Trial counsel said that he reviewed the
discovery materials with petitioner and explained his charges to him. He also explained
his potential sentence exposure. Trial counsel testified that he did not have difficulty
communicating with petitioner and stated that an interpreter was present “for much of the
interaction.” Regarding petitioner‟s right to testify at trial, trial counsel stated that he
discussed with petitioner whether to testify and that they made the decision that he would
not testify. Trial counsel said that he gave his opinion but that it was “ultimately”
petitioner‟s decision. He testified, “I‟m not aware of any mitigation or any advantage
that his defense could have gained by him testifying.”



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        On cross-examination, trial counsel agreed that the transcript of petitioner‟s trial
indicated that petitioner twice told the court, “„I want to testify but I need an interpreter.‟”
Trial counsel recalled having an interpreter “[d]uring the trial process,” but he said that
he could not remember whether it was before or during the actual trial. He agreed that
during the Momon hearing, petitioner indicated that he wanted to testify, that during a
recess trial counsel advised him not to testify, and that thereafter petitioner waived his
right to testify. In response to questioning from the post-conviction court, trial counsel
recalled that petitioner indicated prior to trial that “an interpreter was not needed.”

       Petitioner testified that he understood “a little bit” of English. He agreed that he
could have “uncomplicated simple conversations with people” but did not “understand
legal terminology.” Petitioner said that he wanted to testify at his trial but did not
because trial counsel recommended that he not testify. Petitioner testified that he would
have told the jury that the police could have stopped him before he drove through the
school zone but they chose not to because “it was a trap.” He said, in response to
questioning from the court, that he did not have an interpreter for trial because his
“lawyer told [him] that it wouldn‟t look good” to have an interpreter.

        On cross-examination, petitioner testified that he told the truth at trial when he
“said it was [his] decision not to testify.” He clarified that he made the decision “because
[his] lawyer told [him] it was best not to testify.”

         After taking the matter under advisement, the post-conviction court denied relief.
It is from this judgment that petitioner now appeals.

                                               II. Analysis

       Petitioner contends that he received ineffective assistance of counsel at trial
because trial counsel failed to properly advise him about his right to testify. 1 The State
responds that petitioner has failed to show deficient performance by trial counsel or that
any alleged deficient performance prejudiced the outcome of his trial. We agree with the
State.

       To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any
right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of
proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann.
1
   In his appellate brief, the petitioner asserts that he was forced to participate in his trial without the
benefit of an interpreter and that trial counsel was ineffective for failing to present discovery materials to
petitioner in his native language. However, these issues have been raised for the first time on appeal and
are thus waived. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) (citing State v. Burtis,
664 S.W.2d 305, 310 (Tenn. Crim. App. 1983)).

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§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.‟”
Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

       The post-conviction court‟s findings of fact are conclusive on appeal unless the
preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn.
Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v.
State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions of law
receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court‟s review of
petitioner‟s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

       The Sixth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and article I, section 9 of the Tennessee
Constitution require that a criminal defendant receive effective assistance of counsel.
Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective
assistance of counsel, he must demonstrate both that his lawyer‟s performance was
deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation
omitted). It follows that if this court holds that either prong is not met, we are not
compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn.
2004).

        To prove that counsel‟s performance was deficient, petitioner must establish that
his attorney‟s conduct fell below an objective standard of “„reasonableness under
prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202
S.W.3d 106, 116 (Tenn. 2006)). On appellate review of trial counsel‟s performance, this
court “must make every effort to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel‟s conduct, and to evaluate the conduct from the
perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006)
(citing Strickland, 466 U.S. at 689).

        To prove that petitioner suffered prejudice as a result of counsel‟s deficient
performance, he “must establish a reasonable probability that but for counsel‟s errors the
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A „reasonable probability is a probability sufficient to
undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As
such, petitioner must establish that his attorney‟s deficient performance was of such
magnitude that he was deprived of a fair trial and that the reliability of the outcome was


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called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463
(Tenn. 1999)).

        At the post-conviction hearing, both trial counsel and petitioner testified that
counsel advised petitioner against testifying and that petitioner made the decision not to
testify based on that advice. Petitioner testified that he told the truth at trial when he
“said it was [his] decision not to testify.” Furthermore, trial counsel said that he
discussed petitioner‟s right to testify with him and that he was “not aware of any
mitigation or any advantage that [petitioner‟s] defense could have gained by him
testifying.” Petitioner stated what his testimony at trial would have been and that
testimony was solely about his being stopped in a school zone, not about the presence of
a block of cocaine in his truck. Petitioner has not presented any evidence that he was
actually coerced into waiving his right to testify — instead he merely states that he
followed his attorney‟s advice. We agree with the trial court that petitioner did not prove
that his trial counsel‟s performance was deficient or that he was prejudiced by that
performance. Therefore, we affirm the post-conviction court‟s denial of relief.

                                    CONCLUSION

      Based on the briefs of the parties, the record, and the applicable law, we affirm the
judgment of the post-conviction court.

                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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