         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                           JULY 1998 SESSION      FILED
                                                   October 28, 1998

                                                  Cecil Crowson, Jr.
                                                  Appe llate Court C lerk
STATE OF TENNESSEE,                )
                                   )
            Appellee,              )   C.C.A. No. 02C01-9710-CC-00400
                                   )
vs.                                )   Benton County
                                   )
WILLIAM E. BREWER,                 )   Honorable Julian P. Guinn
                                   )
            Appellant.             )   (Assault; Aggravated Assault)
                                   )




FOR THE APPELLANT:                      FOR THE APPELLEE:

DONALD E. PARISH                        JOHN KNOX WALKUP
P.O. Box 229                            Attorney General & Reporter
Huntingdon, TN 38344
                                       CLINTON J. MORGAN
RONALD J. DARBY                        Assistant Attorney General
127 Forrest Avenue South               425 Fifth Avenue North
Camden, TN 38320                       2d Floor, Cordell Hull Building
                                       Nashville, TN 37243-0493

                                        STEVE GARRETT
                                        Assistant District Attorney General
                                        P.O. Box 94
                                        Paris, TN. 38242




OPINION FILED: _____________

AFFIRMED


CURWOOD WITT, JUDGE
                                      OPINION


              The defendant, William E. Brewer, appeals the convictions for assault

and reckless endangerment imposed by the Benton County Circuit Court. A jury

found the defendant guilty of assaulting his wife, Cheryl Brewer, on September 4,

1996, as alleged in count (1) of the indictment, and it found him guilty of reckless

endangerment, a lesser included offense of the September 6, 1996 assault of

Cheryl Brewer alleged as aggravated assault in count (2). The trial court imposed

concurrent sentences of eleven months and twenty-nine days on the assault

conviction,1 a Class A misdemeanor, and two years on the reckless endangerment

conviction,2 a Class E felony. In this direct appeal, the defendant challenges only

the failure of the trial court to order the severance of the two counts and the

effectiveness of counsel’s assistance in not moving for severance prior to trial. After

a review of the record, the briefs of the parties, and the applicable law, we affirm the

judgment of the trial court.



              The defendant and victim were husband and wife.               The victim

appeared at the Benton County Sheriff’s Office in the wee hours of September 4,

1996 and complained that the defendant had hit her. The cheekbone beneath her

eye was red. The victim obtained an order of protection which was served on the

defendant later in the day on September 4. On September 6, the victim complained

that, during her visit to the marital home, the defendant brandished a shotgun and

he fired the weapon in her direction as she fled in her car. The defendant denied

these assaults. He testified that the victim left the home on September 4 after the

couple argued about the victim’s late-night telephone conversation. The victim




       1
       The judgment expressed no percentage of the sentence that the
defendant is required to serve. “If no percentage is expressed in the judgment,
the percentage shall be considered zero percent (0%).” Tenn. Code Ann. § 40-
35-302(d) (1997).
       2
       The trial court indicated its willingness to favorably consider a motion to
suspend the balance of the felony sentence upon service of 270 days provided
the defendant successfully completed a rehabilitation program.

                                           2
testified her nursing home employer called her to work, but the defendant testified

the caller was a man with whom the victim had had an affair. The defendant

essentially characterized the victim’s complaints to the sheriff’s office during the two

days following the argument as her attempts to have him incarcerated. He viewed

the September 6 complaint as a contrivance to implicate him in a violation of the

order of protection. The jury obviously credited the state’s proof.



               The defendant filed no motion to sever the counts of the indictment.

The defendant first complained of trial on the joined counts in his motion for new

trial. Tennessee Rule of Criminal Procedure 14(a) provides that a defendant’s

motion for severance of offenses “must be made before trial, except that a motion

for severance may be made before or at the close of all evidence if based upon a

ground not previously known.” There was no basis for a day-of-trial motion in the

present case, and the defendant is caught squarely by the rule’s provision that

“[s]everance is waived if the motion is not made at the appropriate time.” Tenn. R.

Crim. P. 14(a); see also Tenn. R. Crim. P. 12(b)(5) (request for severance required

to be filed before trial); Tenn. R. Crim. P. 12 (f) (issues not raised by pre-trial motion

as required by rule 12(b) are waived). Accordingly, we conclude that the issue of

severance was waived.



              After trial, the defendant discharged his trial attorney. New counsel

filed the motion for new trial. The motion’s first ground is identical to the issue

presented in this appeal -- that the trial court erred in trying counts (1) and (2)

together.   According to the order overruling the motion, the trial court heard

counsel’s arguments during a telephone conference. No evidence was submitted.

The order further reflects that the “Defendant was allowed to amend by oral motion

the first ground so as to allege that counsel for the Defendant was ineffective in

failing to move the court to sever counts one and two of the indictment.”



               When an appeal challenges the effective assistance of counsel, the


                                            3
appellant has the burden of establishing (1) deficient representation and (2)

prejudice resulting from that deficiency. Strickland v. Washington, 466 U.S. 668,

686 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).              Deficient

representation occurs when counsel provides assistance that falls below the range

of competence demanded of criminal attorneys. Bankston v. State, 815 S.W.2d

213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but

for deficient representation, the outcome of the proceedings would have been

different. Overton v. State, 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a

strong presumption of satisfactory representation. Barr v. State, 910 S.W.2d 462,

464 (Tenn. Crim. App. 1995).



              When determining whether counsel’s performance was deficient,

“every effort [must] be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.

“Thus, the fact that a particular strategy or tactic failed or even hurt the defense

does not, alone, support a claim of ineffective assistance.” Cooper, 847 S.W. 2d

521, 528 (Tenn. Crim. App. 1992). We must defer to trial strategy and tactical

choices when they are informed ones based upon adequate preparation. Id.



              Moreover, on appeal, the findings of fact made by the trial court are

conclusive and will not be disturbed unless the evidence contained in the record

preponderates against them. Rhoden v. State, 816 S.W.2d 56, 60 (Tenn. Crim.

App. 1991); Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The

burden is on the defendant to show that the evidence preponderates against those

findings. Clenny v. State, 576 S.W. 2d 12, 14 (Tenn. Crim. App. 1978).



              The defendant has failed to show that the evidence preponderates

against the trial court’s overruling the ineffective assistance grounds stated in the

motion for new trial. Specifically, the record shows neither deficiency of trial

                                         4
counsel’s performance nor prejudice from any malfeasance. The import of the

defendant’s direct testimony is that the reckless endangerment charge is the result

of the victim’s false allegation of a September 6 assault designed to implicate the

defendant in a violation of the September 4 order of protection. This court has not

been favored with a transcript of opening statements or final arguments to the jury,

and consequently we do not know what line of argument defense counsel pursued.

However, counsel called the defendant to testify, and this testimony presented a

plausible theory that the charges were the result of the victim’s machinations to get

the defendant out of the home and in jail. Such a theory, as a defense to the

reckless endangerment charge, requires that the jury have knowledge of the earlier

September 4 episode. A joint-trial strategy may well have accommodated this

defense theory and will not now be second-guessed. The fact that the jury rejected

the defendant’s version is of no consequence. Furthermore, if defendant’s counsel

chose to posit a defense that linked the two offenses, there can be no prejudice

resulting from any failure to move for a severance of offenses.



              We have previously observed that a defendant who raises the

ineffective assistance issue on direct appeal does so at his peril. State v. Robert

Wayne Frantz, No. 03C01-9509-CC-00269, slip op. at 16 (Tenn. Crim. App.,

Knoxville, Feb. 6, 1998), appl. for perm. app. filed (Tenn. April 3, 1998); State v.

Jimmy L. Sluder, No. 1236, slip op. at 7 (Tenn. Crim. App., Knoxville, May 14,

1990). This case illustrates the maxim. After raising the issue in his motion for new

trial, the defendant declined to offer proof at a hearing on the motion, even though

the burden rests upon the defendant to demonstrate ineffective assistance of

counsel. The absence of an evidentiary hearing makes it “practically impossible”

to show prejudice necessary to making out an ineffective assistance claim.

Strickland, 466 U.S. at 687; see also Kirby George Wallace v. State, No. 01C01-

9308-CC-00275 (Tenn. Crim. App., Nashville, Sept. 15, 1994). Although we would

have preferred that the trial court make specific findings about the effective

assistance of counsel when it overruled the motion for new trial, the record is so

                                         5
devoid of any indication of ineffective assistance that a remand for specific findings

of fact would be pointless.



              The judgment of the trial court is affirmed.



                                          _______________________
                                          CURWOOD WITT, Judge


CONCUR:




_______________________
JOE G. RILEY, Judge



_______________________
ROBERT W. WEDEMEYER, Special Judge




                                          6
