            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            APRIL 1997 SESSION
                                                    FILED
                                                     October 1, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

DAVID FLOYD,                         )   NO. 02C01-9604-CC-00123
                                     )
      Appellant                      )   DYER COUNTY
                                     )
V.                                   )   HON. JOE G. RILEY, JUDGE
                                     )
STATE OF TENNESSEE,                  )   (Post-Conviction)
                                     )
      Appellee                       )
                                     )


FOR THE APPELLANT                        FOR THE APPELLEE

William K. Randolph                      John Knox Walkup
P.O. Bo 611                              Attorney General and Reporter
Dyersburg, Tennessee 38025-0611          450 James Robertson Parkway
                                         Nashville, Tennessee 37243-0493

                                         Janis L. Turner
                                         Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, Tennessee 37243-0493

                                         C. Phillip Bivens
                                         District Attorney General
                                         P.O. Box E
                                         Dyersburg, Tennessee 38025




OPINION FILED:______


AFFIRMED


William M. Barker, Judge
                                          Opinion

       The appellant, David Floyd, appeals as of right the judgment of the Dyer

County Circuit Court dismissing his petition for post-conviction relief. He argues on

appeal that he was unconstitutionally denied his right to effective assistance of

counsel because of his trial counsel’s failure to interview potential defense witnesses,

failure to peremptorily challenge a juror, and failure to provide the appellant with a

copy of the trial transcript for appellate purposes. We have reviewed the record upon

appeal and, finding no reversible error, affirm the trial court’s dismissal of the petition.

       On May 4, 1993, the appellant was found guilty by a jury of his peers of theft of

property over the value of one thousand dollars ($1,000), a Class D felony. He was

sentenced to a term of seven years and six months incarceration as a Range II

multiple offender. His sentence was ordered to be served consecutively to prior

unrelated sentences. The appellant thereafter appealed his conviction to this Court.

A panel of this Court affirmed the trial court. State v. David Floyd, C.C.A. No. 02C01-

9311-CC-00265 (Tenn. Crim. App., Jackson, May 4, 1994). No application for

permission to appeal was filed in the supreme court. However, on September 5,

1995, the appellant filed his petition for post-conviction relief. After the appointment of

counsel, the trial court conducted an evidentiary hearing and, by order entered

November 22, 1995, dismissed the petition.

       In reviewing an appellant’s Sixth Amendment claim of ineffective assistance of

counsel, this Court must determine whether the advice given or services rendered by

the attorney were within the range of competency demanded of attorneys in criminal

cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of

ineffective counsel, a petitioner “must show that counsel’s representation fell below an

objective standard of reasonableness” and that this performance prejudiced the

defense. There must be a reasonable probability that but for counsel’s error the result

of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,



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687-88, 692, 694, 104 S. Ct. 2053, 2064, 2067-68, 80 L. Ed. 674 (1984); Best v.

State, 708 S.W.2d 421, 422, (Tenn. Crim. App. 1985).

       The appellant first argues that his attorney was ineffective because he failed to

exclude a potential juror who was a prison guard at the penitentiary where the

appellant was incarcerated. The evidence presented at the post-conviction hearing

revealed that the appellant’s trial counsel had planned to exclude the prison guard,

using his last remaining peremptory challenge. After consulting with the appellant,

however, the appellant’s trial counsel allowed the prison guard to remain on the jury.

Although appellant’s trial counsel had no specific memory of his conversation with the

appellant regarding the prison guard as a juror, he testified that he would have

excused the guard if his client had wanted him excused. The trial court correctly held

that tactical decisions, such as this one, are not subject to post-conviction challenges.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

       The appellant next argues that his trial counsel was ineffective in that he failed

to adequately prepare for trial by not interviewing all potential defense witnesses. The

appellant testified that he furnished his counsel with the names of four potential

defense witnesses but none of them were called to testify on his behalf at trial.

Appellant’s counsel interviewed all potential witnesses and the witnesses who were

not called to testify provided testimony that was either irrelevant or damaging to the

appellant’s case. In fact, one of the witnesses testified for the State. Moreover, even

were we to assume arguendo that appellant’s counsel failed to interview all potential

witnesses, the appellant did not introduce those witnesses’ testimony at the post-

conviction hearing. Without that testimony in the record, we cannot determine

whether the appellant was prejudiced by their failure to testify at trial. See Wade v.

State, 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995); Black v. State, 794 S.W.2d 752,

757 (Tenn. Crim. App. 1990).




                                            3
       Finally, the appellant argues that his attorney was ineffective for failing to send

him the trial transcript so that the appellant could prepare his pro se application for

permission to appeal to the Tennessee Supreme Court. For the same reason, the

appellant also requests a delayed appeal. After the appellant’s counsel was permitted

by this Court to withdraw from further representation, he sent a package to the

appellant which included the brief filed in this Court setting forth the relevant facts and

issues raised on direct appeal. Additionally, counsel furnished the appellant with a

form motion for the appellant to file in the supreme court, if he chose, seeking an

extension of time within which to file his application. Appellant, however, did not file

the motion. The appellant’s counsel did not send the appellant a copy of the trial

transcript.

       Even though the appellant’s counsel may have erred by not sending the

transcript, the appellant has failed to show that he was prejudiced. The brief

forwarded to the appellant contained all the necessary facts and legal issues that the

appellant needed in order to file a petition seeking permission to appeal to the

Tennessee Supreme Court. See Tenn. R. App. P. 11(b). Moreover, since the

appellant never filed the motion requesting an extension of time to file his petition for

permission to appeal, the appellant has failed to show that he was prejudiced. For the

same reason, we are not inclined to permit the appellant to proceed under T.R.A.P. 11

by withdrawing our previously entered opinion of May 4, 1994, and re-entering it as of

the date of this opinion.

       Accordingly, the denial of the appellant’s post-conviction petition is affirmed.




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                                 __________________________
                                 WILLIAM M. BARKER, JUDGE

CONCUR:



__________________________
JOSEPH M. TIPTON, JUDGE



__________________________
DAVID G. HAYES, JUDGE




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