        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 10, 2012

               PATRICK TRAWICK v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 02-08616     J. Robert Carter, Jr., Judge


                No. W2011-02670-CCA-R3-PC - Filed August 31, 2012


The petitioner, Patrick Trawick, appeals the denial of his petition for post-conviction relief,
arguing that his trial counsel provided ineffective assistance by advising him not to testify
at trial, which precluded him from presenting his only viable defense. Following our review,
we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Patrick Trawick.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy
P. Weirich, District Attorney General; and Betsy Wiseman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       In 2008, the petitioner was convicted by a Shelby County Criminal Court jury of first
degree premeditated murder and two counts of aggravated assault, for which he received an
effective sentence of life without parole plus six years. His convictions were affirmed by this
court on direct appeal, and our supreme court denied his application for permission to appeal.
State v. Patrick Trawick, No. W2008-02675-CCA-R3-CD, 2010 WL 2349188, at *1 (Tenn.
Crim. App. June 9, 2010), perm. app. denied (Tenn. Nov. 18, 2010).
        Our direct appeal opinion reveals that the petitioner’s convictions were based on his
actions of September 30, 2002, in which he fired a gun at his estranged girlfriend, Tujauna
Smith, and her companion, Darryl Turner, during a vehicle chase through the streets of
Memphis, followed Smith on foot into a Mapco service station, pistol whipped her, and then
fired multiple gunshots at her, killing her. Id. at *1-2. Several eyewitnesses to the chase and
the shooting testified at trial, including two store employees and two customers. Id. at *2-3.
One of these, the store’s manager, testified that the petitioner shot the victim six or seven
times, holding the victim for the first two or three shots and then letting her fall to the ground
before continuing to shoot at her until he emptied his gun. Id. at *2. The store manager also
identified the store’s surveillance tape, which recorded the entire incident. The surveillance
tape was admitted as an exhibit and shown to the jury. Id. at *3. One of the store’s
customers testified that when the petitioner and the victim first pulled up to the store, he
heard the angry petitioner asking the victim why she was with another man and questioning
her as to whether his baby was in the car with the victim. That same witness, along with
another, described how the petitioner checked the backseat of the victim’s car after he shot
her. Id.

        On May 26, 2011, with the assistance of post-conviction counsel, the petitioner filed
a petition for post-conviction relief in which he raised a claim of ineffective assistance of
trial counsel. Specifically, he alleged that his trial counsel were deficient for advising him
not to testify. The petitioner asserted that, without his testimony, he was “deprived of a
substantial defense and the jury was left with no other choice but to convict as charged.”

       At the evidentiary hearing, the petitioner testified that he wanted to testify at trial but
decided not to based on the advice of his counsel, who told him that it would not be in his
best interest given that the trial court had ruled that the State could introduce his prior
convictions for rape and burglary. Had he testified at trial, he would have offered the
following testimony: His ex-girlfriend, Smith, called him on the day of the incident to ask
him to meet her at his mother’s house so that she could bring their nine-month-old daughter
to him. He called her back, and a man who answered the phone hung up on him. He called
again, and when Smith answered, he said that he hoped she was not prostituting herself for
drugs again and that she did not have their daughter around such “stuff.” According to the
petitioner, Smith replied that both she and their nine-month-old baby were “sucking [the]
man’s penis,” and then hung up on him. The petitioner said that when he heard Smith’s
words about their daughter, it felt as if “a bomb . . . exploded inside of [him].”

       About twenty minutes later, Smith called the petitioner back and told him to meet her
at his mother’s house. En route, the petitioner spotted Smith’s car with Smith and what
appeared to be two men inside. He also saw his baby’s car seat in the vehicle. He pulled up,
and Smith, who was in the driver’s seat, raised her head up, appearing to the petitioner as if

                                               -2-
she had been in the act of performing oral sex on Darryl Turner, who was in the front
passenger seat. The petitioner said that Turner fired a gun at him and that he then fled in his
vehicle, chased by Smith and Turner in their vehicle. During the ensuing chase, a gun fell
out of the visor in the petitioner’s vehicle and the petitioner grabbed it. The petitioner said
that Turner fired a couple more shots at him during the chase. He stated that he returned the
gunfire in an effort to make Smith and Turner back off, but that he aimed only at Smith’s
tires because he believed his baby was in Smith’s car.

       The petitioner testified that at some point during the car chase, Smith slowed her
vehicle and Turner jumped out. Soon thereafter, a laughing Smith called him on his cell
phone and told him to follow her to the Mapco station. The petitioner said he accused Smith
of having “blow[n] [her] private parts out” by having sex with the men he had seen in her car
and that she replied, “Yeah, your daughter’s pussy wore out, too” before jumping out of her
vehicle and running into the Mapco store. Although he could not remember everything that
happened after that, he recalled having followed Smith into the store, hearing some shots
during a time that he felt “outside of [himself],” and then running outside to Smith’s car to
check on his baby, who, as it turned out, was not in the vehicle after all. The petitioner also
recalled that he was crying because he was so upset. He said it was never his intention to
hurt Smith or anyone else.

        The petitioner further testified that he knew that Smith had, in the past, prostituted
girls as young as eleven in order to get money to support her drug habit. According to the
petitioner, his sister had also warned him to watch his baby when she was around Smith.

        On cross-examination, the petitioner acknowledged that it had been his decision not
to testify. He reiterated, however, that he had wanted to testify and that he had based his
decision not to testify on the advice of counsel.

        The petitioner’s sister, Takesha Trawick Smith, testified that the victim, Tujauna
Smith, called her once to ask if she knew of any young girls that she (Tujauna Smith) could
“pimp out.” The witness said that she informed the petitioner of that conversation, as well
as the fact that she had heard from numerous people that Tujauna was being paid to let men
fondle the petitioner’s baby. She also told the petitioner that Turner was a pedophile and that
he had been having sexual intercourse with her eleven-year-old daughter. She did not,
however, inform the petitioner’s trial counsel of what she knew about Turner.

       The petitioner’s senior trial counsel, whom post-conviction counsel stipulated was
“one of the finest criminal defense lawyers in Shelby County,” testified that he argued at the
Morgan hearing that the State should not be allowed to use the petitioner’s prior rape
conviction as impeachment because both it and the crime for which the petitioner was on trial

                                              -3-
involved violence against women. The trial court, however, disagreed. After its ruling, the
court granted counsel a break to talk with the petitioner and his family about the petitioner’s
decision about testifying. Trial counsel said that both he and the petitioner’s family members
advised the petitioner not to take the stand in light of the court’s ruling. Counsel explained
that he informed the petitioner of his opinion that the rape conviction would be “very, very
harmful” to the petitioner’s case and would outweigh any potential benefit that could be
gained by the petitioner’s testimony. He said that, had the trial court excluded the rape
conviction, his advice to the petitioner would have been different.

       Trial counsel further testified that his argument to the jury, which was the only one
available to him given the State’s strong evidence against the petitioner, was that the shooting
had occurred while the petitioner was in a state of passion and intense excitement.

       On November 14, 2011, the post-conviction court entered an order denying the
petition for post-conviction relief. This appeal followed.

                                         ANALYSIS

       The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of the law to
the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978
S.W.2d 95, 96 (Tenn. 1998). The issues of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. 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 same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies 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

                                              -4-
       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.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel
falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,
and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., 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.

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

       In denying the petition, the post-conviction court found that trial counsel’s advice to
the petitioner about testifying was part of a sound defense strategy based on counsel’s
experience, and that the decision not to testify was the petitioner’s. The court, therefore,
concluded that the petitioner had failed to meet the deficient performance prong of the
Strickland test for ineffective assistance of counsel.

       The record fully supports the findings and conclusions of the post-conviction court.
The petitioner acknowledged that it had been his decision not to testify, but blamed the
decision on the allegedly defective advice of trial counsel. Trial counsel, however, explained
that the basis of his decision was the trial court’s ruling that the State could impeach the
petitioner’s testimony with his prior conviction for rape, which counsel believed would be
very harmful to the petitioner’s case and would outweigh any possible benefit that could be
gained by the petitioner’s testimony. There was no evidence that trial counsel was in any
way unprepared for the case, and post-conviction counsel stipulated to trial counsel’s
extensive experience and excellent reputation as a criminal defense attorney in Shelby

                                                -5-
County. As the post-conviction court noted in its order, this court has previously affirmed
the denial of post-conviction relief based on a claim of counsel’s allegedly defective advice
about testifying when the evidence showed that the petitioner knowingly waived the right to
testify after heeding the informed advice of counsel. See Almeer K. Nance v. State, No.
E2008-00857-CCA-R3-PC, 2009 WL 160919, at *5 (Tenn. Crim. App. Jan. 23, 2009), perm.
app. denied (Tenn. Apr. 27, 2009); Mindy Sue Dodd v. State, No. M2006-02384-CCA-R3-
PC, 2007 WL 2949020, at *9 (Tenn. Crim. App. Oct. 10, 2007). We, therefore, agree with
the post-conviction court that the petitioner failed to show that counsel was deficient in the
advice he gave the petitioner.

                                      CONCLUSION

       Based on our review, we conclude that the petitioner has not met his burden of
establishing that he was denied the effective assistance of trial counsel. Accordingly, we
affirm the denial of the petition for post-conviction relief.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




                                             -6-
