                                                                                           12/30/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 16, 2019

             MARIO CRUZ ESTRADA v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Lawrence County
                     No. 34773      Stella L. Hargrove, Judge


                             No. M2019-00085-CCA-R3-PC


The Petitioner, Mario Cruz Estrada, appeals the Lawrence County Circuit Court’s denial of
his petition for post-conviction relief from his 2015 conviction for attempted second degree
murder and his twelve-year sentence. The Petitioner contends that he received the
ineffective assistance of trial counsel. Because the notice of appeal was untimely, we
dismiss the appeal.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Mark Free, Columbia, Tennessee, for the appellant, Mario Cruz Estrada.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; Brent A. Cooper, District Attorney General; and Christi Thompson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        The Petitioner’s conviction relates to the January 1, 2014 stabbing of Charles Davis.
On the day of the stabbing, the victim and Ms. Carranza engaged in a verbal argument about
the Petitioner’s drinking and driving with Ms. Carranza and her four-year-old daughter
inside the Petitioner’s car. The argument escalated into a physical altercation between the
victim and Ms. Carranza, who began hitting the victim with her fists. The victim grabbed
Ms. Carranza’s arms and laid her on the ground in an effort to protect himself. According to
the victim, the Petitioner approached stabbed him multiple times before fleeing the scene
with Ms. Carranza. See State v. Mario Cruz Estrada, No. M2016-00056-CCA-R3-CD, 2016
WL 6996399, at *1-3 (Tenn. Crim. App. Nov. 30, 2016), no perm. app. filed.
        On December 1, 2017, the Petitioner filed the instant petition for post-conviction
relief, alleging that he received the ineffective assistance of trial counsel. The Petitioner
asserted that counsel failed to conduct an adequate investigation and to present evidence
showing the victim was the first aggressor.

       At the post-conviction hearing, trial counsel testified that the physical altercation
between Ms. Carranza and the victim occurred out of the Petitioner’s view and that the first
thing the Petitioner saw was Ms. Carranza on the floor with the victim lying on top of her.
Counsel recalled that the Petitioner began assaulting the victim and that, ultimately, the
victim was stabbed and the Petitioner and Ms. Carranza fled the scene.

        Trial counsel testified that he began representing the Petitioner after the arraignment,
that he did not file any pretrial motions, that he obtained the State’s discovery materials and
reviewed them with the Petitioner, and that he attempted to negotiate a plea agreement.
Counsel recalled that the Petitioner had been released on bond at the time counsel was
retained. Counsel said that he and the Petitioner had “some miscommunications or some
phone calls” but that they discussed the State’s initial and final plea offers before the guilty
plea deadline.

        Trial counsel testified that although the Petitioner had eight previous felony
convictions, the offenses occurred within twenty-four hours and that, as a result, the
Petitioner had one previous felony conviction for purposes of sentencing. Counsel did not
recall the State’s arguing that the Petitioner had more than one previous felony conviction
and said the Petitioner was sentenced as a Range I offender. Counsel said, though, the
previous conviction increased the length of the within-range sentence imposed by the trial
court.

       Trial counsel testified that he learned through the discovery materials that Ms.
Carranza was not charged with the same offense as the Petitioner, although she and the
Petitioner were both charged with conspiracy. Counsel said that he spoke to Ms. Carranza’s
attorney, not Ms. Carranza.

         Counsel testified that, after the trial began, the prosecutor provided him with a
recording of a jail telephone call between Ms. Carranza and the father of her children, during
which Ms. Carranza stated that the victim had been choking “her out” and that the Petitioner
came “to her defense.” Counsel said that although Ms. Carranza was on the State’s witness
list, the prosecutor did not call her as a witness, and that counsel considered calling her as a
defense witness. Counsel agreed that a courtroom discussion occurred about Ms. Carranza’s
reluctance to testified and about whether she would plead the “Fifth [Amendment] to
everything or just selectively, which was not going to be allowed.” Counsel said that
although evidence showing that the victim had been choking Ms. Carranza when the

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Petitioner struck the victim was beneficial to the defense, the recording and Ms. Carranza’s
written police statement contained “pretty damning evidence.” Counsel recalled that Ms.
Carranza’s written statement showed that just before the Petitioner threw the knife out of the
window, the Petitioner licked the blood off the knife and said, “I told you I would be
stabbing somebody.” Counsel said that if the recording were admitted into evidence, the
written statement would have likewise been admitted and that he and the Petitioner discussed
his concerns about the written statement. Counsel agreed he could have requested a
continuance to investigate the recording and to consider the benefits and pitfalls of calling
Ms. Carranza as a defense witness.

       Trial counsel testified that his cross-examinations of the State’s witnesses were
fashioned to show the Petitioner acted in self-defense or in defense of others.

        Trial counsel testified that he prepared for the Petitioner’s trial by reviewing the
discovery materials and discussing the materials with the Petitioner. Counsel said that the
Petitioner’s statements were consistent with the victim’s and other witnesses’ statements.
Counsel said that he and the Petitioner discussed “technical things” relative to whether
certain information would benefit the defense. Counsel recalled making his trial notebook,
“lining everything up,” speaking with the investigating officers, and attempting to learn if the
State had additional witnesses in preparing for the trial. Counsel said that he did not
investigate the crime scene, that photographs of the scene were included in the discovery
materials, and that the proof established the Petitioner’s and Ms. Davis’s inability to see the
initial altercation between the victim and Ms. Carranza. Counsel recalled that the defense
and the State agreed upon the photographs admitted at the trial.

       Trial counsel testified that the State extended a plea offer to Ms. Carranza that
allowed her to plead guilty to a lesser offense in exchange for her testimony against the
Petitioner. Counsel understood that Ms. Carranza would testify at the trial because she
cooperated with the State, but counsel did not know the particulars of her potential plea
agreement. Counsel knew only that a plea offer had been extended to her, that he thought the
offer was later withdrawn, and that the prosecutor indicated he was not going to call her as a
witness. Counsel said he did not know what Ms. Carranza might say or whether she would
assert her Fifth Amendment privilege against self-incrimination. Counsel said that the
defense had Ms. Carranza’s previous statements, which included both beneficial and harmful
evidence, and that if counsel presented only the beneficial portions of the statements, the
State would have presented the harmful evidence. Counsel said that he was concerned the
harmful evidence in the statements would have negated the beneficial evidence. Counsel
said that at the time of this case, his practice did not include having a client sign a statement
regarding the client’s decision whether to testify. Counsel said, though, a Momon hearing
was held in the Petitioner’s case. Counsel recalled that the trial judge asked the Petitioner
questions to show the Petitioner had decided not to testify.

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        Trial counsel testified that he thought the trial proof established the Petitioner acted in
defense of Ms. Carranza because the Petitioner reacted to observing the victim, who was two
feet taller than the Petitioner, on top of Ms. Carranza. Counsel recalled that the victim
testified at the trial about his emotional state at the time of the incident and his frustration
with the “entire situation.” Counsel said that he and the Petitioner discussed the benefits and
pitfalls of testifying and that the Petitioner would decide whether to testify after the State
presented its case. Counsel said that if the Petitioner had testified, the Petitioner could have
told the jury his version of the events, which was established by other witnesses. Counsel
recalled that the Petitioner had eight previous convictions for aggravated assault and said that
he and the Petitioner discussed the possibility of “opening the door” to those convictions if
the Petitioner testified. Counsel said that he was unsure if the jury would have credited the
Petitioner’s testimony.

       Trial counsel testified that he did not file any pretrial motions because he determined
the evidence did not warrant any motions. Counsel recalled objecting to the admission of
forensic evidence related to blood found on the Petitioner’s clothes and said the issue was
also raised in the previous appeal. Counsel said that, after this court denied relief in the
previous appeal, he wrote the Petitioner a letter stating that he was not going to seek review
from the supreme court, that the Petitioner had a limited time to file an application for
permission to appeal, and that the Petitioner had various options to pursue further appellate
review.

       On cross-examination, trial counsel testified that he did not recall the number of times
he met with the Petitioner but that they spoke by telephone multiple times. Counsel said he
and the Petitioner had “adequate communication.” Counsel said that he did not recall but
thought that he attempted to contact witnesses and that he might have spoken to the victim’s
wife. He said that his normal practice was to contact witnesses and that he did not think he
deviated from this practice.

      Trial counsel testified that he received photographs and diagrams of the crime scene
and that the evidence supported a theory that the Petitioner acted in defense of others.
Counsel said that he and the Petitioner discussed the facts of the case from the Petitioner’s
perspective and that the Petitioner decided to proceed to trial with the chosen defense.
Counsel said that he and the Petitioner discussed the events, the definition of attempted
second degree murder, the witness statements, and what the defense needed to establish to
show the Petitioner acted in defense of others.

        Trial counsel testified that, initially, he thought Ms. Carranza was going to testify
when he and the Petitioner discussed the benefits and pitfalls of the Petitioner’s testifying but
that the defense had to “shift gears” when counsel learned Ms. Carranza would not testify for

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the State. Counsel said that he and the Petitioner discussed that counsel believed Ms.
Carranza would not have testified favorably for the State and that, as a result, the prosecutor
decided not to call her as a State’s witness. Counsel said, though, that if Ms. Carranza
testified as a favorable defense witness, the State could have questioned her about her
previous statements, portions of which were unfavorable to the Petitioner. Counsel said that
he and the Petitioner discussed these factors and that counsel made strategic decisions based
upon his previous experience.

        Trial counsel testified that he never advised a client whether the client should testify,
although he would “lay it out” for the client and let the client decide. Counsel said that he
would tell a client that the client’s decision was against counsel’s “better judgment” but that
it was the client’s right to testify. Counsel recalled discussing the case with the Petitioner
and said he left the decision to the Petitioner, who said he did not want or need to testify.

       On redirect examination, trial counsel testified that the trial court ordered consecutive
service of the twelve-year sentence in this case with an effective six-year sentence in an
unrelated case. Counsel said that he knew the State would seek consecutive service of these
sentences and agreed that the parties and the trial judge discussed at the sentencing hearing
whether consecutive service could be imposed. Counsel did not recall the details of the
discussion but said that consecutive service was discretionary in this case and that he argued
against it. Counsel said he did not represent the Petitioner in the unrelated case.

        The Petitioner testified that trial counsel did not present enough evidence showing
that he acted in defense of Ms. Carranza. The Petitioner said that he learned of the telephone
recording involving Ms. Carranza during the trial and that he never reviewed her written
statement. He said that he and counsel discussed whether to present Ms. Carranza as a
defense witness but that portions of her testimony could have benefitted the State.

        The Petitioner testified that trial counsel should have presented additional evidence
about the layout of the crime scene to establish what the Petitioner saw and heard before he
turned a corner inside the home to see the victim on top of and choking Ms. Carranza. The
Petitioner said he should have testified but acknowledged that other witness testimony
showed he initially could not see what had occurred between the victim and Ms. Carranza.
The Petitioner said that he and Ms. Carranza spoke about one week after she was released
from jail, that she thanked him for “helping her,” and that she believed the victim would
have hurt her more severely if the Petitioner had not intervened. The Petitioner did not recall
if he told counsel about this conversation.
        The Petitioner testified that he and trial counsel discussed during the trial whether the
Petitioner should testify and that he did not recall discussing the matter before the trial. The
Petitioner said that he ultimately decided not to testify because he did not want the jury to
learn of his previous convictions.

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        The Petitioner testified that trial counsel did not present sufficient evidence showing
that the victim had been emotional and had been the initial aggressor. The Petitioner said
that if he had testified at the trial, the jury would have heard additional evidence of the
victim’s demeanor.

       On cross-examination, the Petitioner testified that he wanted a new trial because the
jury did not hear enough evidence about his defending Ms. Carranza from the victim. The
Petitioner said that trial counsel called Ms. Carranza as a defense witness but said that she
invoked her Fifth Amendment privilege against self-incrimination.

        The Petitioner testified that, relative to his allegation that counsel failed to investigate
adequately, he wanted counsel to investigate the layout of the crime scene based upon the
witness statements. He said that although photographs of the scene were admitted as
evidence, the photographs did not establish what he could and could not see from his initial
location inside the home. He said that the defense received the telephone recording
involving Ms. Carranza during the trial and that counsel did not investigate it adequately
because the matter arose during the trial. The Petitioner agreed that he and counsel discussed
how the recording could benefit and harm the defense but said that they did not “go through
it thoroughly.” The Petitioner stated that after learning of the recording, counsel could have
requested a continuance in order to speak with Ms. Carranza and her attorney.

        The Petitioner testified that he chose not to testify because trial counsel said the State
“could” ask questions about his previous convictions. The Petitioner said he did not
understand his decision. He recalled the trial judge asking questions about his decision not
to testify but did not recall the substance of the questions. He said, “Looking back on it, I
don’t feel like I made the right decision. I feel like I wasn’t capable of making that decision.
 I don’t feel like I was advised enough to make that decision.”

       The post-conviction court denied relief. Regarding the allegation that trial counsel
failed to investigate adequately, the court found that counsel requested and received
discovery materials, which included witness statements, that counsel believed he spoke to the
investigating officers consistent with his routine practice, that counsel concluded the witness
statements did not contain discrepancies of importance, and that counsel and the Petitioner
reviewed the witness statements. The court discredited the Petitioner’s testimony that he did
not recall reading the witness statements. The court determined that although counsel did
not go to the crime scene, which was the victim’s then-home, the evidence showed that the
Petitioner was not in a position to observe what had occurred between the victim and Ms.
Carranza before the Petitioner intervened. The court found, though, that the Petitioner heard
the victim and Ms. Carranza from his location inside the home. The court determined that
counsel and the Petitioner reviewed the photographs and agreed upon their accuracy. The

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court determined that counsel did not provide ineffective assistance by failing to investigate
adequately.

       The post-conviction court determined that the Petitioner did not present proof at the
hearing about his allegation that trial counsel provided ineffective assistance by improperly
waiving objections and defenses.

        Relative to the Petitioner’s allegation that trial counsel provided ineffective assistance
by failing to present sufficient evidence that the victim was the first aggressor, the post-
conviction court determined that the undisputed facts reflected the victim and Ms. Carranza
were engaged in an altercation in another room. The court found that during the trial, the
State decided not to call Ms. Carranza as a witness and provided trial counsel with a
recorded telephone call involving Ms. Carranza. The court found that although the Petitioner
complained counsel did not attempt to present the recording as evidence, counsel and the
Petitioner discussed that Ms. Carranza’s statement included information detrimental to the
defense, including that the Petitioner had licked blood from the knife used against the victim
and that the Petitioner had stated, “I told you I’d be stabbing somebody,” that counsel did not
know what Ms. Carranza’s testimony would be, and that Ms. Carranza had pending criminal
charges against her. The court found that the Petitioner and counsel discussed the possible
benefits and pitfalls of calling Ms. Carranza as a witness and that counsel decided it was
better not to call her as a witness. The court determined that counsel’s decision was strategic
and was not deficient performance. The court determined that counsel was prepared for the
trial, knew the strengths and weaknesses of the case, and made a sound strategic decision.
The court noted that Ms. Carranza was not a witness at the post-conviction hearing and that
the Petitioner had failed to show what her testimony would have been had counsel presented
her at the trial.

        Relative to the Petitioner’s allegation that trial counsel did not advise him adequately
in order for him to decide whether to testify at the trial, the post-conviction court discredited
the Petitioner’s testimony and determined the allegation was without merit.

        Relative to the Petitioner’s allegation that trial counsel failed to introduce evidence
supporting jury instructions for self-defense and defense of others, the post-conviction court
determined that counsel “was immediately concerned with raising these defenses” and that
counsel raised the issues at the trial and in the previous appeal. The court determined that
the allegation was without merit.

        The post-conviction court, likewise, determined that the Petitioner failed to show that
if trial counsel had requested a continuance after receiving the recorded telephone call
involving Ms. Carranza, the outcome of the trial would have been different. This appeal
followed.

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       The Petitioner contends that trial counsel provided ineffective assistance (1) by failing
to investigate the crime scene “more thoroughly” in order to support the request for jury
instructions on self-defense and defense of others, (2) by failing to investigate adequately
and introduce as evidence Ms. Carranza’s pretrial statements in order to support the request
for jury instructions on self-defense and defense of others, and (3) by failing to advise the
Petitioner properly about his decision to testify at the trial. The State responds that the post-
conviction court did not err by denying relief.

        As a preliminary matter, the State asserts that the appeal should be dismissed because
the Petitioner failed to file a timely notice of appeal. Tennessee Rule of Appellate Procedure
4(a) states,

       In an appeal as of right to the . . . Court of Criminal Appeals, the notice of
       appeal required by Rule 3 shall be filed with the clerk of the appellate court
       within 30 days after the date of entry of the judgment appealed from; however,
       in all criminal cases the “notice of appeal” document is not jurisdictional and
       the timely filing of such document may be waived in the interest of justice.

        The post-conviction court’s order denying relief was filed on December 7, 2018. The
notice of appeal was filed with the appellate court clerk on January 11, 2019. This exceeds
the thirty-day time frame in which to file a notice of appeal. The Petitioner’s appellate brief
did not address the untimeliness of the notice of appeal. The State’s appellate brief, which
stated that the notice of appeal was untimely, was filed on July 25, 2019, and the Petitioner
did not submit a reply brief, file a motion, or otherwise respond to the State’s request for a
dismissal of the appeal. We conclude that the interests of justice do not warrant waiving the
timely filing of the notice of appeal in this case. As a result, the appeal is dismissed.

       Based upon the foregoing and the record as a whole, the appeal is dismissed.


                                            ____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




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