         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE        FILED
                            JUNE 1998 SESSION
                                                      July 17, 1998

                                                   Cecil W. Crowson
                                                  Appellate Court Clerk
TWANDA D. WARD,                     )
                                    )    NO. 01C01-9707-CC-00242
      Appellant,                    )
                                    )    MONTGOMERY COUNTY
VS.                                 )
                                    )    HON. JOHN H. GASAWAY, III,
STATE OF TENNESSEE,                 )    JUDGE
                                    )
      Appellee.                     )    (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GREGORY D. SMITH                         JOHN KNOX WALKUP
(Appeal Only)                            Attorney General and Reporter
One Public Square, Suite 321
Clarksville, TN 37040                    LISA A. NAYLOR
                                         Assistant Attorney General
COLLIER W. GOODLET                       Cordell Hull Building, 2nd Floor
(Hearing and Appeal)                     425 Fifth Avenue North
Assistant Public Defender                Nashville, TN 37243-0493
109 South Second Street
Clarksville, TN 37040                    JOHN WESLEY CARNEY, JR.
                                         District Attorney General

                                         ARTHUR F. BIEBER
                                         Assistant District Attorney General
                                         204 Franklin Street, Suite 200
                                         Clarksville, TN 37040-3420




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Twanda D. Ward, appeals the dismissal of her petition for

post-conviction relief. The petitioner was convicted of the first degree murder of

her husband for which she was sentenced to life imprisonment. She was also

convicted of aggravated arson and given a concurrent twenty (20) year sentence.

The sole issue for our review is whether trial counsel was ineffective for failing to

present evidence of “battered woman syndrome.” The judgment of the trial court

is affirmed.



                             PROCEDURAL HISTORY



       The petitioner was convicted by a jury in 1989 of first degree murder and

aggravated arson. This Court affirmed the convictions on direct appeal. State v.

Twanda D. Ward, C.C.A. No. 89-215-III, Montgomery County (Tenn. Crim. App.

filed August 3, 1990, at Nashville). The Tennessee Supreme Court remanded

the case to this Court with instructions to vacate the prior judgment and re-enter

the same to allow the petitioner additional time to file an application for

permission to appeal to the Supreme Court. See State v. Twanda D. Ward,

C.C.A. No. 89-215-III, Montgomery County (Tenn. Crim. App. filed December 20,

1990, at Nashville). The petitioner did not file an application for permission to

appeal to the Supreme Court.



       In March 1993, the petitioner filed a pro se petition for post-conviction

relief alleging ineffective assistance of counsel. That petition was timely filed

under the three-year statute of limitations then in effect. See Tenn. Code Ann. §

40-30-102 (1990). In August 1996, the trial court held an evidentiary hearing on

the matter and issued an order denying relief in February 1997. The petitioner

subsequently filed a timely notice of appeal.




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                    INEFFECTIVE ASSISTANCE OF COUNSEL



         The petitioner alleges the assistance rendered by trial counsel was

ineffective for failing to seek an “extensive” psychological evaluation of the

petitioner in order to present a defense based upon her extreme emotional

disturbances. The petitioner’s emotional disturbances were alleged to be the

result of physical abuse by the victim. This is more commonly referred to as the

“battered woman syndrome.”



                                         A.



         This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The

petitioner has the burden to prove that (1) the attorney’s performance was

deficient, and (2) the deficient performance resulted in prejudice to the defendant

so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. at 687,

104 S.Ct. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994); Butler v. State, 789 S.W.2d 898, 899

(Tenn. 1990).



         The test in Tennessee in determining whether counsel provided effective

assistance is whether his performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d at 936.

The petitioner must overcome the presumption that counsel’s conduct falls within

the wide range of acceptable professional assistance. Strickland v. Washington,

466 U.S. at 689, 104 S.Ct. at 2065; Alley v. State, 958 S.W.2d 138, 149 (Tenn.

Crim. App. 1997); State v. Williams, 929 S.W.2d 385, 389 (Tenn. Crim. App.

1996).




                                          3
       In post-conviction proceedings, the petitioner has the burden of proving

the allegations contained in her petition. Butler v. State, 789 S.W.2d at 899. The

trial court’s findings after a post-conviction hearing are conclusive unless the

evidence preponderates against the judgment. Id.



                                         B.



       The petitioner’s trial counsel, Hugh Poland, testified that he spent sixty-

seven (67) hours investigating and preparing for the petitioner’s trial. Poland had

the petitioner undergo a mental evaluation at the Harriet Cohn Mental Health

Center, where she was found sane at the time of the offense and competent to

stand trial. There was no evidence introduced at the post-conviction hearing that

the petitioner suffered from any mental disease or defect that additional

psychiatric testing would have revealed; therefore, the petitioner has failed to

show prejudice. See Davis v. State, 912 S.W.2d 689, 698 (Tenn. 1995).



       The petitioner testified at the post-conviction hearing that she argued with

the victim over his purchase of a new car. That purchase caused the defendant

to become so angry she bought some gasoline, tied the victim to his bed, poured

the gasoline over him, and set him on fire. The petitioner stated the new car

purchase “just took me over the edge.” She further testified that the victim was

physically abusive to her on only two (2) occasions.



                                         C.



       The petitioner has failed to meet her burden. Even if counsel had argued

“battered woman syndrome” as a defense, the petitioner has not shown a

reasonable probability that the defense would have been successful. The

petitioner, in a cool and calculated manner, tied the victim up, doused him with

gasoline, and set him on fire. The petitioner’s own testimony reveals she killed



                                          4
the victim because she was angry over an automobile purchase, not because

she feared for her safety.



      The evidence does not preponderate against the findings of the trial court.

Accordingly, the judgment of the trial court is AFFIRMED.




                                               _________________________
                                               JOE G. RILEY, JUDGE



CONCUR:




___________________________
CURWOOD WITT, JUDGE




________________________________
R. LEE MOORE, JR., SPECIAL JUDGE




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