         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 12, 2006

                    CARLOS ANGEL v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 2001-B-858    Cheryl Blackburn, Judge



                   No. M2005-02966-CCA-R3-PC - Filed December 29,2006


The petitioner, Carlos Angel, appeals the denial of his petition for post-conviction relief, arguing that
the post-conviction court erred in finding that he received the effective assistance of trial counsel.
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

ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and D. KELLY
THOMAS, JR., JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Carlos Angel.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                                FACTS

       The petitioner was convicted of aggravated sexual battery by a Davidson County Criminal
Court jury in May 2002 and was sentenced by the trial court to ten years at 100% in the Department
of Correction. This court affirmed his conviction and sentence on direct appeal. See State v. Carlos
Salvador Angel, Jr., No. M2002-02982-CCA-R3-CD, 2004 WL 367715, at *1 (Tenn. Crim. App.
Feb. 27, 2004). Our direct appeal opinion recites the circumstances surrounding the petitioner’s
crime:

                On the evening of June 18, 2000, Christina Tu agreed to babysit her friend’s
        ten-year-old daughter. Present at Ms. Tu’s apartment that evening was the
        [petitioner], who was Ms. Tu’s boyfriend, Ms. Tu’s two children, the [petitioner’s]
        two children, and the ten-year-old victim. Eventually, everyone retired to their
        bedrooms, with the exception of the victim, who remained in the living room
        watching television.

                After everyone went to bed, the [petitioner] returned to the living room
        wearing only his boxers and a shirt. After checking his computer e-mail, he laid on
        the couch. At this time, the victim was lying on the second couch, still watching
        television. The [petitioner] asked the victim to sit on his lap, and she complied. The
        [petitioner] then asked if she had ever seen a man’s “privates.” She responded, “no.”
        He then asked the victim if she wanted to see a man’s “privates.” Again, she
        responded, “no.” The [petitioner] then cupped the victim’s chin in his hand, turned
        her head toward him, and asked if she wanted to kiss him. At this point, the victim
        turned away from the [petitioner].

                The [petitioner] proceeded to place his hand under the victim’s shirt and
        began rubbing her stomach. Gradually, the [petitioner] moved his hand upward until
        he was fondling her breasts. This behavior continued for approximately five minutes.
        The [petitioner] then removed his hand and obtained the victim’s promise that she
        would not repeat what happened.

Id.

        On February 22, 2005, the petitioner filed a pro se petition for post-conviction relief, alleging
that he was denied the effective assistance of trial counsel. Post-conviction counsel was appointed
and on June 24, 2005, the petitioner filed an amended petition in which he alleged that counsel was
ineffective for failing to call the petitioner’s son, who had observed a portion of the encounter
between the petitioner and the victim, as a witness at his trial.

        The petitioner and trial counsel each testified at the September 14, 2005, evidentiary hearing.
In addition, the petitioner introduced the August 17, 2005, deposition testimony of his son, Anthony
Michael Angel, as an exhibit to the hearing. The petitioner testified that he met with trial counsel
at her home four or five times prior to trial, where they discussed the facts and details of his case.
He said he also spoke with her once by telephone to tell her that his son’s uncle had mentioned that
Anthony might have information that would be helpful to his case. The petitioner stated that trial
counsel made an appointment to meet with him and Anthony and that she subsequently spoke with
Anthony for about ten to fifteen minutes outside the petitioner’s presence. Afterwards, she told the
petitioner that Anthony said that he had overheard the petitioner asking the victim to get off his lap.
However, she also told the petitioner that she did not think that Anthony would make a very credible
witness. The petitioner testified that trial counsel did not explain her reason for thinking that
Anthony would not be a good witness and that he did not question her judgment in the matter.

         In the deposition, Anthony, who was eleven years old at the time of the incident, testified that
he went to the kitchen to get a drink of water during the time that the victim and the petitioner were
in the living room. During his trip, which took “[a] few minutes, tops,” he saw the victim “jumping


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around” on the petitioner’s lap and overheard the petitioner asking her “a couple [of] times” to get
off. Anthony testified that the day after his father’s arrest he told a family friend, Robin, about what
he had seen. He said he later talked to trial counsel about what he had seen and overheard.
However, he was unable to remember very much of his conversation with trial counsel or the
circumstances surrounding their meeting. Anthony further testified that the victim was sitting
sideways on the petitioner’s lap with her back turned toward Anthony. He acknowledged that he
therefore would have been unable to see the position of the petitioner’s hands, or whether the
petitioner had been touching the victim’s breasts.

         Trial counsel testified that she had been licensed to practice law in Tennessee since 1991 and
had also been licensed to practice law in Georgia and in England and Wales. She said she was
initially retained by the petitioner, was subsequently appointed by the trial court, and eventually
represented the petitioner through his trial and the direct appeal of his conviction. Referring to her
notes, trial counsel testified that she interviewed Anthony on February 13, 2001, in the presence of
the petitioner. According to her notes, Anthony told her that he had gone to get a quick drink of
water and had seen the victim “jumping around” in the living room. She said Anthony told her that
he was in the kitchen for two or three minutes before returning to his bedroom.

        Trial counsel testified that she had nothing in her notes about Anthony’s having seen the
victim on the petitioner’s lap or having overheard the petitioner asking her to get off his lap. She
further testified that she would have considered such details important and would have recorded
them in her notes. Trial counsel stated that she told the petitioner that she did not believe Anthony’s
testimony would help his case and why:

                 I don’t remember the specifics of it, but we discussed whether or not there
       would be a value in terms of him being a witness, and I explained to him what I just
       explained, which is that I didn’t think there was enough similarity between
       Anthony’s testimony and what his [the petitioner’s] testimony at trial was going to
       be; that it . . . was simply a snapshot in time of two to three minutes. It didn’t -- it
       certainly didn’t negate everything from happening. I think there’s . . . a risk of
       putting a child on in a case like that. I think you have to deal with a juror -- jurors
       getting particularly upset about something like that. I just didn’t -- I didn’t think that
       the benefit outweighed any risk that we had in terms of if there were inconsistencies
       that were brought up between [the petitioner’s] testimony and Anthony’s testimony.

       On cross-examination, trial counsel testified that it was her habit to take very thorough notes
when interviewing a witness.

       On December 19, 2005, the post-conviction court entered an order denying the petition for
post-conviction relief, finding that the petitioner had not met his burden of demonstrating that
counsel was deficient for failing to call Anthony as a witness or that he was prejudiced as a result
of counsel’s alleged deficiency. Thereafter, the petitioner filed a timely appeal to this court.



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                                              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) (2003). 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 issue 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); State v. Burns, 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, 104 S. Ct. 2052, 2064 (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
        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, 104 S. Ct. at 2064.

         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, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). 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, 104 S. Ct. at 2068.

         The record in this case fully supports the findings and conclusions of the post-conviction
court. On appeal, the petitioner bases his ineffective assistance of counsel claim on trial counsel’s
failure to call his son, Anthony, as a corroborating witness at trial. However, trial counsel, who said
that she took very good notes when interviewing witnesses, testified that she had written nothing
about Anthony’s having overheard the petitioner asking the victim to get off his lap. She also


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testified that she would have found such a detail important and would have recorded it in her notes
had Anthony related such information to her. Instead, her notes reflected only that Anthony had
made a very quick trip to the kitchen for water and, during the trip, had seen the victim “jumping
around” in the living room with the petitioner. Trial counsel also recorded in her notes that Anthony
was unable to provide many details of the scene. We agree, therefore, that the petitioner has not
shown that trial counsel was deficient for failing to call Anthony as a witness or that Anthony’s
testimony would have altered the outcome of his trial.

                                         CONCLUSION

       We conclude that the petitioner has not met his burden of showing that he is entitled to
post-conviction relief from his conviction. Accordingly, we affirm the denial of the petition for
post-conviction relief.

                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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