# FILED
Au gust 15, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE JULY 1997 SES SION

DEBBIE LEE GIVENS, ) ) C.C.A . NO. 01C01-9608-CR -00372 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDA LL WYATT, STA TE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-conv iction)

FOR TH E APPEL LANT: FOR THE APPELLEE: SAM E. WA LLACE, SR. JOHN KNOX WALKUP -and- Attorney Gen eral & Repor ter SAM E. WA LLA CE, JR. 227 Second Ave. North CL IN TO N J . M OR GAN Nashvil le, TN 37201 Counsel for the St ate 450 Jame s Rob erts on Pk wy. Nashvil le, TN 37243-0493 VICTOR S. JO HNSON, III Distric t Attorney General NICHOLA

S D. BA ILEY Asst. Dist rict Attor ney General 222 Second Ave. North Washington Square, Suite 50 0 Nashvil le, TN 37201

OPINION FILE D:____________________

AF FIRMED JOHN H. PEA Y, Judge O P I N I O N2 A jury convicted thepetitioner of ag gravated assault on De cember 9, 1992. Aftera hearing, she was sentenced as a Range II multiple of fender to ten years . O n December

4, 1995, the petit ioner filed for post-convic tion relief. An evidentiaryhearing was held, and the post-conv iction cour t dismissed her

petition. It is from this dismi ssal that she now appeals.

In this post-conviction proceeding, t he pe titioner al leges that her trial counsel were in effective in their representation. Specifically , she claims that counsel failed to adequately

cross-examine the vic

tim and the vi ctim’s doctor and that appellat e counsel failed to file an app lication for permission t o appeal to the Supreme Court. After a review of the record , we find no merit to these a llegations . Thus, we affirm the judgm ent o f th e cou rt be low.

The petitioner’ s convic

tion stems from an i ncidentin whic h she attacked an eighty-four-year-old man in his home. At trial, an issue for the jury to decide was whether the victim h ad suffered “seriou s bodily injury, ” a material element of the offense with which she was c harged. The v ictim and the v ictim’s doc tor testified about the extent of the victim’ s injuries
. The doctor testi fied that the victim had received a “broken nose” in the altercation and that such an i njury i s “very painful.” The doct or never u sed the term “ext reme physical pain,” one of the statuto ry definitions f or se rious bodil y injur y. See T.C.A. § 39-11-106(a) (33). The petit ioner now claims that her defense counsel, R ob Robinson and Robert P. Ballinger, were ineffective for not pressing the doct or to explain exactly what he meant by

“very painful.”

At the pos t-convict ion hea ring, the petitioner testified that

she thought her att or neys should have asked the doctor mo re questions about the victim’s injuries.3

Spec ific ally, she testified that the y should have asked the doctor what he meant by “very painful.” She further testified that she simply felt her attorneys could have done a bett er job representing her.

Mr. Robinson and Mr. Ballinger also testified at the hearing. Mr. Robinson, an assistant public defender , testified that h e had thought the doctor’s testimony had been beneficial to the petitio ner’s case because the doctor did not use thestatutory term “ext reme physical pain.” Thus, he thought it unw ise to continu e to ask questi ons which might produce a less favorable answer.

Mr. Ballinger, also an assistant public defender, te stified that he too thought the doctor’s testimony had been f avorable to the petition er. He testi fied that he had felt that the State failed to carr y its bur den of proving to the jury that the vi ctim had suffered “seriousbodily i njury.”He further testified that t he vic tim had not been concise in describing his pain and that the vi ctim’s testi monyhad bee n suff iciently at tacked through cross-examination. Mr. Ball inger testified that he had asked the court for a j udgment of acquittal because the State had failed to ca rry its burden of proof. W hen the court denied this reque st, Mr . Bal linge r the n ma de th e sam e argu men t to t he ju ry. After the petitioner’s conviction, this issue was raised on appeal.

“In pos t-conv iction rel ief proceedings the petitioner

has the burden of proving the allegations in his [or her] petition by a preponde rance of the evidence
. ” McBee v. State , 655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furt hermore, the factual findin gs of the trial court in he arin gs “are conclusive on appeal unless the evidence preponderatesagainst the judgment.” State v. B uford , 6 66 S.W.2d 473, 475 (Tenn. Crim. App. 1983).

In review ing the pe titio ner’ s Sixth Amen dme nt cla im of inef fec tive4

assistance of couns el, this Cou rt must determi ne whether t he advice g iven or s ervices rendered by the attorney are within the range of compete nce demanded of attorneys in criminal cases. Baxter v
. Ro se , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of i neffective counse l, a petitioner “must show that counsel’s represen tation fell below an objective standard of reason ableness” and that this performance preju diced the defense. There must be a reasonable probabi lity that but for counsel’s error theresult of the proceeding would have been different. Strickland v. Washington , 466 U.S. 668, 687-88, 692, 694 (1984); Best v. Stat e , 708 S.W.2d 421, 422 (Tenn. Crim. App. 1985).

This Court should not second-g uess trial counsel’s tac tical a nd strategic choices unless those choices w ere uninformed becaus e of inadequate pre paration, Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to have been ineffe ctive merely because a dif feren t pro cedu re or s trat egy mig ht ha ve produced a different result. Williams v. State , 599 S.W.2d 276, 280 (Tenn. Crim. App. 1980).

In this ca se, the post-conviction court foun d that Mr. Robinson and Mr
. Ballinger were hi ghly co mpe tent and e xperi ence d att orne ys and thatthe petitioner failed to carry her burden of proving her alleg ations b ya p r e p o n d e r a n c e o f t h e e v i d e n c e . We agree.
First, the petitioner has failed to show that her counsel’s d eci sions not to further question the doctor or the victim were in any way ineffective. As noted above, this Court will not second gues s the t actical dec isions of attor neys. Second , the petitioner has failed to prove t hat she was in any way prejudiced by her attorneys’ representations. She has failed to pr

ovide any

information that had her attorneys further questioned the doc toror t he vic tim, the a nswer s would have b een more favo rabl e to h er. T hus, we5

affirm the conclusi on of the trial court. The petiti oner’s clai m is devoid of merit.

The petitioner’s se cond co mplaint is that her appellate counsel, Jeffe ry DeVasher, failed to file an app lication for pe rmission to appeal to the Sup r eme Court. The appellant has waived this issue because she has failed to cite authority to suppo rt her argument. R ules of the Court of Criminal Appeal s of Tennes see 10(b); Stat e v. Killebrew , 760 S.W.2d 228, 231 (Tenn. Crim. App. 198 8). In fact, her whole argument on this p oint cons ists o f two sent ence s. Howe ver, we briefly not e that Mr. D eVasher testified at the post-co nviction hearing that after the completion of the petitioner ’s appeal to this Court , he had filed a motion t o withdraw from further r epresentation. The motion was granted, and Mr. DeVasher informe d the petitioner of such . He also in formed her of her right to file an applicat ion for permiss ion to appeal and t he time deadlines fordoing so. Thus, this issue is al so devoid of mer it.

For th e fo regoi ng rea sons , we af firm the j udgm ent o f th e cou rt be low.

_ ___________

____________________ _ JOHN H. PEA Y, Judge

CONCUR:

W ILLIAM M. BARKER, Judge

_______________________________ JERRY L. SMI TH, Jud ge