IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 24, 2009

STATE OF TENNESSEE v. BARBARA JEAN TOTTY

Direct Appeal from the Circuit Court for Hickman County

No. 07-5112CR Jeffrey S. Bivins, Judge

No. M2009-01149-CCA-R3-CD - Filed February 2, 2010

The Appellant was convicted in the Hickman County Circuit Court of driving under the

influence. She was sentenced to 11 months and 29 days, to be served on probation. She

appeals, asserting she received ineffective assistance of counsel. Because both her brief and

the record she provided are inadequate under our rules, we affirm.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Barbara Jean Totty, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Kim R. Helper, District Attorney General; and Michael J. Fahey, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

From the scant record before us, we understand the facts to be as follows. On March

30, 2006, officers responded to an automobile accident at Linden Highway and Highway 50

West in Hickman County. Upon arriving at the scene, the officers discovered Appellant’s

car in a ditch. Appellant was the driver of the car, and as officers began to question her, they

became suspicious that she was under the influence of an intoxicant. Although she did not

smell of alcohol, her speech was slurred and she was unsteady on her feet. She was unable
to perform three requested sobriety tests, and the officers found several bottles of medication

in her purse, including Wellbutrin, Xanax, and Hydrocodone. The officers asked her to

submit to a blood test, but she refused.

A Hickman County grand jury charged her with violating Tennessee Code Annotated

§ 55-10-401, a Class A misdemeanor. She was convicted after a jury trial on May 1, 2008.

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Appellant’s sole issue on appeal is thatshe received ineffective assistance of counsel.

Essentially, she argues that her counsel was ineffective because he failed to convey valid

explanations to the jury and the trial court as to why she appeared intoxicated and why she

refused to submit to a blood test. Appellant claims she has numerous medical problems that

cause slurred speech and may erroneously indicate she is intoxicated. She also claims that

because of a prior traumatic medical experience at Hickman County Hospital, she refused

a blood test. According to Appellant, her trial attorney did not raise these issues. As a result,

Appellant argues that she was deprived of effective counsel at trial.

The State contends that the Appellant has waived review of the issue. First, it notes

that Appellant failed to include a transcript of the trial or a statement of the evidence;

therefore, the record is inadequate. Second, it argues that Appellant’s brief failed to properly

support her arguments with sufficient factual and legal citations.

II. Analysis

Our supreme court has previously explained that an Appellant must provide a

sufficient record on appeal:

When a party seeks appellate review there is a duty to prepare a record which

conveys a fair, accurate and complete account of what transpired with respect

to the issues forming the basis of the appeal. Where the record is incomplete

and does not contain a transcript of the proceedings relevant to an issue

presented for review, or portions of the record upon which the party relies, an

appellate court is precluded from considering the issue. Absent the necessary

relevant material in the record an appellate court cannot consider the merits

of an issue.

State v. Ballard, 855 S.W.2d 557, 560-61 (Tenn. 1993) (citations omitted; emphasis added).

“In the absence of an adequate record on appeal, this court must presume that the trial court’s

Appellant was represented by counsel at trial; however, on appeal she is proceeding pro se. The 1

record reflects that trial counsel was retained and that Appellant is not indigent.

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rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn.

Crim. App. 1991).

The record before us is inadequate. It contains only the technical record and the

parties’ briefs. It does not contain a transcript of the proceedings in the trial court, nor a

statement of evidence. Appellant explained in her brief that “there was neither a [c]ourt

[r]eporter nor [a]ffidavit, there is no record of the facts presented in [c]ourt.” Tennessee

Rule of Appellate Procedure 24(c) provides that, in the absence of a transcript, an appellant

should file a statement of the evidence. Appellant did not do so. As a result, we are unable

to consider the merits of her appeal. See Ballard, 855 S.W.2d at 561.

Moreover, Appellant’s brief is inadequate. Tennessee Court of Criminal Appeals

Rule 10(b) provides that “[i]ssues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this court.”

Appellant’s entire argument consists of the following:

BARBARA JEAN TOTTY, APPELLANT, REQUESTS THIS COURT TO

REVERSE THE TRIAL COURT’S VERDICT FROM “GUILTY” TO “NOT

GUILTY,” DUE TO INEFFECTIVE COUNSEL AND TRIAL COURT

ERROR. AFTER MRS. TOTTY APPEALED IN THE COUNTY

CRIMINAL COURT, THE JUDGE REQUESTED THE DISTRICT

ATTORNEY TO SUBPOENA MRS. TOTTY’S MEDICAL RECORDS FOR

REVIEW. THE DISTRICT ATTORNEY DID NOT PERFORM THIS

TASK, DUE TO LIMITED TIME.

Even giving this a liberal construction because it is a pro se pleading, it does not conform to

Rule 10(b).

Finally, we note that Appellant raises only her claim of ineffective assistance of

counsel. As this Court has previously noted:

[T]he practice of raising ineffective assistance of counsel claims on direct

appeal is fraught with peril since it is virtually impossible to demonstrate

prejudice as required without an evidentiary hearing. Instead, ineffective

assistance of counsel claims should normally be raised by petition for

post-conviction relief.

State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (citations and quotation

marks omitted).

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III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the trial

court.

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NORMA McGEE OGLE, JUDGE

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