FILED

March 12, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

DECEMBER SESSION, 1998

ROBERT J. BURTON, SR., ) C.C.A. NO. 02C01-9807-CC-00226

)

Appellant, )

) WEAKLEY COUNTY

V. ) 

)

) HON. WILLIAM B. ACREE, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (POST-CONVICTION) 

FOR THE APPELLANT: FOR THE APPELLEE:

KENT F. GEARIN JOHN KNOX WALKUP 

317 South Lindell Street Attorney General & Reporter

P.O. Box 169 

Martin, TN 38237 ELIZABETH T. RYAN

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

THOMAS A. THOMAS 

District Attorney General

JAMES T. CANNON

Assistant District Attorney General

414 South Fourth 

P.O. Box 218

Union City, TN 37281

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Robert J. Burton, Sr., appeals the order of the W eakley County

Circuit Court dismissing his petition for post-conviction relief. In this appeal,

Petitioner argues that his trial counsel was ineffective. After a careful review of the

record, we affirm the judgment of the trial court.

On September 8, 1994, Petitioner was convicted of one count of rape and one

count of incest. Petitioner was sentenced as a Range I Standard Offender to

concurrent sentences of twelve (12) years for the rape conviction and six (6) years

for the incest conviction. Petitioner appealed the convictions and this Court affirmed

both the convictions and the sentences. See State v. Robert J. Burton, Sr., C.C.A.

No. 02C01-9507-CC-00193, Weakley County (Tenn. Crim. App., Jackson, June 10,

1996). Petitioner filed a pro se petition for post-conviction relief and the trial court

subsequently appointed counsel to represent him at the hearing. On May 18, 1998,

the trial court entered an order denying Petitioner’s petition for post-conviction relief,

finding that he did receive the effective assistance of counsel. In this appeal,

Petitioner again contends that he did not receive the effective assistance of counsel

in that his trial counsel failed to investigate and prepare his case. Specifically, he

contends that his counsel failed to interview the victim, the school guidance

counselor, the victim’s school friends, and other possible alibi witnesses. 

The pertinent facts as set forth in this Court’s previous opinion are as follows:

On the afternoon of Friday, March 25, 1994, [Petitioner]

invited his thirteen-year-old daughter S.B. to accompany

him to his workshop. Once there, S.B. assisted

[Petitioner] in the repair of an air conditioner. After some
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period of time, [Petitioner] approached S.B., pulled down

her shorts and underwear, and pushed her back onto a

couch. [Petitioner] then unbuttoned and unzipped his

pants, kneeled down on top of S.B., and vaginally

penetrated her. Having ejaculated, [Petitioner] returned to

his work on the air conditioner. After ten or fifteen

minutes, [Petitioner] and S.B. left the workshop together

and returned home.

On the following Thursday, S.B. told Sherry Page, her

school guidance counselor, about the incident. At the

behest of Ms. Page, S.B. then told her mother. Ms. Page

contacted the Department of Human Services and asked

the agency to investigate S.B.’s claim. The Department of

Human Services interviewed S.B. on the following Monday

and arranged for Dr. Susan Brewer, a pediatrician, to

examine her for signs of sexual abuse. During the

examination, S.B. again recounted the details of the

incident. The physical examination revealed that S.B.’s

hymenal opening was enlarged for her age and that she

had significant vaginal scarring, as a result of “tears” in the

vaginal tissue. Dr. Brewer stated that these physical

characteristics indicate vaginal penetration.

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

allegations of fact by clear and convincing evidence. Tenn. Code Ann. § 40-30-

210(f). When reviewing the dismissal of a post-conviction petition, this Court must

affirm the judgment of the trial court unless the evidence in the record preponderates

against the judgm ent. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

In determining whether counsel provided effective assistance at trial, the court

must decide whether counsel’s performance was within the range of competence

demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To succeed on a claim that his counsel was ineffective at trial, a

petitioner bears the burden of showing that his counsel made errors so serious that

he was not functioning as counsel as guaranteed under the Sixth Amendment and

that the deficient representation prejudiced the petitioner resulting in a failure to
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produce a reliable result. Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct.

2052, 80 L. Ed. 2d 674, reh’g denied, 467 U.S. 1267 (1984); Cooper v. State, 849

S.W.2d 744, 747 (Tenn. 1993); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990).

To satisfy the second prong the petitioner must show a reasonable probability that,

but for counsel’s unreasonable error, the fact finder would have had reasonable

doubt regarding petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable

probability must be “sufficient to undermine confidence in the outcome.” Harris v.

State, 875 S.W .2d 662, 665 (Tenn. 1994) (citation omitted). 

When reviewing trial counsel’s actions, this Court should not use the benefit

of hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard v.

State, 629 S.W.2d 4, 9 (Tenn. 1982). Counsel’s alleged errors should be judged at

the time they were made in light of all facts and circumstances. Strickland, 466 U.S.

at 690; see Cooper, 849 S.W.2d at 746.

In determining whether this Petitioner has satisfied these requirements, this

Court must give the findings of the trial court the weight of a jury verdict, and the

judgment of the trial court will not be reversed unless the evidence contained in the

record preponderates against the findings of fact made by the trial court. State v.

Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).

We have reviewed Petitioner’s various claims and we find that Petitioner has

failed to present any evidence that shows that his attorney represented him in any

other manner than competently. We should note that Petitioner did not testify at his

post-conviction hearing. Petitioner first claims that counsel’s failure to interview the

victim prejudiced his case. However, Petitioner failed to provide any proof at his
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hearing that the victim would have agreed to be interviewed or that a pre-trial

interview would have provided counsel with any additional information.

Secondly, Petitioner claims that trial counsel failed to interview other witnesses

such as the school guidance counselor, the victim’s school friends, and the mother

and brother of Petitioner’s alibi witness. Petitioner claims that he was prejudiced by

trial counsel not interviewing these witnesses. However, none of these witnesses

were presented at the post-conviction hearing to state what they would have testified

to had they been called at trial. There is no evidence that these witnesses’

purported testimony would have in any way helped Petitioner’s case. In its Order

dismissing Petitioner’s petition, the trial court stated the following:

What the petitioner means is that trial counsel failed to

produce alibi witnesses. At the trial, one alibi witness

testified. The petitioner now insists that the alibi witness’

mother and perhaps his brother could have corroborated

the alibi. These witnesses did not testify at the postconviction hearing, and it would be conjecture to conclude

that their testimony would have been of benefit to the

petitioner. 

We agree with the trial court’s findings. Petitioner cannot expect this Court to

speculate on the question of whether further investigation of a witness or failure to

call a witness would have produced evidence favorable to this case. See Black, 794

S.W.2d at 757. Petitioner is not entitled to relief from his conviction unless he can

produce material witness who would have testified favorably in support of his

defense. See id. at 758. 

In conclusion, the evidence contained in the record does not preponderate

against the trial court’s finding that Petitioner received the effective assistance of

counsel. 
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Accordingly, the judgment of the trial court is affirmed.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

JOHN EVERETT WILLIAMS, Judge