IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 19, 2018

PAUL BRENT BAXTER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Marshall County

No. 17-CR-36-PCRFranklin L. Russell, Judge

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No. M2017-01230-CCA-R3-PC

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The petitioner, Paul Brent Baxter, appeals the denial of his post-conviction petition, 

arguing the post-conviction court erred in finding he received effective assistance of 

counsel at trial. Within the context of his post-conviction claims, the petitioner argues

trial counsel was ineffective for failing to object to the State asking the victim to compare 

her pain level as a result of the petitioner’s assault to the pain she experienced at other 

points in her life. Following our review, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,

P.J. and TIMOTHY L. EASTER, J., joined.

Matthew D. Wilson, Mississippi State, Mississippi, for the appellant, Paul Brent Baxter.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel; 

Robert J. Carter, District Attorney General; and Weakly E. Barnard, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural History

A. Trial

On direct appeal, this Court summarized the facts surrounding the petitioner’s 

convictions and sentence, as follows:

12/14/2018
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On May 20, 2015, [the petitioner] was indicted with three counts of 

aggravated assault. At trial, Emma Christina Rowe testified that she had 

been in a romantic relationship with [the petitioner] for over two years.

The couple lived together in Culleoka at the home of [the petitioner]’s 

mother. On the night of May 24, 2014, the couple had an argument. When 

[the petitioner] went to sleep, Ms. Rowe called her mother, who lived about 

twelve miles away in Cornersville. Ms. Rowe’s mother drove to Culleoka 

and picked up Ms. Rowe.

On the following morning, around 8:00 a.m., [the petitioner] called 

Ms. Rowe and asked if he could pick her up. Ms. Rowe answered 

negatively and hung up. [The petitioner] called back immediately and 

again requested to pick up Ms. Rowe. She declined once more, and [the 

petitioner] then offered to provide her with prescription pills if she would 

agree to let him pick her up. Ms. Rowe testified that she had previously 

broken her back in a horrific automobile accident and was addicted to pain 

medication. However, Ms. Rowe again refused to allow [the petitioner] to 

pick her up. [The petitioner] then told Ms. Rowe that his mother “put a 

warrant on [Ms. Rowe] for a theft.” Ms. Rowe inquired about the reason 

for the warrant, and [the petitioner] said that she had stolen jewelry from 

his mother. [The petitioner] admitted, however, that he and his mother 

knew that Ms. Rowe actually had not done so. [The petitioner] said that his 

mother would “drop” the warrant, if Ms. Rowe agreed to let [the petitioner]

pick her up. Feeling frightened, Ms. Rowe agreed.

[The petitioner] and his mother arrived to pick up Ms. Rowe in a 

two-door car, which [the petitioner]’s mother was driving. When Ms. 

Rowe came to the car, [the petitioner] got out of the passenger side, moved 

the passenger seat forward, and let Ms. Rowe into the backseat. [The 

petitioner] then slid the passenger seat back and sat in the front seat. [The 

petitioner]’s mother began driving them back to her house. At this point, 

[the petitioner] and his mother were being “really nice” to Ms. Rowe.

After three or four minutes of travel, [the petitioner] “started yelling” 

at Ms. Rowe, saying, “Why did you leave me for? You’ll never leave me

again.” While yelling, [the petitioner] turned around, hit Ms. Rowe in the 

face with his open palm “quite a few” times, and also pulled her hair. 

Then, [the petitioner] began squeezing her neck with his right hand “to the 

point where [she] couldn’t breathe.” Ms. Rowe felt like she was “going to 

pass out,” so she hit [the petitioner]’s head with a glass Sundrop bottle, 

which she had brought with her. [The petitioner] released Ms. Rowe’s neck 
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and then “punched” her right eye with his closed fist. [The petitioner] told 

his mother to stop the car, which she did. [The petitioner] opened the 

passenger side door, reached into the backseat, grabbed Ms. Rowe’s hair, 

and pulled her out of the car through the space between the front seats. He 

then threw Ms. Rowe down onto the road and began “punching,” 

“smacking,” and “kicking” her “all over [the] face” while yelling about her 

leaving him. Ms. Rowe tried to shield herself with her hands.

Eventually, [the petitioner] quit hitting Ms. Rowe. He pulled her up 

by her hair then grabbed her neck and shoved her into the passenger seat.

Ms. Rowe quickly crawled into the backseat, attempting to put distance 

between herself and [the petitioner]. [The petitioner]’s mother began 

driving the car toward Culleoka, and [the petitioner] continued to hit Ms. 

Rowe “a few more” times. Once they began driving on the interstate, [the 

petitioner] stopped hitting Ms. Rowe.

When they returned to the home of [the petitioner]’s mother, [the 

petitioner] left the car, went inside the house, and went to sleep on the 

couch. Ms. Rowe limped out of the car and sat on the porch with [the 

petitioner]’s mother. Ms. Rowe was in “extreme physical pain.” Her face 

hurt and her right leg was “hurting really bad[ly].” She told [the 

petitioner]’s mother that she thought her leg was broken. [The petitioner]’s 

mother allowed Ms. Rowe to use the phone, and Ms. Rowe called her 

mother and told her to pick her up at a store located about half a mile away.

[The petitioner]’s mother accompanied Ms. Rowe to the store, and Ms. 

Rowe waited for her mother. When Ms. Rowe’s mother arrived, she drove 

Ms. Rowe to the emergency room at Marshall Medical Center in 

Lewisburg.

Upon admission to the hospital, Ms. Rowe reported experiencing 

maximum pain on a scale of one to ten, which is considered extreme 

physical pain. An x-ray of Ms. Rowe’s leg revealed a fracture near her 

ankle. A CAT scan of her head and face revealed multiple fractures around 

her left eye. All of these fractures were consistent with [the petitioner]’s 

behavior as described by Ms. Rowe. Medical personnel placed a splint on 

Ms. Rowe’s leg, gave her crutches, and instructed her to visit an orthopedic 

doctor for additional treatment. Ms. Rowe followed this advice, and her leg 

was placed in a cast. She did not have full use of her right leg for 

approximately three months. In addition to the splint, Ms. Rowe was given 

pain medication and antibiotics.
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State v. Paul Brent Baxter, No. M2016-00049-CCA-R3-CD, 2016 WL 5831616, at *1-2 

(Tenn. Crim. App. Sept. 30, 2016), no perm. app. filed.

B. Post-Conviction Hearing

While the post-conviction hearing covered several issues, the facts most relevant 

to this appeal concern trial counsel’s decision not to object to the State’s questioning of 

the victim about her pain level. More specifically, the petitioner questioned trial counsel 

if he recalled the State questioning the victim about prior incidents in which she 

experienced pain and comparing those incidents to the pain she experienced as a result of 

the petitioner’s assault. After acknowledging he remembered the State’s line of 

questioning, trial counsel explained,

I felt like the prosecutor had a right to inquire within the level of 

pain, so the jury would understand how much pain that [the victim] was in. 

The doctor testified as to, I believe she testified to pain was severe, ten out 

of ten, maybe. And I felt like the prosecutor had a right to ask [the victim] 

about the degrees of pain, so the jury would understand.

Trial counsel went on to state that whether he liked the line of questioning or not was not 

the issue. He did not object because he believed the State had a right to establish a 

baseline for the victim’s pain and the testimony was, therefore, admissible. 

In contrast, the petitioner testified he believed trial counsel should have objected 

to the State’s questioning. According to the petitioner, the State’s questioning was an 

attempt to make the jury feel sorry for the victim by “playing on the jury[’s]” sympathies

and unduly prejudiced him. 

In denying relief on this claim, the post-conviction court concluded:

Evidence of past painful experiences in the life of Ms. Rowe, the 

victim, for example, injury in an automobile accident, was highly relevant 

to the jury in evaluating the seriousness of the victim’s injuries. The 

testimony provided a baseline for the victim’s pain threshold and provided 

comparisons in Ms. Rowe’s life that allowed the jury to determine just how 

“extreme” the pain was that resulted from the [petitioner]’s beating of the 

victim.

The State might have attempted, unsuccessfully, to slip in evidence 

of the injuries to Ms. Rowe suffered as a result of the [petitioner]’s prior 

and subsequent beatings of Ms. Rowe. Such evidence would have inflamed 
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the jury and had an “unfair prejudicial effect” on the jury. However, the 

testimony concerning tough life experiences, not caused by the [petitioner], 

could not possibly have inflamed the jury. At most evidence of such 

accidental injuries might make the victim a very slightly more sympathetic 

figure, but not to the point of outweighing the probative value of having 

something to which the victim could compare the pain from the 

[petitioner]’s beating of Ms. Rowe.

Following the post-conviction court’s decision, the petitioner filed this timely appeal.

Analysis

On appeal, the petitioner contends the post-conviction court erred in denying his 

claim of ineffectiveness of trial counsel. He argues he was unduly prejudiced by trial 

counsel’s failure to object to the State’s questioning of the victim about prior injuries and 

levels of pain. Upon our review of the applicable law, the record on appeal, and the 

arguments of the parties, we affirm the judgment of the post-conviction court.

Post-conviction relief is available when a “conviction or sentence is void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. 

Criminal defendants are constitutionally guaranteed the right to effective assistance of 

counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const. 

amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective 

assistance of counsel is made under the Sixth Amendment to the United States 

Constitution, the burden is on the petitioner to show (1) that counsel’s performance was 

deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 

668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

Deficient performance requires a showing that “counsel’s representation fell 

below an objective standard of reasonableness,” despite the fact that reviewing courts 

“must indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires 

proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 694. “Because a petitioner must 

establish both prongs of the test, a failure to prove either deficiency or prejudice provides 

a sufficient basis to deny relief on the ineffective assistance claim.” Goad v. State, 938 

S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to 

counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772 

S.W.2d 417, 419 n.2 (Tenn. 1989).
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The burden in a post-conviction proceeding is on the petitioner to prove his 

allegations of fact supporting his grounds for relief by clear and convincing evidence. 

Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94. On appeal, we 

are bound by the trial court’s findings of fact unless we conclude that the evidence in the 

record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn.

2001). Additionally, “questions concerning the credibility of the witnesses, the weight 

and value to be given their testimony, and the factual issues raised by the evidence are to 

be resolved” by the post-conviction court. Id. Because they relate to mixed questions of 

law and fact, we review the trial court’s conclusions as to whether counsel’s performance 

was deficient and whether that deficiency was prejudicial under a de novo standard with 

no presumption of correctness. Id. at 457.

During the petitioner’s trial, the State, in an attempt to establish the elements of 

aggravated assault, questioned the victim about her level of pain resulting from her 

injuries suffered during the petitioner’s attack. More specifically, the State asked the 

victim to compare her pain after the attack to pain she had experienced during other times 

of her life. It was during this portion of the trial that the following exchange took place

between the State and the victim:

Q: So that the ladies and gentlemen of the jury understand your 

pain level at the time you got to that hospital, I want to go with your 

experiences, because you were the one who was experiencing the pain that 

day.

A: Yes, sir.

Q: Out of those four events, two broken legs and injuries, broken 

back and a car wreck.

A: Uh-huh.

Q: Childbirth, heart attack, and the pain you had on May 25th. 

Of those four, which was the worse pain you had ever had?

A: The car wreck was the worst pain.

Q: The car wreck was number one?

A: Uh-huh.
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Q: How did this pain that you had on May 25th, compare to 

childbirth?

A: It was worse than the childbirth.

Q: And how did this pain that you had on May 25th, compare to 

the heart attack?

A: It was worse, worse than the heart attack.

Q: So your pain was worse with the car wreck. Next came this 

beating on May 25th. And then the childbirth and the heart attack were 

less?

A: Right.

Q: So, when you say 10 in extreme physical pain, that’s what 

you mean?

A: That’s what I mean, yes, sir.

. . .

Q: And what did you tell them your pain level was when you 

went to that hospital?

A: It was a 10.

The petitioner contends this line of questioning “invariably evoked some measure of 

sympathy from the jury. That in turn would have bolstered [the victim’s] testimony 

regarding the abuse she allegedly received from the [petitioner].” We disagree.

Trial counsel testified he did not object because he believed the State had a right to 

inquire about the victim’s pain level and place it in context so the jury could understand. 

Thus, trial counsel made a strategic decision not to object. “[I]n reviewing counsel’s 

conduct, a ‘fair assessment of attorney performance requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 

challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.’” 

Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992) (citing Strickland, 466 

U.S. at 689, and Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982) (stating that “counsel’s 

conduct will not be measured by ’20-20 hindsight’”)). Additionally, as found by the 
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post-conviction court, this testimony was “highly relevant to the jury in evaluating the 

seriousness of the victim’s injuries” and “provided a baseline for the victim’s pain 

threshold and . . . allowed the jury to determine just how ‘extreme’” the victim’s pain was 

as a result of the petitioner’s attack. The petitioner has, therefore, failed to show counsel 

was deficient.

Finally, even if this Court were to find counsel deficient for failing to object to the 

questions about the victim’s prior injuries, the petitioner has failed to establish how he 

was prejudiced by trial counsel’s actions. As found by the post-conviction court, the 

proof at trial establishing the victim’s pain level and the seriousness of her injuries was 

overwhelming. Per the victim’s medical records, she suffered numerous fractures to both 

her ankle and around her eye. She reported to medical personnel that she was 

experiencing maximum pain. Based on the victim’s testimony as well as the medical 

proof, the evidence the victim suffered serious bodily injury and extreme pain as a result 

of the petitioner’s attack was overwhelming, and the testimony concerning prior injuries 

had little, if any, effect on the jury and the verdict. To establish the prejudice prong, a 

petitioner must show that “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. The petitioner, therefore, has failed to 

establish the prejudice prong of Strickland and is not entitled to post-conviction relief.

Conclusion

Based on the foregoing, we affirm the judgment of the post-conviction court.

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 J. ROSS DYER, JUDGE