IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Jackson January 6, 2015

NAZARIO ARAGUZ v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-B-1141 Steve R. Dozier, Judge

No. M2014-01131-CCA-R3-PC – Filed February 24, 2015

Petitioner, Nazario Araguz, was convicted by a jury of conspiracy to deliver 300 grams or 

more of cocaine in a drug-free school zone and possession with intent to deliver 300 

grams or more of cocaine in a drug-free school zone. He received concurrent seventeenyear sentences. Petitioner filed a petition for post-conviction relief alleging that he 

received ineffective assistance of counsel. After a hearing, the post-conviction court 

denied relief. On appeal, petitioner argues that he received ineffective assistance of 

counsel because trial counsel did not properly advise him regarding his right to testify. 

Following our review, we affirm the judgment of the post-conviction court. 

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

ROGER A. PAGE, J., delivered the opinion of the court, in which ALAN E. GLENN and 

CAMILLE R. MCMULLEN, JJ., joined.

Elaine Hurd, Nashville, Tennessee, for the appellant, Nazario Araguz.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; Victor S. Johnson III, District Attorney General; and John C. Zimmerman, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts

This case stems from a controlled cocaine buy. See State v. Alejandro Neave 

Vasquez and Nazario Araguz, No. M2010-02538-CCA-R3-CD, 2012 WL 5989875, at *1 

(Tenn. Crim. App. Nov. 28, 2012), perm. app. denied (Tenn. Mar. 20, 2013). The police 
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planned for an informant to ask for a kilogram of cocaine from a source but then return 

the cocaine to the source, claiming that it was impure, so that the police could follow the 

cocaine back to what they called a “stash house.” Id. The police observed two Hispanic 

men arrive at the buy location in a Volkswagen Jetta, bring cocaine to the informant, and 

then leave the location with the cocaine. Id. at *1-2. The police followed the Jetta to an 

apartment complex and watched as the driver removed a dark-colored block from the 

trunk and placed it in a white bag. Id. at *3. The Jetta was driven to a gas station, where 

the driver removed the white bag from the Jetta and placed it in a Tahoe. Id. at *2-4. The 

Tahoe was driven by co-defendant Jose Aragus. Id. at *4. Aragus drove the Tahoe to a 

home on Strand Fleet Drive. Id. Thereafter, petitioner and co-defendant Alejandro 

Vasquez arrived at the Strand Fleet Drive house in a brown Ford F-150 with a license 

plate reading, “Araguz.” Id. The police observed Vasquez carrying a white bag that he 

placed in the engine compartment of the F-150. Id. Petitioner and Vasquez then left 

Strand Fleet Drive with petitioner driving the F-150. Id. The police stopped petitioner 

and Vasquez on Richards Road after petitioner had driven past an elementary school. Id.

at *2, *4-5. At a hearing on petitioner‟s motion to suppress, one of the police officers 

noted that he did not offer an interpreter to petitioner because he communicated 

sufficiently in English. Id. at *2. The police recovered a block of cocaine from the 

engine compartment of the truck, as well as approximately $123,000 from the interior of 

the truck. Id. Subsequently, petitioner was indicted, tried, and convicted of conspiracy to 

deliver 300 grams or more of cocaine in a drug-free school zone and possession with 

intent to deliver 300 grams or more of cocaine in a drug-free school zone. Id. at *1.

Petitioner unsuccessfully appealed his convictions to this court. Id. at *8-14. 

Petitioner filed his original petition for post-conviction relief on April 4, 2013. The 

post-conviction court appointed counsel, who filed an amended petition for relief on 

August 6, 2013. 

At the post-conviction evidentiary hearing, trial counsel testified that his practice 

was ninety-nine percent criminal work. He said that prior to petitioner‟s trial, he had 

participated in approximately twenty felony jury trials. Trial counsel stated that 

petitioner‟s family retained him to represent petitioner. He recalled meeting with 

petitioner both in jail and at the courthouse. Trial counsel said that he reviewed the 

discovery materials with petitioner and explained his charges to him. He also explained 

his potential sentence exposure. Trial counsel testified that he did not have difficulty 

communicating with petitioner and stated that an interpreter was present “for much of the 

interaction.” Regarding petitioner‟s right to testify at trial, trial counsel stated that he 

discussed with petitioner whether to testify and that they made the decision that he would 

not testify. Trial counsel said that he gave his opinion but that it was “ultimately” 

petitioner‟s decision. He testified, “I‟m not aware of any mitigation or any advantage 

that his defense could have gained by him testifying.” 
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On cross-examination, trial counsel agreed that the transcript of petitioner‟s trial 

indicated that petitioner twice told the court, “„I want to testify but I need an interpreter.‟” 

Trial counsel recalled having an interpreter “[d]uring the trial process,” but he said that 

he could not remember whether it was before or during the actual trial. He agreed that 

during the Momon hearing, petitioner indicated that he wanted to testify, that during a 

recess trial counsel advised him not to testify, and that thereafter petitioner waived his 

right to testify. In response to questioning from the post-conviction court, trial counsel 

recalled that petitioner indicated prior to trial that “an interpreter was not needed.” 

Petitioner testified that he understood “a little bit” of English. He agreed that he 

could have “uncomplicated simple conversations with people” but did not “understand 

legal terminology.” Petitioner said that he wanted to testify at his trial but did not 

because trial counsel recommended that he not testify. Petitioner testified that he would 

have told the jury that the police could have stopped him before he drove through the 

school zone but they chose not to because “it was a trap.” He said, in response to 

questioning from the court, that he did not have an interpreter for trial because his 

“lawyer told [him] that it wouldn‟t look good” to have an interpreter. 

On cross-examination, petitioner testified that he told the truth at trial when he 

“said it was [his] decision not to testify.” He clarified that he made the decision “because 

[his] lawyer told [him] it was best not to testify.” 

After taking the matter under advisement, the post-conviction court denied relief. 

It is from this judgment that petitioner now appeals.

II. Analysis

Petitioner contends that he received ineffective assistance of counsel at trial 

because trial counsel failed to properly advise him about his right to testify.1 The State 

responds that petitioner has failed to show deficient performance by trial counsel or that 

any alleged deficient performance prejudiced the outcome of his trial. We agree with the 

State. 

To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that 

his or her “conviction or sentence is void or voidable because of the abridgement of any 

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” Tenn. Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of 

proving his or her factual allegations by clear and convincing evidence. Tenn. Code Ann. 

 

1

 In his appellate brief, the petitioner asserts that he was forced to participate in his trial without the 

benefit of an interpreter and that trial counsel was ineffective for failing to present discovery materials to 

petitioner in his native language. However, these issues have been raised for the first time on appeal and 

are thus waived. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) (citing State v. Burtis, 

664 S.W.2d 305, 310 (Tenn. Crim. App. 1983)). 
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§ 40-30-110(f). “„Evidence is clear and convincing when there is no serious or 

substantial doubt about the correctness of the conclusions drawn from the evidence.‟” 

Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (quoting Grindstaff v. State, 297 

S.W.3d 208, 216 (Tenn. 2009)). 

The post-conviction court‟s findings of fact are conclusive on appeal unless the 

preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d 160, 169 (Tenn. 

Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. 

State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions of law 

receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d 

450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court‟s review of 

petitioner‟s ineffective assistance of counsel claims is de novo with no presumption of 

correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted). 

The Sixth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment, and article I, section 9 of the Tennessee 

Constitution require that a criminal defendant receive effective assistance of counsel. 

Cauthern v. State, 145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 

523 S.W.2d 930 (Tenn. 1975)). When a petitioner claims that he received ineffective 

assistance of counsel, he must demonstrate both that his lawyer‟s performance was 

deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 

U.S. 668, 687 (1984); Finch v. State, 226 S.W.3d 307, 315 (Tenn. 2007) (citation 

omitted). It follows that if this court holds that either prong is not met, we are not 

compelled to consider the other prong. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 

2004).

To prove that counsel‟s performance was deficient, petitioner must establish that 

his attorney‟s conduct fell below an objective standard of “„reasonableness under 

prevailing professional norms.‟” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 

S.W.3d 106, 116 (Tenn. 2006)). On appellate review of trial counsel‟s performance, this 

court “must make every effort to eliminate the distorting effects of hindsight, to 

reconstruct the circumstances of counsel‟s conduct, and to evaluate the conduct from the 

perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) 

(citing Strickland, 466 U.S. at 689). 

To prove that petitioner suffered prejudice as a result of counsel‟s deficient 

performance, he “must establish a reasonable probability that but for counsel‟s errors the 

result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing

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

undermine confidence in the outcome.‟” Id. (quoting Strickland, 466 U.S. at 694). As 

such, petitioner must establish that his attorney‟s deficient performance was of such 

magnitude that he was deprived of a fair trial and that the reliability of the outcome was 
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called into question. Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 

(Tenn. 1999)).

At the post-conviction hearing, both trial counsel and petitioner testified that 

counsel advised petitioner against testifying and that petitioner made the decision not to 

testify based on that advice. Petitioner testified that he told the truth at trial when he 

“said it was [his] decision not to testify.” Furthermore, trial counsel said that he 

discussed petitioner‟s right to testify with him and that he was “not aware of any 

mitigation or any advantage that [petitioner‟s] defense could have gained by him 

testifying.” Petitioner stated what his testimony at trial would have been and that 

testimony was solely about his being stopped in a school zone, not about the presence of 

a block of cocaine in his truck. Petitioner has not presented any evidence that he was 

actually coerced into waiving his right to testify — instead he merely states that he 

followed his attorney‟s advice. We agree with the trial court that petitioner did not prove

that his trial counsel‟s performance was deficient or that he was prejudiced by that 

performance. Therefore, we affirm the post-conviction court‟s denial of relief. 

CONCLUSION

Based on the briefs of the parties, the record, and the applicable law, we affirm the 

judgment of the post-conviction court.

_________________________________ 

ROGER A. PAGE, JUDGE