IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 7, 2013

BOBBY JACKSON v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Shelby County

No. 08-00127 J. Robert Carter, Jr., Judge

No. W2012-01125-CCA-R3-PC - Filed May 30, 2013

The petitioner, Bobby Jackson, appeals the denial of his petition for post-conviction relief,

arguing that he received ineffective assistance of trial counsel at trial. Following our review,

we affirm the post-conviction court’s denial of the petition.

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

ALAN E. GLENN,J., delivered the opinion of the Court, in which JERRY L. SMITH and NORMA

MCGEE OGLE, JJ., joined.

James A. Greene, Memphis, Tennessee, for the appellant, Bobby Jackson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Amy

P. Weirich, District Attorney General; and Lessie Rainey, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

In 2009, the petitioner was convicted of first degree felony murder and especially

aggravated robbery and was sentenced to life imprisonment. This court affirmed his

convictions on direct appeal, and our supreme court denied his application for permission to

appeal. State v. Bobby Jackson, No. W2009-02232-CCA-R3-CD, 2011 WL 1849096, at *1

(Tenn. Crim. App. May 11, 2011), perm. app. denied (Tenn. Sept. 21, 2011).

The underlying facts of the case were recited by this court on direct appeal:
Aurelia Guillen testified that in January 2007, she lived in Memphis,

Tennessee, and was separated fromthe victim, Carlos Guillen, with whomshe

had two children. She said that the last time she saw the victimwas December

31, 2006, when he picked up their children from her house. Guillen testified

that the victim owned a Chevrolet Trailblazer.

Jose Leon testified that the Shelby County District Attorney’s office

employed him as a victim witness coordinator for the Hispanic community. 

He said that he met Martin Sanchez, a witness in this case, at the preliminary

hearing in 2007. At that time, Sanchez gave Leon his local contact

information and informed Leon that he planned to return to Mexico. Leon

said that Sanchez gave him the number to a phone booth in his village in

Mexico. Leon testified that he attempted to locate Sanchez through the local

contact information and through the Mexican phone number but was

unsuccessful in finding him before trial.

Detective Ronald Goodwin testified that he was a criminal investigator

for the ShelbyCounty District Attorney’s office. He said that he attempted to

locate Sanchez using the information from his statement to police, utility

company records, motor vehicle records, and his wife’s records. Detective

Goodwin said that he went to the local address he found, but no one at that

location knew where Sanchez had gone. Detective Goodwin stated that he

used a nationwide database to determine whether any agency had arrested

Sanchez or his wife, but the search did not reveal any arrests.

On cross-examination, Detective Goodwin testified that he was

unaware of whether federal authorities had issued a visa or work permit for

Sanchez.

The state played the videotape of Sanchez’s testimony from the

[petitioner’s] preliminary hearing. On direct examination, Sanchez testified

that on January 5, 2007, he was in the parking lot of the Willow Oaks

Apartments when the victim asked whether he wanted to purchase any CDs.

Sanchez said that after he purchased a CD and received change from the

victim, two black men approached the victim’s vehicle. He said that one man

was taller than the other, and the taller man told the victim to get out of the

vehicle. The taller man pulled the victim out of the vehicle and pointed a gun

at him. The shorter man hit the victim, and the victim fell to the ground. 

When the victim tried to get up, the taller man shot him. The men drove away

in the victim's vehicle. Sanchez testified during cross-examination that he was

-2-
twenty meters away from the vehicle and could see and hear everything

clearly. He said that police showed him photographs, but he did not identify

either of the two suspects from the photographs.

Memphis Police Officer David Reed testified that on January 5, 2007,

he responded to a shooting at 2749 Ketchum Road in the Willow Oaks

apartment complex. When he arrived, he found a male Hispanic laying on the

ground. Officer Reed testified that he took witness reports and held the scene

until detectives arrived.

Memphis Police Sergeant Alisa Mitchell testified that in January 2007,

she was a crime scene investigator. She said that on January 5, 2007, she

made the scene at 2749 Ketchum Road and observed that the victim was lying

on his back with his arms above his head. She recalled that he had a gunshot

wound to the chest. Sergeant Mitchell testified that she photographed the

scene and collected three nine millimeter Luger Winchester shell casings.

On cross-examination, Sergeant Mitchell testified that the victim was

carrying a wallet with $44 inside. She said that she collected the wallet as part

of the victim’s personal belongings.

On re-direct examination, Sergeant Mitchell testified that she did not

recover the victim’s keys at the scene.

Tracy Rivers testified that she lived in the Willow Oaks apartment

complex. She said that on January 5, 2007, she was walking through the

apartment complex with her fourteen-year-old cousin when two young black

males tried to speak to her cousin. Rivers said that she had never seen the

males before that day. She stated that the males were between sixteen and

nineteen years old and that one was taller than the other. Rivers testified that

she had just walked into her apartment approximately five minutes after

encountering the males when she heard three gunshots. Rivers said that she

looked out of the door and saw a “bluish greenish truck speed out.” She also

described the vehicle as a jeep.

On cross-examination, Rivers testified that she was unable to identify

the two males in a photospread shown to her by police on January 7, 2007.

Memphis Police Officer Randall Davis testified that on January 6,

2007, he was patrolling his precinct when he observed a blue Chevrolet SUV

-3-
parked in the driveway of an empty house. He ran the vehicle identification

number on his computer, which indicated that the vehicle was stolen. Officer

Davis recalled that a white cross was hanging from the rearview mirror. He

said that the police department towed the vehicle to the investigative hold

unit. The parties stipulated that the 2002 Chevrolet Trailblazer was registered

to the victim.

Varreous Thomas testified that he was the co-defendant’s brother. He

said that on January 5, 2007, he was with the defendant at the Hillview

Apartments, and he heard the defendant say that he had shot someone. 

Thomas stated that he saw a blue Chevrolet Trailblazer that day on AlcyRoad

behind an abandoned house, which was a five minute walk from the Hillview

Apartments. He said that he had not seen the defendant with that vehicle

before that day. Thomas agreed that he told police that the defendant had

some keys that Thomas believed were for the Trailblazer, but he said that he

was “under pressure” when he said that.

On cross-examination, Thomas testified that the defendant never told

him anything about a Trailblazer.

Officer Vivian Massey testified that she was a corrections officer at

201 Poplar Avenue. She said that on June 9, 2009, Officer Tyrone Mourning

gave her a letter, which she in turn gave to her lieutenant. She recognized

Exhibit 22 as the letter that Officer Mourning gave her.

Officer Mourning testified that he was a corrections officer at 201

Poplar Avenue. He said that on June 9, 2009, the defendant gave him a letter,

which he identified as Exhibit 22, to give to David Hamilton, the

co-defendant. Officer Mourning stated that he gave the letter to Officer

Massey.

The state read the letter into evidence, paraphrasing at times. The full

letter read as follows:

What’s up lil bro. You straight down their [sic]. [L]ook I been

hearing you suppost [sic] to be testyfying [sic] against me. Why

you wanna do that bro. So you want me to spend the rest of my

life [in] jail from my 3 kids. You know I [expletive] with you

bro like a lil brother but why you want to get both of our life

[sic] [expletive] off. Cause both of us gone do some time

-4-
regardless. We were together lil Dave bro. [T]he reason they

want you to testyfied [sic] is because they don’t have the

shooter[.] [I]f they don’t got [sic] that[,] they don’t have

[expletive] on us[,] meaning they don’t got [sic] no case. Why

you think we been [sic] here so long bro. [I]f you don’t

testyfied [sic] we go home. [Expletive] you said you ready [sic]

to go home right. Well let’s make this [expletive] happen. You

need to get in that law work bro [and] stop fighting [expletive]

cause that type of [expletive] make you look bad in court. I go

to trial July 6. I don’t want you to testyfied [sic] against me bro,

cause I want to go home to [sic]. We both need our freedom. 

[T]hen look if both of us get charge[d] it’s gone [sic] get broke

down to [i]nvoluntary manslaughter. [I]f you look in your law

work you will see that [i]nvoluntarymanslaughter is a homicide

committed under such circumstances that it plainly appears that

neither death nor bodily harm was intended by the party doing

the killing, but that death was accidentally caused by some

unlawful act, or by some act not strictly unlawful in itself, but

done in an unlawful manner and without due caution and that

death was natural and probable result of such act. So

[r]emember I told them that we got into a fight of the gun [and]

it went off[,] but at the same time we tried to robb [sic] that man

to [sic]. So we still gone [sic] have to do some time bro. So are

you shure [sic] you want to testyfied [sic]. [I]f so you must

gone [sic] take the Especially [sic] Aggravated robbery. [N]ow

that goes back when I said we were together[.] I can’t take both

of the charges bro real talk. We need to fight this [expletive]

together. Once again[,] no shooter, no case, don’t never [sic]

forget that bro. [I]f you don’t listen to [nobody] else listen to

me because I’m reading on this [expletive]. Don’t testyfied

[sic] lil Dave. I love you bro. [R]eal talk even though I talk

bad about you[,] but I still [expletive] with you because you my

young [expletive] [and] you don't understand this [expletive].

[B]ut we can beat these people. 

[Signed] Murder Man A.K.A. get down or laydown B.K.A. lil

Bobby To lil Dave

On cross-examination, Officer Mourning stated that he did not recall

the exact date in June when the defendant gave him the letter nor what time

-5-
of day it was. He said that he was not familiar with the defendant’s 

handwriting and did not see the defendant write the letter. He agreed that the

defendant had a cell mate.

Francis Donald Carpenter testified that he was retired from the

Memphis Police Department, where he was a crime scene and fingerprint

technician. He testified that he processed fingerprints froma coffee cup found

inside the victim’s vehicle and from the vehicle itself. The parties stipulated

that the fingerprints matched the victim’s.

Tennessee Bureau of Investigation Special Agent Cervinia Braswell

testified that she was a forensic scientist in the firearms identification unit. 

She said that the Memphis Police Department provided her with a bullet, three

nine millimeter cartridge cases, a box of Winchester .380 caliber ammunition,

a Cobra .380 automatic pistol, and seven other Winchester .380 caliber

cartridges. Agent Braswell testified that the three nine millimeter cartridges

were fired from the same weapon. She said that the .380 pistol would not

have been able to fire nine millimeter bullets. Agent Braswell said that the

bullet provided to her was a nine millimeter.

MemphisPolice SergeantAnthonyMullinstestified that he interviewed

Varreous Thomas in connection with this case. According to Sergeant

Mullins, the robbery bureau was interviewing Thomas about several cases

when he indicated that he had information about a homicide. Thomas agreed

to speak with homicide detectives and gave a witness statement. Sergeant

Mullins said that Thomas told him that the defendant had told him that he shot

the victim after Thomas saw a blue Trailblazer on Alcy Road. Thomas

identified a picture of the victim’s Trailblazer as the vehicle he saw. Thomas

told him that he went to the Trailblazer with Jeffrey Turner, who took some

CDs out of the vehicle. Thomas said that the defendant had a set of keys with

“a little thing hanging on them” that had “Mexican words” written on it. 

Thomas assumed the keys belonged to the Trailblazer because the vehicle’s

steering column was not broken and because the defendant did not own a

vehicle.

Sergeant Mullins further testified that he interviewed the defendant on

February12, 2007, because Thomas’[] statement and another witness’s

statement implicated the defendant. In the defendant’s written statement, the

defendant admitted that he was responsible for the victim’s death. He said

that he fired one or two shots from a nine millimeter. The defendant said that

-6-
“Dave” was with him and was armed with a .22 caliber weapon but did not

fire any shots. The defendant stated that he shot the victim because the victim

tried to take his gun. The defendant said that he got the nine millimeter from

a person named Octavious, and he returned the gun to Octavious after

shooting the victim. He said that Dave drove the Trailblazer away from the

scene, and the defendant later drove it to a location near his house on Sugar

Creek Road. Sergeant Mullins testified that, at the time that the police booked

the defendant and his co-defendant into the jail, the defendant was two inches

taller and fifty pounds heavier than his co-defendant.

On cross-examination, Sergeant Mullins testified that Thomas initially

told him that the defendant did not tell him anything about his involvement. 

He further testified that he knew that the defendant was a juvenile at the time

of his interview and that his mother was in Memphis. He agreed that he did

not contact the defendant's mother. Sergeant Mullins said that the defendant

indicated that he had completed the tenth grade and had been in special

education classes. Sergeant Mullins stated that the defendant initially did not

understand his rights, so Sergeant Mullins and his partner “went over each of

his rights with him.”

On re-direct examination, Sergeant Mullins testified that the defendant

was in custody in the Shelby County Jail rather than in the juvenile system;

therefore, he treated the defendant as an adult. Sergeant Mullins said,

“[A]pparently he had been involved in so many encounters with the law that

the juvenile system felt there was nothing they could do to rehabilitate him or

anything else.”

Dr. Lisa Funte, an assistant medical examiner, testified that the victim

died from a gunshot wound to his chest. She further testified that stippling

around the entrance wound indicated that the muzzle of the gun was “within

a few inches to a few feet.”

Id. at *1-5.

In December 2011, the petitioner filed a pro se petition for post-conviction relief, in

which he raised, among other things, various allegations ofineffective assistance of counsel.

Counsel was appointed, and an amended petition was filed on March 2, 2012. The postconviction court conducted an evidentiary hearing on April 5, 2012. 

At the hearing, the petitioner testified that he was seventeen years old and on

-7-
probation at the time of the instant offenses. He said that he was incarcerated for a new

aggravated robbery charge when he was interviewed by homicide detectives on February 12

or 13, 2007, for the instant case. He admitted that he denied “about three or four times” any

knowledge of the victim’s murder. Asked if he requested an attorney during the interview,

the petitioner said, “I didn’t know what I needed at that time because my mind wasn’t right

at that moment.” He admitted that he told the detectives he had tried to rob the victim of his

car and that the victim was accidentally shot during the ensuing struggle. He further

admitted that the statement was in his handwriting, but he could not remember if he signed

it. 

The petitioner said that he was placed in special resource classes as a child and that

he had been diagnosed with mild retardation. He could not recall if he gave this information

to the detectives during his interview. He said he was placed on suicide prevention while

awaiting trial because he attempted to hang himself and had cut his arm and wrists with a

razor. He recalled going to a mental health institution after being released from the hospital. 

He had been prescribed two medications but was not currently taking them. 

The petitioner said he asked trial counsel about trying to suppress his statement, but

counsel said it would be denied or would not help. He said that trial counsel met with him

at the jail one time and sent co-counsel most of the time. He said that the “man that they said

that was on video tape” should have been called as a witness at trial. The petitioner said that

he felt “like . . . [he] could of got a deal in there. I feel like – because my charge partner, I’m

trying to see how I end up getting all this time and my charge partner got thirty-five years

but I got life plus twenty.” He said trial counsel told him he had “a no deal case.” 

During examination by the post-conviction court, the petitioner said he told trial

counsel everything he knew about the case. He acknowledged that his life sentence and

twenty-year sentence were concurrent. He said he was sentenced to three years for the

aggravated robbery charge. He maintained that he was “just trying to carjack” the victim,

but the victim fought back and got shot. 

Trial counsel, who had tried approximately thirty cases and represented other clients

charged with first degree murder, testified that he was appointed to represent the petitioner

in August 2007 and also represented the petitioner on an aggravated robbery case. Another

attorney, who had ten years experience, was also appointed for the petitioner. Trial counsel

represented the petitioner until August or September 2009 but could not recall how many

times he met with the petitioner. However, his investigator met with the petitioner regularly. 

Counsel did not think co-counsel met with the petitioner but said she resembled the

investigator, which may have caused the petitioner’s confusion about who met with him.

-8-
Trial counsel said he did not file a motion to suppress the petitioner’s statement

because he litigated the petitioner’s statement as to the aggravated robbery charge and

realized how futile suppressing his statement would be because the petitioner had a lengthy

criminal history and his statement was largely “self-serving.” Counsel said that a few days

before trial, the petitioner sent a letter, which he signed as “murder man,” to his codefendant in the jail. Counsel filed a motion to suppress the letter, but it was denied. 

Counsel said the petitioner was evaluated at Midtown Mental Health Institute and found to

be competent to stand trial. 

On May 3, 2012, the post-conviction court entered an order denying post-conviction

relief, and this appeal followed.

ANALYSIS

The petitioner argues that he received the ineffective assistance of trial counsel

because counsel failed to suppress his statement or object to the admission of the letter he

signed as “murder man” and sent to his co-defendant. The State responds that the petitioner

has failed to meet his burden of proof as to his claims. We agree with the State.

Post-conviction relief is available to a petitioner who establishes that his or her

conviction or sentence is void or voidable because of an abridgement of a constitutional

right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of

proving his allegations by clear and convincing evidence. Id. § 40-30-110(f). When an

evidentiary hearing is held in the post-conviction setting, the findings of fact made by the

post-conviction court “are entitled to substantial deference on appeal unless the evidence

preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see

also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of

purely factual issues, the appellate court should not reweigh or reevaluate the evidence. See

Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a post-conviction

court’s application of the law to the facts of the case is de novo, with no presumption of

correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective

assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo,

with a presumption of correctness given only to the post-conviction court’s findings of fact.

See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

The right to effective assistance of counsel is safeguarded by the Constitutions of both

the United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art.

I, § 9. Ordinarily, to establish that he was denied the effective assistance of counsel, the

petitioner has the burden to show both that trial counsel’s performance was deficient and that

counsel’s deficient performance prejudiced the outcome of the proceeding. Strickland v.

-9-
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland standard

is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The

reviewing court must indulge a strong presumption that the conduct of counsel falls within

the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and may not

second-guess the tactical and strategic choices made by trial counsel unless those choices

were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d 4, 9

(Tenn. 1982). “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

The prejudice prong of the Strickland test is satisfied by showing a reasonable

probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but

for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

In its order denying the petition for post-conviction relief, the court found that trial

counsel’s decision to not seek suppression of the petitioner’s statement was a “valid tactical

decision” in view of the petitioner’s record and the fact that the statement was largely selfserving, as testified to by trial counsel. The court noted that trial counsel unsuccessfully

-10-
litigated the letter the petitioner sent to his co-defendant. The court also noted that, at the

evidentiary hearing, post-conviction counsel and trial counsel agreed that trial counsel “had

very little to work with.” The court concluded:

Petitioner has failed to prove that his trial attorney was deficient. Trial

counsel was fully prepared and argued [the] [p]etitioner’s case as well as he

could. Petitioner still does not see how the shooting death of an individual

during the course of stealing the individual’s vehicle can be a murder. 

Counsel was able to persuade the trial judge to order concurrent

sentences. Petitioner simply has not put forth any evidence of what his

attorney should have done beyond that which was done.” 

The record fully supports the post-conviction court’s findings that the petitioner

received effective assistance of counsel. Trial counsel testified that he did not file a motion

to suppress the petitioner’s statement because the petitioner had a lengthy criminal history,

including another aggravated robbery conviction, and the statement was largely “selfserving,” which would allow the petitioner to get his version of the facts to the jury without

exposing him to cross-examination. Counsel’s decision to not seek suppression of the

petitioner’s statement was a tactical decision we will not second-guess on appeal. We

cannot conclude that counsel performed deficiently. With regard to the letter the petitioner

sent to his co-defendant, counsel testified that he filed a motion to suppress the letter, but

it was denied. The petitioner now insinuates that counsel should have sought redaction of

portions of the letter. However, we cannot conclude that counsel’s acts or omissions fell

below an objective standard of reasonableness, given that counsel sought suppression of the

letter but was unsuccessful.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirmthe denial ofthe petition. 

_________________________________

ALAN E. GLENN, JUDGE

-11-