         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs February 5, 2002

                   TIMMY FULTON v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Lauderdale County
                           No. 6195 Joseph H. Walker, Judge



                    No. W2001-01402-CCA-R3-PC - Filed March 18, 2002


The Appellant, Timmy Fulton, appeals from the Lauderdale County Circuit Court’s dismissal of his
petition for post-conviction relief. In October of 1996, Fulton was convicted of second degree
murder and sentenced to twenty-two years in the Department of Correction. On appeal, Fulton
contends that he received ineffective assistance of counsel at trial based upon: (1) trial counsel’s
failure to investigate and determine his competency to stand trial or to investigate a diminished
capacity defense; and (2) trial counsel’s failure to adequately investigate the facts and interview
material factual witnesses “in preparation of a possible factual defense.” After review, we affirm.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES, J. and ROBERT
W. WEDEMEYER , J., joined.

D. Michael Dunavant, Ripley, Tennessee, for the Appellant, Timmy Fulton.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W.
Turner, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey C.
Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Procedural History

        In 1996, the Appellant was convicted following a jury trial of second degree murder and
sentenced to twenty-two years imprisonment. His conviction and sentence were affirmed on direct
appeal. See State v. Timmy Fulton, No. 02C01-9706-CR-00223 (Tenn. Crim. App. at Jackson, Apr.
21, 1998), perm. to appeal denied, (Tenn., Dec. 28, 1998). The Appellant’s conviction stems from
his fatal shooting of a male acquaintance who the Appellant stated that he was going to “get.” The
Appellant obtained a pistol from an accomplice, entered the victim’s car and shot the victim,
resulting in death. The accomplice, who pled guilty to facilitating second degree murder, testified
against the Appellant at trial. Trial counsel for the Appellant testified at the post-conviction hearing
that the Appellant steadfastly maintained that he did not kill the victim. As such, trial counsel
proceeded to trial upon the defense that the victim was murdered by the accomplice, who had on one
occasion indicated that he was the shooter.

        In December of 1999, the Appellant filed his pro se petition for post-conviction relief which
was later amended following appointment of counsel. At the conclusion of the evidentiary hearing,
the petition was denied. This timely appeal follows.

                                             ANALYSIS

        The Appellant bears the burden of establishing his allegations contained in the petition by
clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). Findings of fact and conclusions
of law made by a post-conviction court are given the weight of a jury verdict. Davis v. State, 912
S.W.2d 689, 697 (Tenn. 1995). Unless evidence contained in the record preponderates against the
judgment, this court is bound by those findings on appeal. Id. The issues of deficient performance
by counsel and possible prejudice to the defense are mixed questions of law and fact; thus, our
review of this case is de novo. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). Furthermore, to
succeed in a challenge for ineffective assistance of counsel, the Appellant must demonstrate that
counsel’s representation fell below the range of competence demanded of attorneys in criminal cases.
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668,
686, 104 S. Ct. 2052, 2064 (1984), the Appellant must establish: (1) deficient representation; and
(2) prejudice resulting from the deficiency.

                A. Competency to Stand Trial - Diminished Capacity Defense

        The Appellant raises three issues regarding his mental competency and presentation of an
insanity or diminished capacity defense: (1) that counsel “failed to adequately investigate [his]
competency to stand trial; (2) that counsel “failed to adequately investigate the facts and interview
material witnesses in preparation of a possible insanity or diminished capacity defense;” and (3) that
“during the pendency of the trial proceedings, [he] was under the influence of psychotropic
prescription medication.”

       First, we are compelled to observe that the competency/diminished capacity issues raised on
appeal by the Appellant, which are contradictory to his position at trial, are not supported by the
record at the post-conviction hearing. The following testimony is noted:

        Q. [Post-Conviction Counsel]: Do you remember telling me previously that at that
        time you believed that you were on drugs, these prescription medications, and you
        didn’t know what was going on?
        A. [Appellant]: Well, I – I knows what was going on and I was given medication so,
        you know.


                                                  -2-
       Q. Did you take that medication?
       A. No, sir.1
...
       Q. [Post-Conviction Counsel]: Okay. Did you ever tell [defense counsel] that you
       felt like you had some mental problems and you didn’t know what you were doing
       at the time that this man was killed?
       A. [Appellant]: Uh --

       Q. Did you tell [defense counsel] - - did you tell your lawyer when you were getting
       ready for trial that you thought that you didn’t know what happened because you had
       some mental problems, you didn’t know what you were doing?
       A. I mean, uh - - I mean, I remember and knows what I do, you know, and all that.

...

       Q. [Prosecutor]: Okay, All right. [Defense counsel] did call witnesses on your behalf.
       Do you remember who those witnesses were?
       A. [Appellant]: She called witness - - several witness for me.

       Q. Okay. All right. Do you think she called enough witnesses at your trial?
       A. Yes.

       Q. The answer is yes?
       A. Yes.


         Prior to and during trial, the Appellant was represented by three attorneys from the
Lauderdale County Public Defender’s Office. Contrary to the Appellant's assertions on appeal, the
proof at the post-conviction hearing established that trial counsel explored a defense of insanity and
the Appellant's competency to stand trial. At the request of defense counsel, the Appellant’s
emotional and mental capacity was evaluated by Dr. Jim Causey. Dr. Causey found the Appellant
to be fully competent to stand trial and capable of understanding court proceedings. Dr. Causey
further concluded that the Appellant was “not in need of ongoing mental health treatment” or “in
need of any additional evaluation on an inpatient basis.” At the post-conviction hearing, trial counsel
testified that she had no problem discussing the case with the Appellant and felt he was “lucid,
rational, and able to discuss all aspects of the case.” Trial counsel testified that she and/or other
members of the defense team met with the Appellant prior to trial on at least five separate occasions
and visited several hours during each visit. Trial counsel stated that the Appellant appeared to
interact and respond appropriately to all discussions and questions. At the post-conviction hearing,
the Appellant presented no proof to support his assertion that he was incompetent to stand trial or


       1
           In view of the Appellant’s response, we find any further review of this particular issue unnecessary.

                                                          -3-
that an insanity or “diminished capacity” defense would have been viable. It is the Appellant’s
burden to prove the allegation of his petition by clear and convincing evidence. Failure to do so will
result in dismissal of the issue. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
We conclude, from the evidence presented at the post-conviction hearing, that the performance of
counsel was not deficient with respect to further investigation of the Appellant’s mental competency
or development of a mental illness defense. Because we find no such deficiency, we need not
address the prejudice prong of Strickland.

                                 B. Preparation For a Factual Defense

         Finally, the Appellant contests the effectiveness of trial counsel by arguing that defense
counsel “failed to adequately investigate the facts and interview material factual witnesses in
preparation of a possible factual defense in this case.” At the post-conviction hearing, trial counsel
testified that both she and other members of the defense team traveled to Halls, Tennessee, where
they knocked on doors and interviewed people who lived on the street where the murder took place.
The record indicates numerous witnesses were interviewed. With the exception of two persons
identified by the Appellant, trial counsel testified that she spoke with all potential witnesses whose
names were provided to her by the Appellant prior to trial to determine whether their testimony
would be beneficial. Although the Appellant argues that counsel failed to interview potential
witnesses, identified only as “Tracey” and “James,” trial counsel testified that she looked for these
two individuals but was unable to locate them. Again, these witnesses were not produced at the post-
conviction hearing, therefore, we are clueless as to the basis for their materiality. 2 Moreover, the
Appellant fails to give reasons as to why or how the testimony of these additional witnesses would
have affected the outcome of his case. Because the Appellant has failed to show how the absence
of these witnesses was prejudicial, the issue raised is without merit.

                                               CONCLUSION

          Based upon the foregoing, we find that the Appellant received effective assistance of counsel
at trial. The Lauderdale County Circuit Court’s denial of the Appellant’s petition for post-conviction
relief is affirmed.




                                                             ___________________________________
                                                             DAVID G. HAYES, JUDGE




        2
           At the post-co nviction h earing, the Appellant’s testimony suggests that “Tracey and James” would have
testified on beh alf of the A ppellant as character w itnesses.

                                                       -4-
