State v. Tom Moore

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 29, 1999
• Docket: W1998-00579-CCA-R3-PC
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED SEPTEMBE R SESSION, 1999 December 29, 1999

Cecil Crowson, Jr. Appellate Court Clerk

TOM MO ORE , III, )C.C.A. NO. W1998-00579-CCA-R3-PC ) Appe llant, ) ) SHELBY COUNTY V. ) ) ) HON. CAROLYN WADE BLACKETT STATE OF TENNESSEE, ) ) Appellee. ) (POST -CON VICTIO N)

FOR THE APPELLANT: FOR THE APPELLEE:

JOANNE M. JENKINS PAUL G. SUMMERS THE WAGERMAN LAW FIRM Attorney General & Reporter 200 Jefferson Avenue, Suite 1313 Memphis, TN 38103 J. ROSS DYER Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

JOH N W. P IERO TTI District Attorn ey Ge neral

PAUL GOODMAN Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED; PERMISSION TO SEEK DELAYED APPEAL GRANTED

THOMAS T. WOODALL, JUDGE OPINION

On Marc h 1, 1991, the Shelby County Grand Jury indicted Petitioner Tom

Moore, III, for two counts of aggravated rape and one count of rape. Following a jury

trial on October 14–18, 1991, Petitioner was convicted of two counts of aggravated

rape. On November 21, 1991, the trial court imposed two consecutive sentences of

twenty-five years. Petitioner challenged his convictions and h is sentences on direct

appe al, and this Court affirmed the judgment of the tria l court in State v. Tom Moore,

III, No. 02C 01-920 4-CR -00073 , 1993 W L 5126 95 (Te nn. Crim . App., Aug. 18 , 1993).

Petitioner filed a petition for post-conviction relief on October 20, 1994, an amended

petition on April 31, 1995, and a supplemental petition on May 1, 19 96. The post-

conviction-court conducted a hearing on July 17–18, 19 96. The trial court

subs eque ntly dismissed th e petition for post-con viction relief by an order dated

December 7, 1998 . Petitioner challenges the dismissal of his petition, raising the

following issues:

1) whether the evidence was sufficient to support his convictions;

2) whether the trial court erred when it instruc ted the jury on r easo nable doubt; and

3) whether he received ineffective assistance of counsel at trial and on direct appe al.

After a review of the record, we affirm the trial court’s dismissal of the petition, but

we grant Petitioner a delayed appeal of his convictions and sentences.

I. BACKGROUND

A. Facts at Trial

-2- In Tom M oore, 1993 WL 512695, at *1–2, this Court gave the following

summ ary of the fa cts estab lished at trial:

It appea rs to be un disputed that the 11 -year-old vic tim in this case, S.W ., spent a lot of time at the home of [Petitioner], visiting her cousin, who is [Petitioner’s] daughte r. The victim testified quite clea rly about how [Petitioner] sexually assaulted her. She said that he touched her "bottom private" with his "private" when he had no pants on and she had no pants on. He put his "private inside her priv ate" an d this h urt her and s he crie d. [Petition er] told th e victim not to te ll. S.W .'s testimony that she was raped was supported by the testimony of Kitty Ro berts, a forens ic evalu ator with the Mem phis Sexua l Assault Cen ter, who examin ed her. She found evidence of traum a indicating penetra tion into the vaginal orifice, including a hymen which was worn away and synechial wounds, or scar tissue, at 5:00 and 8:00.

B. Post-conviction Hearing

During the post-conviction hearing, Petitioner testified that he was

represented at trial by Andre Stepter and Ron Johnson. Petitioner claimed that

neither Stepter nor Johnson ever conferred with him about his trial until the day the

trial bega n. Petitio ner als o claim ed tha t his trial c ouns el failed to interv iew an d call

two witnesses, Robin Gibbons and Thermon Thomas, who would have testified

favorably o n his beh alf.

Petitioner testified that his trial counsel failed to ask for “the rule”, an d this

failure allowed the State’s witnesses to attend portions of the trial before they

testified. Petitioner also claim ed that his trial counse l never filed any pretrial

motions.

Ron ald Johns on testified that he an d Stepte r met with Petitioner and/or

Petition er’s family members on numerous occasions. Johnson testified that he filed

a pretrial motion for discovery and a motion to instruct the jury on range of

punish ment, but he did not file any other pretrial motions because no other pretrial

motion s were n ecessa ry.

-3- Johnson testified that although he could not specifically recall whether he had

asked for “the rule” that excluded witnesses from observing the trial, he routinely

asked for “the rule” in all criminal cases. Johnson did remember that with the

exception of Kennitha W att, none of the Sta te’s witnesses ob served the trial before

they testified. W hen the State recalled Watt after she had observed some of the

trial, Johnson objected.

Johnson testified that he and Stepter investigated the case and obtained

statem ents from Thomas and Gibbons. Johnso n and Stepte r decid ed no t to call

these two witnesses because they believed that the two witnesses would harm the

defens e more than they would h elp it.

Andre Stepter testified that he discussed Petitioner’s case with him on several

occasions. Stepter a lso testified that he mad e a stra tegic d ecisio n not to call

Thomas and Gibbo ns to testify at tria l. Stepter admitted that he had a drug problem

in the p ast, bu t he de nied th at he w as using dru gs du ring Pe titioner’s trial.

II. SUFFICIENCY OF THE EVIDENCE

Petitioner contends that the evid ence was in sufficie nt to su pport h is

conviction .

When Petitioner filed his petition in 1994, Tennessee Code Annotated section

40-30-111 provided

The scope of the [pos t-conviction ] hearing shall extend to all grounds the petitioner may have, except those grounds which the court finds should be exclude d beca use the y have be en waive d or previo usly deter mined . . . .

Tenn. Code Ann. § 40-30-111 (1990). In addition, Tennessee Code Annotated

section 40-30-112(a) provided

-4- A ground for relief is “previously determined” if a court of competent jurisdiction h as ruled o n the m erits after a fu ll and fair hea ring.

Tenn. Code Ann. § 40-30-112(a) (1990). A full and fair hearing sufficient to sup port

a finding of previous determination occurs if a petitioner is given the opportu nity to

present proof and argument on the c laim. Hous e v. State, 911 S.W.2d 705, 711

(Tenn. 19 95).

In the direct appeal of this case, this Court specifically addressed this issue

and held that the evidence was sufficient to support Petitioner’s convictions for two

counts of aggra vated rap e. Tom M oore, 1993 WL 312695, at *1–2. B ecau se this

Court addres sed this iss ue on d irect appe al after Petitioner had been given the

opportu nity to present proof and argum ent for th e issue , this issu e is no t cogn izable

in this post-conviction proceeding. Petitioner is not entitled to relief on this issue.

III. JURY INSTRUCTION ON REASONABLE DOUBT

Petitioner contends that the trial court erred when it instructed the jury on

reason able do ubt.

As previously stated, when Petition er filed h is petition in 1994, section 40-30-

111 provided:

The scope of the [post-conviction] hearing shall extend to all grounds the petitioner may have, except those grounds which the court finds should be exclude d beca use the y have be en waive d or previo usly deter mined . . . .

Tenn. Code Ann. § 40-30-111 (1990). In addition, section 40-30-112(b) provided:

(1) A ground for relief is “waived” if the petitioner knowingly and understandingly failed to prese nt it for de termin ation in any pro ceed ing in which the ground could have been presented. (2) There is a rebuttable presumption that a ground for relief not raised in any such proceeding which was held was waived.

Tenn. Code Ann. § 40-30-112(b) (1990). The presumption of waiver is not

overcome by an alleg ation that th e petitione r did not pe rsonally (i.e., know ingly and

-5- understand ingly) waive a ground for relief because waiver is determined by an

objective standard under which a petitioner is bound by the a ction o r inactio n of his

attorney. House, 911 S .W .2d at 7 14. Cle arly, Pe titioner’s claim that the trial court

erred when it instructed the jury o n reas onab le dou bt was availab le whe n he file d his

direct appeal. In addition, Petitioner has failed to make any effort wh atsoeve r to

overcome the presumption that he waived this issue by failing to raise it on direct

appeal. Thus, this issue is not cognizable in this post-conviction proceeding.

Moreover, we note that Petitioner would not be entitled to relief even if this issue had

not been waive d becaus e this Court has pre viously up held the c onstitution ality of a

reaso nable doubt ins truction tha t was virtually ide ntical to the ins truction in this case.

See State v. Hallock, 875 S.W .2d 285, 294 (Tenn. Crim . App. 1993 ). Petition er is

not entitled to relief on this issue.

IV. ASSISTANCE OF COUNSEL

Petitioner contends that he received ineffective assistance of counsel both at

trial and on direct appeal to this Court. We disagree.

Article I, Section 9 of the Tennessee Constitution provides “that in all criminal

prosecutions, the accused hath the right to be heard by himself and h is couns el.”

Tenn. Const. art I, § 9. Sim ilarly, the Sixth Amendment to the United States

Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistanc e of counse l for his defense.” U.S. Const. amend.

VI. “These constitutional provisions afford to the accused in a criminal prosecution

the right to effective assistance of counsel.” Henley v. State, 960 S.W.2d 572, 579

(Tenn . 1997).

When a petitioner seeks post-conviction relief on the bas is of ineffective

assistance of counsel, the petitioner bears the burden of showing that (a) the

services rendered by trial counsel were deficient and (b) the deficient performance

-6- was prejudicia l. Powe rs v. State, 942 S.W.2d 551, 558 (Ten n. Crim. App . 1996).

In order to d emon strate de ficient perfo rmanc e, the petition er mus t show tha t the

services rendered o r the advise given was below “the range of competence

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

(Tenn. 1975). In order to demon strate prejudice, the p etitioner must sh ow that there

is a reasonable probability that, but for coun sel’s de ficient p erform ance , the res ult

of the proc eeding would h ave bee n different. Strickland v. Washington, 466 U.S.

668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). “Because a petitioner must

establish both p rongs of the te st to pre vail on a claim of ineffective assistance of

coun sel, failure to prove either deficient performance or resulting prejudice provides

a sufficient ba sis to deny relief on the claim.” Henley, 960 S.W.2d at 580. “Indeed,

a court need not address the components in any particular order or even address

both if the defendant makes an insufficient showing of one com ponent.” Id.

“Moreover, on appeal, the findings of fact made by the trial court are conclusive and

will not be disturbed unless the evidence contained in the record preponderates

against them.” Adkins v. State, 911 S.W.2d 334, 34 7 (Ten n. Crim. A pp. 199 4). “The

burden is on the petitioner to show that the evidence preponderated against those

findings.” Id.

A. Alleged Failure to File Pretrial Motions

Petitioner contends tha t trial counsel were ineffective in failing to file pretrial

motions in this case. Specifically, Petitioner argues that they should have filed a

motion to suppress, a motion for information on witnesses not endorsed on the

indictme nt, a motion to withdraw , a motion for disco very, and anoth er motion for a

jury instruction that Petitioner has not specifically identified.

Johnson and Stepter both testified that they filed a motion for discovery and

a motion to charge range of punishm ent. Johnson also testified that there was no

need to file a motion to suppress b ecause the re was nothing to suppress a nd there

-7- was no need to file a motion for more information on witnesses because the defense

already k new wh o the Sta te’s witnes ses wo uld be.

Although Petition er claim s that c ouns el were ineffec tive in failing to file the

pretrial motions, he has failed to iden tify even a single ground upon which any of the

proposed motions could have been based. In addition, Petitioner has failed to

identify any manner in which he was prejudiced by the failure to file the pretrial

motions. Clearly, Petitioner has failed to meet his burden of demonstrating that trial

counsel were deficient in this regard. Petitioner is not entitled to relief on this issue.

B. Alleged Failure to Confer with Petitioner

Petitioner contends that trial counsel were ineffective because they never

discu ssed his cas e with h im un til the da y of trial.

Although Petitioner testified that he never discussed his case with trial counsel

until the morning of trial, both Johnson and Stepter testified that they discussed the

case with Pe titioner a nd/or h is family members several times before trial. In ruling

on this issue, the trial court found that Petitioner had failed to meet his burden of

establishing that trial counsel were deficient in this regard. Although not exp ressly

stated, the court clearly accredited the testimony of Johnson and Stepter and did not

believe Petitioner.

The evidence in the record simply does not preponderate against the trial

court’s finding that trial counsel met with Petitioner on several occasions before trial.

In short, Pe titioner ha s failed to esta blish th at trial co unse l were d eficien t in this

regard. Petitioner is not entitled to relief on this issue.

C. Alleged Drug Use

-8- Petitioner contends that he received ineffective assistance of counsel

because Stepter had a drug problem during the period that Petitioner’s case went

to trial.

Stepter adm itted tha t he ha d had a drug proble m du ring some period in the

past, but he specifically denied that he was using drugs while he represented

Petitioner and he testified that h is drug pro blem h ad abs olutely no e ffect on his

representation of Petitione r. Johnso n testified tha t he had no kno wledge that Stepter

ever had a drug problem. The trial court found that the allegation that Stepter’s drug

problem had a detrimental effect on Petitioner’s trial was completely unsubstantiated

and had n o merit whats oever.

Quite simply, P etitioner ha s failed to ide ntify any evidence which shows that

Stepter was using drugs during the trial or that Stepter’s drug problem had even the

slightest effect on the outcome of the trial. The record does not preponderate

against the trial court’s findings. Petitioner is not entitled to relief on this issue.

D. Failure to ask for “the Rule”

Petitioner contends that trial counsel were ineffective in failing to ask for “the

rule” before trial. Specifically, Petitioner claims that this failure allowed the Sta te’s

witnesses to observe portions of the trial before they testified.

Johnson testified that with the exception of Kennitha Watt, none of the Sta te’s

witnesses observed the trial before they testified. The trial court ruled that although

trial counsel had not asked the trial court to enforce the “rule” that excludes

witnesses from observing the trial before they testify, Petitioner was not prejudiced

by this action. T he trial cou rt based this ruling on its finding tha t with the exception

of one witness who remained in the court room after giving her initial testimony and

-9- was subsequently recalled by the State, no other witness was allowed to observe the

trial before he or she testified.

W e conclude that Petitioner has failed to meet his burden of establishing that

he was prejudice d by the failure to call for “the rule”. We have reviewed the trial

transcript, and the re is no evid ence th at any witn ess othe r than Ke nnitha W att

observed any po rtion of th e trial before testifying. As to W att, she wa s allowed to

rema in in the courtroom after she gave h er original t estimony and she was

subs eque ntly recalled by the State. However, when Watt was recalled she testified

only that she had placed a call to her aunt and asked her au nt to meet with he r.

Indeed, the direct examination of Watt after she was recalled only takes up

approxim ately one page o f the trial transc ript.

Although Petitioner contends that he was prejudiced by Watts’ subsequent

testimony after she o bserved portions o f the trial, he ha s failed to ide ntify any portion

of W att’s testimon y that w as pre judicia l. In sho rt, Petitio ner ha s failed to me et his

burden of establishing that in the absenc e of this deficiency, there is a reas onab le

probability that the result of his trial would have been different. Petitioner is not

entitled to relief on this issue.

E. Failure to Call Two Witnesses

Petitioner contends that trial counsel were ineffective because they failed to

call Robin G ibbons and Therm on Thom as to testify for the defens e. Specifically,

Petitioner argues that the se witnesses should have been called beca use th ey wou ld

have tes tified favorab ly on his be half.

Johnson testified that he and Stepter investigated the case, obtained

statem ents from T hom as an d Gib bons , and d ecide d not to call these two witnesses

because they would harm the defen se m ore tha n they w ould help it. Stepter likewise

-10- testified that he made a strategic decision not to call Thomas and Gibbons to testify

at trial. The trial court ruled that it agreed with Johnson and Stepter that calling

these two witnesses would have hurt Petitioner’s case and regardless, the failure to

call these witnesses was a tactica l decisio n that w ould n ot be q uestio ned in

hindsigh t.

Initially, we note that Petitioner should have called these two witnesses during

the post-conviction hearing to establish what their testim ony wo uld ha ve bee n at trial.

See Black v. State, 794 S.W.2d 752, 757–58 (Tenn. Crim. App. 1990) (“When a

petitioner contends that trial c ouns el failed to . . . pres ent witn esse s in supp ort of his

defense, these witness es should b e presented by the petitioner at the evide ntiary

hearing. As a general rule, this is the only way the p etitioner ca n estab lish that . .

. the failu re to . . . ca ll the witn ess to the sta nd res ulted in the de nial of critical

evidence wh ich inured to the pre judice of the petitioner.”)

In addition to Petitioner’s failure to call thes e witness es during the post-

conviction hearing, Johnson and Stepter’s decision not to call these witnesses was

clearly a tactical one that we will not second guess. As the Tennessee Supreme

Court has state d, “the de fense a ttorney’s re presen tation . . . is not to be measured

by ‘20-20 hindsigh t.’” Hellard v. S tate, 629 S.W .2d 4, 9 (T enn. 19 82). Inde ed, “[i]t

cannot be sa id that incompetent representation has occurred merely because other

lawyers, judging from hindsight, could have made a better choice of tactics.” Id.

Petitioner is not entitled to relief on this issue.

F. Failure to Object to Rape Crisis Testimony

Petitioner contends that trial counsel were ineffective in failing to object to the

sufficiency of the testimony of Kitty Roberts of the Memphis Rape Crisis Program.

-11- Petition er’s allegation as to why trial counsel were in effective in this regard is

extrem ely vague. Indeed, Petitioner has failed to identify a single basis for objecting

to Robert’s testimony and has failed to identify any manner in which he was

prejudiced by this testim ony. In sho rt, Petitioner h as clea rly failed to mee t his

burden of establishing that trial counsel were deficient or that he was prejudiced as

a result. Petitioner is not entitled to relief on this issue.

G. Failure to Implicate a Possible Perpetrator

Petitioner conten ds that trial counsel w ere ineffective because they failed to

present evidence that another individual had access to the victims in this case.

When Stepter was questioned about why he did not call the mother of the

victims to testify that her boyfriend was living in the same residence with her and the

victims during the gen eral period when the offenses were committed, Stepter

testified that he did no t believe that the moth er wou ld have mad e a go od witness.

Stepter also testified that he did not call the victims’ mother because she was not

present when the offenses occurred.

Once again , it appe ars tha t Stept er’s de cision not to present this evidence was

a tactical decision that we will not use hindsight to second guess. See Hellard, 629

S.W.2d at 9. Moreover, we cannot say that, in the absence of any evidence that the

boyfriend had anything to do with the commission of the crimes in this case, there

is a reasonable likelihood that the result of the trial wou ld have been different if the

jury had known that the boyfriend was living in the same residence as the victims.

Petitione r is not entitled to relief on this issue.

H. Failure to Ask for a “Fresh Complaint” Instruction

-12- Petitioner contends that trial counsel were ineffective in failing to request an

instruction that the “fresh complaint” evidence introduced by the State could be

considered only for the limited purp ose of supp orting the victims’ credibility.

Initially, we note that Petitioner has failed to cite any au thority in supp ort of his

claim and the argument section of his brief does not identify the portions of the

record that contain the “fresh complaint” evid ence for which he contends that an

instruction should have been requ ested. By failing to prop erly cite to the relevant

portions of the record or to cite any authority, Petitioner has waived this issue. Tenn.

Ct. Crim. A pp. R. 10 (b). How ever, Pe titioner is not e ntitled to relief even on the

merits. Petitioner has failed to identify any prejudice that he suffered in regard to

this issue. Indeed, Petitioner has not even specifically stated in his brief that he was

prejudiced with respec t to this issue. In short, we conclude that there is no

reaso nable likelihood that if trial counsel had requested such an instruction and such

an instruction had been given, the result o f the trial wou ld have b een differe nt.

I. Alleged Failure to Object During Sentencing Hearing

Petitioner contends tha t trial counsel were ineffec tive in failing to object during

the sentencing hearing when the trial court stated that it was basing its imposition

of consecu tive sentencing o n a “threat of dea th”.

Once again, P etitioner has failed to identify the portion of the record that

contains the allegedly objectionable proceedings and he has failed to cite any

authority in support of his proposition. Thus, Petitioner has waived this issue. Tenn.

Ct. Crim. App. R. 10(b). In addition, Petitioner’s claim is not supported by the record.

W e have reviewed the transcript of the sentencing h earing and w e have been unab le

to find any instance in which the trial court referred to a “threa t of death”. Indeed, the

trial court stated that it was basing the imposition of consecutive sentencing on the

-13- fact that Petitioner was convicted of two sexual offenses involving a minor and the

court made no mention of any “threat of de ath”. Petition er is not en titled to relief on

this issue.

K. Alleged Failure to Challenge a Witness’ Statement

Although it is not entirely clear, Petitioner apparently contends that trial

counsel were ineffective because they failed to “make an issue out of” the fact that

one of the witnesses initially claimed that Petitioner was the father of her child and

later claimed at differen t times that two othe r individuals were the fa ther.

The record indicates that Stepter vigorously cross-examined this witness

about her conflicting statements about the father of her child. Petitioner has failed

to identify anything that counsel could or should have done differently to “make an

issue out of” these conflicting statements. In short, Petitioner has failed to iden tify

any prejudice that resulted from this alleged deficienc y. Petitioner is not entitled to

relief on this issue.

L. Actions of Appellate Counsel

Petitioner contends that he received ineffective assistance of cou nsel fro m his

counsel on direct appeal, Avis Topps.

Petitioner testified that he felt like T opps ’ repres entatio n had been deficie nt

because after she filed his direct appeal, Topps lost her law license and left the

state. Petitioner also testified that Topps had not pursued his appeal in the

Tennessee Supreme Court and had not filed a motion to withdraw from his case.

Petitioner further testified that Topps never advised him that he had a right to appeal

-14- to the Ten nesse e Supr eme C ourt. In its orde r denying the petition for post-

conviction relief, the trial court found that Petitioner had fa iled to s ubsta ntiate h is

allegation that Topps provided ineffective assistance of counsel by losing her law

licens e and leaving the sta te after s he filed the dire ct app eal.

W e conclud e that the m ere fact tha t Topps lost her law license and left the

state after she filed the direct a ppeal, without more, does not establish that her

representation was ineffective. In short, Petitioner has failed to meet his burden of

establishing that Topps provided deficient representation or that without any alleged

deficiency, there is a re asona ble prob ability that the results of his appeal wo uld have

been different. Petitioner is not entitled to relief on this issue.

V. DELAY ED APP EAL

Even though we conclude that the trial court properly dismissed the petition,

we conclude tha t Petitioner should b e granted a d elayed oppo rtunity to apply for

permission to appe al his convictions and sentences to the Tennessee Supreme

Court. The record supports Petitioner’s claim that Topps did not file an application

for permission to appeal pursuant to Rule 11 of the Tennessee Rules of Appella te

Procedure. In addition, the record supports Petitioner’s claim that Topps never filed

a motion to withdraw from his case. Further, there is no indication in the record that

Topps ever advised Petitioner of his right to appeal and Petitioner then waived that

right. In short, the record supports Petitioner’s claim that he was denied the

opportu nity to pursue an appeal in the Tennessee Supreme Court through no fau lt

of his own. "[U]nilateral termination of a direct appeal following first-tier review

entitles a prospective a ppellant to relief in the form of a delaye d appe al." Pinkston

v. State, 668 S.W .2d 676, 677 (Tenn. Crim . App. 1984 ). Therefore, we grant

petitioner the right to seek a delayed appea l to the Te nness ee Sup reme C ourt. See,

e.g., State v. Gua dalupe Mendez, No. 01C01-9703-CC-00076, 1998 WL 345348

(Tenn. Crim. App., Nashville, June 30, 1998), perm. to. appeal denied, (Tenn. 1999)

-15- (affirming dismissal of post-conviction petition, but granting petitioner delayed

opportu nity to seek review by T ennes see Su preme Court).

VI. CONCLUSION

Based upon the fore going, we affirm th e post-conviction court's denial of

post-conviction relief in all resp ects, b ut the re cord p repon derate s a suf ficient b asis

for relief in orde r to allow Petitioner to seek review of this Court's judgment (on direct

appe al) by the supreme court in a delayed appeal. Therefore, we vacate our

judgment in State v. T om M oore, III, No. 02C01-9204-CR-00073, (Tenn. Crim. App.,

Aug. 18, 1993), and re enter it, effective as of the date of the release of this opinion,

for the sole p urpose of reinstating the time a llowed to o btain per mission to appeal

to the Tennessee Supreme Court in the above styled case.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID G. HAYES, Judge

___________________________________ JOE G. RILEY, JR., Judge

-16-