Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 19, 2017
from the Circuit Court for Bedford County No. 2012CR17467
Forest Durard, Judge
petitioner, Emmanuel Bibb Houston, appeals the denial of his
petition for post-conviction relief from his 2013 Bedford
County Circuit Court jury convictions of especially
aggravated kidnapping, aggravated burglary, and facilitation
of especially aggravated robbery, claiming that he was denied
the effective assistance of counsel at trial. Discerning no
error, we affirm.
R. App. P. 3; Judgment of the Circuit Court Affirmed.
Wesley Hall, IV, Unionville, Tennessee, for the appellant,
Emmanuel Bibb Houston.
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; Robert James Carter,
District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the appellee, State of
Curwood Witt, Jr., J., delivered the opinion of the court, in
which John Everett Williams and Camille R. McMullen, JJ.,
CURWOOD WITT, JR., JUDGE
Bedford County Circuit Court jury convicted the petitioner of
especially aggravated kidnapping, aggravated burglary, and
facilitation of especially aggravated robbery for kidnapping,
beating, and robbing the victim, Gregory Marlin in May 2012.
The evidence adduced at the petitioner's trial, as
summarized by this court on direct appeal, established that
entered the victim's house with the intent to beat him,
as shown by his statements prior to arriving at the
victim's house and his carrying a baseball bat concealed
in his pants into the victim's house. [The petitioner]
struck the victim with the baseball bat three times, breaking
five ribs and causing a large laceration on the victim's
head. While no issue regarding serious bodily injury has been
presented on appeal, we note that based on [medical]
testimony and the victim's testimony, this element was
clearly met. The victim testified that while he was on the
ground after being struck, he saw [Samantha] Houston, [the
petitioner's] sister, carrying the television from his
bedroom. Then, [the victim] was hogtied by [the petitioner],
possibly with Ms. Houston's assistance. The victim and
[Ericka] Myrick both testified about how [the petitioner]
tied the victim. After [the victim] was tied, [the
petitioner] and [Deonta] Twilley carried the victim to the
bathroom, literally throwing him inside. The victim freed
himself after approximately thirty minutes and sought help at
that point. In the meantime, a bone fragment from his rib
punctured his lung, causing the lung to collapse and air to
begin filling his chest cavity-a life-threatening condition
known as pneumothorax.
State v. Emmanuel Bibb Houston, No.
M2013-01177-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App.,
Nashville, June 4, 2014), perm. app. denied (Tenn.
June 15, 2015). In addition to this evidence, the proof
showed that the victim's television was later located in
a vehicle occupied by the defendant and his co-defendants and
that the defendant admitted his involvement in the crimes to
the police. See id., slip op. at 6. This court
affirmed the petitioner's convictions and the
accompanying 23-year total effective sentence.
January 21, 2015, the petitioner filed a timely petition for
post-conviction relief and delayed appeal. The
post-conviction court found that appellate counsel failed to
file a timely application for permission to appeal to our
supreme court or a motion to withdraw as required by the
rules and granted the petitioner a delayed appeal for the
purpose of filing an application for permission to appeal to
the supreme court. The supreme court denied the
petitioner's application, and the petitioner subsequently
filed an amended petition for post-conviction relief. The
court held an evidentiary hearing on the amended petition on
October 26, 2015.
evidentiary hearing, trial counsel testified that he was
appointed to represent the petitioner in the general sessions
court and that he visited the incarcerated petitioner
approximately five times during the nine months prior to the
petitioner's trial. Counsel did not have a thorough
recollection of the petitioner's trial, but he did recall
visiting the petitioner, obtaining discovery materials, and
speaking with the attorneys who represented the
co-defendants. Counsel also recalled that he endeavored to
highlight for the jury the inconsistencies in the testimony
offered by the State's witnesses. Counsel said that he
received a list of the names of potential jurors and that he
performed research into their backgrounds. Counsel could not
recall when he had provided the discovery materials to the
petitioner but was confident that he had done so.
testified that the petitioner "wrote a lot of"
complaints to the Board of Professional Responsibility
("the Board") about counsel while the case was
pending. Counsel acknowledged that he was censured by the
Board for failing to timely file an appellate brief in the
direct appeal of this case and for failing to respond to the
petitioner's requests for information in a timely
said that he did not have the closing arguments transcribed
in this case. He said that he raised the issue of a
Brady violation both in his motion for new trial and
on direct appeal. Counsel admitted telling the petitioner
that he believed the case to be one of aggravated assault and
that the "especially aggravated kidnapping charge was
foundless." Counsel also admitted having a conversation
with the petitioner about the fact that he had been appointed
to represent the petitioner rather than retained, explaining:
We had a conversation. . . . I think it was at the conclusion
of maybe the first day of trial. It wasn't over at the
I wished he had had money, because it was a multi-day trial.
I wished we would have been able to hire an investigator
because I would have liked to have more further
investigate[d] Mr. Marlin, ...