IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1997 April 2, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704-CR-00159
)
Appe llant, )
)
) CUMBERLAND COUN TY
VS. )
) HON. LEON C. BURNS, JR.
MICHAEL DAVENPORT, ) JUDGE
)
Appellee. ) (Writ of Habeas Corpus)
FOR THE APPELLEE: FOR THE APPELLANT:
JAMES P. SMITH, JR. JOHN KNOX WALKUP
300 Thurman Avenue Attorney General and Reporter
Crossville, TN 38555
TIMOTHY F. BEHAN
Assistant Attorney General
425 Fifth Avenu e, North
Nashville, TN 37243-0493
BILL GIBSON
District Attorney General
BEN FANN
Assistant District Attorney
145 South Jefferson Street
Cookeville, TN 38501
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
Appellee Michael Davenport was indicted on June 13, 1992 for attempted
first degree m urder, aggrava ted assault, and two counts of re ckless
endan germe nt. The pr osecu tion, on its own motion, asked that the aggravated
assa ult charge be dismissed, and the trial court did so on November 19, 1992.
On November 20, 1992, Appellee was convicted by a jury in the Cumberland
County Criminal Court of aggravated assault. As a R ange I stand ard offender,
Appellee was sentenced to five years confinement with the Tennessee
Department of Correction. This C ourt affirm ed App ellee's con viction. State v.
Michael Davenpo rt, C.C.A. No. 03C01-9310-CR-00342, Cumberland C ounty
(Tenn. Crim. A pp., Kno xville, December 21, 1994). On January 28, 1997,
Appellee filed a petition for writ of hab eas co rpus an d/or pos t-conviction relief,
relying upon the Tennessee Supreme C ourt's decision in State v. T rusty, 919
S.W.2d 305 (Tenn. 1996). After hearing the arguments of counsel, the trial court
granted Appellee's petition for writ of habeas corpus in light of the Trusty
decision. The State presen ts the fo llowing issue fo r our co nside ration o n this
appe al: whethe r the trial cou rt erred in granting Appellee's petition for writ of
habeas corpus.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
I. FACTUAL BACKGROUND
At the culmination of Appellee's trial, the cou rt instructed the jury on the
eleme nts of attempted first de gree mu rder. Additionally, the trial court charged
the jury on aggravated assault as being a lesser included offense of attempted
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first degree murder. Ap pellee neither req uested nor o bjected to the jury
instruction on agg ravated a ssault.
II. PETITION FOR WRIT OF HABEAS CORPUS
Tenn. Code Ann. § 29-21-101 provides, "Any person impris oned or
restrained of his liberty, under any pretense whatsoeve r, except in cases [where
the federal courts exercise exclusive jurisdiction], may prosecute a writ of habeas
corpus, to inquire into the cause of such im prisonm ent and restraint." Id. Tenn.
Code Ann. § 29-21-109 provides, "If, from the showing of the petitioner, the
plaintiff would not be entitled to any relief, the writ may be refused, the reasons
for such refusal being briefly endorsed upon the petition, or appended thereto."
Id.
In Tennessee, it is w ell-settle d law th at the re med y of hab eas c orpus is
limited both in sc ope an d in relief. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Potts v. Sta te, 833 S.W .2d 60, 62 (Tenn . 1992). In criminal cases, habeas
corpus is available only where the judgment is void or the term of imprisonment
has expired. Pass arella v. State, 891 S.W .2d 619, 627 (Tenn. Crim . App. 1994 ).
The habeas petitioner bears the burden of demonstrating by a preponderance of
the evidence that the judgment of conviction is void or that his term of
confinement has expired. Id. If the petitioner establishes by a preponderance of
the evidence either th at his co nviction is void or that his term of confinement has
expired, he can obtain im media te release . Warren v. State, 740 S.W.2d 427, 428
(Tenn. Crim. App. 1986). "A ju dgm ent of a court o f gene ral jurisd iction is
presumed to be valid." Pass arella, 891 S.W.2d 619, 627 (citing Archer, 851
S.W.2d 157, 162). This presum ption is conc lusive u nless the jud gme nt is
impea ched b y the reco rd. Id.
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The State appeals from the trial court's decision to grant Appellee's petition
for writ of habeas corpus in view of the Supreme Court's opinion in Trusty, 919
S.W.2d 305. In its brief, the Sta te conce des tha t Trusty holds that aggravated
assa ult is neither a lesser included offense nor lesser grade of attempted first
degree murder. H owever, it conte nds th at the A ppelle e’s failure to object to the
aggravated assault instruction constitutes an implicit amendment to the
indictme nt to includ e aggra vated as sault.
Appe llee empha sizes that he did n ot request the jury ch arge on ag gravated
assa ult and correctly observes that "Neither this [C]ourt nor the Tennessee
Supreme Court has ever ruled that an accused's right to be charged by
presentment or indictment m ay be waived by not ob jecting to a jury charg e."
Appellee further argues th at unde r the holdin g and ra tionale of Trusty, habeas
corpus relief was pro perly gran ted in this ca se for the fo llowing rea sons. Firs t,
the indictment failed to inform Appellee of the essential elements of the offense
for which he ultimately was convicted and, therefore , afforded the con victing court
no adequate ground upon which to enter the judgment of conviction. Second, at
the time of Appellee's trial, he was not indicted for the crime of aggravated
assau lt. Therefore, the trial court was without jurisdiction to enter a judgment
based upon a crime for which Appellee was not indicted.
Typically, a defendant's failure to interpose a contemporaneous objection
to jury instructions at the trial would result in waiver. State v. Brimmer, 876
S.W.2d 75, 82 (T enn. 19 94). See also T ENN. R. C RIM. P. 52(b). How ever, in
order to ensure that substantial justice is done, we exercise our discretion and
conside r this issue. Id.
It is true that where the defendant affirm atively requests a pa rticular jury
instruction on an offens e not c harge d in the indictm ent, erroneously believing that
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offense to be a lesser included offense of the c harge d crim e, the d efend ant's is
deemed to have consented to an amen dmen t of the indictm ent. State v. Michael
Lynn Ealey, 03C01-9609-CR-00333, Greene C ounty (T enn. C rim. App .,
Knoxville, June 1 7, 1997 ); State v. Robert W. Bentley, C.C.A. No. 02C01-9601-
CR-00038, slip op. at 2, Sh elby Co unty (Tenn. Crim. App., Jackson, October 17,
1996). However, we will not presume consent merely from the accused's silence.
Appe llee's judgment of conviction for aggra vated assa ult is, therefore , void on its
face becau se the trial co urt lacked the autho rity to rende r the judgm ent. See
Pass arella, supra, at 627.
The trial cou rt's gran t of App ellee's petition for writ of habe as co rpus is
affirmed.
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JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
GARY R. WADE, JUDGE
___________________________________
DAVID H. WELLES, JUDGE
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