       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE             FILED
                     FEBRUARY SESS ION, 1998         July 14, 1998

                                               Cecil Crowson, Jr.
                                                Appellate C ourt Clerk
DAVID MCDOWELL,        )       C.C.A. NO. 03C01-9707-CR-00278
                       )
    Appe llant,        )
                       )
                       )       MORGAN COUNTY
VS.                    )
                       )       HON. E. EUGENE EBLEN
CHARLES JONES, Warden, )       JUDGE
                       )
    Appellee.          )       (Writ of Habeas Corpus)




FOR THE APPELLANT:             FOR THE APPELLEE:

DAVID MCDOW ELL                JOHN KNOX WALKUP
Pro Se                         Attorney General and Reporter
#109129
M.C.R.C.F.                     TIMOTHY F. BEHAN
P. O. Box 2000                 Assistant Attorney General
Wartburg, TN 37887-2000        425 Fifth Avenu e North
                               Nashville, TN 37243-0493

                               CHARLES E. HAWK
                               District Attorney General

                               FRANK HARVEY
                               Assistant District Attorney
                               P. O. Box 703
                               Kingston, TN 37763



OPINION FILED ________________________

AFFIRMED PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE
                                      OPINION
       Appellant D avid McDo well was convicte d by a jury in the Bradley C ounty

Criminal Court of aggravated rape. As a Range I standard offender, he was

sentenced to twenty-two years incarceration with the Tennessee Department of

Correction. This C ourt affirm ed the co nviction. State v. David McD owell, No. 251

Bradley Coun ty (Tenn . Crim. A pp., Knoxville, Octobe r 23, 1986). On December

30, 1996, Appellant filed an application for writ of habeas corpus in the Morgan

Coun ty Crim inal Court, alleging that he was being illegally restrained on a

conviction and sentence based upon a fatally defective indictment which failed

to properly set forth a mens rea. The trial cou rt denie d the w rit on February 14,

1997. Appellant presents the following issue for our co nside ration in this ap peal:

whethe r the trial cou rt erred in dis missing the petition for habe as corp us relief.

       After a review of the record, we affirm the judgment o f the trial court

pursuant to Court of Criminal Appeals Rule 20.

       W e find no merit in Appellant's complaint tha t the trial c ourt im prope rly

denied his application for writ of habeas co rpus without co nducting an evidentiary

hearing and witho ut appo inting cou nsel. "A full evidentiary hearing is not required

for every petition for habe as corp us." We atherly v. Sta te, 704 S.W.2d 730, 732

(Tenn. Crim. App. 1985). An evidentiary hearing is not warranted unless the

petitioner alleges fa cts adeq uately de mons trating the vo id charac ter of the

proceedings which led to his confinem ent. Id. (citing Russ ell v. Sta te ex re l.

W illis, 437 S.W .2d 529 (Te nn. 1969)).

       The Bradley County grand jury indicted Appellant for aggravated rape.

According to Appellant's petition, the ind ictme nt alleg ed tha t Appe llant "did

unlaw fully and feloniously have sexual penetra tion of. . . a child less than thirteen

(13) year s of age, c ontrary to th e statute,. . ."

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      Both the Sixth Amendment to the United States Constitution and Article I,

§ 9 of the Tennessee Constitution afford the accused the right to be informed of

the "nature and cause of the accusation."           Moreover, our legislature has

prescribed the contents of indictments. Tenn. Code Ann. § 40-13-202 provides:

           The indictme nt mus t state the fa cts constituting the offens e in
           ordinary and concise language, without prolixity or repetition,
           in such a manner as to enable a person of common
           understanding to know what is intended, and with that degree
           of certainty wh ich will enab le the cou rt, on conviction, to
           pronounce the proper judgment; and in no case are such
           words as "force and arms" or "contrary to the form of the
           statute" necess ary.
Tenn. Code Ann. § 40-13-202.

      The Tennessee Supreme Court's decision in State v. Hill governs the

disposition of the case sub judice. 954 S.W.2d 725 (Tenn. 1997). The Hill court

held that:

             [F]or offens es wh ich ne ither ex press ly requ ire nor p lainly
             dispense with the require men t for a cu lpable mental state, an
             indictment which fails to allege such mental state will be
             sufficient to support prosecution and conviction for that
             offense so long as (1) th e lang uage of the in dictm ent is
             sufficient to mee t the cons titutional requ iremen ts of notice to
             the accused of the charge against which the accused must
             defend, adequate basis for entry of a proper judgment, and
             protection from double jeopardy; (2) the form of the indictment
             meets the requirements of Tenn. Code Ann. § 40-13-202; and
             (3) the mental state can be logically inferred from the conduct
             alleged.
Id. at 726-27.

      The indictment in the instant case comp orts with the requ iremen ts of Hill.

      According ly, we affirm the trial court's judgment pursuant to Court of

Criminal Appeals Rule 20.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
THOMAS T. WOODALL. JUDGE


___________________________________
WILLIAM B. ACREE, SPECIAL JUDGE




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