            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                             Assigned on Briefs February 14, 2012

        VINCENT LOVE WILLIAMS v. HENRY STEWARD, WARDEN

                       Appeal from the Circuit Court for Lake County
                         No. 11-CR-9624      R. Lee Moore, Judge


                    No. W2011-01954-CCA-R3-HC - Filed June 18, 2012


 The petitioner, Vincent Love Williams, appeals the dismissal of his pro se petition for the
writ of habeas corpus, contending that the trial court erred in dismissing his petition without
reviewing it or answering the allegations, that his judgment was void because of a defective
indictment, and that his right against double jeopardy had been violated. After a careful
review of the record, we affirm the trial court’s denial of the petition for habeas corpus relief.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which JOSEPH M. T IPTON,
P.J., and C AMILLE R. M CM ULLEN, J., joined.

Vincent Love Williams, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; and Rachel Willis, Assistant State Attorney General, for the appellee, State of
Tennessee.

                                               OPINION


        The petitioner contends he was initially indicted in case number 09-CR-324. While
this indictment and the charges brought against the petitioner are not part of the record, the
petitioner has included an Order of Nolle Prosequi filed on October 27, 2009, in which the
State dismissed the action in case number 09-CR-324.1 On October 12, 2009, a Dyer County


        1
        The petitioner’s brief appears to assert that the first indictment charged him with theft of property
valued over $1,000 and evading arrest, and that the dismissal of the first indictment “dismissed the Felony
                                                                                               (continued...)
grand jury issued a four-count indictment in case number 09-CR-400. Count one of the
indictment charged first degree murder, in that the petitioner, on or about July 25, 2009, “did
unlawfully kill Jeffery Lynn Richardson in the perpetration of or attempt to perpetrate a theft,
in violation of T.C.A. § 39-13-202.” Count two charged that the petitioner, on or about July
25, 2009, “unlawfully and recklessly killed Jeffrey Lynn Richardson by the operation of a
motor vehicle, as the proximate result of the driver’s intoxication, as set forth in § 55-10-401,
in violation of T.C.A. § 39-13-213(a)(2), a Class B Felony.” Count three charged the
petitioner with the theft of a pickup truck valued over $1,000, a Class D felony, and count
four charged the petitioner with attempting to elude a law enforcement officer and thereby
creating a risk of death or injury, a Class D felony. The petitioner entered a motion for a bill
of particulars in case number 09-CR-400, and the court denied the motion on July 27, 2010,
finding that the indictment adequately specified the elements of the offenses. On September
1, 2010, the petitioner entered a guilty plea to the vehicular homicide charge. The petitioner
was sentenced as a multiple offender to twenty years’ incarceration, and the remaining counts
were dismissed.

        Less than a year after the entry of his guilty plea, the petitioner brought a petition for
the writ of habeas corpus. The petition asserted that the indictment did not adequately
specify the offense with which he was charged in the vehicular homicide count. The
petitioner further asserted that his plea violated the prohibitions against double jeopardy. The
trial court denied the petition on August 8, 2011. The trial court, having provided a thorough
summary of the petitioner’s argument, found that the indictment was adequately specific and
that there was no double jeopardy violation.2

       On appeal, the petitioner contends that the trial court erred in not reviewing or
responding to the allegations of his petition, that the indictment was defective in failing to
adequately specify the crime to which he pled guilty, and that the indictment violated the
prohibitions against double jeopardy.




        1
        (...continued)
Murder Offense of the superceding [sic] indictment.” As the petitioner does not pursue this as an argument,
we decline to address it. See Rules of the Court of Criminal Appeals Rule 10(b).
        2
          The trial court's order was signed on August 3, 2011, but file-stamped August 8, 2011, with a
certificate of service indicating it was sent to the petitioner on that date. However, the petitioner has
provided an affidavit that he did not receive notice of the decision until September 9, 2011, with confirmation
from the correctional facility's mailroom. We therefore conclude that a timely notice of appeal is waived in
the interest of justice pursuant to Tennessee Rule of Appellate Procedure 4(a).

                                                     -2-
                                            Analysis

       The right to seek a writ of habeas corpus is found in article I, section 15 of the
Tennessee Constitution, and the contours of and procedures for relief are delineated in
Tennessee Code Annotated section 29-21-101 et seq. “While the statutory language
describing the writ appears broad, in fact, ‘[h]abeas corpus under Tennessee law has always
been, and remains, a very narrow procedure.’” Edwards v. State, 269 S.W.3d 915, 919
(Tenn. 2008) (footnote omitted) (quoting Archer v. State, 851 S.W.2d 157, 162 (Tenn.
1993)). Due to the limited nature of the writ, the relief available under the writ of habeas
corpus has been supplemented by the Post-Conviction Procedure Act. Id. at 919-20.

        A petition for habeas corpus will only lie if the judgment challenged is void, rather
than voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A voidable judgment is
valid on its face and requires proof beyond the face of the record or judgment to establish
that it is invalid. Edwards, 269 S.W.3d at 920. “A void judgment is one that is facially
invalid because the court did not have the statutory authority to render such judgment.”
Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). It must be apparent on the face of the
judgment or record of proceedings upon which judgment was rendered that the court was
without jurisdiction to sentence the defendant, or that the defendant’s sentence has expired.
Taylor, 995 S.W.2d at 83. For the purposes of determining if a judgment is void,
“jurisdiction” is synonymous with “authority.” Edwards, 269 S.W.3d at 920.

         The defendant bears the burden of showing by a preponderance of the evidence that
the judgment is void or the confinement illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn.
2000). “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.” T.C.A. § 29-21-109. The availability of relief is not
dependent on whether the defendant was tried or pled guilty, as a guilty plea waives only
non-jurisdictional defects. Edwards, 269 S.W.3d at 921. The granting or denial of habeas
corpus relief is a question of law. Summers, 212 S.W.3d at 255. Appellate review is
therefore de novo. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

       The petitioner challenges the trial court’s denial of his petition, asserting that the trial
court did not review or answer the allegations of the petition. However, the trial court’s
order demonstrates the trial court thoroughly reviewed and responded to the petition.
Moreover, the statute merely requires the reasons for refusing the petition to be “briefly
endorsed upon the petition, or appended thereto.” T.C.A. § 29-21-109. If the petition fails
to establish that the judgment is void, the trial court may properly dismiss it without a
hearing. Summers, 212 S.W.3d at 260.



                                                -3-
        The petitioner further challenges the trial court’s denial of the petition based on the
adequacy of the indictment. Under the Sixth and Fourteenth Amendments to the United
States Constitution and article I, section 9 of the Tennessee Constitution, the accused has the
right to be informed of the nature and cause of the accusation. Statutory mandate further
requires that the indictment

              state the facts constituting the offense in ordinary and concise
              language, without prolixity or repetition, in a manner so as to
              enable a person of common understanding to know what is
              intended and with that degree of certainty which will enable the
              court, on conviction, to pronounce the proper judgment.

T.C.A. § 40-13-202. Generally, an indictment is valid if it provides information sufficient:
(1) to enable the accused to know the offense charged; (2) to furnish the court adequate basis
for the entry of a proper judgment; and (3) to protect the accused from double jeopardy.
Wyatt, 24 S.W.3d at 323; State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). While
challenges to a defective indictment are generally waived unless raised prior to trial, Tenn.
R. Crim. P. 12(b)(2)(B), “an indictment that is so defective as to fail to vest jurisdiction in
the trial court may be challenged at any stage of the proceedings, including in a habeas
corpus petition.” Wyatt, 24 S.W.3d at 323. The indictment in question specified the date,
the victim, and act which constituted the crime, and further specifically referred to the
statutory provisions the defendant violated. “[S]pecific reference to a statute within the
indictment may be sufficient to place the accused on notice of the charged offense.” State
v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000). We conclude that the indictment was not
defective. To the extent that petitioner’s brief can be read to allege that the indictment was
defective because the vehicular homicide count failed to include a predicate felony, we note
that the statutory provision governing vehicular homicide was cited by the indictment, and,
unlike felony murder, requires no predicate felony.

       We may briefly dispense with the petitioner’s claims that the indictments violated the
prohibitions against double jeopardy. First, such an allegation would render a conviction
merely voidable, not void, and as such is not a proper basis of a petition for habeas corpus.
Thurmond v. Sexton, No. E2010-02256-CCA-R3-HC, 2011 WL 6016890, at *4-5 (Tenn.
Crim. App. Dec. 5, 2011) perm. app. denied (Tenn. Mar. 9, 2012); Deeter v. Lindamood, No.
M2011-00636-CCA-R3-HC, 2011 WL 3941142, at *2 (Tenn. Crim. App. Sept. 8, 2011); Hill
v. Parker, No. W2010-01423-CCA-R3-HC, 2011 WL 287343, at *4 (Tenn. Crim. App. Jan.
24, 2011); Mosley v. Brandon, No. M2006-02398-CCA-R3-HC, 2007 WL 1774309, at * 5
(Tenn. Crim. App. June 20, 2007); Claypole v. State, No. M1999-02591-CCA-R3-PC, 2001
WL 523367, at *2 (Tenn. Crim. App. May 16, 2001); see also Bowen v. Carlton, No. E2007-
01845-CCA-R3-HC, 2008 WL 450630, at *3 (Tenn. Crim. App. Feb. 20, 2008) (concluding

                                              -4-
that claim that indictments were multiplicitous was not cognizable in action for habeas
corpus relief). The petitioner’s claim also fails because the petitioner only pled guilty to, and
was convicted of, one count in the indictment. Jeopardy attaches when a trial court
unconditionally accepts a guilty plea. Waters v. Farr, 291 S.W.3d 873, 892 (Tenn. 2009)
(citing State v. Todd, 654 S.W.2d 379, 383 (Tenn. 1983)). Because the petitioner only pled
guilty to one count, there could not have been a double jeopardy violation. This also rebuts
the petitioner’s argument insofar as he alleges that he was placed in double jeopardy because
he was indicted twice. The State may obtain a superseding indictment – which is an
indictment obtained while another indictment is still pending – if jeopardy has not attached
on the first indictment. State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000). “Thus, the State
may obtain a superseding indictment at any time prior to trial without dismissing the pending
indictment and may then select the indictment under which to proceed at trial.” Id. We
conclude there has been no double jeopardy violation.3

                                             CONCLUSION

       Because the petitioner’s indictment was not defective and because there was no
violation of the prohibition against double jeopardy, we affirm the trial court’s denial of the
petition for the writ of habeas corpus.




                                                           _________________________________
                                                           JOHN EVERETT WILLIAMS, JUDGE




        3
         We also note that, contrary to the petitioner’s assertion, vehicular homicide is not a lesser included
offense of first degree murder. State v. Hester, No. 03C01-9704-CR-00144, 2000 WL 294964, at *7 (Tenn.
Crim. App. Mar. 22, 2000). Because each offense contains an element not necessary to the other, see State
v. Watkins, __ S.W.3d __, 2012 WL 758912, at *21 (Tenn. Mar. 9, 2012), there is no double jeopardy
violation.

                                                     -5-
