        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 7, 2016

           DARRELL JENNINGS v. MICHAEL PARRIS, WARDEN

                   Appeal from the Circuit Court for Lake County
                    No. 16-CR-10199 R. Lee Moore, Jr., Judge
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                No. W2016-01089-CCA-R3-HC - Filed April 10, 2017
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The Petitioner, Darrell Jennings, filed a petition in the Lake County Circuit Court seeking
habeas corpus relief from his first degree felony and second degree murder convictions
and resulting life sentence, alleging that he is entitled to relief because he was convicted
of an offense that was not alleged in the indictment and because the trial court failed to
instruct the jury on lesser-included offenses. The habeas corpus court summarily denied
the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the
habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Darrell Jennings, Pro se, Tiptonville, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

        In 1998, the Shelby County Grand Jury indicted the Petitioner and a codefendant
for first degree premeditated murder and first degree felony murder committed during the
perpetration of robbery. In August 1999, a jury convicted the Petitioner of second degree
murder as a lesser-included offense of first degree premeditated murder and first degree
felony murder. After a sentencing hearing, the trial court merged the convictions and
sentenced the Petitioner to life. On direct appeal of his felony murder conviction, this
court gave the following factual account of the crime:
       In August 1998, sixteen-year-old Delmar Mason
resided in Memphis with his seventy-one-year-old
grandfather, Joe H. Mason. The proof established that Joe
Mason conducted an [unlicensed] pawn shop business from
his residence and routinely accepted for pawn or purchase
cars, jewelry, and clothing, along with other items of
property. In addition, he made cash loans and would cash
checks. At approximately 12:30 a.m. on August 24th,
Delmar, his grandfather, his uncle, and his grandfather‟s
friend had retired to bed when James “Gucci” Patterson and
Kelvin Hooks arrived at the residence with a third-party
check they wanted cashed. Joe Mason informed Patterson
and Hooks that “the check wasn‟t no good.” The two men
left.

       Approximately thirty minutes later, Patterson and
Hooks returned to the residence accompanied by the
Appellant. The Appellant was carrying “some Tommy
Hilfiger clothes and [Hooks] came with . . . a leather jacket . .
. .” Patterson, without saying a word, “sat on the couch, the
opposite from [Joe Mason.]” Delmar Mason asked the
Appellant “how much he wanted for the clothes.” At this
point, “Kelvin Hooks pulled his gun out on [Delmar] and told
[him] to lay down.” Delmar sat on the couch next to his
grandfather. The Appellant and Hooks demanded money and
the Appellant drew his weapon. Joe Mason stood up but was
warned by the Appellant, “Don‟t move old man.”
Disregarding the admonition, Joe Mason responded that he
did not have any money and advanced toward the Appellant,
grabbing the gun away from him. Gunshots were fired and
Delmar ran to his bedroom. James Patterson testified that
after “Mr. Joe shot the gun,” “that‟s when K-mack [Hooks]
done what he done. He pulled his pistol . . . and went to
shooting Mr. Joe.” The perpetrators fled the residence.

       When Delmar returned, he saw his grandfather
staggering by the coffee table. Eventually, Joe Mason fell to
the floor. Mason died as a result of four gunshot wounds to
his chest. Delmar Mason gave accurate descriptions of the
Appellant, Hooks, and Patterson. He also identified the
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              Appellant as one of the perpetrators from a photographic line-
              up a few hours after his grandfather‟s murder.

                     Memphis Police Officer Laneeze Stepney and his
              partner responded to the call to the Mason residence. Upon
              arriving at the scene, they discovered the body of Joe Mason.
              Delmar Mason, his uncle and another individual present were
              questioned as to the events. These witnesses provided
              descriptions of the suspects. One twenty-five-caliber shell
              casing was recovered in addition to the discovery of four
              nine-millimeter casings.

State v. Darrell Jennings, No. W1999-01036-CCA-R3-CD, 2000 WL 1863515, at *1-2
(Tenn. Crim. App. at Jackson, Dec. 1, 2000) (footnote omitted).

       On direct appeal, the Petitioner argued that the evidence was insufficient to
support his conviction, that the trial court erred by failing to grant a mistrial when a State
witness implied that the Petitioner had a criminal record, and that trial court placed undue
emphasis in its supplemental instruction to the jury that “„the State need not prove the
robbery was completed.‟” See id. at *2-5. This court affirmed the judgment of
conviction. Id. at *6. In a petition for post-conviction relief, the Petitioner alleged that
he received the ineffective assistance of counsel because trial counsel met with him only
one time before trial, did not adequately prepare for trial, and should have pursued a jury
instruction regarding the natural and probable consequences rule. Darrell Jennings v.
State, No. W2007-01087-CCA-R3-PC, 2009 WL 3400701, at *2 (Tenn. Crim. App. at
Jackson, Oct. 21, 2009), perm. to appeal denied, (Tenn. Apr. 24, 2010). This court
affirmed the post-conviction court‟s denial of the petition. Id. at *2.

        In May 2016, the Petitioner filed a petition for writ of habeas corpus. As his first
ground for relief, the Petitioner alleged that he was indicted for first degree felony murder
committed during the perpetration of robbery; however, when the proof at trial showed
only attempted robbery, the trial court constructively amended the indictment by
instructing the jury that it could also consider attempted robbery as an element of the
offense. As his second ground for relief, the Petitioner alleged that the trial court failed
to instruct the jury on any lesser-included offenses of first degree felony murder and
failed to instruct the jury on facilitation as a lesser-included offense of first degree
premeditated murder. Regarding both grounds, the Petitioner argued that the trial court
lost jurisdiction to convict and sentence him. In support of his petition, the Petitioner
attached exhibits, including a copy of the indictment, a copy of the jury instructions, and
a copy of the judgment. The habeas corpus court denied the petition without a hearing,

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concluding that even if the Petitioner‟s allegations were true, the judgment would be
voidable, not void. The Petitioner appeals the ruling of the habeas corpus court.

                                       II. Analysis

       The determination of whether to grant habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court‟s findings de novo without a presumption of correctness. Id. Moreover, it is a
petitioner‟s burden to demonstrate, by a preponderance of the evidence, “that the
sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000).

       Article I, section 15 of the Tennessee Constitution guarantees an accused the right
to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
However, “[s]uch relief is available only when it appears from the face of the judgment
or the record of the proceedings that a trial court was without jurisdiction to sentence a
defendant or that a defendant‟s sentence of imprisonment or other restraint has expired.”
Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas
corpus relief may be sought only when the judgment is void, not merely voidable.
Taylor, 995 S.W.2d at 83. “A void judgment „is one in which the judgment is facially
invalid because the court lacked jurisdiction or authority to render the judgment or
because the defendant‟s sentence has expired.‟ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.”
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at
83).

        Turning to the instant case, “[N]ot only must the government prove the crime it
charges, it must charge the crime it proves,” and “after an indictment has been returned,
its charge may not be broadened or changed except by action of the grand jury.” State v.
Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001). Moreover, “a constructive
amendment of the indictment occurs when the jury is permitted to convict the defendant
upon a factual basis that effectively modifies an essential element of the offense
charged.” Id. Here, the indictment for first degree felony murder provided that the
defendants “did unlawfully and with the intent to commit Robbery,, kill JOE MASON
during the perpetration of Robbery,, in violation of T.C.A. 39-13-202, against the peace
and dignity of the State of Tennessee.” However, during the jury charge, the trial court
instructed the jury that it could find the Petitioner guilty “in the perpetration of or the
attempt to perpetrate the alleged Robbery.” Regarding lesser-included offenses, at the
time of the Petitioner‟s trial, trial courts were obligated to instruct juries on all lesser-
included offenses that were supported by the evidence. See State v. Ely, 48 S.W. 3d 710,
726-27 (Tenn. 2001). The jury instructions in this case reflect that the trial court
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instructed the jury on only the following lesser-included offenses of first degree
premeditated murder: second degree murder, voluntary manslaughter, reckless homicide,
and criminally negligent homicide. In addition, the trial court did not instruct the jury on
any lesser-included offenses of first degree felony murder.

       Nevertheless, an improperly amended indictment renders a judgment voidable, not
void on its face. Gary E. Aldridge v. State, No. M2005-01861-CCA-R3-HC, 2006 WL
1132073, at *3 (Tenn. Crim. App. Apr. 28, 2006), perm. to appeal denied, (Tenn. Nov.
27, 2006). Likewise, defects in jury instructions render a petitioner‟s conviction
voidable, not void. Milton Lee Cooper v. Howard Carlton, Warden, No. E2011-00783-
CCA-R3-HC, 2012 WL 1523960, at *5 (Tenn. Crim. App. at Knoxville, Apr. 30, 2012)
(citing Danny Ray Lacy v. Cherry Lindamood, No. M2009-00072-CCA-R3-CO, 2009
WL 3029619, at *2 (Tenn. Crim. App. at Nashville, Sept. 22, 2009)), perm. to appeal
denied, (Tenn. Aug. 20, 2012). Therefore, the habeas corpus court did not err by
summarily denying the petition.

                                     III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the
habeas corpus court.


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                                             NORMA MCGEE OGLE, JUDGE




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