        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 22, 2012

            TRAVIS JAY WOODS v. DAVID OSBORNE, WARDEN

                   Appeal from the Criminal Court of Morgan County
                      No. 2011-CR-100    E. Eugene Eblen, Judge


                 No. E2012-00681-CCA-R3-HC - Filed August 23, 2012


Travis Jay Woods (“the Petitioner”), proceeding pro se, filed a petition for a writ of habeas
corpus, alleging that the indictment underlying his conviction of attempted first degree
premeditated murder contains a fatal variance entitling him to habeas corpus relief. The
habeas corpus court summarily dismissed the Petitioner’s claim for relief. The Petitioner has
appealed. We affirm the habeas corpus court’s ruling.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P. J.,
and A LAN E. G LENN, J., joined.

Travis Jay Woods, pro se, Wartburg, Tennessee, appellant.

Robert E. Cooper, Jr., Attorney General & Reporter; John H. Bledsoe, Senior Counsel, for
the appellee, State of Tennessee.

                                           OPINION

        A jury convicted the Petitioner of attempted first degree premeditated murder,
committed in 1998. Judgment was entered in May 2000. This Court affirmed the
Petitioner’s conviction on direct appeal, see State v. Travis J. Woods, No. E2001-01027-
CCA-R3-CD, 2003 WL 21663682, at *1 (Tenn. Crim. App. July 16, 2003), and affirmed the
subsequent denial of post-conviction relief, see Travis J. Woods v. State, No. E2007-02379-
CCA-R3-PC, 2009 WL 723522, at *1 (Tenn. Crim. App. Mar. 18, 2009). In December 2011,
the Petitioner filed, pro se, a petition for writ of habeas corpus, alleging that he is entitled to
relief because of a “[f]atal variance” between his indictment and his conviction. The State
responded with a motion to dismiss, which the habeas corpus court granted without a
hearing. Based on our review of the record, we affirm the habeas corpus court’s decision.
       The decision to grant habeas corpus relief is a question of law, and, thus, our Court’s
standard of review is de novo, with no presumption of correctness. Faulkner v. State, 226
S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000);
Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

        Under the United States and Tennessee Constitutions, a convicted criminal enjoys the
right to pursue habeas corpus relief. U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15.
Tennessee statute, however, has governed this right for over a century. See Ussery v. Avery,
432 S.W.2d 656, 657 (Tenn. 1968); Tenn. Code Ann. § 29-21-101 (Supp. 2009) (“Any
person imprisoned or restrained of liberty, under any pretense whatsoever, except in cases
specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the cause of
such imprisonment and restraint.”).

        In Tennessee, the “grounds upon which habeas corpus relief may be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Moreover, “the purpose of a
habeas corpus petition is to contest void and not merely voidable judgments.” Potts v. State,
833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel Newsom v. Henderson, 424 S.W.2d 186,
189 (Tenn. 1968)). “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.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978
S.W.2d 528, 529 (Tenn. 1998); Archer v. State, 851 S.W.2d 157, 161-64 (Tenn. 1993)). On
the other hand, “a voidable judgment is one that is facially valid and requires proof beyond
the face of the record or judgment to establish its invalidity.” Summers v. State, 212 S.W.3d
251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). A petitioner must prove that his
or her judgment is void or sentence has expired by a preponderance of the evidence. Wyatt
v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

       As pointed out by the State in its motion to dismiss and in its brief to this Court, the
cover of the indictment returned against the Petitioner states “Attempt First Degree Murder
Tennessee Code Annotated 39-13-103 (Class A Felony).” However, Tennessee Code
Annotated section 39-13-103 defines the offense of reckless endangerment. See Tenn. Code
Ann. § 39-13-103 (1997). Nevertheless, the actual count with which the Petitioner was
charged provides as follows:

              The Grand Jurors for the State aforesaid, being duly summoned,
       elected, impaneled, sworn and charged to inquire for the body of the County
       aforesaid, upon their oaths present:

              That Travis Jay Woods heretofore on December 4, 1998, in the County
       aforesaid, did unlawfully, intentionally and with premeditation attempt to kill


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       Kevin Cameron, in violation of Tennessee Code Annotated 39-12-101, against
       the peace and dignity of the State.

The offense of first degree premeditated murder is defined as the “premeditated and
intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1) (Supp. 1998). Tennessee
Code Annotated section 39-12-101 sets forth the offense of criminal attempt. Id. § 39-12-
101 (1997).

        We acknowledge the discrepancy between the cover of the indictment and the actual
charge as set forth in the indictment. We also acknowledge that the count charging attempted
first degree premeditated murder does not refer to the statute setting forth the offense of first
degree premeditated murder. We, however, agree with the State and the habeas corpus court
that these facts do not entitle the Petitioner to habeas corpus relief.

        “[T]he validity of an indictment and the efficacy of the resulting conviction may be
addressed in a petition for habeas corpus when the indictment is so defective as to deprive
the trial court of jurisdiction.” Dykes, 978 S.W.2d at 529. However, so long as the
indictment “performs its essential constitutional and statutory purposes,” habeas corpus relief
is not warranted. Id. (citing State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997)). An indictment
passes constitutional muster when it provides (1) notice of the charge against which the
accused must defend himself; (2) an adequate basis for the entry of a proper judgment; and
(3) protection of the accused from double jeopardy. Hill, 954 S.W.2d at 727. And, an
indictment satisfies statutory requirements when it

       state[s] the facts constituting the offense 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 which will enable the court, on conviction, to pronounce the proper
       judgment[.]

Tenn. Code Ann. § 40-13-202 (1997).

        The instant indictment satisfied all of these criteria. The count alleging attempted first
degree premeditated murder set forth in text the essential elements of the offense and referred
to the attempt statute. The reference to the reckless endangerment statute on the cover sheet
was, at most, harmless surplusage. See, e.g., State v. Wade Tyler, No. M2009-01762-CCA-
R3-CD, 2011 WL 300145, at *8 (Tenn. Crim. App. Jan. 21, 2011), perm. app. denied (Tenn.
Aug. 5, 2011) (recognizing that “a clerical error on an indictment does not render an
indictment void as long as the indictment correctly states the offense”) (citing Cole v. State,
512 S.W.2d 598, 601-02 (Tenn. Crim. App. 1974)). Accordingly, the Petitioner is not


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entitled to habeas corpus relief. Therefore, we affirm the judgment of the habeas corpus
court summarily dismissing the Petitioner’s claim for habeas corpus relief.


                                        _________________________________
                                        JEFFREY S. BIVINS, JUDGE




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