         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 4, 2004

              STATE OF TENNESSEE v. WILLIAM PARKER, JR.

                   Direct Appeal from the Circuit Court for Warren County
                          No. M-7661    Larry B. Stanley, Jr., Judge



                    No. M2003-01423-CCA-R3-CD - Filed August 19, 2004




THOMAS T. WOODALL, J., dissenting.

         I respectfully dissent from that portion of the majority opinion which finds reversible error
in this case due to the erroneous admission into evidence of Mr. Birdwell’s affidavit. While I agree
that admission of the affidavit was error, under the particularly unique facts of this case, I conclude
that it is harmless error.

        It was not necessary for the State to prove beyond a reasonable doubt that Defendant
knowingly drove on a revoked license. The following excerpts from the examination of Defendant,
both direct and cross, persuades me that sufficient evidence was admitted through Defendant’s
testimony that his license was revoked at the time of his arrest, although he testified that he thought
that he was only on a “no driver’s license” status.

         [Defense counsel]:      [Officer Jenkins] says that you cooperated. Did you do
                                 that?

         [Defendant]:            Yes, sir. I did cooperate.

         [Defense counsel]:      Did you produce a driver’s license at that time?

         [Defendant]:            I did and he says it showed “for identification only.” The
                                 driver’s license I had was a restricted driver’s license. It
                                 should have, like I said, the only thing I was guilty [of]
                                 was not going and getting them back, the time had already
                                 elapsed. I could have gotten them back probably a good
                                 month, two months prior to that. I did not realize I was
                                 driving. I thought that it just went to no driver’s license.
                     ****

[Defense counsel]:   Had you known that you had been on a revoked status
                     or had not had that temporary driver’s license, would you
                     have driven that night?

[Defendant]:         No, sir. I would not have.

                     ****

[Defense counsel]:   Do you think if that tape was available, that it would show
                     what you did that night?

[Defendant]:         I think if the tape was available it would solve this whole
                     case, I mean, as far as the DUI. It would definitely show
                     that I was not under the influence.

[Defense counsel]:   You could still make a good argument about the license
                     though, you realize that?

[Defendant]:         Yes, sir. That one is my fault. The license one, I admit.
                     I just did not know that it stayed that status. I thought
                     it was just a no driver’s license. Honest to goodness, I
                     could have went and got them back. I mean, I could have
                     got them back months, I know I’ve said this repeatedly, but
                     it’s so important. I could have got the license back, but I
                     just procrastinated and did not go get them.

                     ****

[Defense counsel]:   Did you know that you were still on revoked status, or
                     supposedly were on revoked?

[Defendant]:         No. At that time I thought it was no driver’s license.
                     That’s what I thought, I was on no driver’s license.

[Defense counsel]:   Did you have any intentions of driving on a revoked
                     license?

[Defendant]:         Never had intentions. I’ve never driven on a revoked
                     license. When I had restrictions I did what I was supposed
                     to. I never had intentions to drive on a revoked license.



                                     -2-
       On cross-examination, Defendant testified as follows:

        [Prosecutor]:          But I thought you told Mr. Smith that you knew you
                               were driving on no driver’s license, but didn’t realize
                               it was revoked?

        [Defendant]:           That’s exactly what I’m saying. That’s what I’ve said
                               numerous times here. I thought I was driving on no
                               driver’s license. At the time I got pulled over, I thought I
                               was on no driver’s license.

        [Prosecutor]:          When was your license revoked?

        [Defendant]:           I’m not sure, sir.

        [Prosecutor]:          You don’t recall?

        [Defendant]:           No, sir. I do not.

[Emphasis added].

       As noted above, Defendant admitted “the license one,” and he just did not know that it
“stayed that status.” He thought it was “just a no driver’s license.”

       I would affirm the conviction.

                                                      ___________________________________
                                                      THOMAS T. WOODALL, JUDGE




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