            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                               AT KNOXVILLE                     July 16, 1999

                                                              Cecil Crowson, Jr.
                            MARCH 1999 SESSION               Appellate C ourt
                                                                 Clerk



RALPH DEAN PURKEY,                 *    C.C.A. # 03C01-9808-CC-00268

             Appellant,            *    BLEDSOE COUNTY

VS.                                *    Hon. Thomas W . Graham, Judge

JAMES A. BOWLEN, WARDEN, and       *    (Habeas Corpus)
THE TENNESSEE DEPARTMENT
OF CORRECTION,                     *

             Appellees.            *


For Appellant:                          For Appellees:

Ralph Dean Purkey, pro se               John Knox Walkup
No. 110256                              Attorney General and Reporter
STSRCF, Unit 6
Route 4, Box 600                        Todd R. Kelley
Pikeville, TN 37367                     Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        James W. Pope, III
                                        Assistant District Attorney General
                                        District Attorney General's Office
                                        Twelfth Judicial District
                                        265 Third Avenue, Suite 300
                                        Dayton, TN 37321


OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                        OPINION

               The petitioner, Ralph Dean Purkey, appeals the trial court's denial of

his petition for writ of habeas corpus. The single issue presented for our review is

whether the petition was properly dismissed. We find no error and affirm the

judgment of the trial court.



               On September 25, 1986, the petitioner was convicted of grand larceny

in Cocke County and received a ten-year sentence. Because he was found to be a

habitual criminal, his sentence was enhanced to a term of life in prison. Defense

counsel filed a motion for a new trial but the motion was dismissed because the

petitioner escaped from custody after his conviction. No appeal was taken. Ralph

Dean Purkey v. State, No. 03C01-9607-CC-00257, slip op. at 2 (Tenn. Crim. App.,

at Knoxville, Oct. 8, 1997). The petitioner was eventually apprehended and,

afterward, filed numerous petitions for post-conviction relief, all of which were

dismissed as time-barred. See id. (ruling that the third petition was barred by the

statute of limitations).



               On May 29, 1998, the petitioner filed this petition for writ of habeas

corpus alleging that his convictions were obtained as a result of violations of the

Tennessee and United States Constitutions. He contended that his conviction for

grand larceny over $200.00 is void because it is based on insufficient evidence. The

petitioner argued that the victim testified at trial to a loss in cash and food stamps

totaling only $150.00, less than the $200.00 minimum required at that time to

support a grand larceny conviction. The petitioner points out that the presentence

report, which includes the victim's statement, documents a loss of only "$150.00 in

cash and food stamps as a result of this offense."




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              The trial court observed that the petition would have been barred by

the statute of limitations had the petitioner sought post-conviction relief and ruled

that habeas corpus relief was not warranted because the petitioner was unable to

establish that his term of imprisonment had expired or that the judgment was facially

invalid. In this appeal, the petitioner complains that there was insufficient evidence

to support a conviction of grand larceny in an amount over $200.00 and the

enhancement of the sentence to a term of life due to habitual criminality was,

therefore, improper.



              In this state, a writ of habeas corpus may be granted only when a

petitioner has established lack of jurisdiction for the order of confinement or that he

is otherwise entitled to immediate release because of the expiration of his sentence.

See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,

443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his

liberty, under any pretense whatsoever, ... may prosecute a writ of habeas corpus,

to inquire into the cause of such imprisonment...." Tenn. Code Ann. § 29-21-101.

The writ of habeas corpus, however, is available only when it appears on the face of

the judgment or the record that the trial court was without jurisdiction to convict or

sentence the defendant or that the sentence of imprisonment has otherwise expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,

62 (Tenn. 1992).



              In John Wayne Slate v. State, No. 03C01-9201-CR-00014 (Tenn.

Crim. App., at Knoxville, Apr. 2, 1994), a panel of this court granted post-conviction

relief based upon insufficient evidence of deliberation, an essential element of first

degree murder. Because the insufficiency qualified as a violation of due process,

the conviction was declared constitutionally "void" and was modified to second


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degree murder. On October 21, 1994, our supreme court denied application for

permission to appeal, yet concurred in results only. The ruling in Slate was based

upon the decision of the United States Supreme Court in Jackson v. Virginia, 443

U.S. 307, 99 S. Ct. 2781 (1979). In Jackson, a federal habeas corpus case, the

Supreme Court ruled that due process of law is violated when a conviction results

from evidence which is insufficient under the reasonable doubt standard. 443 U.S.

at 317-18, 99 S. Ct. at 2788. The high court held that federal habeas corpus relief is

available "if it is found that upon the record evidence adduced at the trial no rational

trier of fact could have found proof of guilt beyond a reasonable doubt." 443 U.S. at

324, 99 S. Ct. at 2791-92.

.

              At the time of this offense, petit larceny, then defined as a theft of less

than $200.00, was not among those listed offenses which would trigger a life

sentence based upon habitual criminality. See Tenn. Code Ann. § 39-1-801 (1982).

Basically, the petitioner contends that the evidence at his trial was insufficient to

support a conviction of grand larceny. Certainly, the presentence report and a

portion of the transcript provided by the petitioner and included in this record

suggests that the restitution ordered was less than $200.00, an indication at least

that the value of the stolen items was less than the $200.00 threshold.



              An exhibit presented from the sentencing hearing establishes that

counsel for the defense objected when a witness testified that the amount of money

and food stamps approximated $150.00. At that point, the trial judge observed as

follows:

              She is estimating under $200.00[.] I don't know why you
              would object. Let the record show you object, and I
              overrule.

Our inference from this is that the trial court observed that the petitioner's counsel


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could hardly complain since the request for restitution was for an amount less than

that established at trial. The statement, of course, was made after the jury had

returned a verdict of guilt under the petit larceny indictment.



              A transcription of the trial is not included in this limited record. The

burden is always on the appellant to supply an adequate record on appeal for a

determination of the issues presented. Without the trial record, it would be

impossible to determine whether the evidence was sufficient. In consequence, this

court must presume that the trial court correctly ruled. Smith v. State, 589 S.W.2d

811 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226 (Tenn. Crim. App.

1979).



              Habeas corpus relief under the Tennessee statute is limited. In

several cases, it has been held that a claim of insufficient evidence does not fall

within the definition of facial validity. See, e.g., Shepherd v. State, 533 S.W.2d 335,

338 (Tenn. Crim. App. 1975). Because the inadequacy of the record dictates the

result, it is not necessary for this court to consider whether state habeas corpus

relief would be available based on insufficient evidence in accordance with the

rulings in Jackson and Slate.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge




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CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
Cornelia A. Clark, Special Judge




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