        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   On Brief July 9, 2013

                MICHAEL W. SMITH v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                           No. 09-04071    Chris Craft, Judge



                No. W2012-00509-CCA-R3-HC - Filed September 30, 2013


Petitioner, Michael W. Smith, appeals the habeas corpus court’s dismissal of his pro se
petition for habeas corpus relief. On direct appeal from his convictions for assault and
aggravated burglary in Shelby County, this Court determined that the trial court
constructively amended the indictments during the jury charge causing reversible error. See
State v. Michael Smith, No. W2011-01630-CCA-R3-CD, 2013 WL 3702369 at *7-8 (Tenn.
Crim. App., at Jackson, July 12, 2013). As a result, Petitioner’s convictions were reversed
and remanded for a new trial. Id. at 1. Because the habeas corpus petition in this case seeks
a new trial, the judgment of this Court on direct appeal granting a new trial renders the
instant appeal moot. Accordingly, Petitioner’s appeal is dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Michael W. Smith, Pro Se, Memphis, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Reginald Henderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Factual Background

       Petitioner was convicted of assault and aggravated burglary for events that occurred
in February of 2009 in Shelby County. He was sentenced to an effective sentence of seven
years as a multiple offender.
       Petitioner subsequently filed a pro se petition for habeas corpus relief in which he
alleged that his convictions were void because the jury instructions given by the trial court
constructively amended the indictment. The habeas corpus court dismissed the petition,
finding that Petitioner failed to raise a cognizable claim for relief.

        At or around the same time as the filing of the petition for habeas corpus relief,
Petitioner filed a direct appeal of his convictions and sentence. On direct appeal, Petitioner
also argued, among other things, that the trial court failed to give appropriate jury
instructions. Id. at 7. At trial, the State alleged only one theory of liability in each count of
the indictment. Id. at 9. When the trial court gave the charge to the jury, however, additional
theories were included. Id. This Court, utilizing a plain error analysis, determined that the
trial court constructively amended the indictment in its charge to the jury. Id. As a result,
this Court reversed Petitioner’s convictions and remanded the matter for a new trial. Id. The
release of this Court’s opinion on direct appeal and the decision to reverse and remand the
convictions for a new trial make Petitioner’s appeal of the denial of habeas corpus relief
moot. Therefore, Petitioner’s appeal should be dismissed.

                                          Conclusion

       For the foregoing reasons, the appeal is dismissed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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