        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE             FILED
                       OCTOBER SESSION, 1997          April 2, 1998

                                                Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9704-CR-00159
                           )
      Appe llant,          )
                           )
                           )    CUMBERLAND COUN TY
VS.                        )
                           )    HON. LEON C. BURNS, JR.
MICHAEL DAVENPORT,         )    JUDGE
                           )
      Appellee.            )    (Writ of Habeas Corpus)




FOR THE APPELLEE:               FOR THE APPELLANT:

JAMES P. SMITH, JR.             JOHN KNOX WALKUP
300 Thurman Avenue              Attorney General and Reporter
Crossville, TN 38555
                                TIMOTHY F. BEHAN
                                Assistant Attorney General
                                425 Fifth Avenu e, North
                                Nashville, TN 37243-0493

                                BILL GIBSON
                                District Attorney General

                                BEN FANN
                                Assistant District Attorney
                                145 South Jefferson Street
                                Cookeville, TN 38501


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION

      Appellee Michael Davenport was indicted on June 13, 1992 for attempted

first degree m urder, aggrava ted assault, and            two counts of re ckless

endan germe nt. The pr osecu tion, on its own motion, asked that the aggravated

assa ult charge be dismissed, and the trial court did so on November 19, 1992.

On November 20, 1992, Appellee was convicted by a jury in the Cumberland

County Criminal Court of aggravated assault. As a R ange I stand ard offender,

Appellee was sentenced to five years confinement with the Tennessee

Department of Correction. This C ourt affirm ed App ellee's con viction. State v.

Michael Davenpo rt, C.C.A. No. 03C01-9310-CR-00342, Cumberland C ounty

(Tenn. Crim. A pp., Kno xville, December 21, 1994). On January 28, 1997,

Appellee filed a petition for writ of hab eas co rpus an d/or pos t-conviction relief,

relying upon the Tennessee Supreme C ourt's decision in State v. T rusty, 919

S.W.2d 305 (Tenn. 1996). After hearing the arguments of counsel, the trial court

granted Appellee's petition for writ of habeas corpus in light of the Trusty

decision. The State presen ts the fo llowing issue fo r our co nside ration o n this

appe al: whethe r the trial cou rt erred in granting Appellee's petition for writ of

habeas corpus.

      After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                          I. FACTUAL BACKGROUND

      At the culmination of Appellee's trial, the cou rt instructed the jury on the

eleme nts of attempted first de gree mu rder. Additionally, the trial court charged

the jury on aggravated assault as being a lesser included offense of attempted




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first degree murder.     Ap pellee neither req uested nor o bjected to the jury

instruction on agg ravated a ssault.



               II. PETITION FOR WRIT OF HABEAS CORPUS

      Tenn. Code Ann. § 29-21-101 provides, "Any person impris oned or

restrained of his liberty, under any pretense whatsoeve r, except in cases [where

the federal courts exercise exclusive jurisdiction], may prosecute a writ of habeas

corpus, to inquire into the cause of such im prisonm ent and restraint." Id. Tenn.

Code Ann. § 29-21-109 provides, "If, from the showing of the petitioner, the

plaintiff would not be entitled to any relief, the writ may be refused, the reasons

for such refusal being briefly endorsed upon the petition, or appended thereto."

Id.

      In Tennessee, it is w ell-settle d law th at the re med y of hab eas c orpus is

limited both in sc ope an d in relief. Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993); Potts v. Sta te, 833 S.W .2d 60, 62 (Tenn . 1992). In criminal cases, habeas

corpus is available only where the judgment is void or the term of imprisonment

has expired. Pass arella v. State, 891 S.W .2d 619, 627 (Tenn. Crim . App. 1994 ).

The habeas petitioner bears the burden of demonstrating by a preponderance of

the evidence that the judgment of conviction is void or that his term of

confinement has expired. Id. If the petitioner establishes by a preponderance of

the evidence either th at his co nviction is void or that his term of confinement has

expired, he can obtain im media te release . Warren v. State, 740 S.W.2d 427, 428

(Tenn. Crim. App. 1986).      "A ju dgm ent of a court o f gene ral jurisd iction is

presumed to be valid." Pass arella, 891 S.W.2d 619, 627 (citing Archer, 851

S.W.2d 157, 162).      This presum ption is conc lusive u nless the jud gme nt is

impea ched b y the reco rd. Id.

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      The State appeals from the trial court's decision to grant Appellee's petition

for writ of habeas corpus in view of the Supreme Court's opinion in Trusty, 919

S.W.2d 305. In its brief, the Sta te conce des tha t Trusty holds that aggravated

assa ult is neither a lesser included offense nor lesser grade of attempted first

degree murder. H owever, it conte nds th at the A ppelle e’s failure to object to the

aggravated assault instruction constitutes an implicit amendment to the

indictme nt to includ e aggra vated as sault.

      Appe llee empha sizes that he did n ot request the jury ch arge on ag gravated

assa ult and correctly observes that "Neither this [C]ourt nor the Tennessee

Supreme Court has ever ruled that an accused's right to be charged by

presentment or indictment m ay be waived by not ob jecting to a jury charg e."

Appellee further argues th at unde r the holdin g and ra tionale of Trusty, habeas

corpus relief was pro perly gran ted in this ca se for the fo llowing rea sons. Firs t,

the indictment failed to inform Appellee of the essential elements of the offense

for which he ultimately was convicted and, therefore , afforded the con victing court

no adequate ground upon which to enter the judgment of conviction. Second, at

the time of Appellee's trial, he was not indicted for the crime of aggravated

assau lt. Therefore, the trial court was without jurisdiction to enter a judgment

based upon a crime for which Appellee was not indicted.

      Typically, a defendant's failure to interpose a contemporaneous objection

to jury instructions at the trial would result in waiver. State v. Brimmer, 876

S.W.2d 75, 82 (T enn. 19 94). See also T ENN. R. C RIM. P. 52(b). How ever, in

order to ensure that substantial justice is done, we exercise our discretion and

conside r this issue. Id.

      It is true that where the defendant affirm atively requests a pa rticular jury

instruction on an offens e not c harge d in the indictm ent, erroneously believing that

                                          -4-
offense to be a lesser included offense of the c harge d crim e, the d efend ant's is

deemed to have consented to an amen dmen t of the indictm ent. State v. Michael

Lynn Ealey, 03C01-9609-CR-00333, Greene C ounty (T enn. C rim. App .,

Knoxville, June 1 7, 1997 ); State v. Robert W. Bentley, C.C.A. No. 02C01-9601-

CR-00038, slip op. at 2, Sh elby Co unty (Tenn. Crim. App., Jackson, October 17,

1996). However, we will not presume consent merely from the accused's silence.

Appe llee's judgment of conviction for aggra vated assa ult is, therefore , void on its

face becau se the trial co urt lacked the autho rity to rende r the judgm ent. See

Pass arella, supra, at 627.

      The trial cou rt's gran t of App ellee's petition for writ of habe as co rpus is

affirmed.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




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