             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                               Assigned on Briefs February 10, 2004

               STATE OF TENNESSEE v. WILBUR LEON DECK, JR.

                     Direct Appeal from the Circuit Court for Dickson County
                              No. CR6431     Robert E. Burch, Judge



                       No. M2003-02334-CCA-R3-CD - Filed March 24, 2004


A Dickson County jury convicted the Defendant, Wilbur Leon Deck, Jr.,1 of Driving Under the
Influence of an Intoxicant (“DUI”), second offense. The trial court sentenced the Defendant to
eleven months and twenty-nine days in the county jail, which it suspended after the Defendant served
ninety days in jail. On appeal, the Defendant contends that the trial court erred when it failed to
dismiss the presentment because the caption of the presentment stated the incorrect term of the grand
jury. Finding no reversible error, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOE G. RILEY and JOHN
EVERETT WILLIAMS, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Wilbur Leon Deck, Jr.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W.
Turner, Assistant Attorney General; Dan M. Alsobrooks, District Attorney General; and Billy H.
Miller, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.

                                                     Opinion
                                                     I. Facts

       In this case, the Defendant appeals his DUI conviction and states that, since he is “not
pursuing any issues that require an examination of the facts involving the evidence itself,” he “has
not prepared a transcript of the evidence presented at trial.” Accordingly, there are few facts
included in the record. The record does establish that the Defendant was arrested on Friday, January
18, 2002, for DUI and that he refused to submit to a breathalyzer test or to sign the citation form.

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           W e note that the Defendant’s brief states his name as “W illiam Leon Deck, Jr.” However, the technical
record states the Defendant’s name as “W ilbur Leon Deck, Jr.,” and, accordingly, we will refer to the Defendant
using this name.
The Dickson County Grand Jury issued a presentment on one count of DUI, second offense. A jury
found the Defendant guilty of the charged offense, and the trial court sentenced the Defendant to
eleven months, twenty-nine days, and ordered that he serve ninety days in jail and the balance of his
sentence on probation.

       The Defendant appeals, contending that his conviction should be reversed because the
presentment was void on its face. Specifically, the Defendant asserts that the caption of the
presentment is entitled, “ January Term Grand Jury, 2003,” but the presentment was filed December
18, 2002. Therefore, the Defendant asserts, the presentment is flawed and his conviction cannot
stand.

                                            II. Analysis

        The question of the validity of an indictment or presentment is one of law and, as such, our
review is de novo. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). Under both the United States
and the Tennessee Constitutions, a charging instrument, such as an indictment or presentment, must
inform the accused of “the nature and cause of the accusation.” See U.S. Const. amend. VI; Tenn.
Const. art. I, § 9; State v. Hammonds, 30 S.W.3d 294, 297 (Tenn. 2000). In addition to these
constitutional guarantees, the form of an indictment or presentment in Tennessee is prescribed by
statute. Tennessee Code Annotated section 40-13-202 (2002) directs that a charging instrument:

       [M]ust state 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 . . . .

The Tennessee Supreme Court has stated:

       [A]n indictment is sufficient to satisfy the constitutional guarantees of notice to the
       accused if the indictment contains allegations that: (1) enable the accused to know
       the accusation to which answer is required; (2) furnish the trial court an adequate
       basis for entry of a proper judgment; and (3) protect the accused from a subsequent
       prosecution for the same offense.

Hammonds, 30 S.W.3d at 299 (citing Hill, 954 S.W.2d at 727). In Hammonds, the Court announced
its “relaxation of common law pleading requirements and . . . reluctance to elevate form over
substance when evaluating the sufficiency of indictments” and stated, “[I]ndictments which achieve
the overriding purpose of notice to the accused will be considered sufficient to satisfy both
constitutional and statutory requirements.” Id. As to the form of the indictment, including the
caption at the beginning of all indictments, Tennessee Code Annotated section 40-13-201 states, “An
indictment must contain, in the caption or body thereof, the name of the state, county and court, and
term in and at which it is preferred, and must conclude ‘against the peace and dignity of the state of
Tennessee.’” A reference to an “indictment” in our statutes includes a “presentment” whenever the


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context will permit it. Tenn. Code Ann. § 40-13-101(b) (1997).

       The Defendant contends that the presentment in this case is fatally flawed. The text of the
presentment at issue reads as follows:

                     IN THE CIRCUIT COURT FOR DICKSON COUNTY,
                              TENNESSEE AT CHARLOTTE
                           JANUARY TERM GRAND JURY, 2003

                The Grand Jurors for the State of Tennessee, duly elected, impaneled, sworn,
        and charged to inquire, in and for the body of the County of Dickson in the State
        aforesaid, upon their oaths, present: That WILBUR LEON DECK, JR. heretofore,
        to-wit: on or about January 18, 2002, and prior to the finding of this Presentment, in
        the county of Dickson aforesaid, then and there, did unlawfully, while under the
        influence of an intoxicant, marijuana, narcotic drug, or drug producing stimulating
        effects on the central nervous system, drive and/or physically control an automobile
        or other motor driven vehicle upon any of the public roads and highways of the state,
        or any streets or alley, or while on the premises of any shopping center, trailer park
        or any apartment complex or any other premises which is generally frequented by the
        public at large, in violation of T.C.A. 55-10-401, and having been previously
        convicted of a like offense in the following case, to-wit:

        1. On the 25th May, 2000, in the Humphreys County General Sessions Court,
        Waverly, TN, under docket number 15301-00 of said Court.

        Wherefore, the Grand Jurors aforesaid, upon their oath aforesaid, do hereby indict the
        said WILBUR LEON DECK, JR. for the 2nd offense of driving while under the
        influence of an intoxicant, in violation of T.C.A. 55-10-401, a Class A
        Misdemeanor, all of which is against the peace and dignity of the State of
        Tennessee.

The file stamp on the presentment indicates that it was filed on December 18, 2002, 4:35 p.m., and
the presentment is signed by the grand jurors. The Defendant contends that the presentment must
be dismissed because it was filed on December 18, 2002, but states that it was issued during the
January, 2003 term of the Dickson County Grand Jury.

        We respectfully disagree with the Defendant’s contention. This issue came squarely before
the Tennessee Supreme Court many years ago, but the opinion then delivered by the Court is still
good law today. In Mitchell v. The State, 16 Tenn. 514 (Tenn. 1835), the defendant contended that
the indictment against him could not stand because “the indictment is entitled as of the March term
of Jackson circuit court, 1832, when the caption of the record shows that the court sat in April.” The
Court then stated, “The statement of the term of the court, which is put at the head of this indictment,
is no part of it . . . . but is a formal statement of the proceedings, . . . which occur previously to the


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introduction of the indictment . . . . [T]he words ‘March term,’ at the top of this indictment, are
wholly immaterial and may be disregarded.” Id. at 527-28. Some forty years later, the Court again
addressed this issue in Firby v. The State, 62 Tenn. 358 (Tenn. 1874). In that case the Court
summarized the facts as follows:

       The indictment is entitled of the September Term, 1873, by mistake of the draftsman,
       or in making out the transcript. But the record shows that the Grand Jury was duly
       [empaneled] at the January Term, 1874, and that on the 7th day of January, 1874, one
       of the days of said Term, they came into open Court, and presented this bill of
       indictment.

Id. at 360. The Court then stated:

       Upon its face the indictment charges that the offen[s]e was committed on the 24th
       day of October, 1873; several months, as shown by the record before the finding of
       the indictment. We are of [the] opinion, therefore, that the record sufficiently shows
       that the action of the Grand Jury was had upon the indictment at the January Term,
       1874, of said Criminal Court; and the statement of the wrong Term of the Court at
       the head of the indictment is no part of it, and does not vitiate it, the record showing
       when it was found. Mitchell v. The State, [8 Tenn.] 527-28. See also M’Bean v.
       State, [50 Tenn. 20 (1870)].

Id. More recently, this court has stated, “The erroneous statement of an incorrect term of court at
the top of the indictment is immaterial and does not invalidate an indictment where the caption
shows the term at which the indictment is preferred.” Janow v. State, 567 S.W.2d 483, 484 (Tenn.
Crim. App. 1978); see also Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000) (stating “So long as an
indictment performs its essential constitutional and statutory purposes, a defect or omission in the
language of the indictment will not render the judgment void.”) (citations omitted).

        In accordance with these foregoing authorities, we conclude that the incorrect term of the
grand jury articulated in the caption of the presentment this case is not fatal. The presentment met
constitutional and statutory standards by providing the Defendant notice of the charges against him.
We further conclude that the incorrect term of the court at the top of the presentment does not
invalidate it because the statement of the term of the court is not part of the presentment and,
therefore, may be disregarded.

                                          III. Conclusion

       Accordingly, the judgment of the trial court is AFFIRMED.



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      ROBERT W. WEDEMEYER, JUDGE




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