FILED

February 16, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1998

WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802-CC-00057

)

Appellant, )

) BLEDSOE COUNTY

V. ) 

)

) HON. THOMAS W. GRAHAM, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (HABEAS CORPUS)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM TERRY WYATT, pro se JOHN KNOX WALKUP 

Southeastern Tennessee State Attorney General & Reporter

Regional Correctional Facility

Route 4, Box 600 ELIZABETH B. MARNEY

Pikeville, TN 37367-9243 Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, William Terry Wyatt, appeals the trial court’s dismissal of his

pro se petition for writ of habeas corpus. We affirm the judgment of the trial court.

Petitioner was indicted for attempted first-degree murder, especially

aggravated kidnapping, aggravated rape, and theft over a thousand dollars. On

February 3, 1995, Petitioner pled guilty to attempted second degree murder and

kidnapping. He was sentenced to concurrent terms of eight (8) and four (4) years.

Although no official “filed” date appears on the petition, it appears that Petitioner filed

a pro se petition for writ of habeas corpus in the Bledsoe County Circuit Court on

August 27, 1997. The trial court denied his petition on December 10, 1997.

Petitioner now brings this appeal of the trial court’s dismissal of his petition for

habeas corpus relief and raises the following four issues: (1) the indictment charging

him with attempted first degree murder was insufficient because it did not allege an

overt act; (2) count two of the indictment charging the offense of especially

aggravated kidnapping was insufficient because it did not allege the requisite mens

rea; (3) the indictment charging him with attempted first degree murder was “flawed”

because the crime occurred in White County, not in Cumberland County; and (4)

the trial court should have considered his application for writ of habeas corpus as a

petition for post-conviction relief. 

It is a well-established principle of law that the remedy of habeas corpus is

limited in its nature and its scope. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.

1993); Passarella v. State, 891 S.W .2d 619, 626 (Tenn. Crim. App. 1994). In

Tennessee, habeas corpus relief is available only if “‘it appears upon the face of the
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judgment or the record of the proceedings upon which the judgment is rendered’ that

a convicting court was without jurisdiction or authority to sentence a defendant, or

that a defendant’s sentence of imprisonment or other restraint has expired.” Archer,

851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of

establishing either a void judgment or an illegal confinement by a preponderance of

the evidence. Passarella, 891 S.W .2d at 627. Moreover, where a judgment is not

void, but is merely voidable, such judgment may not be collaterally attacked in a suit

for habeas corpus relief. Id. 

Defenses based on defects in the indictment are usually foreclosed if they are

not raised prior to trial. Tenn. R. Crim. P. 12(b)(2) and (f). However, Rule 12(b)(2)

also provides that a court shall notice at any time during the pendency of the

proceedings the defense that the indictment fails to show jurisdiction in the court or

that it fails to charge an offense. Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998).

In the case sub judice, Petitioner contends that the indictment is so defective that it

failed to clothe the court with jurisdiction to enter a judgment of conviction. A valid

indictment is an essential jurisdictional element, without which there can be no

prosecution. See State v. Hill, 954 S.W .2d 725, 727 (Tenn. 1997); State v. Stokes,

954 S.W.2d 729, 730 (Tenn. 1997). “Because a habeas corpus proceeding will

allow us to examine the record -- including the indictment -- it is an appropriate

vehicle to determine whether a judgment is void.” Dykes v. Compton, 978 S.W.2d

at 529. 
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I.

We must determ ine whether Petitioner is entitled to relief under the

circumstances of this case. The first defect complained of is that the indictment fails

to allege an overt act. Petitioner mainly relies upon criminal conspiracy cases for

this proposition. As stated by this Court in a similar case, “[t]he fallacy with this

argument is that the indictment does not charge the appellant with conspiring to

commit an offense. The indictment charges him with the commission of a

substantive offense, attempt to commit murder in the first degree.” State v.

Stampley, C.C.A. No. 02-C-01-9409-CR-00208, slip op. at 7, Shelby County (Tenn.

Crim. App., Jackson, Aug. 16, 1996) (Rule 11 application denied, Jan. 27, 1997).

The Stampley case involved an indictment almost identical to the indictment in the

present case. The indictment in the case before us reads in pertinent part as follows:

[O]n the 7th day of March, 1994, in Cum berland County,

Tennessee, and before the finding of this indictment, did

unlawfully, intentionally, deliberately and with

premeditation attempt to kill [victim] in violation of T.C.A.

39-12-101, and against the peace and dignity of the

[S]tate of Tennessee. 

This Court ruled in Stampley that the “language clearly alleges that the appellant

committed the offense of attempt to commit murder in the first degree,” and that the

issue was without merit. Id. We agree with that reasoning and find that the

language, “did . . . attempt to kill [victim],” necessarily infers that an overt act was

committed by Petitioner. But cf. State v. Michael K. Christian, Jr., C.C.A. No. 03C01-

9609-CR-00336, Sullivan County (Tenn. Crim. App., Knoxville, Mar. 23, 1998) (Rule

11 application filed, May 26, 1998). This issue is without merit.

II.
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In the second issue, the defect complained of is the omission from the

indictment of any reference to the culpable mental state of “knowing” for the offense

of especially aggravated kidnapping. Because of this omission, Petitioner asserts

that the indictment failed to provide the convicting court with subject matter

jurisdiction to impose judgment. However, the failure to charge a culpable mental

state is not a defect so long as the indictment performs its essential constitutional

and statutory purposes. Hill, 954 S.W .2d at 729. 

The count of the indictment which Petitioner challenges states in part:

[O]n the 7th day of March, 1994, in Cumberland County,

Tennessee, and before the finding of this indictment, did

unlawfully remove or confine [victim] so as to interfere

substantially with her liberty and did cause [victim] to suffer

serious bodily injury in violation of T.C.A. 39-13-305(a)(4),

and against the peace and dignity of the State of

Tennessee.

Especially aggravated kidnapping is defined as false imprisonment

accompanied by one of the factors set forth in Tenn. Code Ann. § 39-13-305. Here,

the indictment alleges subsection (a)(4), namely, Petitioner committed this offense

and as a result, the victim suffered serious bodily injury. Tenn. Code Ann. § 39-13-

305(a)(4). The elements of the offense in the context of this case are: (a) the

unlawful and knowing removal or confinement of another person; (b) substantial

deprivation of the person’s liberty; and (c) the victim suffered serious bodily injury.

Tenn. Code Ann. § 39-13-302(a) and -305(a)(4). The mens rea for this offense is

“knowingly.” While the indictment does not allege the offense was committed

“knowingly,” the question becomes whether the facts contained in the indictment are

sufficient to allege that the offense was in fact com mitted “knowingly.” See State v.
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Billy Joe Sm ith, C.C.A. No. 03-C-01-9508-CC-00250, Unicoi County (Tenn. Crim.

App., Knoxville, Feb. 11, 1997) (mandate issued, Oct. 9, 1998).

The term “unlawful,” as used in the false imprisonment statute, Tenn. Code

Ann. § 39-13-302, means, among other things, that the offense was “accomplished

by force, threat or fraud.” Tenn. Code Ann. § 39-13-301(2). This indictment alleges

that the victim was removed or confined by Petitioner, which necessarily implies the

use of “force.” This allegation, coupled with the averment that Petitioner caused the

victim to suffer serious bodily injury, makes it obvious that Petitioner desired to

commit the offense, and did so knowingly. See Smith, C.C.A. No. 03-C-01-9508-

CC-00250, slip op. at 9. This issue is without merit.

III.

 In this issue, Petitioner claims that the convicting court lacked territorial

jurisdiction to try him on the attempted first-degree murder charge because the crime

occurred in another county. Since it may be argued that venue raises a jurisdictional

issue, and this Court is required to determine whether a trial court has jurisdiction of

a particular controversy, this issue will also be considered on the merits. See State

v. Turner, 919 S.W .2d 346, 358 (Tenn. Crim. App. 1995), perm. to appeal denied

(Tenn. 1996). 

The indictment returned by the Cumberland County Grand Jury states that the

attempted murder was committed in Cumberland County. Petitioner made the

preliminary hearing an exhibit to his petition, and he relies upon the testimony of the

victim from the preliminary hearing where she stated that Petitioner attempted to
-7-

back over her with a car in Sparta, Tennessee which is in White County. However,

the victim did not at any time state that this is where the attempted murder occurred.

In fact, the victim stated that all four offenses charged in the indictment occurred in

Cumberland County. Furthermore, the following incidents, which were testified to

at the preliminary hearing, all occurred in Cumberland County: Petitioner fired

several gun shots at victim’s feet; he hit her in the chest and back with a gun; he hit

her numerous times in the face until she was knocked unconscious; and he would

not allow her to go home to get a “nitro” patch for her chest pains. All of these

instances could be the basis for attempted first degree murder in Count One of the

indictment. This proof is sufficient to establish venue by a preponderance of the

evidence in Cum berland County. Tenn. Code Ann. § 39-11-201(e). This issue is

without merit.

IV.

We note that although it appears Petitioner is no longer pursuing the issue

that the trial court should have considered his application for writ of habeas corpus

as a petition for post-conviction relief, we will nonetheless briefly address the issue.

See Tenn. Code Ann. § 40-30-205(c). There is no evidence in the record that

Petitioner pursued a direct appeal of his February 3, 1995, guilty plea convictions.

At the time the Petitioner’s convictions became final, the statute of limitations

applicable to post-conviction proceedings was three years. Tenn. Code Ann. § 40-

30-102 (repealed 1995). In 1995, the legislature reduced the statutory period for

filing post-conviction petitions from three (3) years to one (1) year. Tenn. Code Ann.

§ 40-30-202(a). The new 1995 Post-Conviction Act governs this petition and all

petitions filed after May 10, 1995. Because the previous three-year statute of
-8-

limitations had not expired for the Petitioner at the time the new Act took effect, his

right to petition for post-conviction relief survived under the new Act. See Carter v.

State, 952 S.W.2d 417, 420 (Tenn. 1997). As a result, the Petitioner had one year

from the effective date of the new Act, May 10, 1995, to file for post-conviction relief.

Tenn. Code Ann. § 40-30-202(a) and -201. The Petitioner filed his petition for postconviction relief on or about August 27, 1997. Therefore, a petition for postconviction relief would be time-barred. Also, the petition raises no viable exception

for tolling the statute. Tenn. Code Ann. § 40-30-202(b).

 Additionally, Petitioner was convicted in Cumberland County. His petition for

writ of habeas corpus was filed in Bledsoe County, the proper venue for habeas

corpus relief but not post-conviction relief. Compare Tenn. Code Ann. § 40-30-

204(a) (post-conviction petition shall be filed in court where conviction occurred)

with Tenn. Code Ann. § 29-21-105 (petition for writ of habeas corpus shall be filed

in court “most convenient in point of distance” to petitioner unless a sufficient reason

is given in the petition). Accordingly, we conclude that the trial court did not err by

failing to treat the application as one for post-conviction relief, and therefore, a

summary dismissal of the petition was appropriate. Tenn. Code Ann. § 40-30-

206(b). 

Based on all the foregoing, we affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:
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(SEE CONCURRING OPINION) 

GARY R. WADE, Presiding Judge

__________________________________

DAVID H. WELLES, Judge
FILED

February 16, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1999

WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802-CC-00057

)

Appellant, )

)

) BLEDSOE COUNTY

VS. )

) HON. THOMAS W. GRAHAM,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Habeas Corpus)

CONCURRING OPINION

I concur in the principal opinion of Judge Woodall and in the concurring

opinion of Presiding Judge Wade. I am authorized to say that Judge W oodall

concurs with this concurring opinion.

________________________________

DAVID H. WELLES, JUDGE
FILED

February 16, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OCTOBER SESSION, 1998

WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802-CC-00057

)

Appellant, )

) BLEDSOE COUNTY

V. )

) HON. THOMAS W. GRAHAM, JUDGE

STATE OF TENNESSEE, )

)

Appellee. ) (HABEAS CORPUS)

CONCURRING OPINION

While I concur in the results reached by the majority, I write

separately to address my views on the first issue; that is, whether the indictment

is insufficient to support an attempted first degree m urder conviction because it

failed to allege an overt act. The indictment includes the following language: 

[O]n the 7th day of March, 1994, in Cumberland

County, Tennessee ... [the defendant] did unlawfully,

intentionally, deliberately and with premeditation

attempt to kill [the victim] in violation of T.C.A. § 39-12-

101 ....

In concluding that the indictment was sufficient, the majority relies upon State v.

Cedric E. Stampley, C.C.A.No. 02C01-9409-CR-00208, slip op. at 9 (Tenn. Crim.

App., at Jackson, Aug. 16, 1996), app. denied, (Tenn., Jan. 27, 1997). In

Stampley, the pertinent language of the indictment was as follows: 

[Stampley] did unlawfully attempt to commit the offense

of First Degree Murder, as defined in T.C.A. 39-13-202;

in that the said [Stampley] did unlawfully, intentionally,

deliberately and with prem editation attem pt to kill

LONZO NICKS, in violation of T.C.A. 39-12-101 ....
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Id. Because Stampley was charged with a substantive offense, the assigned

panel determined that there was no requirement on the part of the state to

include language alleging an overt act. Id. 

In my view, the opinion of a different panel of this court in State v.

Michael K. Christian, Jr., C.C.A. No. 03C01-9609-CR-00336, slip op. at 13 (Tenn.

Crim. App., at Knoxville, Mar. 23, 1998), app. denied, (Tenn., Jan. 19, 1999),

more accurately identifies the requirements governing the content of an

indictment. The charging instrument in Christian alleged as follows: 

[The defendant] did attempt to kill [the victim] by

stabbing [her] with a deadly weapon ... which conduct

constituted a substantial step toward the commission

of the said offense.

Id. Christian had argued that the indictment was deficient because it failed to

encompass the complete language of the attempt statute. Id., slip op. at 13-14.

The panel held that an indictment need not quote the attempt statute so long as

the factual allegations included the criminal intent for a specific crime and an

overt act incident thereto. Id. 

More recently, in James R. Twitty v. Carlton, C.C.A. No. 03C01-

9707-CR-00310, slip op. at 4 (Tenn. Crim. App., at Knoxville, Jan. 6, 1999), a

panel of this court split on whether an indictment which alleged "[that Twitty] did

unlawfully, deliberately and with premeditation attempt to kill [victim], in violation

of [T.C.A.] 39-12-101, ...." was sufficient to support a conviction. The m ajority

relied upon Stampley. In his dissent, Judge Joseph M. Tipton quoted extensively

from Christian in concluding that the indictment was inadequate because it failed

to allege facts supporting the overt act:

The indictment is required to state the facts that

constitute the offense. T.C.A. § 40-13-202. Each of the

three means of criminal attempt provided in T.C.A. §
-13-

39-12-101 requires an act or actions to go with the

intent to commit an offense .... The failure of the

charging instrument to allege any conduct or action by

the petitioner relative to him intending to commit first

degree murder renders the indictment fatally deficient.

Id., dissenting op. at 3.

To place the issues in better context, a review of several other cases

which have addressed the adequacy of indictments charging attempt is in order.

In State v. Jimmie Lee DeMoss, C.C.A. No. 02C01-9406-CC-00127, slip op. at

3 (Tenn. Crim. App., at Jackson, April 26, 1995), the indictment provided as

follows:

[T]hat JIMMIE LEE DEMOSS ... did unlawfully,

intentionally, deliberately and with premeditation

attempt to kill KATHEY LYNN BROWN, in violation of

T.C.A. § 39-12-101 and T.C.A. § 39-13-202 ....

DeMoss argued that the indictment was deficient "because it does not allege ...

how the attempt to kill the alleged victims was carried out and what weapon was

used in the alleged attempted murders." Id., slip op. at 3. The panel held that

the indictment was sufficient because precise factual pleading, a requirement

under the common law, was not necessary under the terms of the particular

statute. Id., slip op. at 3-4. The indictment in this case cannot be distinguished

from that in DeMoss. There have been factual allegations in each instance. The

supreme court granted review in DeMoss. No opinion has been issued to date.

Similarly, in State v. Steve Mason, the indictment included minimal

factual allegations:

[That the defendant] ... did unlawfully, intentionally,

deliberately and with premeditation attempt to kill Jesse

Jones, in violation of Tennessee Code Annotated 39-

12-101, and Tennessee Code Annotated 39-13-202 ...
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C.C.A. No. 01C01-9603-CC-00103, slip op. at 7-8 (Tenn. Crim. App., at

Nashville, June 6, 1997). Mason had argued that the traditional rule required

more information, "such as how the attempt upon Jones' life was perpetrated."

This court disagreed, holding that the indictment was sufficient and that Mason

could obtain additional facts through a bill of particulars. Id., slip op. at 8. On

March 2, 1998, our supreme court denied permission to appeal.

In State v. Dock Battles, C.C.A. No. 02C01-9501-CC-00019, slip op.

at 2 (Tenn. Crim. App., at Jackson, Nov. 29, 1995), app. denied, (Tenn., Apr. 1,

1996), an indictment charging attempted aggravated burglary was challenged on

the basis that it failed to allege the essential elements of attempt, i.e., an overt act

or substantial step. The instrument charged as follows: 

[That Battles] did unlawfully attempt to commit ...

Aggravated Burglary, as defined in T.C.A. § 39-13-403;

in that he ... did unlawfully attempt to enter the

habitation of [the victim], not open to the public, without

the effective consent of [the victim], with intent to

comm it theft, in violation of T.C.A. § 39-12-101....

Id. This court adopted a dictionary definition of attempt, "to make an effort to do,

accomplish, solve, or effect." Id., slip op. at 3 (quoting Webster's Ninth New

Collegiate Dictionary (1983)). Based upon ordinary meaning of attempt, the

panel held that "attempt to enter the habitation of the victim" was sufficient to

allege a substantial step or overt act. Id.

In several recent cases, our supreme court also appears to have

relaxed the common law requirements governing indictments. Initially, in State

v. Trusty, an indictment included the following language:

[That the defendant] ... did unlawfully attempt to

commit the offense of Murder First Degree, as defined

in T.C.A. 39-13-202, in that he, the said Wayne
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Trust[y], did unlawfully, intentionally, deliberately and

with premeditation attem pt to kill Hunter Bell, in

violation of T.C.A. 39-12-101 ....

919 S.W.2d 305, 312 (Tenn. 1996). The supreme court ruled that the "indictment

allege[d] the essential elements of attempted first-degree murder and could thus

form the basis for a conviction." Id. In State v. Hill, 954 S.W.2d 725, 728 (Tenn.

1997), our supreme court pointed out that "the description of the proof necessary

to sustain a conviction must be both more inclusive and conclusive than the

language of an indictment." 

In Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998), the court

observed as follows: 

[W]e wish to em phasize once again the fact that the

Court has moved away from the strict pleading

requirem ents of common law. As we noted in Hill, "the

purpose for the traditionally strict pleading requirement

was the existence of common law offenses whose

elements were not easily ascertained by reference to

a statute. Such common law offenses no longer exist."

So long as the constitutional and statutory

requirem ents in Hill are met, the indictment will be

sufficient to support a conviction. 

Id. at 530 (internal citations omitted) (emphasis added). Finally, in Ruff v. State,

978 S.W.2d 95, 100 (Tenn. 1998), our supreme court reiterated its intent to "relax

strict pleading requirements of the common law" and concluded that "where the

constitutional and statutory requirements outlined in Hill are met, an indictment

which cites the pertinent statute and uses its language will be sufficient to support

a conviction." 

This more recent view is consistent with holdings from other

jurisdictions. In People v. Fowler, 290 N.E.2d 618, 620 (Ill. App. 1972), the

Illinois Appellate Court held, "An attempt to kill is clearly an act constituting a

substantial step toward commission of the offense of murder. Although the
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indictment did not describe the particular method of the attempt it was

unnecessary for the state to plead such evidentiary details." In Reese v. State,

456 So.2d 341, 347-48 (Ala. Crim. App. 1982), cert. denied, (Ala. 1983), the

Alabama Court of Criminal Appeals held, "[T]he allegation that the defendant with

the requisite intent, 'attempted to kill and murder' a named victim, was sufficient

to describe an act which constituted a substantial step toward the commission of

murder." 

So long as the charging instrument alleges the criminal intent to

commit the specific crime and an overt act, an attempt indictment is sufficient.

Christian, slip op. at 13-14. In the indictment before us, the terms "unlawfully,

intentionally, deliberately and with premeditation" embody the criminal intent

required to commit the specific crime of first degree murder. In my view, "attempt

to kill" is a general allegation of the act or conduct of the defendant. The view I

expressed in Christian on behalf of the panel is not at odds with the holdings in

our supreme court cases or in those from other jurisdictions. Because this

indictment includes adequate language to support a conviction of attempt, I

concur in the decision of the majority.

_________________________________

Gary R. Wade, Presiding Judge