FILED

July 14, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1998

DAVID MCDOWELL, ) C.C.A. NO. 03C01-9707-CR-00278

)

Appellant, )

)

) MORGAN COUNTY

VS. )

) HON. E. EUGENE EBLEN

CHARLES JONES, Warden, ) JUDGE

)

Appellee. ) (Writ of Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

DAVID MCDOW ELL JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

#109129

M.C.R.C.F. TIMOTHY F. BEHAN

P. O. Box 2000 Assistant Attorney General

Wartburg, TN 37887-2000 425 Fifth Avenue North

Nashville, TN 37243-0493

CHARLES E. HAWK

District Attorney General

FRANK HARVEY

Assistant District Attorney

P. O. Box 703

Kingston, TN 37763

OPINION FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
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OPINION

Appellant David McDowell was convicted by a jury in the Bradley County

Criminal Court of aggravated rape. As a Range I standard offender, he was

sentenced to twenty-two years incarceration with the Tennessee Department of

Correction. This Court affirmed the conviction. State v. David McDowell, No. 251

Bradley County (Tenn. Crim. App., Knoxville, October 23, 1986). On December

30, 1996, Appellant filed an application for writ of habeas corpus in the Morgan

County Criminal Court, alleging that he was being illegally restrained on a

conviction and sentence based upon a fatally defective indictment which failed

to properly set forth a mens rea. The trial court denied the writ on February 14,

1997. Appellant presents the following issue for our consideration in this appeal:

whether the trial court erred in dismissing the petition for habeas corpus relief.

After a review of the record, we affirm the judgment of the trial court

pursuant to Court of Criminal Appeals Rule 20.

We find no merit in Appellant's complaint that the trial court improperly

denied his application for writ of habeas corpus without conducting an evidentiary

hearing and without appointing counsel. "A full evidentiary hearing is not required

for every petition for habeas corpus." Weatherly v. State, 704 S.W.2d 730, 732

(Tenn. Crim. App. 1985). An evidentiary hearing is not warranted unless the

petitioner alleges facts adequately demonstrating the void character of the

proceedings which led to his confinement. Id. (citing Russell v. State ex rel.

Willis, 437 S.W.2d 529 (Tenn. 1969)).

The Bradley County grand jury indicted Appellant for aggravated rape.

According to Appellant's petition, the indictment alleged that Appellant "did

unlawfully and feloniously have sexual penetration of. . . a child less than thirteen

(13) years of age, contrary to the statute,. . ."
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Both the Sixth Amendment to the United States Constitution and Article I,

§ 9 of the Tennessee Constitution afford the accused the right to be informed of

the "nature and cause of the accusation." Moreover, our legislature has

prescribed the contents of indictments. Tenn. Code Ann. § 40-13-202 provides:

The indictment must 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; and in no case are such

words as "force and arms" or "contrary to the form of the

statute" necessary.

Tenn. Code Ann. § 40-13-202.

The Tennessee Supreme Court's decision in State v. Hill governs the

disposition of the case sub judice. 954 S.W.2d 725 (Tenn. 1997). The Hill court

held that:

[F]or offenses which neither expressly require nor plainly

dispense with the requirement for a culpable mental state, an

indictment which fails to allege such mental state will be

sufficient to support prosecution and conviction for that

offense so long as (1) the language of the indictment is

sufficient to meet the constitutional requirements of notice to

the accused of the charge against which the accused must

defend, adequate basis for entry of a proper judgment, and

protection from double jeopardy; (2) the form of the indictment

meets the requirements of Tenn. Code Ann. § 40-13-202; and

(3) the mental state can be logically inferred from the conduct

alleged.

Id. at 726-27.

The indictment in the instant case comports with the requirements of Hill.

Accordingly, we affirm the trial court's judgment pursuant to Court of

Criminal Appeals Rule 20.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

THOMAS T. WOODALL. JUDGE

___________________________________

WILLIAM B. ACREE, SPECIAL JUDGE