IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 7, 2016

DARRELL JENNINGS v. MICHAEL PARRIS, WARDEN

Appeal from the Circuit Court for Lake County

No. 16-CR-10199 R. Lee Moore, Jr., Judge

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No. W2016-01089-CCA-R3-HC - Filed April 10, 2017

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The Petitioner, Darrell Jennings, filed a petition in the Lake County Circuit Court seeking 

habeas corpus relief from his first degree felony and second degree murder convictions

and resulting life sentence, alleging that he is entitled to relief because he was convicted 

of an offense that was not alleged in the indictment and because the trial court failed to 

instruct the jury on lesser-included offenses. The habeas corpus court summarily denied 

the petition, and the Petitioner appeals. Upon review, we affirm the judgment of the 

habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and D. KELLY THOMAS, JR., JJ., joined.

Darrell Jennings, Pro se, Tiptonville, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

In 1998, the Shelby County Grand Jury indicted the Petitioner and a codefendant 

for first degree premeditated murder and first degree felony murder committed during the 

perpetration of robbery. In August 1999, a jury convicted the Petitioner of second degree 

murder as a lesser-included offense of first degree premeditated murder and first degree 

felony murder. After a sentencing hearing, the trial court merged the convictions and 

sentenced the Petitioner to life. On direct appeal of his felony murder conviction, this 

court gave the following factual account of the crime:
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In August 1998, sixteen-year-old Delmar Mason 

resided in Memphis with his seventy-one-year-old 

grandfather, Joe H. Mason. The proof established that Joe 

Mason conducted an [unlicensed] pawn shop business from 

his residence and routinely accepted for pawn or purchase 

cars, jewelry, and clothing, along with other items of 

property. In addition, he made cash loans and would cash 

checks. At approximately 12:30 a.m. on August 24th, 

Delmar, his grandfather, his uncle, and his grandfather‟s 

friend had retired to bed when James “Gucci” Patterson and 

Kelvin Hooks arrived at the residence with a third-party 

check they wanted cashed. Joe Mason informed Patterson

and Hooks that “the check wasn‟t no good.” The two men 

left.

Approximately thirty minutes later, Patterson and 

Hooks returned to the residence accompanied by the 

Appellant. The Appellant was carrying “some Tommy 

Hilfiger clothes and [Hooks] came with . . . a leather jacket . .

. .” Patterson, without saying a word, “sat on the couch, the 

opposite from [Joe Mason.]” Delmar Mason asked the 

Appellant “how much he wanted for the clothes.” At this 

point, “Kelvin Hooks pulled his gun out on [Delmar] and told 

[him] to lay down.” Delmar sat on the couch next to his 

grandfather. The Appellant and Hooks demanded money and 

the Appellant drew his weapon. Joe Mason stood up but was 

warned by the Appellant, “Don‟t move old man.” 

Disregarding the admonition, Joe Mason responded that he 

did not have any money and advanced toward the Appellant, 

grabbing the gun away from him. Gunshots were fired and 

Delmar ran to his bedroom. James Patterson testified that 

after “Mr. Joe shot the gun,” “that‟s when K-mack [Hooks] 

done what he done. He pulled his pistol . . . and went to 

shooting Mr. Joe.” The perpetrators fled the residence.

When Delmar returned, he saw his grandfather 

staggering by the coffee table. Eventually, Joe Mason fell to 

the floor. Mason died as a result of four gunshot wounds to 

his chest. Delmar Mason gave accurate descriptions of the 

Appellant, Hooks, and Patterson. He also identified the 
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Appellant as one of the perpetrators from a photographic lineup a few hours after his grandfather‟s murder.

Memphis Police Officer Laneeze Stepney and his 

partner responded to the call to the Mason residence. Upon 

arriving at the scene, they discovered the body of Joe Mason. 

Delmar Mason, his uncle and another individual present were 

questioned as to the events. These witnesses provided 

descriptions of the suspects. One twenty-five-caliber shell 

casing was recovered in addition to the discovery of four 

nine-millimeter casings.

State v. Darrell Jennings, No. W1999-01036-CCA-R3-CD, 2000 WL 1863515, at *1-2

(Tenn. Crim. App. at Jackson, Dec. 1, 2000) (footnote omitted).

On direct appeal, the Petitioner argued that the evidence was insufficient to 

support his conviction, that the trial court erred by failing to grant a mistrial when a State 

witness implied that the Petitioner had a criminal record, and that trial court placed undue 

emphasis in its supplemental instruction to the jury that “„the State need not prove the 

robbery was completed.‟” See id. at *2-5. This court affirmed the judgment of 

conviction. Id. at *6. In a petition for post-conviction relief, the Petitioner alleged that 

he received the ineffective assistance of counsel because trial counsel met with him only 

one time before trial, did not adequately prepare for trial, and should have pursued a jury 

instruction regarding the natural and probable consequences rule. Darrell Jennings v. 

State, No. W2007-01087-CCA-R3-PC, 2009 WL 3400701, at *2 (Tenn. Crim. App. at 

Jackson, Oct. 21, 2009), perm. to appeal denied, (Tenn. Apr. 24, 2010). This court 

affirmed the post-conviction court‟s denial of the petition. Id. at *2.

In May 2016, the Petitioner filed a petition for writ of habeas corpus. As his first 

ground for relief, the Petitioner alleged that he was indicted for first degree felony murder 

committed during the perpetration of robbery; however, when the proof at trial showed 

only attempted robbery, the trial court constructively amended the indictment by 

instructing the jury that it could also consider attempted robbery as an element of the 

offense. As his second ground for relief, the Petitioner alleged that the trial court failed 

to instruct the jury on any lesser-included offenses of first degree felony murder and 

failed to instruct the jury on facilitation as a lesser-included offense of first degree 

premeditated murder. Regarding both grounds, the Petitioner argued that the trial court 

lost jurisdiction to convict and sentence him. In support of his petition, the Petitioner 

attached exhibits, including a copy of the indictment, a copy of the jury instructions, and 

a copy of the judgment. The habeas corpus court denied the petition without a hearing, 
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concluding that even if the Petitioner‟s allegations were true, the judgment would be 

voidable, not void. The Petitioner appeals the ruling of the habeas corpus court.

II. Analysis

The determination of whether to grant habeas corpus relief is a question of law. 

Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial 

court‟s findings de novo without a presumption of correctness. Id. Moreover, it is a 

petitioner‟s burden to demonstrate, by a preponderance of the evidence, “that the 

sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 

(Tenn. 2000).

Article I, section 15 of the Tennessee Constitution guarantees an accused the right 

to seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). 

However, “[s]uch relief is available only when it appears from the face of the judgment 

or the record of the proceedings that a trial court was without jurisdiction to sentence a 

defendant or that a defendant‟s sentence of imprisonment or other restraint has expired.” 

Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas 

corpus relief may be sought only when the judgment is void, not merely voidable. 

Taylor, 995 S.W.2d at 83. “A void judgment „is one in which the judgment is facially 

invalid because the court lacked jurisdiction or authority to render the judgment or 

because the defendant‟s sentence has expired.‟ We have recognized that a sentence 

imposed in direct contravention of a statute, for example, is void and illegal.” 

Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at 

83). 

Turning to the instant case, “[N]ot only must the government prove the crime it 

charges, it must charge the crime it proves,” and “after an indictment has been returned, 

its charge may not be broadened or changed except by action of the grand jury.” State v. 

Goodson, 77 S.W.3d 240, 244 (Tenn. Crim. App. 2001). Moreover, “a constructive 

amendment of the indictment occurs when the jury is permitted to convict the defendant 

upon a factual basis that effectively modifies an essential element of the offense 

charged.” Id. Here, the indictment for first degree felony murder provided that the 

defendants “did unlawfully and with the intent to commit Robbery,, kill JOE MASON 

during the perpetration of Robbery,, in violation of T.C.A. 39-13-202, against the peace 

and dignity of the State of Tennessee.” However, during the jury charge, the trial court 

instructed the jury that it could find the Petitioner guilty “in the perpetration of or the 

attempt to perpetrate the alleged Robbery.” Regarding lesser-included offenses, at the 

time of the Petitioner‟s trial, trial courts were obligated to instruct juries on all lesserincluded offenses that were supported by the evidence. See State v. Ely, 48 S.W. 3d 710, 

726-27 (Tenn. 2001). The jury instructions in this case reflect that the trial court 
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instructed the jury on only the following lesser-included offenses of first degree 

premeditated murder: second degree murder, voluntary manslaughter, reckless homicide, 

and criminally negligent homicide. In addition, the trial court did not instruct the jury on 

any lesser-included offenses of first degree felony murder. 

Nevertheless, an improperly amended indictment renders a judgment voidable, not 

void on its face. Gary E. Aldridge v. State, No. M2005-01861-CCA-R3-HC, 2006 WL 

1132073, at *3 (Tenn. Crim. App. Apr. 28, 2006), perm. to appeal denied, (Tenn. Nov. 

27, 2006). Likewise, defects in jury instructions render a petitioner‟s conviction 

voidable, not void. Milton Lee Cooper v. Howard Carlton, Warden, No. E2011-00783-

CCA-R3-HC, 2012 WL 1523960, at *5 (Tenn. Crim. App. at Knoxville, Apr. 30, 2012) 

(citing Danny Ray Lacy v. Cherry Lindamood, No. M2009-00072-CCA-R3-CO, 2009 

WL 3029619, at *2 (Tenn. Crim. App. at Nashville, Sept. 22, 2009)), perm. to appeal 

denied, (Tenn. Aug. 20, 2012). Therefore, the habeas corpus court did not err by 

summarily denying the petition.

III. Conclusion

Based upon the record and the parties‟ briefs, we affirm the judgment of the 

habeas corpus court.

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NORMA MCGEE OGLE, JUDGE