IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 5, 2011 

ERIC D. WALLACE v. STEPHEN DOTSON, WARDEN

Direct Appeal from the Circuit Court for Hardeman County

No. 10-CR-114 Joseph H. Walker, III, Judge

No. W2010-01784-CCA-R3-HC - Filed May 17, 2011

The Petitioner, Eric D. Wallace, was convicted by a Shelby County Criminal Court jury of

felony murder and attempted first degree murder. He was sentenced to life imprisonment for

the felony murder conviction and to a consecutive fifteen-year sentence as a Range I,

standard offender for the attempted first degree murder conviction, for an effective sentence

of life plus fifteen years. He subsequently filed a pro se petition for writ of habeas corpus

in the Hardeman County Circuit Court, which was summarily dismissed. On appeal, the

Petitioner argues that he is entitled to habeas corpus relief because (1) he asserts that he is

“actually innocent” of the charges, (2) his indictments are defective, and (3) the trial court

improperly instructed the jury on flight. Upon review, we affirm the judgment summarily

dismissing the petition for writ of habeas corpus.

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

CAMILLER. MCMULLEN,J., delivered the opinion of the court, in which ALAN E. GLENN and

J. C. MCLIN, JJ., joined.

Eric D. Wallace, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Procedural History. The Petitioner was convicted by a Shelby County Criminal

Court jury of felony murder and attempted first degree murder. On June 2, 1995, the trial

court imposed consecutive sentences of life imprisonment and fifteen years as a Range I,

standard offender respectively, for an effective sentence of life plus fifteen years. The

Petitioner filed a direct appeal, and this court affirmed the judgments of the trial court. State
v. Eric D. Wallace, No. 02-C-01-9604-CR-00125, 1997 WL 421011 (Tenn. Crim. App., at

Jackson, July 28, 1997), perm. to appeal denied (Tenn. Apr. 6, 1998).

The Petitioner then filed a petition for post-conviction relief, which was denied. On

appeal, this court affirmed the judgment of the post-conviction court. Eric Wallace v. State,

No. W2000-02854-CCA-R3-CD, 2002 WL 1483204 (Tenn. Crim. App., atJackson, Feb. 19,

2002), perm. to appeal denied (Tenn. Sept. 9, 2002).

The Petitioner subsequently filed a petition for writ of habeas corpus, which was

summarily dismissed by the Lauderdale County Circuit Court. The Petitioner appealed, and

this court affirmed the judgment of the habeas corpus court. Eric D. Wallace v. James M.

Dukes, Warden, No. W2002-00882-CCA-R3-CO, 2002 WL 31895727 (Tenn. Crim. App.,

at Jackson, Dec. 31, 2002), perm. to appeal denied (Tenn. Mar. 10, 2003).

The Petitioner filed a second petition for writ of habeas corpus in the Hardeman

County Circuit Court, which was also summarily dismissed. On appeal, this court affirmed

the judgment of the habeas corpus court. Eric D. Wallace v. Stephen Dotson, Warden, No.

W2006-00908-CCA-R3-HC, 2007 WL 852173 (Tenn. Crim. App., at Jackson, Mar. 22,

2007), perm. to appeal denied (Tenn. Aug. 13, 2007).

The Petitioner then filed a motion to reopen his petition for post-conviction relief,

which was denied by the Shelby County Criminal Court. The Petitioner appealed, and this

court affirmed the judgment of the post-conviction court. Eric Dewayne Wallace v. State,

No. W2008-00867-CCA-R3-PC, 2009 WL 321294 (Tenn. Crim. App., at Jackson, Feb. 6,

2009).

The Petitioner subsequently filed his third petition for writ of habeas corpus in this

case in the Hardeman County Circuit Court on July 27, 2010. On August 3, 2010, the habeas

corpus court summarily dismissed the Petitioner’s writ for habeas corpus. In the order, the

court held that the Petitioner failed to state a cognizable claim in his petition that would

entitle him to habeas corpus relief. The Petitioner then filed a timely notice of appeal.

Facts. This court summarized the facts for the underlying offenses on direct appeal:

On the evening of July 10, 1992, the defendant and his brother, Percy

Wallace, were walking along Woodlawn Street in Memphis. When they were

passing the Weddle residence, they saw Jimmy Weddle, known in the

neighborhood as “Jim Bodey,” sitting on his front porch with several people

visiting the Weddle residence. The Wallace brothers asked Weddle to meet

them on the sidewalk. They asked Weddle if he knew of anyone who wanted

to purchase illicit narcotics. Weddle told the Wallaces there was a woman and

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a man who desired to make a purchase. The Wallaces told Weddle to send the

individuals to them. They then walked down the street until they came to the

next intersection, Woodlawn and Looney.

Boo Boo Fox, who was driving through the neighborhood, stopped to

purchase drugs from the Wallaces. Weddle walked to the intersection after

Fox stopped his vehicle. Fox asked for a $20 rock of crack cocaine. He gave

the Wallaces $15. He was told he did not have enough money to purchase the

rock. Fox told the Wallaces he would go to the vehicle and get more money.

Fox reached inside the vehicle, obtained a pistol, and told the Wallaces to give

him all of the illicit narcotics and money they had on them. He also made

them lay on the ground. Weddle began walking backwards toward his

residence. Fox obtained the money and drugs, and he fired at the Wallaces.

It appears he grazed Percy Wallace. Fox then drove away.

When Fox left, the Wallaces ran toward their residence. Percy Wallace

and the defendant each obtained a shotgun. They then went to the Weddle

residence as they believed Weddle had assisted Fox in the robbery.

Approximately ten to fifteen minutes expired between the robbery and the

appearance of the Wallaces at the Weddle residence.

When the Wallaces arrived, Weddle and his guests were still sitting on

the front porch. Percy Wallace asked, “Where is Jim Bodey?” He then

exclaimed, “Jim Bodey you a dead man [sic].” When the people saw the

Wallaces were armed, they began running into the Weddle residence. Percy

Wallace fired at Weddle. The shotstruck the exterior of the Weddle residence.

Percy Wallace then forced his way into the Weddle residence and fired the

shotgun two more times in an effort to shoot Weddle.

While Percy Wallace was attempting to reload his shotgun, he told the

defendant to shoot anyone who exited the residence. Shortly thereafter, the

victim, Venita Swift, who was celebrating her birthday at the Weddle

residence, decided to exit the residence and go home. She lived across the

street from the Weddles. As she ran from the residence with her arms raised

above her head, the defendant stated: “Hold, bitch.” Swift looked at the

defendant, but she kept running. The defendant raised his shotgun and fired

at Swift. She subsequently fell in the street. A few minutes later she died.

The buckshot from the shotgun struck Swift in the back below her left

shoulder. The pellets continued through her body. Wadding from the shotgun

blast was found under Swift’s skin. Numerous pellets entered her body. The

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pellets went through the victim’s left lung and struck her heart. The pellets

also struck the victim’s aorta, stomach, spleen, and liver. Two wadding

wounds were found. The pathologist estimated that over 100 pellets entered

the victim’s body. He also estimated the shotgun was approximately ten to

fifteen feet from the victim when it was fired. The pathologist testified the

cause of death was the shotgun wound inflicted by the defendant.

The defendant was arrested by the police at his place of employment.

He was given the Miranda warnings. He readily admitted he shot the victim.

He cooperated with the police in an effort to obtain evidence of the murder.

However, during the trial, the defendant testified the police did not advise him

of the Miranda warnings, and he did not read the statement before signing it.

He emphatically denied shooting the victim. He testified he told the victim to

“get down.”

Eric D. Wallace, 1997 WL 421011, at *1-2.

ANALYSIS

On appeal, the Petitioner argues that he is entitled to habeas corpus relief because he

asserts that he is “actually innocent” of the charges, his indictments are defective, and the

trial court improperly instructed the jury on flight. In response, the State argues that the

habeas corpus court properly denied relief because the Petitioner has failed to establish that

his challenged judgments are void or that his sentences have expired. We agree with the

State.

A prisoner is guaranteed the right to habeas corpus relief under article I, section 15

of the Tennessee Constitution. See also T.C.A. §§ 29-21-101 to -130. The grounds upon

which a writ of habeas corpus may be issued, however, are very narrow. Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it

appears upon the face of the 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 v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

“The determination of whether habeas corpus relief should be granted is a question

of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21

S.W.3d 901, 903 (Tenn. 2000)). In determining whether to grant habeas corpus relief, our

review is de novo without a presumption of correctness given to the lower court’s findings

and conclusions. Summers, 212 S.W.3d at 255 (citing State v. Livingston, 197 S.W.3d 710,

712 (Tenn. 2006)).

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“[T]he purpose of a habeas corpus petition is to contest void and not merely voidable

judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v.

Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). “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.” Taylor, 995 S.W.2d at 83 (citing

Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64.

However, “a voidable judgment is facially valid and requires the introduction of proof

beyond the face of the record or judgment to establish its invalidity.” Hickman v. State, 153

S.W.3d 16, 24 (Tenn. 2004) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000));

see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at

529). Thus, “[i]n all cases where a petitioner must introduce proof beyond the record to

establish the invalidity of his conviction, then that conviction by definition is merely

voidable, and a Tennessee court cannot issue the writ of habeas corpus under such

circumstances.” Ritchie, 20 S.W.3d at 633. Additionally, “[i]f the court rendering a

judgment has jurisdiction of the person, the subject-matter, and has the authority to make the

challenged judgment, the judgment is voidable, not void; and the judgment may not be

collaterally attacked in a suit for habeas corpus relief.” Passarella v. State, 891 S.W.2d 619,

627 (Tenn. Crim. App. 1994), superseded by statute as stated in State v. Steven S. Newman,

No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., atJackson, Mar.

11, 1998).

It is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that

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

(Tenn. 2000). If this burden is met, the Petitioner is entitled to immediate release. State v.

Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d

656, 658 (Tenn. 1968)).

However, if the habeas corpus court determines from the petitioner’s filings that no

cognizable claim has been stated and that the petitioner is not entitled to relief, the petition

for writ of habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20; see

also T.C.A. § 29-21-109 (2006). The habeas corpus court may summarily dismiss the

petition without the appointment of a lawyer and without an evidentiary hearing if there is

nothing on the face of the judgment to indicate that the convictions are void. Passarella, 891

S.W.2d at 627. “The petitioner bears the burden of providing an adequate record for

summary review of the habeas corpus petition, including consideration of whether counsel

should be appointed.” Summers, 212 S.W.3d at 261.

A trial court’s facially valid judgment cannot be collaterally attacked in a petition for

habeas corpus relief. Archer, 851 S.W.2d at 162. Instead, a Petitioner must challenge a

facially valid judgment on constitutional grounds in a petition for post-conviction relief.

Lewis v. Metro. Gen. Sessions Court for Nashville, 949 S.W.2d 696, 699 (Tenn. Crim. App.

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1996) (citing Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982)); see also

Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993).

I. Sufficiency of the Evidence. First, the Petitioner argues that he is entitled to

habeas corpus relief because he is “actually innocent” of the charges in this case. The State

responds that the Petitioner’s first issue is essentially a sufficiency of the evidence claim,

which is not cognizable in a habeas corpus proceeding. We agree. See Myers v. State, 462

S.W.2d 265, 267 (Tenn. Crim. App. 1970) (“Habeas corpus and post-conviction proceedings

may not be employed to question or review or test the sufficiency of the evidence at the

original trial.”); William C. Brothers v. State, No. W2008-00748-CCA-R3-HC, 2009 WL

1643434, at *3 (Tenn. Crim. App., at Jackson, June 12, 2009), perm. to appeal denied (Tenn.

Oct. 26, 2009) (“To the extent that the petitioner challenges the sufficiency of the evidence,

. . . those claims do not present cognizable grounds for habeas corpus relief.”); Jackie F.

Curry v. State, No. E2007-02526- CCA-R3-HC, 2008 WL 3066823, at *2 (Tenn. Crim. App.,

at Knoxville, Aug. 4, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“[A]n attack on

the sufficiency of the evidence is not a proper basis for habeas corpus relief.”).

Moreover, this court previously concluded that the evidence was sufficient to support

the Petitioner’s convictions for felony murder and attempted first degree murder on direct

appeal:

Before an accused can be convicted of murder in the perpetration of a

felony, the State of Tennessee is required to prove beyond a reasonable doubt

(a) the accused recklessly killed the victim and (b) the killing occurred during

the perpetration, or attempt to perpetrate, one of the enumerated felonies set

forth in the statute. Tenn. Code Ann. § 39-13-202(a)(2). In this case, the State

of Tennessee’s theory was the defendant recklessly killed the victim while the

defendant and his brother were attempting to commit murder in the first

degree. The intended victim was Jimmy Weddle.

The defendant does not challenge the fact he recklessly killed the

victim. The evidence of this fact is overwhelming. The defendant gave the

police officers a statement admitting he shot and killed the victim. In addition,

several eyewitnessestestified the defendant wasthe person who shot and killed

the victim. However, the defendant contends he did not commit the offense

of attempt to commit murder first degree. He argues the State of Tennessee

failed to establish the offense was committed with deliberation, which is to say

“committed with coolness and reflection and without passion or provocation.”

The question this Court must resolve is whether the element of

deliberation was established by the evidence.

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When this offense was committed, the term deliberation was defined by

statute as an act “performed with a cool purpose.” Tenn. Code Ann. §

39-13-201(b)(1). The defendant contends his status of being a victim of the

robbery, the shooting, and his belief Weddle was acting in concert with Fox

created excitement and passion. He argues this excitement and passion had not

subsided prior to the criminal conduct in question.

In this case, the defendant and his brother, Percy, left the situs of the

armed robbery-shooting, went to their residence, armed themselves with

shotguns, and went to the Weddle residence. A rational jury could have found

fifteen minutes elapsed from the time of the robbery-shooting and the

defendant’s appearance at the Weddle residence.

A reasonable and prudent person would have called the police and

reported the crime. If the Wallacesreported the robbery-shooting to the police,

they would have had to admit they were selling illicit narcotics, and Fox took

their money and illicit narcotics. Thus, they did not report the crime to the

police. However, the Wallaces felt compelled to establish there was a price to

pay when someone committed a criminal act against them. In other words, the

Wallaces wanted to deter such conduct in the future. They became the police,

judge, jury, and executioner.

There was a concerted effort to kill Weddle. Percy Wallace fired at

Weddle as he ran into the dwelling. He then forced his way into the dwelling

where he fired twice. While Percy Wallace was attempting to reload the

shotgun, he told the defendant to shoot anyone who left the dwelling. When

the innocent victim left the residence with her hands held above her head, the

defendant shot her in the back from a distance of ten to fifteen feet.

This Court concludes the evidence contained in the record supports a

finding by a rational trier of fact [that] the defendant recklessly shot the victim

during an attempt to commit first degree murder beyond a reasonable doubt.

Tenn. R. App. P. 13(e). See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979). Based upon the facts contained in the record, the jury

could reasonably conclude sufficient time had elapsed for any excitement or

passion to dissipate.

Eric D. Wallace, 1997 WL 421011, at *2-4. Accordingly, the Petitioner is not entitled to

relief on this issue.

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Within this first issue, the Petitioner also claims that the felony murder and attempted

first degree murder indictments are void because “the killing [of Swift] must have been done

in pursuance of, rather than collateral to, the attempt[ed first degree] murder, in relation to

the natural and probable consequence rule, thereby rendering the convictions and sentence

void and unconstitutional.” In addition, the Petitioner asserts that although “the jury was

instructed on the theory of criminal responsibility for the conduct of another . . . [it] was not

instructed on the natur[al] and probable consequence rule of the target crime, which is an

essential element that the State must prove beyond a reasonable doubt before the petitioner

can be convicted of felony murder and attempted first degree murder based on equal criminal

liability for principals, accessories before the fact, and aiders and abettors[.]” Moreover, the

Petitioner contends that “the State offered no evidence of the elements for the natur[al] and

probable consequence rule of the target crime.”

In State v. Howard, 30 S.W.3d 271 (Tenn. 2000), the Tennessee Supreme Court held

that the natural and probable consequences rule “underlies the doctrine of criminal

responsibility and is based on the recognition that aiders and abettors should be responsible

for the criminal harms they have naturally, probably and foreseeably put into motion.” Id.

at 276 (Tenn. 2000) (citing State v. Carson, 950 S.W.2d 951, 954-55 (Tenn. 1997); Key v.

State, 563 S.W.2d 184, 186 (Tenn. 1978); State v. Grooms, 653 S.W.2d 271, 275 (Tenn.

Crim. App. 1983)). The court also established a three-part test for the natural and probable

consequences rule:

[T]o impose criminal liability based on the natural and probable consequences

rule, the State must prove beyond a reasonable doubt and the jury must find the

following: (1) the elements of the crime or crimes that accompanied the target

crime; (2) that the defendant was criminally responsible pursuant to Tennessee

Code Annotated section 39-11-402; and (3) that the other crimes that were

committed were natural and probable consequences of the target crime.

Id. The Tennessee Supreme Court again considered the natural and probable consequences

rule in State v. Richmond, 90 S.W.3d 648 (Tenn. 2002), wherein it stated:

The natural and probable consequences rule arose as a common law

component of criminal responsibility and extends criminal liability to the crime

intended by a defendant, and collateral crimes committed by a co-defendant,

that were the natural and probable consequences of the target crime.

Id. at 654 (citing Carson, 950 S.W.2d at 954).

Here, the Petitioner argues that Swift’s homicide was not foreseeable at the time he

committed the attempted first degree murder offense. However, in State v. Winters, 137

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S.W.3d 641, 659 (Tenn. Crim. App. 2003), this court specifically held that the offense of

felony murder does not require that the homicide committed during the underlying felony be

foreseeable:

[T]he felony murder statute, both as it existed at the time of the crime and

today, does not require that a homicide committed during the course of one of

the enumerated felonies be foreseeable. See Tenn. Code Ann. § 39-13-

202(a)(2) (1997 & 2003); State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim.

App. 2000), perm. app. denied (Tenn. 2001). “When one enters into a scheme

with another to commit one of the felonies enumerated in the felony murder

statutes, and death ensues, both defendants are responsible for the death

regardless of who actually committed the murder and whether the killing was

specifically contemplated by the other.” Id. (citing State v. Brown, 756

S.W.2d 700, 704 (Tenn. Crim. App. 1988)).

Regarding this issue, the State asserts that while the prosecution in this case sought

to convict the Petitioner of attempted murder of Weddle based on the theory of criminal

responsibility, the prosecution charged the Petitioner as the principal in the felony murder of

Swift. Accordingly, the State argues that an instruction on the natural and probable

consequences rule was not necessary for the offense of felony murder because the Petitioner

was not charged with or found guilty of Swift’s death under the theory of criminal

responsibility. See State v. Marlon Orlando Walls, No. M2003-01854-CCA-R3-CD, 2006

WL 151923, at (Tenn. Crim. App., at Nashville, Jan. 19, 2006) perm. to appeal denied

(Tenn. May 30, 2006) (“Because Defendant was not charged with and held liable for the

victim’s death under a criminal responsibility theory, an instruction on the natural and

probable consequences rule as to the offense of especially aggravated kidnapping was not

required.”); State v. Jason D. Pillow, No. M2002-01864- CCA-R3-CD, 2004 WL 367747,

at *11 (Tenn. Crim. App., at Nashville, Feb. 27, 2004), perm. to appeal denied (Tenn. June

21, 2004) (“Because the defendant was not charged with or held liable for [the victim’s]

death under a theory of criminal responsibility, an instruction on the natural and probable

consequences rule was not required as to that offense.”). This court’s opinion on direct

appeal indicates that there was “overwhelming” evidence that the Petitioner recklessly killed

Swift. The court specifically noted that the Petitioner provided a written statement to the

police admitting that he killed Swift and that several eyewitnesses testified at trial that the

Petitioner was the individual who shot Swift. Accordingly, we agree with the State that the

record supports the view that Petitioner was charged and held liable for Swift’s death as a

principal. However, we also note that, even if the Petitioner was not charged with or found

guilty of Swift’s death as a principal, an instruction on the natural and probable consequences

rule was not required in light of Winters.

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Finally, the Petitioner asserts that, because his brother, Percy Wallace, was allowed

to enter a plea of guilty in this case to second degree murder, the Petitioner and his brother

no longer shared the same criminal intent regarding the felony murder indictment, which he

claims is required before concluding that Swift’s death was the “natural and probable

foreseeable consequence.” He asserts that Percy Wallace’s guilty plea to second degree

murder deprived him of due process and equal treatment under the law and prevented the jury

from determining whether the attempted murder of Weddle had ended before imposing

criminal liability for the death of Swift. The Petitioner cites no authority to support these

arguments. Accordingly, this issue is waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues

which are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived in this court.”); Tenn. R. App. P. 27(a)(7) (A brief shall

contain “[a]n argument . . . setting forth the contentions of the appellant with respect to the

issues presented, and the reasonstherefore, including the reasons why the contentionsrequire

appellate relief, with citations to the authorities and appropriate references to the record . .

. relied on.”). Accordingly, the Petitioner is not entitled to relief on this issue.

II. Defective Indictment. The Petitioner also argues that his felony murder and

attempted first degree murder indictments were defective. First, he contends that the State

at trial only proved that he acted knowingly and intentionally, rather than recklessly as

charged in the indictment for felony murder. Second, the Petitioner argues that Percy

Wallace’s guilty plea to second degree murder shows that the Petitioner was not “an

accomplice in the commission of, or an attempt to commit, or flight after committing or

attempting to commit the . . . murder of Jimmy Weddle” and if the Petitioner’s actions were

not reckless but knowing regarding the murder of Swift, then the reckless element of felony

murder was not established by the prosecution. The State responds that the trial court

properly determined that the indictment sufficiently informed the Petitioner of the charges

against him. The State also argues that this issue “appears to be a veiled attempt to again

attack the sufficiency of the convicting evidence, which is not a valid claim in habeas

corpus.” We agree with the State.

The United States Constitution and the Tennessee Constitution state that a defendant

is entitled to knowledge of “the nature and cause of the accusation.” U.S. Const. amend. VI;

Tennessee Const. art. I, § 9. Pursuant to State v. Hill, an indictment is valid if it contains

sufficient information

(1) to enable the accused to know the accusation to which answer is required,

(2) to furnish the court adequate basis for the entry of a proper judgment, and

(3) to protect the accused from double jeopardy.

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954 S.W.2d at 727 (citing State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v.

State, 919 S.W.2d 626, 630 (Tenn. Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497

(Tenn. Crim. App. 1980)). In addition, pursuant to Tennessee Code Annotated section 40-

13-202, the indictment must

state the facts constituting the offense in ordinary and concise language,

without prolixity or repetition, in such a manner so 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. . . .

T.C.A. § 40-13-202 (2006).

We note that typically a defendant must raise an objection to a defect in the indictment

prior to trial. Tennessee Rule of Criminal Procedure 12(b)(2) states that a failure to raise an

objection prior to trial based on a defect in the indictment generally results in waiver. Tenn.

R. Crim. P. 12(b)(2)(B); see also Wyatt, 24 S.W.3d at 322. However, “an indictment that is

so defective as to fail to vest jurisdiction in the trial court may be challenged at any stage of

the proceedings, including in a habeas corpus petition.” Wyatt, 24 S.W.3d at 323 (citing

Tenn. R. Crim. P. 12(b)(2); Dykes, 978 S.W.2d at 529).

Here, the indictment charging the Petitioner with felony murder of Swift provided:

THE GRAND JURORS of the State of Tennessee, duly selected,

empaneled, sworn and charged to inquire for the body of the county of Shelby,

Tennessee, upon their oath, present that:

ERIC D. WALLACE

and

PERCY WALLACE

on July 10, 1992, in Shelby County, Tennessee, and before the finding of this

indictment, did unlawfully and recklessly kill VENITA SWIFT during and

[sic] attempt to perpetrate First Degree Murder, in violation of T.C.A. 39-13-

202, against the peace and dignity of the State of Tennessee.

In addition, the indictment charging the Petitioner with attempted first degree murder of

Weddle provided:

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THE GRAND JURORS of the State of Tennessee, duly selected,

impaneled, sworn and charged to inquire for the body of the county of Shelby,

Tennessee, upon their oath, present that:

ERIC D. WALLACE

and

PERCY WALLACE

on July 10, 1992, in Shelby County, Tennessee, and before the finding of this

indictment, did unlawfully attempt to commit the offense of First Degree

Murder as defined in T.C.A. 39-13-202, in that they, the said Eric D. Wallace

and the said Percy Wallace did unlawfully, intentionally, deliberately, and with

premeditation attempt to kill JIMMY WEDDLE by use of a deadly weapon,

to wit: a firearm and did cause the said JIMMY WEDDLE to reasonably fear

imminent bodily injury, in violation of T.C.A. 39-12-101, against the peace

and dignity of the State of Tennessee.

The Petitioner has failed to establish that these indictments are defective. In fact, this

court, in the Petitioner’s appeal from the summary dismissal of his first petition for writ of

habeas corpus on the instant charges, specifically concluded, “The indictments meet the

criteria as set out in Tennessee Code Annotated section 40-13-202, as they are sufficient to

apprize petitioner of the charges for which he needed to prepare.” Eric D. Wallace, 2002 WL

31895727, at *2.

Moreover, the State asserts that the Petitioner’s defective indictment issue “appears

to be a veiled attempt to again attack the sufficiency of the convicting evidence, which is not

a valid claim in habeas corpus.” We agree. The State further asserts that “[t]o the extent that

the petitioner might be arguing that there is a fatal variance between the charges alleged in

the indictment and the proof presented at trial, that issue has also been addressed by this

Court in a previous habeas [corpus] proceeding.” We also agree with the State on this point.

In the Petitioner’s appeal from the summary dismissal of his second petition for writ of

habeas corpus on these charges, the court concluded, “[T]he [Petitioner’s] allegation of a

fatal variance between the indictment and proof at trial is not a cognizable ground for habeas

corpus relief.” Eric D. Wallace, 2007 WL 852173, at *2 (citing William T. Yelton v. Robert

Waller, Warden, No. M2004-02529-CCA-R3-HC, 2006 WL 119628, at *1 (Tenn. Crim.

App., at Nashville, Jan. 17, 2006); Stephen Lajuan Beasley v. State, No.

E2005-00367-CCA-MR3-HC, 2005 WL 3533265, at *4 (Tenn. Crim. App., at Knoxville,

Dec. 27, 2005), perm. to appeal denied (Tenn. May 30, 2006); Byron Edwards v. State, No.

E2004-00918-CCA-R3-HC, 2004 WL 2951975, at *1-2 (Tenn. Crim. App., at Knoxville,

Dec. 20, 2004), perm. to appeal denied (Tenn. Mar. 21, 2005)). Accordingly, the Petitioner

is not entitled to relief on this issue.

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III. Trial Court’s Instruction on Flight. The Petitioner lastly argues that he is

entitled to habeas corpus relief because the trial court provided the jury with a “flawed”

instruction on flight. He contends that flight was not enough to convict him of felony murder

because, while the evidence showed him leaving the scene, it did not show “a subsequent

hiding out, evasion, or concealment in the community, or a leaving of the community for

parts unknown, to constitute flight” pursuant to Rogers v. State, 455 S.W.2d 182, 187 (Tenn.

1970). In response, the State contends that “even if the instruction was erroneous, it would

not render the judgment void.” We agree with the State. See Rain Thomas Chesher v.

Stephen Dotson, Warden, No. W2008-00739-CCA-R3-HC, 2008 WL 3892017, at *2 (Tenn.

Crim. App., at Jackson, Aug. 22, 2008), perm. to appeal denied (Tenn.Jan. 20, 2009) (“[T]he

petitioner’s challenges to the jury instructions, even if proven, would render his conviction

voidable, not void.”); Rodney L. Tipton v. Howard Carlton, Warden, No.

E2007-02625-CCA-R3-HC, 2008 WL 3539727, at *2 (Tenn. Crim. App., at Knoxville, Aug.

14, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“A claim of erroneous jury

instructions is not a cognizable basis for habeas corpus relief.”); Jackie F. Curry v. State, No.

E2007-025320-CCA-R3-HC, 2008 WL 3066823, at *4 (Tenn. Crim. App., at Knoxville,

Aug. 4, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“This Court has repeatedly

found that erroneous jury instructions cannot form the basis for habeas corpus relief.”). The

Petitioner is not entitled to relief on this issue.

The Petitioner has not established that his judgments are void and has not argued or

established that hissentences have expired. Accordingly, the court’s dismissal of the petition

for writ of habeas corpus was proper.

CONCLUSION

The habeas corpus court’s summary dismissal of the petition for writ of habeas

corpus is affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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