State v. Ray Thompson ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
OCTOBER 1997 SESSION FILED
October 20, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
RAY DARRIS THOMPSON,
) C.C.A. No. 02C01-9608-CC-00249
Appellant, )
) Lake County
V. )
) Honorable Joe G. Riley, Jr., Judge
)
FRED J. RANEY, WARDEN, )
) (Habeas Corpus-Rape)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Mark A. Mesler John Knox Walkup
Ballin, Ballin & Fishman, P.C. Attorney General & Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103 Elizabeth T. Ryan
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Phillip Bivens
District Attorney General
P.O. Drawer E
Dyersburg, TN 38024
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
In May 1975 the appellant, Ray Darris Thompson, was convicted by a jury
of rape. He received a seventy-five year sentence. In June of 1996 he filed a
petition for writ of habeas corpus. The trial court dismissed the petition finding
that the conviction was not void and that the appellant’s sentence had not
expired. He appeals this dismissal. Upon review, we affirm the judgment of the
trial court.
The appellant contends that his conviction is void because the trial judge
failed to exercise his duty as thirteenth juror. He claims that after the jury found
him guilty of rape the trial judge approved the verdict after stating that he
disagreed with the jury’s decision.
We first note that habeas corpus relief is limited to cases where the
judgement is void or the petitioner’s sentence has expired. Passarella v. State,
891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). Even if we assume the
appellant’s allegations true, his conviction would not be void. If a trial judge fails
to exercise his role as thirteenth juror, the appellant’s conviction would be
voidable and he would be entitled to a new trial. Therefore, the appellant fails to
allege a cognizable claim for habeas corpus relief.
Furthermore, the appellant has failed to provide this Court with a transcript
of the proceedings in which the trial judge expressed dissatisfaction with the
jury’s verdict. Without a transcript it is impossible for this Court to determine the
merits of the appellant’s claim. Tenn. Ct. Crim. App. Rule 10.
Accordingly, we find no error of law mandating reversal. The judgment of
the trial court is affirmed.
-2-
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
__________________________
JOHN H. PEAY, Judge
__________________________
DAVID G. HAYES, Judge
-3-