In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-04-128 CV

____________________

IN THE MATTER OF C.E.B., III

On Appeal from the 9th District Court
Montgomery County, Texas

Trial Cause No. 03-09-7118-JV

MEMORANDUM OPINION

 A jury found true the allegation that C.E.B., a juvenile, committed the offense of
indecency with a child, pursuant to Tex. Pen. Code Ann. §21.11(a)(1) (Vernon 2003).
C.E.B. elected to have the trial court determine disposition and the trial court imposed a
determinate sentence of three years' confinement at the Texas Youth Commission.  C.E.B.
raises two issues in which he complains of the trial court's error in admitting outcry
testimony and of an impermissibly suggestive pre-trial identification procedure.
	In August, 2003, L.K. (Leilani) and her family went to an R.V. park at Lake Conroe,
Texas, for the weekend.  The night of their arrival, the family went to dinner at the park's
café.  Leilani sat her four-year-old daughter, H.K., at a table to watch television.  As Leilani
stood in the doorway, she observed C.E.B. sit next to H.K. and stroke her arm.  When Leilani
went to pay, she could not observe H.K.  As Leilani was getting drinks, H.K. approached her
and said "'that boy' licked my ear, and he told me he loved me and he wanted to marry me,
and he touched my private."  Leilani asked H.K to "show mama what you mean by your
privates," and H.K. "cupped her hand over her crotch area."  When asked if H.K. told Leilani
what he touched her with, Leilani testified, "[h]is hand."  Several hours later, Leilani reported
the incident to park staff.  The family left the park the next morning.  Subsequently, Leilani
spoke with the Montgomery County Sheriff's Department.  She picked C.E.B. out of a
photographic line-up and identified him in court.
	In his first point of error, C.E.B. argues the trial court erred by allowing H.K.'s outcry
statement into evidence over a hearsay objection without conducting a reliability hearing
outside the presence of the jury.  Section 54.031 of the Family Code contains an exception
to the hearsay rule for statements made by a victim of child abuse.  See Tex. Fam. Code.
Ann. §54.031 (Vernon 2002); see also Tex. R. Evid. 801(d). (1)  Section 54.031 applies to a
hearing in which a child is alleged to be delinquent on the basis of a violation of Chapter 21
of the Penal Code, if the alleged victim is twelve years of age or younger.  Tex. Fam. Code.
Ann. §54.031(a).  Further, section 54.031 applies to statements describing the alleged
violation that were made by the victim to the first person, eighteen years of age or older, to
whom the victim made a statement.  Tex. Fam. Code. Ann. §54.031(b).  A statement that
meets those requirements is admissible despite the hearsay rule if certain conditions are met.
Tex. Fam. Code. Ann. §54.031(c).  One of those conditions is that "the juvenile court finds,
in a hearing conducted outside the presence of the jury, that the statement is reliable based
on the time, content, and circumstances of the statement . . . ."  Tex. Fam. Code. Ann. §
54.031(c)(2).  See also In the Matter of G.M.P., 909 S.W.2d 198, 206-07 (Tex. App.--
Houston [14th Dist.] 1995, no pet.).  It is this requirement that C.E.B. claims was not
satisfied.
	The record reflects that during direct examination, Leilani began to reveal what H.K.
said when defense counsel made a timely hearsay objection.  The State answered, "we filed
an outcry statement with the Court which is an exception to the hearsay rule."  The trial court
agreed and overruled defense counsel's objection.  It is clear the trial court failed to conduct
a hearing outside the presence of the jury to determine the reliability of the outcry statement
in accordance with section 54.031.  Id.
	The State argues that because C.E.B.'s objection was to hearsay instead of reliability,
based on time, content or circumstances, C.E.B. failed to preserve the issue for review.  The
State further contends that even though the trial court did not conduct a hearing to determine
if H.K.'s statements were reliable, such a finding by the trial court can be implied from the
trial court's admission of Leilani's testimony.
	Testimony disclosing an outcry statement is only admissible as a statutory exception
to the hearsay rule; therefore, the requirements of the statute must be met for a statement to
be admissible over a hearsay objection.  Long v. State, 800 S.W.2d 545, 547 (Tex. Crim.
App. 1990); In the Matter of G.M.P., 909 S.W.2d at 207. (2)  Since the statute pertains only to
hearsay statements of child abuse victims, failure to specifically cite to the statute or to
request a hearing does not waive an appellant's right to appellate review.  Long, 800 S.W.2d
at 548.  Accordingly, the issue was preserved for our review.  Because the record reflects the
requirement of section 54.031(c)(2) was not satisfied, the trial court erred in admitting the
statement over a hearsay objection.  Tex. Fam. Code Ann. §54.031(c)(2); Long, 800 S.W.2d
at 547-48; see also In the Matter of G.M.P., 909 S.W.2d at 207.
	Relying on Nolen v. State, 872 S.W.2d 807, 812 (Tex. App.--Fort Worth 1994, pet.
ref'd), the State argues the trial court's finding of reliability may be implied from the trial
court's admission of the outcry statement.  The issue raised in Nolen was whether the trial
court abused its discretion by failing to conduct a balancing test after a timely objection
under Tex. R. Evid. 403.  Id.  Nolen does not support the State's position that the
requirements of section 54.031 do not have to be met for the hearsay testimony to be
admissible.  We do not disagree that the trial court's finding of reliability can be implied
from the admission of the evidence, when it is admitted after the hearing has been held.  See
Gabriel v. State,  973 S.W.2d 715, 718 (Tex. App.--Waco 1998, no pet.).  The State cites no
authority, and we are aware of none, holding the hearsay testimony of an outcry witness is
admissible absent the statutorily required hearing.  Accordingly, we find the trial court erred
in admitting the testimony.
	Having found error, we now consider whether that error was harmful.  See Tex. R.
App. P. 44.  The State argues the error is harmless under either the civil or criminal rules
while C.E.B. contends the civil rule governs.  The Supreme Court of Texas has
acknowledged juvenile proceedings are quasi-criminal in nature, but it has not determined
whether the criminal or civil rules for harm analysis are employed on appeal.  See In re
D.I.B., 988 S.W.2d 753, 756 (Tex. 1999).  In D.I.B. the court noted the State relied on the
civil rules and appellant did not challenge their application.  Id.  The court then found,
"[t]hus, we are not called upon to decide whether the criminal rule should govern a harm
analysis in a juvenile case such as this one."  Id.  In light of C.E.B.'s application of the civil
rules, and in accordance with D.I.B., we evaluate whether the error was harmless pursuant
to the rule for reversible error in civil cases.  See Tex. R. App. P. 44.1(a)(1) (The trial court's
error is reversible if it probably caused the rendition of an improper judgment).
	In this case, the same evidence was admitted through the videotaped testimony of H.
K. (3)  H.K. told a forensic interviewer that a boy "started to do things to me."  She described
those things as, "he licked my ear . . . with his tongue" and "he put his hand on my private."
H.K. said he "touched it with his hand."  Furthermore, defense counsel solicited the same
outcry testimony on cross-examination of the outcry witness.  Leilani's testimony as the
outcry witness was not the only evidence that C.E.B. engaged in sexual contact with H.K.
by touching "any part of the genitals."  See Tex. Pen. Code Ann. §21.11(c)(1) (Vernon
2003).  Because the jury heard other evidence of sexual contact, we are unable to say the trial
court's error probably caused the rendition of an improper judgment.  C.E.B.'s first point of
error is overruled.
	In his second point of error, C.E.B. argues the trial court erred in allowing an in-court
identification of him based on an impermissibly suggestive pre-trial identification procedure.
C.E.B. complains of four events that tainted the in-court identification:  (1) the photographic
array, (2) a phone call from C.E.B.'s probation officer to the identifying witness, (3)
information relayed to the identifying witness that C.E.B. had an affinity for showing
"uncharacteristic" affection toward small children, and (4) the fact the identifying witness
was unaware that H.K. had made a similar outcry at the age of two.  Regarding the second
event, the phone call from the probation officer was made three months before the
photographic line-up occurred.  Leilani testified no one suggested to her which of the
photographs showed C.E.B. and C.E.B. does not refer this Court to any contrary evidence.
C.E.B's argument fails to address the third event.  See  Tex. R. App. P. 38.1(h).  As to event
four, C.E.B. fails to explain how that fact could have affected the pre-trial identification
procedure.  See id.  Therefore, we only address the merits of C.E.B.'s complaints regarding
the photographic array.
	In considering whether the array tainted the identification, we note:
		In considering the scope of due process rights afforded a defendant with
regard to the admission of identification evidence, the United States Supreme
Court has held that a pre-trial identification procedure may be so suggestive
and conducive to mistaken identification that subsequent use of that
identification at trial would deny the accused due process of law.  Hence, the
Court formulated a two step analysis to determine the admissibility of an
in-court identification:  1) whether the out-of-court identification procedure
was impermissibly suggestive; and 2) whether that suggestive procedure gave
rise to a very substantial likelihood of irreparable misidentification.   An
analysis under these steps requires an examination of the "totality of the
circumstances" surrounding the particular case and a determination of the
reliability of the identification.

Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995) (citations and footnotes
omitted).  Suggestiveness may be created by the manner in which a pre-trial identification
procedure is conducted or by the content of the photo array itself if the suspect is the only
individual closely resembling the pre-procedure description.  Id. at 33.  "Furthermore, an
individual procedure may be suggestive or the cumulative effect of the procedures may be
suggestive."  Id.  It is the defendant's burden to establish by clear and convincing evidence
that the pre-trial identification procedure was impermissibly suggestive.  Id. at 33-34.
	C.E.B. claims the photographic line-up was impermissibly suggestive because it
contained only three photographs.  C.E.B. cites no authority supporting his position that an
array must contain a certain number of photographs.  See Tex. R. App. P. 38.1(h).  In Ford
v. State, 794 S.W.2d 863, 866 (Tex. App.--El Paso 1990, pet. ref'd), the court found the array
assembled was in effect two three-photograph arrays with a different suspect in each, instead
of one six-photograph array with only one suspect in it.  The court did not find that was an
impermissibly suggestive array.  Id.  C.E.B. further contends the background on one of the
photographs was noticeably different from the other two.  Differences in background setting
are not necessarily impermissibly suggestive.  See Barley, 906 S.W.2d at 33-34.  In the
instant case, it was not C.E.B.'s photograph that had a dissimilar background; his photograph
and one other had similar backgrounds.  C.E.B. further argues the hairstyles of the other two
individuals in the array were drastically different from his own.  "Subjects in either a
photographic array or a physical lineup need not be identical.  Their similarities in
appearance should be adequate to provide a reasonable test for the witness's capacity to
reliably identify the perpetrator."  Ford, 794 S.W.2d at 866.  While the other two pictures
showed individuals with slightly shorter haircuts than C.E.B., the styles were not so
dissimilar as to be suggestive.  For these reasons, we find C.E.B. has not shown by clear and
convincing evidence that the photographic array was impermissibly suggestive.  It is
therefore unnecessary to address whether it created a substantial likelihood of
misidentification.  Barley, 906 S.W.2d at 33.  Point of error two is overruled and the
judgment of the trial court is affirmed.
	AFFIRMED.

                                                                                CHARLES KREGER
                                                                                Justice

Submitted on February 11, 2005
Opinion Delivered June 30, 2005

Before McKeithen, C.J., Gaultney, and Kreger, JJ.
1. Section 54.031 is applicable in the trial of a juvenile and is the civil counterpart of
the Code of Criminal Procedure's article 38.072, applicable in adult criminal proceedings.
Tex. Fam. Code Ann. §54.031 (Vernon 2002); Tex. Code Crim. Proc. Ann. art. 38.072
(Vernon 2005).
2.  The statute is interpreted no differently in a juvenile trial than in an adult criminal
trial.  See In the Matter of Z.L.B., 102 S.W.3d 120 (Tex. 2003).
3.  Defense counsel objected to the admission of the videotape during trial but that
issue has not been presented on appeal.


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted May 17, 2019*
                                 Decided May 17, 2019

                                         Before

                         MICHAEL S. KANNE, Circuit Judge

                         AMY C. BARRETT, Circuit Judge

                         MICHAEL B. BRENNAN, Circuit Judge

No. 18‐3090

DOLEN GLENN,                                      Appeal from the United States District
    Petitioner‐Appellant,                         Court for the Southern District of Indiana,
                                                  Terre Haute Division.

      v.                                          No. 2:17‐cv‐00576‐JMS‐MJD

RICHARD BROWN,                                    Jane Magnus‐Stinson,
     Respondent‐Appellee.                         Chief Judge.

                                       ORDER

       Dolen Glenn, an Indiana prisoner, has petitioned for a writ of habeas corpus
under 28 U.S.C. § 2254, seeking restoration of good‐time credits that he lost for
possessing prohibited materials. He primarily argues that the prison denied him due
process by limiting the presentation of his defense that, because the materials arrived
through the prison’s mailroom, his possession of them was permissible. The district
court denied the petition. Because Glenn’s “defense” is legally insufficient, we affirm.

      * We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).
No. 18‐3090                                                                         Page 2

       In June 2017, several books with suspected pedophilic content were confiscated
from Glenn’s cell at Wabash Valley Correctional Facility in Carlisle, Indiana. At least
one book—which Glenn says he received through the prison’s mail system—includes
writings by boys as young as ten years old recounting their sexual encounters with
adult men. Indiana bars inmates from possessing written materials describing child
molestation or exploitation. See IND. DEP’T OF CORR., OFFENDER CORRESPONDENCE,
No. 02–01–103, § XIX(H), at 22 (Sept. 2015), available at www.in.gov/idoc/3265.htm (last
visited May 8, 2019). Consequently, a prison official charged Glenn with possessing
prohibited materials.

       Discipline came next. Glenn wanted to defend himself by arguing that the books
were not prohibited because they had passed through the prison’s mailroom, which is
supposed to screen incoming materials. However, before his disciplinary hearing, the
hearing board denied Glenn’s request to present testimony from the books’ distributor
and publisher “for proof [that the] books came into [the] facility by mail.” It also denied
his request to cross‐examine the mailroom worker who had written that, to her
knowledge, the confiscated books had not arrived through the mail. The evidence
considered at the hearing consisted of the investigation and conduct reports; letters and
an invoice from the distributor; confiscated‐property notices; excerpts from the prison’s
policy manuals and one of the books; photographs of the book covers; and witness
statements. Based on this evidence, the hearing officer found Glenn guilty of possessing
offensive materials and sanctioned him with a written reprimand, a 30‐day loss of
phone privileges, and a 90‐day loss of earned good‐time credits. Glenn’s administrative
appeals were denied, leading to this petition for writ of habeas corpus. In denying the
petition, the district court explained that just because a prohibited item “passed or
slipped through mailroom screening procedures … does not mean that [Glenn’s]
possession of it was authorized.”

      On appeal, Glenn primarily argues that the hearing officer violated due process
by denying him the opportunity to present “exculpatory” evidence proving that he
obtained the books through the prison’s mail system. Glenn asserts that mailroom staff
must have inspected and “approved” the books upon arrival at the facility. Therefore,
he concludes, he believed in “good faith” that he was authorized to possess the books.

      No violation of due process occurred. Prison rules prohibit possession of offensive
materials, regardless of how an inmate obtains them. We have rejected as a defense to a
possession charge the presence of prohibited writings in a book in the prison library; for
No. 18‐3090                                                                            Page 3

“prison librarians cannot be required to read every word of every book to which
inmates might have access to make sure the book contains no incendiary material.”
Toston v. Thurmer, 689 F.3d 828, 829–30 (7th Cir. 2012). The same logic applies to the
prison’s mailroom, which handles an even greater volume of written materials coming
in and out of the facility. Because the evidence that Glenn sought to present is
irrelevant, its exclusion at the disciplinary hearing did not offend due process. See Wolff
v. McDonnell, 418 U.S. 539, 566 (1974); Ellison v. Zatecky, 820 F.3d 271, 274 (7th Cir. 2016).

        Glenn also contends that due process entitled him to present the distributor’s
“exculpatory” testimony that the confiscated books are not offensive and “do not …
pose a threat to maintaining good order in prison.” For support, he cites to Brady v.
Maryland, 373 U.S. 83 (1963), which requires a prison to disclose, before a disciplinary
hearing, any material, exculpatory evidence in its possession. See Jones v. Cross, 637 F.3d
841, 847 (7th Cir. 2011). Glenn’s argument is flawed in three respects. First, the prison
did not possess the testimony that Glenn wanted to present, so Brady did not require its
disclosure. Second, the distributor’s belief that the prison should allow its books in the
facility is not material to whether Glenn violated an established prison policy
prohibiting them. Third, and in any event, Glenn did not present evidence of the
distributor’s belief to the district court, so that court had no reason to conclude that the
prison had prevented a potentially valid defense. Thus, excluding this evidence
offended neither Brady, see id., nor due process. See Ellison, 820 F.3d at 274.

       To the extent that Glenn challenges the sufficiency of the evidence supporting the
hearing officer’s decision, this argument also fails. Glenn admitted that the confiscated
books were his, and the book excerpt submitted into evidence (describing sexual
encounters between young boys and adult men) falls within the prison policy’s
prohibition of materials describing child molestation. The hearing officer’s conclusion
that Glenn possessed offensive materials therefore is supported by “some evidence.”
See Superintendent v. Hill, 472 U.S. 445, 454 (1985).

       We have considered Glenn’s other arguments, and none has merit.

                                                                                AFFIRMED


                                                                                09/12/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 27, 2017

          ANTHONY D. WASHINGTON v. RANDY LEE, WARDEN

                Appeal from the Criminal Court for Johnson County
                        No. CC-16-CR-143 Lisa Rice, Judge
                     ___________________________________

                           No. E2017-00497-CCA-R3-HC
                       __________________________________

Pro se petitioner, Anthony D. Washington, appeals the summary dismissal of his petition
for writ of habeas corpus by the Johnson County Criminal Court. In this appeal, the
Petitioner makes several claims, all of which are rooted in the duplicitous nature of his
indictment. The State asserts that the Petitioner failed to show that his judgment was
void. Upon review, we affirm the judgment of the habeas corpus court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Anthony D. Washington, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; and Tony Clark, District Attorney General, for the Appellee, State of
Tennessee.

                                       OPINION

       The Petitioner was originally indicted by the Davidson County Grand Jury for one
count of possession with the intent to sell or deliver 0.5 grams or more of a substance
containing cocaine in a drug-free zone, one count of possession of marijuana, and one
count of possession of drug paraphernalia. Following a trial, he was convicted of
possession with the intent to sell 0.5 grams or more of a substance containing cocaine in a
drug-free zone, and the trial court sentenced the Petitioner, as a Range III, persistent
offender, to thirty years’ incarceration, with the first twenty years to be served at 100%.
Id. He appealed his conviction and sentence, both of which were affirmed by this court.
State v. Anthony Dewight Washington, No. M2011-02678-CCA-R3-CD, 2012 WL
6115589, at *1 (Tenn. Crim. App. July 17, 2012), perm app. denied (Tenn. Mar. 5, 2013).
The Petitioner subsequently sought post-conviction relief on the grounds of ineffective
assistance of counsel, the denial of which was also affirmed by this court. Anthony
Dewight Washington v. State, No. M2015-02309-CCA-R3-PC, 2016 WL 5266620, at *1
(Tenn. Crim. App. Sept. 22, 2016), perm. app. denied (Oct. 15, 2016). On October 18,
2016, the Petitioner filed a petition for writ of habeas corpus, and the State filed a
response on November 16, 2016. By order on February 3, 2017, the habeas court denied
relief. On March 1, 2017, the Petitioner filed a timely notice of appeal.

                                          ANALYSIS

       On appeal, the Petitioner challenges his indictment as duplicitous. Specifically, he
contends that it “fail[ed] to separate the [three] charges into three different counts” and
that he was convicted of two offenses: possession with intent to sell .5 grams or more of a
substance containing cocaine and possession with intent to deliver .5 grams or more of a
substance containing cocaine. Consequently, the Petitioner claims that he was not
informed of the charges he had to defend against at trial and that the lack of jury
unanimity violated principles of double jeopardy. In response, the State contends that
there is no infirmity in the indictment because the Petitioner was charged with the
separate crime of possession, rather than the two crimes of delivery and sale of cocaine.
Moreover, they insist that the Petitioner’s claims, even if true, only render his judgments
voidable, and not void. For the following reasons, we affirm the summary dismissal by
the habeas court.

      We address the Petitioner’s issues with the following well established legal
framework in regard to habeas corpus relief. “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)). Accordingly,
our review is de novo without a presumption of correctness. Summers v. State, 212
S.W.3d 251, 255 (Tenn. 2007) (citing State v. Livingston, 197 S.W.3d 710, 712 (Tenn.
2006)).

       A prisoner is guaranteed the right to habeas corpus relief under Article I, section
15 of the Tennessee Constitution. Tenn. Const. art. I, § 15; 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) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)).
“[T]he purpose of a habeas corpus petition is to contest void and not merely voidable
                                           -2-
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 one that is facially valid and requires proof
beyond the face of the record or judgment to establish its invalidity.” Summers, 212
S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529). Thus, “[i]n all cases where a
[P]etitioner 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.” State v. Ritchie, 20
S.W.3d 624, 633 (Tenn. 2000). Moreover, 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)).

       The Tennessee Supreme Court has held that “the validity of an indictment . . . may
be addressed in a petition for habeas corpus when the indictment is so defective as to
deprive the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.
1998). Generally, 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.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). The Tennessee
Supreme Court has held that an indictment that specifically references the statute under
which the defendant is indicted is sufficient to satisfy the notice requirement. See State
v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); see also State v. Carter, 988 S.W.2d 145, 149
(Tenn.1999); Ruff v. State, 978 S.W.2d 95, 97, 100 (Tenn. 1998).

       The Petitioner cites State v. Jordan Thomas Peters, seemingly for the proposition
that the facts supporting the drug-free school zone enhancement in his case were not
included in the indictment or presented to the jury. No. E2014-02322-CCA-R3-CD,
2015 WL 6768615, at *12 (Tenn. Crim. App. Nov. 5, 2015), perm. app. denied (Apr. 7,
2016).1 Alternatively, the Petitioner apparently claims that enhancement of his sentence

       1
         Tennessee Code Annotated Section 39-17-432(b)(1), generally referred to as the Drug-Free
School Zone Act, provides as follows:

       A violation of § 39-17-417, or a conspiracy to violate the section, that occurs on the
       grounds or facilities of any school or within one thousand feet (1,000’) of the real
       property that comprises a public or private elementary school, middle school, secondary
       school, preschool, child care agency, or public library, recreational center or park shall be
                                                  -3-
under the drug-free school zone statute equates to a separate offense further contributing
to the duplicitous nature of his conviction. Neither of the Petitioner’s claims entitles him
to habeas corpus relief. The pertinent section of the indictment in this case charged the
Petitioner as follows:

       on the 14th day of May, 2010, in Davidson County, Tennessee and before
       the finding of this indictment, knowingly did possess with intent to sell or
       deliver .5 grams or more of a substance containing cocaine . . . on the
       ground or facilities within one thousand (1000) feet of the real property that
       comprises a preschool, childcare agency, public library, recreational center
       or park in violation of Tennessee Code Annotated § 39-17-417, and against
       the peace and dignity of the State of Tennessee.

       To the extent that the Petitioner challenges the jurisdiction of the convicting court
based on deficiencies in the indictment, we find none. As an initial matter, the indictment
cited the relevant drug statute and tracked the language of the drug-free school zone
enhancement verbatim. Although it did not explicitly provide the name of the school or
park as complained of by the Petitioner, such an omission does not render his conviction
void. See e.g. State v. Jamie N. Grimes, No. M2012-00530-CCA-R3-CD, 2013 WL
5761301, at *5 (Tenn. Crim. App. Oct. 22, 2013) (holding that indictment using language
from the Drug-Free School Zone Act gave the defendant sufficient notice of the charges
even though the indictment did not cite Tennessee Code Annotated § 39-17-432). The
language included in the indictment enabled the Petitioner to know the accusation to
which an answer was required and furnished the trial court with an adequate basis for the
entry of a proper judgment. Moreover, our review of the judgment in this case shows that
the Petitioner’s offense of conviction was “possession of [greater than] .5 grams of
cocaine for sale (Drug Free Zone-Park)” in violation of Tennessee Code Annotated
section 39-17-417. Contrary to the Petitioner’s belief, the judgment properly reflects that
he was sentenced as a Range III, Persistent Offender to thirty years’ incarceration, with
twenty years’ to be served at one-hundred percent pursuant to the enhancement.
Accordingly, we conclude that the Petitioner had sufficient notice of the charges to
defend at trial. As such, the Petitioner has failed to show that the trial court was without
jurisdiction to enter judgment in this case, and he is not entitled to relief on this issue.

       Next, the Petitioner cites State v. Angela E. Isabell, a case in which this court
found convictions for “sale or delivery” of an illegal controlled substance to be
duplicitous. No. M2002-00584-CCA-R3-CD, 2003 WL 21486982, at *3–4 (Tenn. Crim.

       punished one (1) classification higher than is provided in § 39-17-417(b)-(i) for such
       violation.

                                               -4-
App., at Nashville, June 27, 2003). However, that case was decided on direct appeal, and
not on a petition for habeas corpus relief. Accordingly, even if the Petitioner’s claim was
true, this court has repeatedly held that, “Duplicity in an indictment does not result in a
void judgment.” Michael David Russell v. Virginia Lewis, Warden, No. E2005-02644-
CCA-R3-HC, 2007 WL 2141546, at *2 (Tenn. Crim. App., at Knoxville, July 26, 2007)
(citing Gary Lynn Vernon v. Jim Dickman, Warden, No. M2003-02268-CCA-R3-HC,
2004 WL 1778480, at *2 (Tenn. Crim. App., at Nashville, Aug. 9, 2004)); Clifford L.
Farra v. Howard Carlton, No. E2009-00008-CCA-R3-HC, 2010 WL 454808, at *2–3
(Tenn. Crim. App. Feb. 5, 2010)(same). Furthermore, violations of double jeopardy also
do not result in void judgments. Id. (citing Raymond Rutter v. State, No. E2003-01386-
CCA-R3-PC, 2004 WL 792066, at *3 (Tenn. Crim. App., at Knoxville, Apr. 7, 2004)).
Because the Petitioner has failed to show that the trial court lacked jurisdiction, he is also
not entitled to habeas corpus relief on this issue.

                                         CONCLUSION

       Upon our review, the judgment of the habeas corpus court is affirmed.

                                                  ____________________________
                                                  CAMILLE R. MCMULLEN, JUDGE

                                            -5-


608 F.2d 1371
Coxv.Robin Towing Corp.*
No. 77-3475
United States Court of Appeals, Fifth Circuit
12/11/79

1
E.D.La.

AFFIRMED

*
 Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966


440 F.2d 1036
Application of FISHER RADIO CORPORATION.
Patent Appeal No. 8511.
United States Court of Customs and Patent Appeals.
May 6, 1971.

Henry L. Burkitt, New York City, attorney of record, for appellant.
S. Wm. Cochran, Washington, D. C., for Commissioner of Patents, Louise Fruge, Washington, D. C., of counsel.
Before RICH, ALMOND, BALDWIN and LANE, Judges, and SKELTON, Judge, United States Court of Claims, sitting by designation.
BALDWIN, Judge.

1
This is an appeal by Fisher Radio Corporation, appellant, from the decision of the Trademark Trial and Appeal Board,1 affirming the action of the Examiner in refusing to register the trademark "STEREO MASTER"2 for "controls for amplification for sound reproducing equipment" on the ground of likelihood of confusion under section 2(d) of the Lanham Trademark Act, 15 U.S.C. § 1052(d). The refusal to register was based on the existence of two prior registrations3 of the mark "STERE-O-MATIC" for use with goods which both parties appear satisfied to broadly characterize as "tape recorders".

2
Appellant's contentions here appear to center primarily on the "weakness" of the cited mark and the distinctions between the goods involved. We are not convinced. It may well be true that there is little of a distinctive nature in the mark "STERE-O-MATIC". If such is the case, appellant's mark appears similarly vulnerable. Nevertheless, we still feel that the board was correct in holding that the goods here are closely enough related and the involved marks so similar that their concurrent use would be likely to cause confusion, mistake or deception under the test decreed by the statute.

3
The decision of the board is affirmed.

4
Affirmed.

Notes:

1
 The board's opinion is abstracted at 159 USPQ 793 (1968)

2
 Serial No. 200,560, filed August 25, 1964

3
 The registrations are No. 635,109, issued October 2, 1956, for "Sound Recording And Playing Apparatus — Namely, Binaural Conversion Equipment For Tape Recording And Playing Apparatus", and No. 690,821, issued January 5, 1960, for "Electrical — Mechanical Apparatus For Recording And/Or Playing Audio And Electrical Signals."
RICH, Judge, dissenting, in which LANE, Judge, joins.
The goods of appellant as well as the goods named in the two reference registrations being "stereo" (or "Stere-O") equipment, the only arbitrary, non-descriptive portions of the marks are "MASTER" and "MATIC." I see no likelihood of confusion, mistake, or deception from concurrent use. "MASTER" and "MATIC" call up entirely different mental associations, do not look alike or sound alike, and are a common English word and a clearly recognizable part of a different common word, respectively.
It seems unlikely that if applicant's mark were passed to publication that the owner of the reference marks would be likely to oppose.


431 F.3d 471
UNITED STATES of America, Plaintiff-Appellee.v.Ismael PALACIOS-QUINONEZ, Defendant-Appellant,
No. 05-10323.
United States Court of Appeals, Fifth Circuit.
November 29, 2005.

Susan B. Cowger, Dallas, TX, for U.S.
Ira Raymond Kirkendoll, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas.
Before DAVIS, SMITH and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

1
Ismael Palacios-Quinonez appeals his sentence. Finding no reversible error, we affirm.

I.

2
Palacios-Quinonez is a Mexican national who pleaded guilty to having reentered the United States illegally following his removals in 1995 and 2000. At sentencing, his base offense level of 8 was increased by a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A) (2004) because he had unlawfully remained in the United States after being convicted in 1992 of a crime of violence and in 1990 of a felony drug trafficking offense for which the sentence imposed was greater than 13 months. The enhancement was based on his California convictions of "possession for sale" of cocaine and assault causing great bodily injury.

3
Based on the new offense level, Palacios-Quinonez's guidelines sentence range was 46-57 months' imprisonment and two to three years' supervised release. He objected to the 16-level enhancement (arguing that his California offenses were not covered by § 2L1.2(b)(1)(A)). He also contended that 8 U.S.C. § 1326(b)(1) and (2) should be treated as separate offenses instead of sentencing factors and that Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), was incorrectly decided and should be overruled.

4
At sentencing, which occurred after the issuance of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court adopted the sentence range found in the presentence report and sentenced Palacios-Quinonez to 46 months' imprisonment and two years' supervised release. On appeal, Palacios-Quinonez raises four issues: (a) whether his California conviction of aggravated assault qualifies as a crime of violence; (b) whether a conviction of "purchase for purposes of sale" of cocaine constituted a drug trafficking offense under § 2L1.2(b)(1)(A); (c) whether § 1326(b)(1) and (2) should be treated as separate offenses instead of sentencing factors; and (d) whether Almendarez-Torres should be overruled.

II.

5
Palacios-Quinonez contends, for the first time on appeal, that his California conviction of possession for sale of cocaine does not qualify as a drug trafficking offense. In the district court he objected to this conviction on the ground that he did not receive a sentence of thirteen months or more. Because he did not challenge the application of the sixteen-level enhancement on the same ground as he challenges it in this court, he did not preserve the error for appeal, so we review only for plain error. See United States v. Mares, 402 F.3d 511, 516, 520 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 43, 163 L.Ed.2d 76 (2005).

6
To establish plain error, Palacios-Quinonez must demonstrate that (1) there is an error, (2) that is plain by being clear or obvious, and (3) that affects his substantial rights. United States v. Olano, 507 U.S. 725, 731-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Absent the enhancement, Palacios-Quinonez's guidelines sentencing range would have been 18-24 months, substantially less than the 46 months he received, so an error in the application of the enhancement would affect his substantial rights. See United States v. Garza-Lopez, 410 F.3d 268, 275 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Accordingly, the issues for this court are whether the district court erred in finding that Palacios-Quinonez's conviction was for a drug trafficking offense and whether the error was plain. See Olano, 507 U.S. at 731-37, 113 S.Ct. 1770.

7
Pursuant to § 2L1.2(b)(1)(A)(i), a sixteen-level enhancement applies if, before removal, the defendant was convicted of a felony that was "a drug trafficking offense for which the sentence imposed exceeded 13 months." Under this provision, a drug trafficking offense "means an offense under federal, state, or local law that prohibits the manufacture, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." § 2L1.2 cmt. n.(1)(B)(iv). To determine whether a conviction qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i), we follow Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which directs us, when classifying a prior offense for sentence enhancement purposes, to look to the elements rather than to the facts underlying the conviction. See Garza-Lopez, 410 F.3d at 273. But, in some cases, including those involving a determination of whether a drug trafficking offense was committed, a court may also consider three additional factors: the statutory definition of the offense, the charging paper, and the jury instructions. Id.

8
Both parties agree that Palacios-Quinonez was convicted under CAL. HEALTH & SAFETY CODE § 11351, and the government has supplemented the record to show that the conviction was under that statute. One can be convicted under that statute if he either "possesses for sale" or "purchases for purposes of sale" certain narcotics, including cocaine. Palacios-Quinonez contends that although "possession for sale" qualifies as a drug trafficking offense, "purchase for sale" does not, and thus the enhancement was improper because it is impossible to determine under which prong of the statute he was convicted. We concur in that narrow assertion1 but do not agree that "purchase for purposes of sale" does not involve "possession" with intent to distribute as required by the guidelines.

9
We are persuaded by United States v. Estrada-Soto, 113 Fed.Appx. 223, 224 (9th Cir.2004) (mem.), cert. denied, ___ U.S. ___, 125 S.Ct. 1430, 161 L.Ed.2d 200 (2005), that "`[p]urchase' of cocaine for the purpose of sale is not obviously different from, or broader than," constructive possession. In California, "constructive possession includes maintaining control over, or the right to control, controlled substances." Id. (citing People v. Showers, 68 Cal.2d 639, 68 Cal.Rptr. 459, 440 P.2d 939 (1968); California Jury Instructions-Criminal 12.01). Similarly, a completed purchase transfers the "legal" right to control the substance from the seller to the purchaser or his agents.

10
Palacios-Quinonez argues that under California law, namely Armstrong v. Superior Court, 217 Cal.App.3d 535, 539-40, 265 Cal.Rptr. 877 (1990), "it is possible to purchase controlled substances without actually or constructively possessing them." This theory is without merit.

11
First, Armstrong dealt with a situation involving an inchoate offense under a different statute (possession of a controlled substance). There, evidence existed that the undercover police officer selling the drugs was not willing to let the purchaser exercise his right to control the drugs. Id. at 538, 265 Cal.Rptr. 877 (noting that the defendant was arrested before delivery of the drugs and that the seller testified he was not "going to ... let a pound of methamphetamine walk away"). As Armstrong clarifies, its holding advances the unremarkable proposition that an (uncompleted) attempt to possess is not the same as (completed) possession, actual or constructive:

12
Here, there is evidence petitioner exercised some control over the physical setting in which the sale was to take place. He initiated the sale process of the drugs. He agreed to meet the officer at a particular location. He paid Officer Heggestuen. He was prepared to take immediate physical possession of the drugs. We believe, and defendant agrees, that while such actions may establish the offense of attempted possession of a controlled substance ..., they do not demonstrate he was exercising "control" over the contraband itself for purposes of finding constructive possession. He did not direct the contraband be moved within a room. Nor did he take any other action which exhibits control over the drugs.

Id. at 540, 265 Cal.Rptr. 877.2

13
In fact, the Armstrong court, id. at 540 n. 2, 265 Cal.Rptr. 877, expressly declined to decide whether someone, like the defendant there, lacking constructive possession, could ever be convicted of purchase for sale: "This opinion is not intended to resolve the viability of a prosecution under the same or similar facts as a purchase for purposes of sale." Because of this express disclaimer, we do not find persuasive the view expressed in United States v. Navarro-Coyazo, 108 Fed.Appx. 490, 491 n. 1 (9th Cir.2004) (mem.), that Armstrong "impl[ied] that a defendant who arranges to buy, and pays for, a controlled substance, but who never constructively or actually possesses the substance, could nonetheless be prosecuted for `purchasing' the drug."3 To the contrary, the Armstrong court specifically avoided deciding whether an agreement to buy, coupled with payment, constitutes "purchase" of a controlled substance, or whether, instead, it is merely an "attempted purchase" of a controlled substance.4

14
Second, Armstrong's reasoning is consistent with our position that purchase of cocaine for the purpose of sale is not obviously different from, or broader than, constructive possession. Because "purchase" involves the transfer of a right to control from the seller to the buyer, a transaction in which the "transfer" is not completed is not a purchase, but only an attempted purchase.

15
In most cases, the right to control probably transfers close to the moment when an agreement is reached and payment is delivered, even if actual delivery has not occurred. In a few cases, however, where there is an impossibility of performance, as for instance where the seller never intends to deliver the drugs or intends to deliver a substance that is not controlled, a transfer cannot be said to occur. Only an attempted purchase can be said to occur in those cases. Therefore, absent the transfer of the right to control the drugs, there is neither a "purchase with intent to sell" nor constructive possession, unless the purchaser actively performs some other act that indicates control or right to control.

16
For instance, if a purchaser paid for seven vials of cocaine but received seven vials of sugar, he cannot be said to be guilty of "purchase" of cocaine. In other words, he could not be said to have purchased cocaine, because he did not have any legal "right to control" the nonexistent cocaine. He could be viewed as having attempted to purchase cocaine.

17
We are not suggesting that a simple delay in delivery of drugs means that one could never be said to have "purchased" the drugs. Transfer of control does not require an actual "delivery" of a drug. Although actual delivery helps prove control, "control" (and thus possession and purchase) are broader than "delivery." A buyer could have "constructive possession" before actual delivery: "Even within a controlled setting or its equivalent, a defendant might so directly verbalize disposition or movement of the drug as to warrant the inference he possesses it." Armstrong, 217 Cal.App.3d at 539, 265 Cal.Rptr. 877.

18
For instance, buyer B could directly verbalize disposition of the drug directly from A (B's seller) to C, a third party who in turn paid B for the drugs. The purchase would be completed without B's ever obtaining actual delivery. But, because B exercised control of the goods by selling them, he would be found to have had constructive possession under Armstrong's guidance.5 Where performance is impossible, however, the right to control is not transferred, and neither "purchase" nor "constructive possession" can take place.6

19
Palacios-Quinonez relies on United States v. Garza-Lopez, 410 F.3d 268 (5th Cir.), cert. denied, ___ U.S. ___, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005), to suggest that purchases for sale do not fall within the definition of a drug trafficking offense. The Garza-Lopez panel, however, only decided that neither "the transportation of a controlled substance for personal use" nor "offers to transport, sell, furnish, administer or give away a controlled substance" is covered by the definition of drug trafficking. Id. at 274.

20
Accordingly, the fact that "possession with intent to distribute" under the guidelines does not encompass an "offer to sell" has no effect on whether it encompasses a "purchase for sale." Someone who offers to sell need not have possession as required by the guidelines. Rather, one can misrepresent ownership or control of the offered goods, such as where one is offering to sell the proverbial Brooklyn Bridge. By contrast, to accomplish a purchase of a drug for sale, one must have at least constructive possession. This offense, unlike a mere offer to sell, would satisfy the elements of "possession with intent to distribute."

21
Finally, we reject Palacios-Quinonez's argument that the definition of "possession" under the guidelines does not encompass constructive possession because, he contends, under the plain meaning of the word "possession," one who exercises possession is not literally "in possession." It is well established that possession encompasses constructive possession.7 Because we conclude that Palacios-Quinonez was convicted of a drug trafficking offense that warrants a sixteen-level enhancement, we need not decide whether his aggravated assault conviction constituted a crime of violence.

III.

22
Palacios-Quinonez also urges that 8 U.S.C. § 1326(b)(1) and (2) should be treated as separate offenses instead of sentencing factors. He acknowledges that this argument was rejected in Almendarez-Torres, but he asserts that a "critical component of the Almendarez-Torres holding" was repudiated in Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). He contends that Haley suggested that the continuing vitality of Almendarez-Torres holding is a difficult constitutional question "to be avoided if possible." Relying on Haley, Palacios-Quinonez argues that this court should construe § 1326(b)(1) and (2) as separate offenses to avoid the difficult constitutional question of the continuing vitality of Almendarez-Torres.

23
Palacios-Quinonez's argument based on Haley, although novel, is without merit. As he admits, the Court held in Almendarez-Torres, 523 U.S. at 229-47, 118 S.Ct. 1219, that § 1326(b)(1) and (2) are sentencing factors, not separate offenses, and that they are constitutional. Thus, construing § 1326(b)(1) and (2) as separate offenses would require us to declare that Almendarez-Torres is overruled. To the contrary, we abide by Almendarez-Torres "unless and until the Supreme Court itself determines to overrule it." United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (quotation marks omitted). The Court did not overrule Almendarez-Torres in Haley. See Haley, 541 U.S. at 395-96, 124 S.Ct. 1847.

24
In the alternative, Palacios-Quinonez avers that § 1326(b)(1) and (2) are unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that Almendarez-Torres was wrongly decided. He concedes that his alternative argument is foreclosed and raises it to preserve it for further review. We agree that the issue is foreclosed.

25
The judgment of sentence is AFFIRMED.

Notes:

1
 There is no evidence that Palacios-Quinonez was convicted under the "possession" prong of the statute, other than his statement at a hearing in the instant case that drugs that were not his were found in his car. That statement is not proper evidence for this court. The abstract of judgment is also inconclusive and in any event is not proper evidence for us to consider underTaylor.

2
 See also Estrada-Soto, 113 Fed.Appx. at 224 (also distinguishing Armstrong because it dealt with an inchoate crime). We agree with the Estrada-Soto court that People v. Howard, 33 Cal.App.4th 1407, 39 Cal.Rptr.2d 766 (1995), is distinguishable because, like Armstrong, it involved a different statute and an inchoate crime (conspiracy).

3
 Navarro-Coyazo's reliance on California Jury Instructions—Criminal 12.01 is also questionable, because the instructions merely say that either purchase or actual or constructive possession needs to be proven for purposes of the statute. This does not exclude the possibility that a purchase actually involves constructive possession.

4
 The decision inUnited States v. Bowman, 116 Fed.Appx. 840 (9th Cir.2004) (mem.), is also distinguishable, because there the government conceded that a statute that criminalized both possession and purchase for sale was overbroad, see id. at 843.

5
 See also United States v. Virciglio, 441 F.2d 1295 (5th Cir.1971) (finding constructive possession where defendant never touched a weapon that he purchased from a third party and arranged to sell to undercover officer, because the sale to the officer indicated that defendant had control over the weapon).

6
 Palacios-Quinonez argues that if we read "purchase for purposes of sale" always to imply constructive possession, we render the phrase "purchase for purposes of sale" meaningless. We disagree
Possession is distinguishable from purchase. Palacios-Quinonez would have us hold that purchase is broader than possession; but we reach the opposite conclusion. A purchaser is someone with a clear legal right to control acquired through transfer. A possessor, however, could be, inter alia, (1) a purchaser, (2) someone with legal right to control who did not acquire the legal right through transfer (e.g., manufacturer), (3) someone with actual control but who does not have a legal right to control (e.g., a thief), or (4) someone with actual control who does not have a clear legal right to control (e.g., a finder).

7
 See, e.g., United States v. Virciglio, 441 F.2d 1295 (5th Cir.1971) (sustaining conviction of possession of unregistered firearm where defendant exercised only constructive possession); United States v. Felts, 497 F.2d 80, 82 (5th Cir.1974) (sustaining conviction of drug possession with intent to distribute where defendant had only constructive possession when he arranged for his friends to sell drugs to undercover police agent while he went to a concert).