8 F.2d 374 (1925)
Petition of CONNAL.
No. 47557.
District Court, E. D. New York.
October 1, 1925.
CAMPBELL, District Judge.
The petitioner arrived at the Port of New York on the steamship Independence on October 9, 1919, as a member of the crew. He was discharged by the immigration authorities as an alien intending to reship. He did not pay the immigration head tax and was not inspected. The petitioner called at the office of the Bureau of Naturalization on August 5, 1925, with reference to filing his petition, and paid the head tax. Petitioner filed his petition with certificate of arrival and the matter has come on regularly before this court on final hearing. The question raised by the Examiner is whether the certificate of arrival is a sufficient basis for the petition of naturalization.
The Examiner on behalf of the Department of Labor cites Esther Kaplan, appellant, v. Robert E. Tod, Commissioner of Immigration, Ellis Island, Port of New York, 267 U. S. 228, 45 S. Ct. 257, 69 L. Ed. 585, decided by the Supreme Court March 2, 1925, in support of the contention that the certificate of arrival is not sufficient; but that case does not seem to be complete authority for such contention, because the provisions of law relating to the naturalization of seamen are exceptional and the petitioner in the matter at bar was not held in custody, either actual or constructive, but was discharged by the immigration authorities as an alien intending to reship, while the appellant in the Kaplan Case, supra, was held in custody, actual or constructive, and never discharged by the immigration authorities.
Subdivision 7 of section 4 of the act approved June 29, 1906, entitled "An act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens throughout the United States," as amended by the act of May 9, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4352), provides so far as it is necessary for consideration in the matter at bar as follows: "* * * Any alien * * * who has served * * * for three years on board of merchant or fishing vessels of the United States of more than twenty tons burden, * * * may, on presentation of the required declaration of intention petition for naturalization without proof of the required five years' residence within the United States if upon examination by the representative of the Bureau of Naturalization, in accordance with the requirements of this subdivision it is shown that such residence cannot be established; * * * and in those cases only where the alien is actually in the military or naval service of the United States, the certificate of arrival shall not be filed with the petition for naturalization in the manner prescribed; and any petition for naturalization filed under the provisions of this subdivision may be heard immediately, notwithstanding the law prohibits the hearing of a petition for naturalization during thirty days preceding any election in the jurisdiction of the court. * * *"
From this section it would seem that the presentation of the certificate of arrival of an alien with proof that he had served three years on a merchant or fishing vessel of the United States, of the kind described, and proof of good moral character as required *375 by the act, would be sufficient; and this construction of the act is supported by the eighth subdivision of said section 4 of said act, so much thereof as is necessary for consideration reading as follows: "That every seaman, being an alien, shall, after his declaration of intention to become a citizen of the United States, and after he shall have served three years upon such merchant or fishing vessels of the United States, be deemed a citizen of the United States for the purpose of serving on board any such merchant or fishing vessel of the United States, anything to the contrary in any act of Congress notwithstanding; but such seaman shall, for all purposes of protection as an American citizen, be deemed such after the filing of his declaration of intention to become such citizen. * * *"
However, while the Congress clearly intended to distinguish between aliens who entered the United States and remained here and aliens who shipped as seamen on American merchant and fishing vessels, the purpose sought to be accomplished as to seamen was to relieve them from the necessity of proving five years' continuous residence within the United States, and to allow immediate consideration of their petitions, and not to relieve them from proof by a certificate of arrival that they had been admitted to permanent residence in this country, or that they were residents of this country when their declaration of intention was filed.
It was not the intention of Congress to allow any alien, regardless of how he may have come into the country, to become a citizen, because it provided for the filing of a declaration of intention to become a citizen, which under the first subdivision of said section was to be made before the clerk of the court or his deputy in the district in which the alien resided, and in order to have a residence in the United States the alien must have entered and been admitted for the purpose of permanent residence, and if he was discharged by the immigration authorities simply for the purpose of reshipping, he was not permanently admitted but only temporarily allowed to remain as a guest pending reshipment, and did not thereby gain a residence.
Section 33 of the Immigration Law 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼rr) provides for allowing an alien seaman to land for the purpose of reshipping on a vessel bound to any foreign port or place, and section 34 of said law (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289¼s) provides for the deportation of alien seamen landing contrary to law, and while due to the lapse of time it may be impossible to deport the petitioner, that does not relieve him from the necessary qualifications for citizenship.
Therefore, his declaration of intention, not being made by a resident of the United States, was invalid. Decision of Judge Knox, March 16, 1925, S. D. of N. Y., Petition No. 57082, of George Edward Cornell [no written opinion]; decision of Judge Mack, July 28, 1923, S. D. of N. Y., Petition No. 66462, of John Ottman [no written opinion]; decision of Judge Knox, March 30, 1925, S. D. of N. Y., Petition No. 57768, of Paul Knut [no written opinion].
That the Congress did not intend to allow any alien, regardless of how he may have come into the country, to become a citizen is further evidenced by the fact that it required a certificate of arrival to be filed, and by the second subdivision of said section it provided that the certificate of arrival should state "the date, place and manner of his arrival in the United States," and this court has a right to look to said certificate to ascertain whether the alien was admitted to this country as a permanent resident (United States v. Ness, 245 U. S. 319, 38 S. Ct. 118, 62 L. Ed. 321), and when it finds that he was not so admitted, but was discharged by the immigration authorities only to reship, then the so-called certificate of arrival is not the certificate of arrival contemplated by the statute as a basis for the petition for admission to citizenship, and it clearly appears that the declaration of intention supporting the petition was invalid, in that at the time of its filing the alien was not a legal resident of the United States. Decision of Judge Inch, September 23, 1925, E. D. of N. Y., Petition No. 48839, of Arie Willem Korpal [no written opinion]; decision of Judge Inch, September 23, 1925, E. D. of N. Y., Petition No. 48838, of Anton Kristian Nilsen [no written opinion].
The grant of citizenship is a matter of favor and not a right, and is effective only after strict compliance with the acts of Congress. United States v. Ginsberg, 243 U. S. 472, 37 S. Ct. 422, 61 L. Ed. 853; United States v. Spohrer (C. C.) 175 F. 440.
The petitioner could not become an American citizen until he began to reside permanently in the United States, and he has never been admitted to the United States as one seeking a permanent residence.
To allow an alien to base his residence, for the purpose of making his declaration of *376 intention, upon a permission to remain temporarily for the purpose of reshipment, given without inspection, would tend not only to break down but to destroy the protection which Congress has given against the admission of those whom it has determined to be improper to admit, and no such construction should be given the statute unless its language be clearly susceptible of only such construction, and I cannot so construe this statute.
I am therefore unable to find that the certificate of arrival presented in the matter at bar is a sufficient basis for the petition for naturalization in the instant matter, as it clearly appears that the petitioner was not a resident of the United States when he attempted to make his declaration of intention, and that such alleged declaration was invalid by reason thereof.
The petition for naturalization of the petitioner in the matter at bar is therefore denied.


                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

RASHAD SHERIFE OLIPHANT,               NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Petitioner,                      DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-2902

STATE OF FLORIDA,

     Respondent.
___________________________/

Opinion filed July 22, 2016.

Petition for Writ of Habeas Corpus -- Original Jurisdiction.

Rashad Sherife Oliphant, pro se, Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.

PER CURIAM.

      DISMISSED. See Baker v. State, 878 So. 2d 1236 (Fla. 2004).

ROBERTS, C.J., ROWE and MAKAR, JJ., CONCUR.


221 Md. 235 (1959)
155 A.2d 894
GREENWALD
v.
STATE
[No. 50, September Term, 1959.]
Court of Appeals of Maryland.
Decided November 23, 1959.
Motion for rehearing filed December 22, 1959.
Denied and opinion modified January 12, 1960.
Petition filed January 19, 1960.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
H. Albert Young and Bruce M. Stargatt, with whom were Floyd J. Kintner, William B. Evans and Morford, Young & Conaway on the brief, for the appellant.
Stedman Prescott, Jr., Deputy Attorney General, with whom were C. Ferdinand Sybert, Attorney General, J. Albert Roney, Jr., State's Attorney for Cecil County, and Henry P. Turner, State's Attorney for Talbot County, on the brief, for the appellee.
Petition filed January 19, 1960., to stay execution of mandate, and Order of Court filed the same day staying execution for 30 days pending appeal to U.S. Supreme Court. Appeal dismissed for want of a substantial federal question, 363 U.S. 719.
HORNEY, J., delivered the opinion of the Court.
When Jacob J. Greenwald (the defendant), a medical doctor, was convicted by a jury in Talbot County  to which this case and others had been removed for trial  of violating a law concerning the marriage of minors and sentenced to three years in the Maryland Penitentiary, the defendant, claiming several errors, appealed.
On July 14, 1958, the grand jury of Cecil County (in *238 which Elkton, the county seat, has been a Gretna Green for years) returned eighty-five indictments against the defendant. Forty-two of them, including this case, charged the defendant with perjury. The other forty-three, of which Greenwald v. State, 221 Md. 245, 157 A.2d 119 (1960), is one, charged the defendant and E. Leland Ott with a conspiracy to commit the offenses charged in the perjury indictments.
In substance the defendant was charged in this case with having, on February 6, 1958, unlawfully and knowingly made a material false statement by certifying that he had examined a girl and found her to be pregnant, when in fact he had not made a physical examination to determine pregnancy, and when in fact the girl was not at that time pregnant, in order to assist the girl and her boy companion to procure a license to marry.
Code (1957), Art. 62, § 11, provides in part as follows:
"(a) Fine.  Any person violating the provisions of §§ 9 and 10 [concerning the marriage of minors, which, inter alia, require the assent of the parent or guardian if the girl is under sixteen or the boy is under eighteen, and then provide that a marriage license may be issued without the required consent if the putative father is over sixteen, on the certificate of a licensed physician presented with the application to the effect that the girl is pregnant or has given birth to a child] shall be guilty of a misdemeanor and upon conviction thereof, shall be subject to a fine of not less than $25.00 and not more than $250.00.
"(b) False statement.  Any person who shall knowingly make any material false statement to procure, or to assist any other person to procure, any license or marriage ceremony in violation of the provisions of this article, * * * shall be guilty and punished for perjury."
It is obvious that the indictment in this case was based on § 11(b), supra, and the lower court in its charge so advised the jury.
*239 The facts are not controverted. On February 6, 1958, a boy, who was then under eighteen, went to Elkton in the company of a boy friend and their respective girl companions for the purpose of getting married. The boy went to the clerk's office and made application for a marriage license. After the application had been made he went by taxicab to the defendant's office with the other boy. The girls did not accompany them. The defendant was at his desk and as they approached him he stated that he understood their girls were pregnant. They replied in the affirmative, which was untrue so far as the boy's bride-to-be was concerned, but may have been correct so far as the prospective wife of the boy friend was concerned. When asked by the defendant, both boys informed him that the girls were three and one-half months pregnant. The defendant also inquired as to the girls' names and residences. When this information had been supplied, the defendant filled out two certificates and gave them to the boys. The certificate given to each boy certified that the defendant had examined his girl companion and had found her to be three and one-half months pregnant. The entire visit to the office lasted about five minutes. Four days later, the boy went to the clerk's office again, gave the clerk the pregnancy certificate he had received from the defendant and procured a marriage license on the basis of the certificate. The boy and girl were married the same day.
On this appeal, the defendant contends (i) that § 11(b), supra, does not apply to unsworn statements; (ii) that, if it does, then it is unconstitutional; (iii) that even if the section does apply to unsworn statements and is constitutional, the defendant ought to have been punished under § 11 (a), supra; and (iv) that his motion to dismiss the indictment should have been granted because the indictment is defective for the reason it failed to allege wilfulness.

(i) and (ii)
Section 11(b), supra, applies to unsworn statements and is constitutional. The defendant urges that because the true meaning of the statute is in doubt a strict construction is required, that the statute is patently ambiguous because it requires *240 punishment for perjury without specifying that the prescribed material false statement had to be made under oath, and, therefore, that the statute should be construed to prescribe false unsworn statements. We do not agree with any of the defendant's premises. On the contrary, it cannot be disputed that the Legislature, in enacting § 11 [of Art. 62], supra, provided, by the terms of § 11 (a) that violations of §§ 9 and 10 were misdemeanors subject to a fine of $25 to $250. But, at the same time, by the terms of § 11(b), the Legislature created an offense analogous to perjury prohibiting the making of a material false statement in connection with the procurement of a marriage license or ceremony, and then provided an oath-substitute, which though novel is not prohibited. The term "oath" is often used in its broadest sense "to include all forms of attestation by which a party signifies that he is bound in conscience to perform the act faithfully and truly." 3 Bouv. Law Dict., p. 2388 (8th ed. 1914), quoted in State v. Gay, 59 Minn. 6, 60 N.W. 676 (1894). See also Maryland Rule 5 c. Viewed in this light, the terms of § 11(b) are clear and definite despite the fact they are expressed in somewhat inartificial language. The legislative history unerringly points to the fact that the word "of"[1] was inadvertently omitted from the statute, but with or without the absent word there can be no doubt that the offense condemned by the statute as stated above is in the nature of perjury. However, by the terms of § 11(b), the very making of a material false statement, even though not under oath, has been substituted for the oath usually required to make a false statement perjurious. Furthermore, there is not the slightest doubt that the Legislature had the power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders, the only limitation being that such enactments shall not infringe on constitutional rights and privileges. Glickfield v. State, 203 Md. 400, 404, 101 A.2d 229, 231 (1953); State v. Seney Company, 134 Md. 437, 107 A. 189 (1919); 14 Am. Jur., Criminal Law, § 16.
*241 The further argument to the effect that the false statement contemplated by § 11(b), supra, has reference to something more than the certificate of a physician as to pregnancy  which was based on the requirement of § 9(a), supra, that the signed affidavit to the assent of a parent or guardian should be sworn to or affirmed but did not make the same requirement as to the certificate of a physician  is also without merit for the simple reason that the language of § 11(b) includes all material false statements whether sworn or unsworn.
Obviously from what has been said there is no reason why the Legislature could not remove the requirement of an oath, and in this instance it has explicitly and effectually done so by providing a non-oath substitute for it as it has done several times before.[2] In this connection, it is interesting to note that an affirmation  which is without doubt the earliest of such substitutions in this or any other jurisdiction  is by statute or rule defined as a solemn [i.e., according to strict form or formal] declaration made under the penalties of perjury that a certain statement of fact is true. See Rule 5 c, supra. All such substitutions, however, either directly or impliedly, are made the equivalent of an oath. It is implicit in § 11(b), supra, that the oath-substitute is the equivalent of an oath.
With respect to the question of constitutionality, the defendant argues that § 11(b), supra, is vague and indefinite and that the statute should be construed as an inadvertent legislative attempt to amend the state constitution. Again we do not agree. As to the first contention, we need only repeat what we have already said that the statute is neither vague nor indefinite and add that it does not affront the constitutional guarantees of due process. This is so because it is explicit enough to enable a person of ordinary intelligence to ascertain with a fair degree of certainty what it prohibits and *242 what conduct on the offender's part will render him liable to its penalties. McGowan v. State, 220 Md. 117, 125, 151 A.2d 156, 160 (1959). The further contention that the statute is vague because the jury had to guess at its meaning and seemingly differed as to its application is likewise without substance. Cf. McGowan v. State, supra. The claim is that the forelady's request for additional instructions at the conclusion of the trial clearly demonstrated that the jury was confused  if it found the defendant guilty  as to whether the verdict should be guilty of perjury under § 11(b), or guilty of a misdemeanor under § 11(a). The lower court quite properly informed the jury that its verdict should be either guilty or not guilty since the court had already informed the jury in its general instructions in no uncertain words that the indictment charged the defendant with a violation of § 11(b). It is unfortunate that the court read the provisions of § 11(a) to the jury in that the defendant was not charged under that section, but, since it did so, the additional comments made by the court in an effort to alleviate the obvious confusion might have been more explicit. However, be that as it may, there was no error because the jury's inquiry had reference to the form of the verdict only, as to which the court's additional instruction was ample. Moreover, the record is clear that the forelady  after the colloquy between her, the court and counsel for the defendant  stated that she then understood the court's instruction, all of which transpired before the jury had retired to consider its verdict.
The defendant also submitted a very strained argument that to call the making of a false statement not under oath by the name of perjury and to provide for its punishment as such would amount to a legislative attempt to amend the constitution as to disqualification from voting because of a conviction for infamous crime. This argument was to the effect that perjury is an infamous crime of which a false oath was an essential element at common law; that the disfranchisement provision of Art. I, § 2, of the Constitution of this State based upon a conviction for an infamous crime operate only with respect to crimes which were infamous at common law, [citing State v. Bixler, 62 Md. 354 (1884)]; that to denominate *243 the making of a false statement not under oath as perjury undertook to make an infamous crime out of an offense which was not such at common law; and therefore violates the constitutional provision referred to. This conclusion is a clear non sequitur. Even if we assume that no newly created crime could be an infamous crime because it was not known to the common law, the fact that the penalty of disfranchisement may not be constitutionally possible does not remove the proscribed act from the category of criminal conduct, which is subject to punishment under the statute denouncing the offense. What the defendant's voting rights may be in the future are not before us now.

(iii)
The sentencing of the defendant under § 11(b), supra, was proper. The defendant contends  because the indictment made no reference to § 11(b)  that he ought to have been punished under § 11(a). Again, we do not agree. The indictment in this case, substantially in the language of the statute, unquestionably charged the defendant with a violation under § 11(b), and, having been convicted thereunder, he was subject to the punishment therein provided. The fact that the court  in denying the defendant's motion at the beginning of the trial to require the State to elect between § 11(a) and § 11(b)  remarked that the matter would be considered if and when the question of punishment was reached, did not commit the court to fine the defendant rather than imprison him. Nor was it error to resolve the question as it did after the defendant had been convicted. Moreover, we think it is clear that the statute did not provide different penalties for the same offense. On the contrary, the statute permits the grand jury [on a presentment and indictment] or the state's attorney [on an information] to determine whether to prosecute an alleged offender for a violation of the provisions of the statute not included in § 11(b) or for the more serious offense of perjury under § 11(b) when it appears that a material false statement has been knowingly made.

*244 (iv)
Lastly, the indictment was not defective because it failed to allege wilfulness. The defendant's contention that his pretrial motion to dismiss the indictment should have been granted is without merit. Since it is sufficient if statutory offenses are charged in the language of the statute creating them, the indictment in this case charging the defendant with "knowingly," instead of "wilfully," making a material false statement was sufficient to state the offense charged. Parkinson v. State, 14 Md. 184, 198 (1859); Gibson v. State, 54 Md. 447, 451 (1880); State v. Lassotovitch, 162 Md. 147, 159 A. 362 (1932). Moreover, it has been held that the word "wilfully" is of similar import to the word "knowingly" and is the same in substance and effect. [Hutchman v. State, 61 Okla. Crim. 117, 122, 66 P.2d 99, 102 (1937)]; and that one may be the equivalent of the other [McClure v. State, 157 Miss. 800, 805, 128 So. 764, 765 (1930)].
The judgment must be affirmed.
Judgment affirmed, the appellant to pay the costs.
NOTES
[1]  When the omitted word is restored, the statute provides that offenders thereof "shall be guilty [of] and punished for perjury."
[2]  See, for example, Code (1957), Art. 2B, § 198 [false statement under alcoholic beverage laws]; Art. 81, § 5 [false report required by revenue and tax laws]; and Art. 85A, §§ 13, 17 [false statement of employees under sedition and subversive laws].


582 F.2d 1286
Smithv.Witkowski
No. 78-1908
United States Court of Appeals, Seventh Circuit
7/28/78

1
N.D.Ill.

DISMISSED AND REMANDED


Opinion filed September 10, 2009

Opinion filed September
10, 2009

                                                                        In The

    Eleventh
Court of Appeals
                                                                   __________

                                                          No. 11-07-00337-CR
                                                       ________

                                      OFRAEL
AMADOR, Appellant

                                                             V.

                                        STATE
OF TEXAS, Appellee

                                         On
Appeal from the 161st District Court

                                                           Ector
County, Texas

                                                 Trial
Court Cause No. B-33,929

                                             M
E M O R A N D U M   O P I N I O N
Ofrael
Amador appeals his conviction by a jury of the offense of sexual assault.  The
jury assessed his punishment at seven years in the Texas Department of Criminal
Justice, Institutional Division.  He contends in a single point of error that
the trial court abused its discretion by denying his motion for continuance.
We affirm.
Amador
contends that the trial court abused its discretion by denying his motion for
continuance.  The granting or denying of a motion for continuance is within the
sound discretion of the trial court.  Renteria v. State, 206 S.W.3d 689,
699 (Tex. Crim. App. 2006).  A defendant must show Aspecific prejudice to his defense@ to establish that the
trial court abused its discretion in refusing to grant a continuance.  Id.

 Amador=s motion for continuance
was based upon the facts that he was arrested on additional charges the day
before the trial and that his counsel needed time to prepare for trial because
the State had given him notice that it planned to produce evidence of Amador=s conduct in that incident
during the trial.  There is no evidence in the record showing any specific
prejudice to the defense that would establish that the trial court abused its
discretion in refusing to grant a continuance.
In
urging that Amador did suffer prejudice due to the trial court=s denial of his
continuance, Amador refers to his counsel=s
statement at trial that he had not had time to prepare, that he did not yet
know much about the substance of what had happened the day before, and that he
had not been able to interview the witnesses or do any preparation for
cross-examination.  The only witness called by the State who testified
concerning what happened the day before trial was Amador=s wife, the complainant.  She was
cross-examined by Amador=s
counsel.  The complainant testified that, on the day before trial, Amador broke
into her home and took her to a motel against her will for the purpose of
preventing her from appearing at trial.  Amador makes no suggestion as to what
questions his counsel would have asked or what questions he would not have
asked had he had additional time to prepare for the cross-examination of the
complainant.
Amador
called Enrique Navarrete, who testified that, at the request of Amador, he had
rented the motel room where Amador took the complainant on the day before the
trial.  Navarrete indicated that he saw the complainant and that there was no
indication she was at the motel involuntarily.  He testified on
cross-examination that he had a prior conviction for sexual assault and a prior
conviction for Afailure
to comply with sex offender registration@
and that he was facing a charge of evading arrest.

Amador
asserts in his brief, referring to evidence of Navarrete=s prior convictions, that:  AIt is evident, in the
record that the Assistant District Attorney knew more about Navarrete that
[sic] Appellant=s
trial counsel.@
Amador further declares that his trial counsel was not familiar with Navarrete
or his criminal history.  He refers to the State=s
question, ASo you are
a two time convicted felon of sexual assault?@
as showing that his counsel was unaware of the criminal history.  In fact,
there is nothing in the record to show that, at the time this question was
asked, Amador=s counsel
was not aware of Navarrete=s
criminal history.  Rather, the evidence shows that Navarrete had just recounted
his criminal history during cross-examination.  We note that Navarrete himself
answered the State=s
question in the affirmative.  Amador suggests that, if his trial counsel had
been able to investigate the incident from the day before, it is highly
unlikely he would have called Navarrete, given a significant criminal history.
Amador=s assertion is
speculative and is outside the record.  There is no evidence in the record
showing that Amador=s
trial counsel was unaware at trial of Navarrete=s
prior criminal record or, if he had not been, that he would not have called
Navarrete.  Finally, Amador asserts that his trial counsel was surprised at the
complainant=s
testimony that she and her children were taken against their will to a motel,
saying, AIt is plain
from the record that [defense counsel] did not have anytime [sic] to
investigate what turned out to be a significant portion of the alleged victim=s claims and eventual
testimony.@  While
Amador=s counsel
stated at trial that he did not yet know much about the substance of the
incident the day before, the record does not support the claim that he was
surprised at the complainant=s
testimony concerning what had happened.  Although Amador=s trial counsel stated that he had not been
able to interview witnesses, there is nothing in the record to show what
additional investigation he could have conducted, had he been given additional
time, that would have made any difference in the trial.  Because there is no
evidence of specific prejudice to the defense shown in the record to have
resulted from the trial court=s
denial of Amador=s
motion for continuance, we hold that the trial court did not abuse its
discretion by denying the motion.  We overrule Amador=s sole point of error.
The
judgment is affirmed.

PER CURIAM

September 10,
2009
Do not publish.
See Tex. R. App. P.
47.2(b).
Panel consists of:  Wright, C.J.,
Strange, J., and Hill, J.[1]

[1]John G. Hill, Former Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                         No. 12-30192
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           6:06-cr-00018-
                                                       CCL-1
 JEFFREY ALAN HILGER,
              Defendant-Appellant.                    OPINION

       Appeal from the United States District Court
                for the District of Montana
     Charles C. Lovell, Senior District Judge, Presiding

                    Argued and Submitted
              June 4, 2013—Seattle, Washington

                      Filed August 26, 2013

    Before: M. Margaret McKeown and Sandra S. Ikuta,
   Circuit Judges, and Cormac J. Carney, District Judge.*

                  Opinion by Judge McKeown

 *
   The Honorable Cormac J. Carney, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
2                   UNITED STATES V. HILGER

                           SUMMARY**

                           Criminal Law

    Affirming a judgment revoking supervised release, the
panel held that the Opper rule, which requires a conviction to
rest on more than the uncorroborated confession of the
defendant, does not apply to revocation of supervised release.

    The panel concluded that on the record in this case the
district court did not abuse its discretion in revoking the
defendant’s supervised release based on his confession.

                             COUNSEL

Michael Donahoe, Senior Litigator, Federal Defenders of
Montana, Helena, Montana, for Appellant.

Leif M. Johnson (argued) and Marcia Hurd, United States
Attorney’s Office for the District of Montana, Billings,
Montana, for Appellee.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. HILGER                      3

                          OPINION

McKEOWN, Circuit Judge:

    In criminal prosecutions, where guilt must be established
beyond a reasonable doubt, the Supreme Court requires a
conviction to rest on more than the uncorroborated confession
of the defendant. Opper v. United States, 348 U.S. 84 (1954).
The question here is whether the same standard should be
extended to revocation of supervised release.

    Jeffrey Hilger was on supervised release after a child
pornography conviction. After he confessed to repeatedly
violating restrictions on contact with minors, the district court
revoked his supervised release. In view of the fundamental
differences between a criminal conviction and revocation of
supervised release, including the lowered burden of proof, we
decline Hilger’s invitation to erect an equivalent barrier here.
The Opper rule does not apply to supervised release
proceedings.

I. The Opper Rule Does Not Apply to Supervised
   Release Revocation Proceedings.

    The corpus delicti—or “Opper”—rule was developed in
the context of criminal prosecutions and their attendant
heightened protections for defendants. Opper imposes two
evidentiary requirements before a confession can be used as
the basis for conviction. First, the government “must
introduce sufficient evidence to establish that the criminal
conduct at the core of the offense has occurred.” United
States v. Lopez–Alvarez, 970 F.2d 583, 592 (9th Cir. 1992).
This foundation ensures that convictions are not based on
confessions to nonexistent crimes. Id. “Second, [the
4                UNITED STATES V. HILGER

government] must introduce independent evidence tending to
establish the trustworthiness of the admissions, unless the
confession is, by virtue of special circumstances, inherently
reliable.” Id. This additional requirement ensures that
defendants are not convicted for making false confessions to
crimes committed by others. “[O]nly when both [of] these
prongs are satisfied will a jury be ‘sufficiently justified’ in
believing the truth of a criminal admission; only then will the
evidence be deemed sufficient in a case in which the
conviction depends in part on such admission.” Id.

    Revocation proceedings are different. As the Supreme
Court explained in Morrissey v. Brewer, “the revocation of
parole is not part of a criminal prosecution and thus the full
panoply of rights due a defendant in such a proceeding does
not apply to parole revocations.” 408 U.S. 471, 480 (1972);
see also United States v. Brennick, 337 F.3d 107, 109 (1st
Cir. 2003) (distinguishing revocation from prosecution
because “revocation is designed to punish an offender’s
breach of trust in violating the court-ordered terms of release,
so the sanction is independent of . . . regular criminal
prosecution for the crime”). The government’s burden of
proof is accordingly lower: it must prove only a violation of
the conditions of release by a preponderance of the evidence.
United States v. Turner, 312 F.3d 1137, 1142 (9th Cir. 2002).

    Revocation proceedings are to be “flexible,” reflecting
their difference from a criminal prosecution. Morrissey,
408 U.S. at 489. Because “[r]evocation deprives an
individual, not of the absolute liberty to which every citizen
is entitled, but only of the conditional liberty properly
dependent on observance of special parole restrictions,” id. at
480, the court is permitted “to consider evidence including
                    UNITED STATES V. HILGER                             5

letters, affidavits, and other material that would not be
admissible in an adversary criminal trial.” Id. at 489.1

    Opper’s strict corroboration requirements are ill-suited to
this context. See id. (“We emphasize there is no thought to
equate . . . revocation to a criminal prosecution in any
sense.”). Although federal courts have not directly addressed
the question, state courts have consistently held that the
Opper rule does not apply to revocation proceedings. See
e.g., Commonwealth v. Kavanaugh, 482 A.2d 1128, 1130
(Pa. Super. Ct. 1984) (holding that the corpus delicti rule is
inapplicable in probation revocation proceedings because
they are not a stage of criminal prosecution); see also People
v. Monette, 25 Cal. App.4th 1572, 1575 (Ct. App. 1994)
(“The nature of a probation revocation hearing, however,
does not require the application of the corpus delicti rule.”);
State ex. rel. Russell v. McGlothin, 427 So. 2d 280, 282
(Fla. Dist. Ct. App. 1983) (reversing trial court’s
determination that an uncorroborated admission of drug sales
was insufficient evidence to revoke probation). Although not
directed to this precise point, federal courts consistently
recognize the difference between criminal trials and
revocation proceedings. See Brennick, 337 F.3d at 111–12
(upholding revocation where defendant’s confession to drug

 1
    The procedural requirements in revocation proceedings are basic: (a)
written notice of the claimed violations of parole; (b) disclosure of the
evidence against the parolee; (c) opportunity to be heard in person and to
present witnesses and documentary evidence; (d) the right to confront and
cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a ‘neutral and
detached’ hearing body; and (f) a written statement by the factfinders as
to the evidence relied on and the reasons for revoking parole. Morrissey,
408 U.S. at 489. Hilger does not claim that his revocation hearing was
procedurally deficient.
6                   UNITED STATES V. HILGER

use was corroborated by positive test and noting that in the
more flexible federal revocation proceedings, a court need not
“determine whether the defendant could be convicted,” but
whether “the defendant has engaged in conduct that
constitutes an offense under state law”) (emphasis in
original). We agree with these courts and hold that Opper
does not bar revocation here as a matter of law.2

     We do not dismiss Hilger’s concerns lightly. Revocation
is a serious matter and involves a real deprivation of liberty.
See Morrissey, 408 U.S. at 482 (acknowledging that “the
liberty of a parolee, although indeterminate, includes many of
the core values of unqualified liberty and its termination
inflicts a ‘grievous loss’ on the parolee and often on others”).
But our decision does not deprive Hilger of protection against
unjust incarceration. Hilger exercised his right to confront
and cross-examine the government’s witnesses and evidence
and presented his own evidence that the allegations are false.
Cf. United States v. Perez, 526 F.3d 543, 550 (9th Cir. 2008)
(revocation of supervised release based on a positive drug test
was improper where the defendant was not allowed to cross-
examine technician to determine if the test was reliable).
Hilger’s rights were adequately protected through these
existing mechanisms, and we decline to impose further
restrictions on revocation proceedings.

    2
     Our opinion should not be read as creating a per se rule that the
government need never introduce more than a defendant’s uncorroborated
confession in order to establish a violation of the terms of supervised
release. The district court must determine whether the government has
established such a violation by a preponderance of the evidence on a case-
by-case basis.
                 UNITED STATES V. HILGER                    7

II. The District Court Did Not Abuse Its Discretion In
    Finding That A Violation Had Occurred.

    “We review the district court’s decision to revoke a term
of supervised release for abuse of discretion.” United States
v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011). “A court
may revoke a term of supervised release and sentence a
defendant to a term of imprisonment if the court finds by a
preponderance of the evidence that the defendant violated a
condition of his supervised release.” United States v.
Spangle, 626 F.3d 488, 497 n.3 (9th Cir. 2010) (citing
18 U.S.C. § 3583(e)(3)).

    Hilger was convicted on child pornography charges in
2007. He began a term of supervised release in January 2011.
While on release, Hilger was subject to two restrictions
relevant here: (1) he was required to complete a sex offender
treatment program and abide by its terms while enrolled; and
(2) he was prohibited from being in the company of children
under the age of 18 without prior approval by the U.S.
Probation Office.       Hilger passed a first polygraph
examination verifying his compliance with these conditions
in September 2011. His second examination, in March 2012,
indicated deception when he denied prohibited contact with
minors. In the follow-up interview with his probation officer,
Hilger initially claimed innocence, but later admitted to six
specific unauthorized contacts. Hilger was taken into custody
and charged with violating the conditions of his release; a
revocation hearing followed.

   The thorough revocation hearing, which spanned multiple
days, resulted in the district court’s conclusion that Hilger
had violated the terms of his release and imposition of a 24-
month sentence. The key evidence was Hilger’s detailed
8                UNITED STATES V. HILGER

confession to six prohibited contacts, each of which was
described at the hearing by Hilger’s probation officer. It is
apparent from the district court’s questioning that the court
delved into the confession in detail and made a concerted
effort to determine the reliability and accuracy of the
confession.

     Hilger described exposing himself to one girl of
approximately 13, giving a precise location on a local bike
trail, and describing her body, outfit, and hair color. Another
time, Hilger said, he spoke with a 13-year old girl for a few
minutes, touched her neck, and then started speaking to her
about sex and asked to touch her, after which she left. Hilger
also recounted a sexual contact with a 10-year old girl in
graphic detail, as summarized by the probation officer:

       [Hilger] reports he exposed himself to her and
       asked her if she would touch his penis . . .
       [She complied]. Then Mr. Hilger asked her to
       lift up her shirt and she indicated she was
       going to do so but did not.

            He said that he had seen her a couple of
       times before and had said hi to her and that he
       watched her for 10 to 15 minutes in the
       bushes before approaching her; that she was
       wearing sandals; had pink shorts on and a
       belly-type shirt and was of slim build and was
       a brunette. He also discussed [additional facts
       about her sexual history] with her . . . and
       [discussed] that she lived somewhere in a
       trailer court nearby.
                 UNITED STATES V. HILGER                     9

(Excerpted to delete specific graphic details.). Hilger gave
similarly detailed descriptions of three additional encounters
with girls that, although prohibited, were not overtly sexual.
Hilger does not argue, and there is no suggestion, that the
probation officers used coercive or improper techniques to
elicit his confession.

    After hearing the confession, one probation officer visited
the bike trail and verified that, as Hilger had described,
children used it alone. However, he did not verify that any
contacts had occurred, and the local police had received no
reports matching Hilger’s admissions. It appears that there
was no further investigation of the contacts.

    The probation officer also contacted Hilger’s sex offender
treatment provider regarding the admissions; Hilger was
promptly terminated from the program. Hilger’s counselor
testified that Hilger had lied to his treatment group by saying
that he had stopped engaging in inappropriate fantasies, only
admitting the truth after the group confronted him. However,
the counselor testified that he would not have terminated
Hilger based on his lies alone.

    Hilger’s sister also testified at the revocation hearing.
She did not independently confirm any of the details of
Hilger’s confessions, although she did verify that Hilger had
a bicycle and rode it on a local trail. She said that Hilger
“doesn’t have the capacity to” make up stories as detailed as
those he told the probation officers. She believed that Hilger
was a danger to the community and she feared that he would
reoffend.

    Hilger called an expert, Dr. Bowman Smelko, who
testified that he had examined Hilger and concluded that he
10               UNITED STATES V. HILGER

was suggestible and prone to making up stories to suit his
questioners. Dr. Smelko did not believe that the probation
officers acted improperly, but said that even under normal
conditions Hilger was “low functioning and . . . the way in
which he handles stress . . . is to acquiesce and try to please,
so” Hilger was prone to confabulation under pressure. Dr.
Smelko noted that Hilger is “an individual that comes across
as very normal functioning,” and cautioned that Hilger’s
confession should not be believed simply because Hilger had
not appeared stressed. However, Dr. Smelko did not offer
specific reasons to believe that these particular confessions
were false. Dr. Smelko’s testimony only raised general
concerns about the possibility of a false confession.

    The district court also allowed Hilger to describe his
interview and explain his confession. Hilger said that he “did
fabricate the story,” and that he “never did touch any people
like they said.” He admitted that he “wasn’t threatened,” but
said that the probation officer had accused him of lying after
he had denied any inappropriate contacts. Hilger explained
that he “just fabricated that story, you know, to get [the
officer] off my back.” He repeated similar explanations
several times, but provided no additional relevant details.

    On this record, we conclude that the district court did not
abuse its discretion in revoking Hilger’s supervised release
based on his confession. This matter was triggered by a
polygraph test indicating that Hilger had unauthorized contact
with minors, therefore corroborating his later confession.
Hilger’s subsequent interrogation was noncoercive. His
confessions were detailed, in contrast to his nonspecific and
repetitive responses to the district court’s questions. Hilger’s
own sister also commented that fabrication in this detail
exceeded Hilger’s abilities. Hilger was allowed to present a
                 UNITED STATES V. HILGER                   11

complete defense. Dr. Smelko testified at length and the
district court questioned him extensively. Although Dr.
Smelko raised important concerns, his testimony was
speculative and provided no specific reasons to doubt
Hilger’s confession to these particular contacts. The district
court’s decision to credit Hilger’s confession was amply
supported by the record.

   AFFIRMED.


                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                 November 12, 2002 Session

           TZE-PONG "RAYMOND" KU v. STATE OF TENNESSEE

                Appeal from the Claims Commission of the State of Tennessee
                   No. 20200433     Vance W. Cheek, Jr., Commissioner

                                  FILED DECEMBER 17, 2002

                                 No. E2002-01076-COA-R3-CV

Tze-Pong “Raymond” Ku (“Plaintiff”) is a student at the East Tennessee State University College
of Medicine (“College”). After completing his first two years of study, Plaintiff was required to take
the USMLE Step 1 examination. He took this examination and failed. Thereafter, the College
removed Plaintiff from his third year clerkships and eventually created a list of requirements he had
to meet in order to be allowed to resume his classes. After successfully suing the College in federal
court based on a procedural due process violation, Plaintiff brought the present lawsuit for damages
against the State of Tennessee claiming breach of written contract, to wit: his letter of acceptance
to the College and the College’s student handbook. The Claims Commission concluded these
documents did not constitute a written contract and dismissed the lawsuit for lack of subject matter
jurisdiction. Plaintiff appeals, and we affirm.

                    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                       Claims Commission Affirmed; Case Remanded.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and HERSCHEL P. FRANKS , J., joined.

Arthur F. Knight, III, and Samuel W. Brown, Knoxville, Tennessee, for the Appellant Tze-Pong
“Raymond” Ku.

Paul G. Summers, Attorney General, Michael E. Moore, Solicitor General, and Donald R. Ungurait,
Assistant Attorney General, Nashville, Tennessee, for the Appellee State of Tennessee.
                                              OPINION

                                             Background

                 This case involves a claim by Plaintiff against the State for breach of contract.
According to the complaint, Plaintiff was accepted to medical school and began his first year in the
fall of 1996. Plaintiff successfully completed his first and second year courses. During the summer
following the second year, Plaintiff was required to take the USMLE Step 1 examination, as set forth
in the College’s policies and procedures. This examination must be passed before the beginning of
the student’s fourth year. Plaintiff claims students who do not pass this examination are allowed to
begin their third year clerkships, but they are subject to dismissal if they do not pass this examination
after three attempts. Plaintiff failed the examination on his first attempt and intended to retake the
examination in October of 1998. Plaintiff began his third year clerkship in the summer of 1998, but
claims he was pulled from all of his rotations by the College’s administration. The reasons given
Plaintiff for being pulled from rotations were alleged behavioral problems. Plaintiff claims he never
was told of any behavioral problems prior to being pulled from the rotations.

                Plaintiff pursued the College’s internal appeal procedures in an attempt to maintain
his enrollment. He was denied relief at each level of the process. Plaintiff even underwent
psychological testing at the College’s request. In September of 1999, Plaintiff requested he be
allowed to return to his medical studies. In response, Daniel Wooten (“Wooten”), the Executive
Associate Dean for Academic and Faculty Affairs, sent Plaintiff a letter detailing certain conditions
Plaintiff had to agree to in order to return to classes. These conditions were: 1) Plaintiff’s retaking
his sophomore classes; 2) always being on time for class; and 3) being given a “battery” of oral
exams at the end of the 1999 fall semester and the 2000 spring semester which must be passed.
Plaintiff also was informed a structured evaluation of his performance would be conducted at the end
of each semester prior to his continuing in school. According to Wooten’s letter, only if Plaintiff
successfully completed the foregoing would he be allowed to retake the USMLE Step 1 examination.

                Plaintiff sued in federal court asserting, among other things, that he was denied
procedural due process by the College. On June 7, 2001, the United States District Court for the
Eastern District of Tennessee issued a memorandum opinion finding Plaintiff’s constitutional due
process rights had been violated. The United States District Court ordered the College to allow
Plaintiff to re-enter medical school, resume his junior clerkships, and take the USMLE Step 1
examination when he felt ready to do so.

              Plaintiff then brought this lawsuit against the State claiming breach of a written
contract. According to Plaintiff, he had a written contract for the provision of educational services
between him and the College by virtue of the College’s letter of acceptance, the College’s catalogs,
and other relevant written policies and procedures. Plaintiff sought one million dollars in
compensatory damages.

                                                  -2-
              The State filed a motion to dismiss claiming there was no written contract as required
by Tenn. Code Ann. § 9-8-307(a)(1)(L), which provides for a cause of action against the State based
on:

               Actions for breach of a written contract between the claimant and the
               state which was executed by one (1) or more state officers or
               employees with authority to execute the contract ….

The State argued that because there was no written contract, the Claims Commission lacked subject
matter jurisdiction over the claim.

              Plaintiff responded to the motion to dismiss by claiming the East Tennessee State
University Medical Student Handbook (“Handbook” or “Catalog”) and his acceptance letter, both
of which were signed by a representative of the College, constituted a written contract. The
Handbook is signed by Wooten, and the introduction states, inter alia:

                        Complex social institutions such as medical schools must
               have pervasive rules that govern conduct and operational
               effectiveness. Thus, the James H. Quillen College of Medicine has
               proclaimed policies, procedures, and guidelines to monitor student
               affairs that are designed to ascertain that all members of our academic
               community are knowledgeable about what is expected of them and
               are treated justly.

                       The primary purpose of this manual is to incorporate into a
               single volume those policies, procedures, and guidelines that most
               directly impact students. Thus, it is imperative that all students
               familiarize themselves with the contents.

                       Obviously, no policy statement, whatever craft accompanies
               its establishment, can fully anticipate all situations. However, our
               College of Medicine recognizes its obligation to maintain
               responsiveness to individual needs. Therefore, any student who
               believes that individual circumstances justify action inconsistent with
               a certain policy stated herein should come to my office without
               hesitation.…

              At the beginning of the section of the Handbook setting forth the College’s Policies
and Procedures, the following “disclaimer” is found:

                                                -3-
                                                      Disclaimer

                  The policies contained herein are provided to give a general
                  understanding of the regulations governing East Tennessee State
                  University and the James H. Quillen College of Medicine. They are
                  subject to revision at any time with little or no advance notification.
                  The College of Medicine assumes no responsibility for errors in or
                  misrepresentation of these policies. For more information on the
                  official policies of ETSU and the College of Medicine contact the
                  Office of Academic Affairs.

                The Commissioner agreed with the State’s position and concluded there was no
written contract between the parties, and, therefore, dismissed the Complaint for lack of subject
matter jurisdiction. Plaintiff appeals, arguing the letter of acceptance and the Handbook constitute
a written contract.

                                                      Discussion

               Since matters outside the pleadings were considered by the Commission when it
granted the State’s motion to dismiss, we will treat the State’s motion as a motion for summary
judgment in accordance with Rule 12.02.1 The standard for review of a motion for summary
judgment is set forth in Staples v. CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000):

                         The standards governing an appellate court’s review of a
                  motion for summary judgment are well settled. Since our inquiry
                  involves purely a question of law, no presumption of correctness
                  attaches to the lower court’s judgment, and our task is confined to
                  reviewing the record to determine whether the requirements of Tenn.
                  R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
                  50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
                  S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
                  56.04 provides that summary judgment is appropriate where: (1) there
                  is no genuine issue with regard to the material facts relevant to the
                  claim or defense contained in the motion, see Byrd v. Hall, 847
                  S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
                  to a judgment as a matter of law on the undisputed facts. See
                  Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.

         1
            In relevant part, Rule 12.02 provides that if, “on a motion asserting the defense numbered (6) to dismiss for
failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for sum mary judgm ent and dispo sed o f as pro vided in Rule 5 6, and all
parties shall be given re asonable o ppo rtunity to present all material mad e pertinent to such a m otion by Rule 56.”

                                                           -4-
               1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811
               S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
               judgment makes a properly supported motion, the burden shifts to the
               nonmoving party to set forth specific facts establishing the existence
               of disputed, material facts which must be resolved by the trier of fact.
               See Byrd v. Hall, 847 S.W.2d at 215.

                       To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party’s
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
               party fails to negate a claimed basis for the suit, the non-moving
               party’s burden to produce evidence establishing the existence of a
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the non-
               moving party may not simply rest upon the pleadings, but must offer
               proof to establish the existence of the essential elements of the claim.

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

               Tenn. Code Ann. § 9-8-307 confers jurisdiction on the Tennessee Claims
Commission to entertain monetary claims against the State based upon certain specified causes of
action. Tenn. Code Ann. § 9-8-307(a)(1)(L) states that the Commission has jurisdiction to determine
a monetary claim against the State based upon “[a]ctions for breach of a written contract between
the claimant and the state which was executed by one (1) or more state officers or employees with

                                                 -5-
authority to execute the contract ….” What we must decide on this appeal is whether the undisputed
material facts demonstrate Plaintiff did not have a written contract with the State.

                Plaintiff’s main argument that the Handbook constitutes a written contract is based
on Lesure v. State, No. 89-347-II, 1990 Tenn. App. LEXIS 355 (Tenn. Ct. App. May 18, 1990). In
Lesure, this Court concluded there was a contract between that plaintiff and the state based on
Tennessee State University’s catalog. The catalog in that case, however, expressly stated the
provisions of the “catalog constitute a contract between the university and a student who commences
any program of study insofar as it relates to the degree requirements for that program during the
effective period of this catalog . . . .” Lesure, 1990 Tenn. App. LEXIS 355 at * 6. No such language
is contained in the College’s handbook. In addition to the quoted language, the Lesure case was
decided pursuant to a version of Tenn. Code Ann. § 9-8-307(a)(1)(L) which no longer exists. These
are distinctions with a difference, as recently noted by this Court in Petty v. State, 2002 Tenn. App.
LEXIS 193 (Tenn. Ct. App. Mar. 18, 2002), no appl. perm. appeal filed, which involved a claim that
the University of Tennessee’s student catalog constituted a written contract. In Petty, this Court
stated:

                       Plaintiff alleges that she has a written contract with the
               University of Tennessee which is embodied in the student catalog.
               She relies upon the unreported opinion of this Court in Lesure v.
               State, 1990 WL 64533 (Tenn. Ct. App. May 18, 1990), wherein this
               Court held that the catalog of Tennessee State University constituted
               a contract pursuant to Tenn. Code Ann. §9-8-307(a)(1)(L). Reliance
               on the Lesure case is misplaced, because the catalog at issue in
               Lesure expressly stated that its provisions constituted a contract
               between the university and the student, and the University of
               Tennessee catalog at issue does not. Moreover, the Lesure case was
               decided when a prior version of Tenn. Code Ann. §9-8-307(a)(1)(L)
               was in effect, which merely required the action to be founded upon
               “any express contract or breach thereof” but did not require the
               contract to be written and signed by an authorized officer or
               employee. Thus, the Lesure case is not applicable.

                       Finally, plaintiff seeks to bolster her argument that a written
               contract existed by stating that the University’s catalog, in
               conjunction with her transcript of grades which contains the signature
               of the registrar, satisfies the requirements of Tenn. Code Ann. §9-8-
               307(a)(1)(L). The transcript, however, does nothing more than report
               the grades which plaintiff earned in her course work. We find no
               language in the transcript which would constitute the terms of a
               contract.

                                                 -6-
                         As the Supreme Court observed in Johnson v. Central Nat'l
                  Ins. Co., 356 S.W.2d 277, 281 (Tenn. 1962):

                           While a contract may be either expressed or implied, or
                           written or oral, it must result from a meeting of the minds of
                           the parties in mutual assent to the terms, must be based upon
                           a sufficient consideration, free from fraud or undue influence,
                           not against public policy and sufficiently definite to be
                           enforced.

                  The transcript does not contain any definite terms to be enforced, and
                  does not result from a meeting of the minds. Reading it in
                  conjunction with the catalog is of no consequence, since the catalog
                  explicitly sets forth that its terms are subject to change without notice,
                  and that it should not be relied upon.

                        We hold that plaintiff has failed to satisfy the requirements of
                  Tenn. Code Ann. §9-8-307(a)(1)(L), and we affirm the
                  Commissioner’s Order dismissing this action.

Petty, 2002 Tenn. App. LEXIS 193 at ** 2-4. By way of footnote, the Petty Court observed the
University of Tennessee catalog contained a statement which told students that its provisions were
constantly under review, subject to change at any time, and should not be relied upon. Id. at *3 fn.1.

                We believe the present case is quite similar to Petty. The Handbook does not state
it is intended to be a contract. The Handbook acknowledges the difficulty in anticipating all
situations, and that the contents of the Handbook are subject to revision at any time “with little or
no advance notification.” Furthermore, the College expressly assumed no responsibility for errors
in or misrepresentations of the policies. After reviewing the entire Handbook2, it is our opinion the
undisputed material facts demonstrate the State did not intend to be contractually bound to the
contents of the Handbook. Cf. Smith v. Morris, 778 S.W.2d 857, 858 (Tenn. Ct. App. 1988)(While
a handbook can be part of an employment contract, “the specific language of the handbook must
show contractual intent.”). We agree with the Commission that the College’s Handbook does not
constitute a written contract.

                Plaintiff also argues the letter wherein he was accepted to the College also constitutes
a written contract. The letter is dated July 14, 1992, and extends an offer to Plaintiff to “join East
Tennessee State University’s Premedical-Medical Program.” The letter also explains certain
requirements Plaintiff must undertake should he choose to accept the invitation. The undisputed
material facts show: a) Plaintiff was offered acceptance into the College; b) Plaintiff accepted the

         2
           Plaintiff claims the Handb ook constitutes a contract, but points us to no specific language evidencing the
College’s intent to be contractually bo und to its contents.

                                                         -7-
offer; and c) Plaintiff was admitted into the College. Even assuming, without deciding, the offer to
join the College’s medical program was a written contract for purposes of Tenn. Code Ann. § 9-8-
307(a)(1)(L), this contract had long since been completed by the time the events giving rise to the
present lawsuit occurred and, therefore, cannot form the basis of the present lawsuit.

                The written documents relied upon by Plaintiff, either separately or together, do not
constitute a written contract. Therefore, the decision of the Claims Commission dismissing
Plaintiff’s claim for lack of subject matter jurisdiction was proper. We hold Plaintiff has failed to
satisfy the requirements of Tenn. Code Ann. § 9-8-307(a)(1)(L), and we affirm the Commissioner’s
Order dismissing this action.

                                            Conclusion

              The judgment of the Claims Commission is affirmed, and this cause is remanded to
the Claims Commission for such further proceedings as may be required, if any, consistent with this
Opinion. The costs on appeal are assessed against the Appellant Tze-Pong “Raymond” Ku, and his
surety.

                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE

                                                -8-


                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-2618
                                  ___________

Darin Crooks,                             *
                                          *
              Plaintiff – Appellant,      *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * Northern District of Iowa.
Rick Lynch, individually and in his       *
official capacity as the Floyd County     *
Sheriff; Jessie Marzen, individually      *
and in his official capacity as Floyd     *
County Attorney; Floyd County, Iowa, *
                                          *
              Defendants– Appellees.      *
                                     ___________

                            Submitted: February 10, 2009
                               Filed: March 2, 2009
                                ___________

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
                             ___________

BYE, Circuit Judge.

      Darin Crooks appeals the district court's1 dismissal of his case. We affirm.

      1
      The Honorable Edward J. McManus, United States District Judge for the
Northern District of Iowa.
                                           I

      Crooks was a Deputy Sheriff for Floyd County, Iowa. On April 12, 2007,
Crooks was charged with two criminal complaints alleging he supplied alcohol to an
underage person in violation of Iowa Code § 123.47. That same day, Floyd County
Sheriff Rick Lynch terminated Crooks's employment.

      By letter dated April 29, 2007, Crooks gave notice to the Floyd County Civil
Service Commission ("Commission") he was appealing his dismissal. Because the
terms of all the commissioners had expired at the time of this letter, new
commissioners were appointed. By letter dated May 3, 2007, Crooks informed the
new commissioners of his pending appeal, asked them to order Lynch not to
permanently remove or suspend him, and requested a hearing.

       By letter dated May 15, 2007, the Commission ordered Crooks not to be
permanently removed or suspended until resolution of his appeal. The Commission
held a hearing on May 21, 2007, but did not issue a ruling at that time.

       On June 6, 2007, a jury found Crooks not guilty of the criminal charges. Later
that day, a news story was published at globegazette.com reporting Crooks's acquittal,
which included the following quotes from Floyd County Attorney Jesse Marzen: "This
man violated the law and a jury has now found him not guilty, which I accept;" and
"He admitted several times that he served this gal, who is 20 years old. I don't know
what to say about that."

       Crooks subsequently filed suit against Floyd County, Lynch, and Marzen,
alleging claims under 42 U.S.C. § 1983 for deprivation of his property interest in his
position as deputy sheriff without procedural due process ("property interest claim"),
deprivation of his liberty interest in his reputation without procedural due process
("liberty interest claim"), and conspiracy to violate his procedural due process rights,

                                          -2-
as well as a state law unlawful termination claim. Defendants filed a motion to
dismiss. The district court granted the motion as to Crooks's federal claims and
dismissed his state claim without prejudice. This appeal followed.

                                          II

       We review "de novo the grant of a Rule 12(b)(6) motion to dismiss for failure
to state a claim, accepting the facts alleged in the complaint as true and granting all
reasonable inferences in favor of [the plaintiff], the nonmoving party." Stufflebeam
v. Harris, 521 F.3d 884, 886 (8th Cir. 2008).

                                          III

       We first address Crooks's property interest claim. As a threshold matter, we
must determine whether subject matter jurisdiction over this claim exists. See Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986); Auto-Owners Ins. Co. v.
Tribal Court of Spirit Lake Indian Reservation, 495 F.3d 1017, 1020 (8th Cir. 2007).

       "[A] litigant asserting a deprivation of [a property right in violation of]
procedural due process must exhaust state remedies before such an allegation states
a claim under § 1983." Wax 'n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th
Cir. 2000); see also Booker v. City of St. Louis, 309 F.3d 464, 468 (8th Cir. 2002).
This requirement is distinct from exhaustion requirements in other contexts. Rather,
this requirement is necessary for a procedural due process claim to be ripe for
adjudication. Wax 'n Works, 213 F.3d at 1020 (holding, because property owner
failed to exhaust his state remedies, his procedural due process claim against city
under § 1983 was not ripe for adjudication); cf. Zinermon v. Burch, 494 U.S. 113, 126
(1990) (holding a procedural due process violation "is not complete when the
deprivation occurs; it is not complete unless and until the State fails to provide due
process").

                                         -3-
       Crooks has failed to exhaust his state remedies. In Crooks's complaint, he states
the Commission has not yet rendered a decision as to his appeal. Subsequent
documentation demonstrates the Commission rendered its decision on June 19, 2008,
which Crooks appealed to the Iowa state courts in accordance with Iowa Code
§ 341A.12. This appeal remains pending. See Stutzka v. McCarville, 420 F.3d 757,
761 n.2 (8th Cir. 2005) (We "may take judicial notice of judicial opinions and public
records."); Gustafson v. Cornelius Co., 724 F.2d 75, 79 (8th Cir. 1983) ("An appellate
court may take judicial notice of a fact for the first time on appeal."). Because Crooks
had not exhausted the available state remedies, we lack jurisdiction over his property
interest claim.

       As such, the dismissal of Crooks's property interest claim will be modified to
be without prejudice. See County of Mille Lacs v. Benjamin, 361 F.3d 460, 464 (8th
Cir. 2004) (holding, because dismissal for lack of jurisdiction is not an adjudication
on the merits, dismissal should be without prejudice, and modifying the district court's
judgment accordingly).

                                          IV

       We next address Crooks's liberty interest claim. To establish a procedural due
process claim against a state employer for deprivation of a protected liberty interest
in a public employee's reputation, Crooks must demonstrate: "(1) an official made a
defamatory statement that resulted in a stigma; (2) the defamatory statement occurred
during the course of terminating the employee; (3) the defamatory statement was made
public; and (4) an alteration or extinguishment of a right or legal status." Brown v.
Simmons, 478 F.3d 922, 923 (8th Cir. 2007) (internal citations omitted). In addition,
he must prove he requested and was denied a name-clearing hearing. Winskowski v.
City of Stephen, 442 F.3d 1107, 1112 (8th Cir. 2006).

                                          -4-
       Crooks's claim fails because, as admitted at oral argument, he did not request
a name-clearing hearing before filing suit.2 See id. at 1112 (holding a plaintiff's
failure to request a name-clearing hearing before filing suit barred recovery on a
liberty interest claim). Accordingly, the district court properly granted Defendants'
motion to dismiss on Crooks's liberty interest claim.

                                          V

       The district court's judgment as to Crooks's liberty interest claim is affirmed.
The district court's judgment as to his property interest claim is vacated and remanded
with instructions to dismiss this claim without prejudice for lack of jurisdiction.
                         ______________________________

      2
       In so holding, we note this is not a case where a request for a name-clearing
hearing would have been futile or there were not established post-termination
procedures.

                                         -5-


Abatement Order filed November 3, 2015

                                      In The

                     Fourteenth Court of Appeals
                                   ____________

                              NO. 14-15-00901-CR
                                   ____________

                         JESUS GONZALEZ, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1351489

                            ABATEMENT ORDER

      Appellant appealed from a conviction for the offense of aggravated sexual
assault. On October 30, 2015, the trial court clerk filed the clerk’s record, which
contains a certification of appellant’s right to appeal his original guilty plea, but
does not contain a certification of appellant’s right to appeal on the adjudication.
See Tex. R. App. P. 25.2(a)(2), 34.5(a)(12); see also Dears v. State, 154 S.W.3d
610, 613 (Tex. Crim. App. 2005) (“The court of appeals must dismiss an appeal if
a certification showing that the defendant has the right to appeal is not made a part
of the appellate record.”). We therefore abate the case and order the trial court to
execute a certification of appellant’s right to appeal. See Tex. R. App. P.
34.5(c)(2), 37.1, 44.4; Cortez v. State, 420 S.W.3d 803, 806–07 (Tex. Crim. App.
2013).

      An appeal must be dismissed if a certification showing that the defendant
has the right of appeal has not been made part of the record. Tex. R. App. P.
25.2(d); Dears, 154 S.W.3d at 613. In connection with this record, pursuant to Tex.
R. App. P. 37.1 and 44.4, we abate this appeal and direct the trial court to file a
certification of the defendant’s right of appeal with the trial court clerk and direct
the clerk to prepare and file a supplemental clerk’s record containing the corrected
certification with this court within 30 days of the date of this order.

                                               PER CURIAM


224 Cal.App.2d 436 (1964)
THE PEOPLE, Plaintiff and Respondent,
v.
CLAYBORNE MAY, Defendant and Appellant.
Crim. No. 8769.
California Court of Appeals. Second Dist., Div. One.
Jan. 30, 1964.
 Gladys Towles Root and Eugene V. McPherson for Defendant and Appellant.
 Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Lawrence R. Tapper, Deputy Attorney General, for Plaintiff and Respondent.
 LILLIE, J.
 Defendant was convicted of offering to sell marijuana in violation of section 11531, Health and Safety Code; he appeals from the judgment.
 One Rosen, who knew Federal Agent Watson and that Deputy Sheriff Austin was working the narcotics detail, called Austin and advised him that defendant told him he was going to Tijuana to buy marijuana. Austin asked Rosen to introduce him to defendant for the purpose of buying 5 kilos. The next day, in front of the Seaman's Union Hall, Rosen introduced defendant to Austin as "Mike." At defendant's suggestion they got into this car; defendant asked Rosen if he was sure Austin was "all right"; Rosen replied: "Yes, he is okay." Defendant then said, "Lets go some place else and talk"; defendant drove to a bar where they discussed Austin's purchase of some "weed" (marijuana) for $110 per kilo. Defendant told Austin he had just gotten out of San Quentin and was broke, he planned to go to Tijuana with a man called Vince to buy some "weed" and bring it back to the United States for "fast money," he and Vince were each going to drive down and bring it back in one of the cars, he intended to borrow his share of the purchase money from a woman and Vince was going to furnish the other half, and they would return from Tijuana by Friday *438 noon at which time he would meet him (Austin) at Rosen's apartment and deliver the "weed" to him. Before they left the bar defendant asked Austin if he would like to get "loaded" ("smoke marijuana to get intoxicated"); Austin told him "no," he had to attend to some business. Returning to the Union Hall, Austin gave defendant $15 to be applied on the price on delivery. On Friday noon Austin went to Rosen's apartment; defendant was not there. The next day Austin found him at the Laborer's Union; two days later he saw him in his car. Austin asked him if he was going to be able to deliver the marijuana; defendant reached in his pocket and showed him a roll of money and explained that he had his money but was looking for Vince to further arrangements for the trip to Tijuana. At defendant's invitation Austin went with him to an address to look for Vince; they were told he was not in. Returning to the car Austin identified himself as an officer, informed defendant he was under arrest for offering narcotics for sale, and asked if he wanted to help himself by assisting him in purchasing narcotics from Vince. Defendant said Vince could get all the marijuana and heroin he (Austin) could purchase; without threat or promise he agreed to introduce Austin to Vince. Defendant said he never intended to deliver the marijuana to him (Austin) but that he and Rosen were going to "burn him" (take his money).
 Several days later defendant introduced Austin to Vince. Vince said he understood he wanted to buy 5 ounces of heroin and asked if he wanted "white" or "brown stuff"; Austin said "white stuff" and asked the cost; Vince said it was $250 per ounce and as soon as a shipment came in he would contact defendant who would contact him and arrange for delivery. After waiting some time without hearing from Vince defendant was taken to the station and booked. Austin received neither the marijuana nor his $15 from defendant.
 At the trial defendant denied he ever discussed narcotics with Rosen prior to meeting Austin, and that he ever offered to sell marijuana to Austin. He testified that he and Rosen met Austin at the Union Hall and went to a bar where they discussed narcotics for the first time; that Austin told him he was just off the ship and wanted to "score" some marijuana and was going to Detroit to unload it; that he said to Austin, "What's this all about," and Austin said to Rosen, "I thought you said this guy was all right, that he just got out of the joint. What are you trying to pull on me," and Rosen *439 said, "Well, he's all right. I know him real well"; that Austin asked him to obtain some narcotics but he said he knew nothing about narcotics and had never been involved with them; and that they left the bar and Austin said he wanted to see Rosen on Saturday. Defendant denied he ever received any money from Austin. He further testified that Rosen told him he was trying to "burn" Austin because he had just come off the ship with a lot of money; that several days later Austin showed him his badge and said, "I've got you for offering. Do you want to play ball" and he said, "Yes, I'll play ball. I am on parole"; that then he mentioned Vince only because Austin was threatening him and he had to "bring somebody up"; and that at the station Austin beat him and brandished his gun in a one-sided game of Russian roulette. Defendant admitted two prior felony convictions.
 Appellant raises two issues--the sufficiency of the evidence to support the implied finding that he had a specific intent to sell marijuana, and entrapment.
 [1] While a specific intent to sell a narcotic is an essential element of the crime of offering to make such a sale under section 11531, Health and Safety Code (People v. Brown, 55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072]), delivery of the narcotic is not an essential element of the offense. (People v. Jackson, 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown, 55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072]; People v. Blake, 179 Cal.App.2d 246, 253-254 [3 Cal.Rptr. 749].) Thus, where money is taken by the accused and no narcotics are delivered, whether he intended to make the sale is a question of fact for the trier.
 [2] In concluding that defendant intended to sell marijuana to Austin the trial judge, as he had a right to do, accepted Austin's testimony and rejected defendant's version of what occurred. Various circumstances found in the evidence are not only entirely consistent with, but point to, defendant's intention to sell marcotics to the deputy. Before defendant ever met Austin he told Rosen of his plans to go to Tijuana to buy marijuana; and defendant's discussion with Austin in the bar about the details of his plan to go to Tijuana, buy the narcotic, and sell it here for "fast money" corroborated what Rosen had told Austin the day before. On the way to the bar defendant asked Rosen if Austin was "all right"; such query would have no meaning if all defendant wanted to do was defraud him of his $15. While defendant *440 denied knowing about or ever having been involved in narcotics, the details of his plan to go to Tijuana, his reference to "weed," his acquaintance with Vince (to whom defendant introduced Austin, with whom Austin later discussed narcotics and who, defendant said, could get all he [Austin] could purchase), his plans with Vince and his remark about getting "loaded," are ample proof of his familiarity with narcotics and involvement in such activity. Moreover, it is apparent that defendant's failure to deliver the marijuana to Austin was due, not to his lack of intention to sell to the deputy, but to his inability to complete his plans with Vince to go to Tijuana. Also the fact that defendant thereafter continued to frequent places where he knew Austin could locate him is hardly consistent with a "bunco" operation.
 Defendant's statement to the deputy, at the time of arrest, that he never intended to deliver the marijuana but that he and Rosen were going to "burn" him, is of little value to him. Besides being a self-serving statement, its credibility was destroyed by defendant himself who, under oath, denied he ever took $15 or any money from Austin--thereby repudiating the truth of his statement upon arrest. Further, defendant in his statement to the deputy involved Rosen. It is not likely that Rosen, who was working with federal agents and the sheriff's department (obviously then unknown to defendant), would try to defraud Austin. Appellant argues that only $15 on a $550 purchase shows no bona fide offer to sell, at most that he only wanted the money. But the evidence fails to show that defendant requested the $15 from Austin; it appears that Austin voluntarily gave him the $15 to show his good faith and that it was given upon returning to the union hall some time after they had discussed the sale in the bar. Moreover, defendant had no need of the $15 to make up any part of the purchase price for, as he told Austin, he did obtain his one-half of the purchase money from a woman--several days later he showed Austin a roll of bills indicating its source.
 Unlike in People v. Jackson, 59 Cal.2d 468, 469 [30 Cal.Rptr. 329, 381 P.2d 1]; People v. Brown, 55 Cal.2d 64, 68 [9 Cal.Rptr. 816, 357 P.2d 1072]; and People v. Blake, 179 Cal.App.2d 246 [3 Cal.Rptr. 749], his defense was not (consistent with his statement on arrest that he intended to "burn" Austin) that he only intended to defraud the officer of the $15, but that he never made any offer to sell marijuana to Austin, knew nothing about and was never involved in narcotics, and at no time ever took any money from Austin. *441 Thus, from the testimony of Austin and the federal agent (who had the parties under surveillance much of the time), in the absence of any compelling evidence that defendant's offer to sell marijuana to Austin was false, the trial court reasonably concluded that defendant meant what he said when he agreed to sell and deliver to Austin 5 kilos of marijuana.
 [3] Without merit is the contention that the information requires a reversal of the conviction because it failed to allege defendant's specific intent to sell narcotics. The accusation specifically alleges a violation of section 11531, Health and Safety Code, and follows the language of the statute, (it charged defendant did wilfully, unlawfully and feloniously "offer to sell, offer to furnish and give away a narcotic, to wit, marijuana") and nothing beyond that is required in the absence of special demurrer. (People v. Gelardi, 77 Cal.App.2d 467 [175 P.2d 855].)
 [4] We find in the evidence no circumstance pointing to entrapment. At the trial defendant made no effort to prove he was induced to commit the acts for which he was tried. His defense was that he did none of the acts attributed to him by Austin; he denied that he ever offered to sell Austin narcotics or anything else, or even took his money. Thus, it appears that the defense of entrapment was not an issue. (People v. Tillman 142 Cal.App.2d 404 [298 P.2d 631].) However, reviewing the prosecution's case (People v. Benford, 53 Cal.2d 1, 12 [345 P.2d 928]) we find no evidence to support any issue of entrapment or finding thereon. The record shows only that the deputy asked defendant to sell him 5 kilos of marijuana and defendant agreed; defendant even voluntarily disclosed to Austin the details of his plan to obtain it in Tijuana to sell here for "fast money"--plans he had made long before he ever heard of Austin. The evidence reveals but a regular sale with delivery in the future; there is nothing to show the deputy even used the ordinary persuasion found in most sales.
 For the foregoing reasons the judgment is affirmed.
 Wood, P. J., and Fourt, J., concurred.


IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. AP-76,262

EX PARTE MARK RUSSELL MCKEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. C-34,147 IN THE 244TH DISTRICT COURT
FROM ECTOR COUNTY

           Per curiam.

O P I N I O N

            Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant pleaded guilty pursuant to a plea
bargain, was convicted of burglary of a habitation, and sentenced to ten years’ imprisonment. He did
not appeal his conviction.
            Applicant contends that his plea was involuntary because the plea agreement cannot be
followed.  We remanded this application to the trial court for findings of fact and conclusions of law.
            The plea papers, admonishments, judgment and trial transcripts all reflect that the plea
agreement specifically included the provision that this sentence would run concurrently with
Applicant’s ten year federal sentence imposed in December 2006.  The federal judgment requires
and specifically states that the federal sentence is to begin when the state sentence expires.  The
terms of Applicant’s plea bargain were not met, therefore Applicant is entitled to relief.  Ex parte
Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).
            Relief is granted.  The judgment in Cause No. C-34,147 in the 244th  Judicial District Court
of Ector County is set aside, and applicant is remanded to the custody of the Sheriff of Ector County
to answer the charge against him.
            Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and Pardons and Paroles Division.

Delivered: November 18, 2009
Do Not Publish