         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                           DECEMB ER SESSION, 1997       January 21, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,             )    C.C.A. NO. 03C01-9705-CR-00169
                                )
      Appellee,                 )
                                )
                                )    KNOX COUNTY
VS.                             )
                                )    HON. RICHARD BAUMGARTNER
DAVID TAYLOR,                   )    JUDGE
                                )
      Appe llant.               )    (Probation Revocation)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF KNOX COUNTY


FOR THE APPELLANT:                   FOR THE APPELLEE:

MARK E. STEPHENS                     JOHN KNOX WALKUP
District Public Defender             Attorney General and Reporter

PAULA R. VOSS                        MARVIN E. CLEMENTS, JR.
JOHN HALSTEAD                        Assistant Attorney General
Assistant Pu blic Defende rs         425 5th Avenu e North
1209 Euclid Avenue                   Nashville, TN 37243
Knoxville, TN 37921
                                     RANDALL E. NICHOLS
                                     District Attorney General

                                     PAULA GENTRY
                                     Assistant District Attorney General
                                     City-County Building
                                     Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                           OPINION

          The Defendant appeals as of right from the judg ment of the trial cou rt

which found him to be in violation of the terms of his probation. He argues that

the trial judge failed to exercise conscientious judgment and abused his

discretion . We disagree and affirm the judgm ent of the tria l court.



          On July 11, 1996, the Defendant was c onvicte d upo n his pleas of g uilty to

one count of selling less than one-half gram of cocaine and one count of felony

escape.1 He was sentenced to consecutive terms of five years and one year to

be served on probation with the Community Alternative to Prison Program

(CAPP ), a community-based alternative to incarceration.2 On August 22, 1996,

a warrant was filed alleging that the Defendant had violated the term s of his

probation in several respects. Following an e videntiary hearing, the trial cou rt

determ ined that the Defendant was in violation of the conditions of his CAPP

sentence, and ordered that the remainder of his effective six-year sentence be

served in the Department of Correction. It is from this order of the trial court that

the Defendant appeals.



          Both the granting and denial of probation rest in the sound discretion of the

trial judge. State v. Mitch ell, 810 S.W .2d 733, 735 (Tenn. Crim . App. 1991 ).

Moreover, the trial judge has the d iscretiona ry authority to revoke p robation if a



1
    Tenn. Code Ann. §§ 39-17-417 and 39-16-605.

2
 The Defendant refers to his status as having been on “probation.” The judgment appears
to pro vide f or a c om mu nity co rrec tions sent enc e. W heth er the Def end ant w as on prob ation or in
com mun ity corrections is imm aterial to the d isposition o f this appe al. Participation in a com mun ity
corrections program may be a condition of probation. Tenn. C ode Ann. § 40-36-106 (f).

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preponderance of the evidence establishes that a defendant violated the

conditions of his probation. The trial judge must, however, adduce sufficient

evidence during the probation revocation hearing to allow him to make an

intelligent de cision. Id. The determination made by the trial court, if ma de with

conscientious judgment, is given the weight of a jury ve rdict and e ntitled to

affirman ce. Stam ps v. State , 614 S.W .2d 71, 73 (T enn. Crim. A pp. 1980).



       When a probation revocation is challenged, the appellate courts have a

limited scope of review. For an appellate court to be warranted in finding a trial

judge erred in de terminin g that a violation has occurred, it must be established

that the record contains no substantial evidence to support the conclusion of the

trial judge. State v. Harkins, 811 S .W .2d 79 , 82 (T enn. 1 991). If th e violatio n is

so supported by the record, the judgment of the trial court revoking probation will

not be disturbed on appeal unless it appears that the trial cou rt acted arbitrar ily

or otherwis e abus ed its discre tion. State v. W illiamson, 619 S.W.2d 145, 146

(Tenn. C rim. App. 198 1).



       Testimony estab lished that on e of the cond itions o f the D efend ant’s

release into the community was that he reside at a halfway house known as the

Home Halfway House in Knox County. The Defendant moved into the halfway

house as directed, but after approximately two weeks, he moved out and

thereafter made no effort to com ply with a ny of the terms of his community-based

sente nce. E fforts to c ontac t him w ere un successfu l.



       The Defendant testified at the hearing. He apologized to the court “for not

keeping my end of the deal while on probation.” The Defendant apparently has

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AIDS. He testified that he ha d bee n des pond ent an d dep resse d bec ause of his

illness and his family’s reaction to his illness. He stated that it was the stress

from his condition tha t caus ed him to fail to co mply w ith the c onditio ns of h is

sentence. He promised that if he were given a nothe r chan ce he would com ply

with the conditions of his release. On cross-examination, he acknowledged that

he had previously been on both probation and parole and had violated the terms

of his release on those occasions also. He acknowledged that he had left the

halfway house after only about two weeks, and that he failed to contact anyone

with the program further becaus e he was “d epressed and frustrated.”



      At the conclusion of the hearing, the trial judge stated as follows:


             It sounds, Mr. Taylor, as though there have been some
      certain ly unpleasant times in your life, and I--I have a certa in amount
      of compassion for your situation. Howeve r, Mr. Taylor, there--there
      comes a time when, you know, this Court is left with no choice.

             Now, the m ost rec ent his tory in th is case is that--that you were
      on probation. We revoked that probation, had CAPP take a look at
      you, and sentenced you to serve this sentence on the CAPP
      program with the condition that you reside in and remain in good
      standing at the Home Halfway House up on Connecticut Avenue.
      That was on July 11th of this past--this--six month s ago. And I’ve--I
      told you then, and I wrote it down, that if you get kicked out of the
      house or you failed to report to CAP P that I’m not going to have any
      choice but to revoke you. And as we’ve heard here now today, it
      wasn’t the end of the month before you had violated both of those
      direct orders. And, you kn ow, ba sed o n that, b ased on wh at I told
      you then, and based on your record, I don’t have any choice.


       W e conclude that this record contains substantial evidence to support the

finding of the trial judg e that the D efenda nt violated th e conditions o f his

community-based alternative sentence. We cannot conclude that the trial judge

abused his discretion when he revoked the Defendant’s CAPP sentence and

ordered his sentence served in the D epartment of Correction. We believe the

                                         -4-
record demonstrates that the trial judge made a conscientious and intelligent

decision.



      For these reasons, the judgment of the trial court is affirmed.




                                ____________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
DAVID G. HAYES, JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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