        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                           Assigned on Briefs January 6, 2009

                    STATE OF TENNESSEE v. BETSY B. HULL

                  Direct Appeal from the Circuit Court for Fayette County
                           No. 5571C J. Weber McCraw, Judge


                    No. W2008-01012-CCA-R3-CD - Filed May 1, 2009



The Defendant-Appellant, Betsy B. Hull (“Hull”) appeals the revocation of her probation by the
Circuit Court for Fayette County. She contends that the trial court erred in denying her motion to
continue and in its decision to revoke her probation. Discerning no error, we affirm the judgment
of the trial court.

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

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which ALAN E. GLENN and J. C.
MCLIN , JJ., joined.

Kari I. Weber, Fayette County Assistant Public Defender, Somerville, Tennessee, for the defendant
- appellant, Betsy B. Hull.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Elizabeth T. Rice, District Attorney General; and Terry D. Dycus, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                       FACTS AND PROCEDURAL BACKGROUND

       On July 12, 2005, in case number 5571C, Hull pled guilty to one count of possession of
Alprazolam, a schedule IV controlled substance, with the intent to deliver and one count of
possession of Dihydrocodeinone, a schedule III controlled substance, with the intent to deliver. She
received a total effective sentence of three years probation following the service of 135 days in
confinement.

        In April of 2007, a probation violation report was filed against Hull in case number 5571C
alleging the following: (1) new arrests for burglary and trespassing; (2) a positive drug screen for
cocaine; and (3) failure to provide proof of payment of fines and court costs. On August 15, 2007,
the trial court revoked Hull’s probation in case number 5571C. On August 30, 2007, in case
number 5923, Hull pled guilty to aggravated burglary and theft of property over $1,000 but less
than $10,000 and received an effective sentence of five years probation following the service of 240
days in confinement. The trial court ordered case number 5923 to be served consecutively to case
number 5571C. In addition, as reflected in the August 30, 2007 order, the trial court reinstated
Hull’s probation in case number 5571C following the service of the 240 days of confinement from
case number 5923.

         On March 7, 2008, a second probation violation report was filed against Hull alleging the
following: (1) a new arrest and conviction for theft of property under $500; (2) failure to report an
arrest; and (3) failure to provide proof of payment of fines and court costs. A probation revocation
hearing was held before the Fayette County Circuit Court on April 3, 2008. Before the revocation
hearing commenced, Hull requested a continuance of the hearing to locate witnesses. The trial
court had previously continued Hull’s case on the same grounds. In considering the motion, the
trial court inquired upon whether the witnesses’ purpose was to “rebut an allegation made against
[Hull] or . . . to try to convince the Court not to revoke her probation.” Hull acknowledged that the
witnesses were to convince the Court not to revoke her probation. Noting that the witnesses were
“not fact witnesses regarding any potential violation,” the trial court denied the motion.

        Kevin Smith, Hull’s probation officer, testified that, while on probation, Hull was arrested
and subsequently convicted for stealing cigarettes from a store. Smith learned of Hull’s arrest when
he noticed Hull wearing “jail clothes and handcuffed” while he was at the jail working on his
caseload. Smith stated that he later verified that Hull pled guilty to theft of property under $500.
Smith also testified that Hull had made no payments toward her balance of $4,902.50 for fines and
court costs.

         On cross-examination, Smith testified that Hull had been reporting to him as instructed since
Hull had been reinstated to probation from her first probation revocation. Smith stated that Hull
had been compliant with probation except for the new theft of property conviction and owing a
balance on fines and court costs. Smith acknowledged that Hull may have had difficulty calling
or visiting his office to inform him of the new arrest while she was incarcerated. Smith stated that
Hull sent a handwritten note to him after he had spoken with her in the jail. Smith stated that Hull
was not employed, has had various health issues, and was attempting to obtain social security
benefits.

        Hull testified on her own behalf at the revocation hearing. Hull stated that she entered a
“nolo contendre” guilty plea to the theft of property charge because she was confused and that she
thought she would be able to “do the time, get out, and go on with trying to get [her] social
security.” Hull said that she should have pled not guilty and that her main concern over the past year
was obtaining a hearing to procure her social security benefits. Hull stated that she received
monthly monetary assistance from friends, lived at a friend’s house rent-free, and received food
stamps. Hull stated that, if she was released and granted social security benefits, she would move
to Memphis to live in a “high rise” community that accepts residents based on their income. On
cross-examination, Hull testified that she did not steal any cigarettes and refused to accept
responsibility for the crime. During re-direct examination, Hull stated that she was also attempting
to remove driving related convictions from her record in order to obtain a driver’s license to drive
to Memphis.



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        At the conclusion of the hearing, the trial court emphasized that Hull has led a “life of
crime” that consisted of over forty convictions. The trial court then revoked Hull’s probation based
on the theft of property conviction. Hull subsequently filed this timely appeal.

                                             ANALYSIS

         I. Denial of Motion for Continuance. Hull argues that the trial court erred in denying her
motion to continue the probation revocation hearing as she was unable to locate a witness. She
asserts that she was prejudiced by not being able to present proof through the witness “in argument
for the court to reinstate probation.” In addition, Hull contends that if the trial court had heard the
proof, “the court would have reached a different result rather than incarceration.” The State argues,
and we agree, that trial court properly exercised its discretion in denying Hull’s motion as this was
the second continuance requested by Hull in an effort to locate a witness that was to testify
regarding sentencing alternatives.

        The grant or denial of a continuance rests within the sound discretion of the trial court. State
v. Rimmer, 250 S.W.3d 12, 40 (Tenn. 2008) (citing State v. Odom, 137 S.W.3d 572, 589 (Tenn.
2004); State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim. App. 1999)), cert. denied, — U.S. — 129
S. Ct. 111 (2008). The decision to deny a continuance will be reversed by this court “only if it
appears that the trial court abused its discretion to the prejudice of the defendant.” Odom, 137
S.W.3d at 589 (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). “An abuse of discretion
is demonstrated by showing that the failure to grant a continuance denied defendant a fair trial or
that it could be reasonably concluded that a different result would have followed had the
continuance been granted.” Hines, 919 S.W.2d at 579 (citing State v. Wooden, 658 S.W.2d 553,
558 (Tenn. Crim. App. 1983)). When a defendant claims that the denial of a continuance
constitutes a denial of due process or the right to counsel, then he or she must establish actual
prejudice. Rimmer, 250 S.W.3d at 40 (citing Odom, 137 S.W.3d at 589)).

         In denying Hull’s motion for continuance, the trial court considered the purpose and scope
of the missing witness’ testimony. Hull acknowledged that the missing witness’ testimony was
regarding Hull’s reinstatement of probation and not to rebut the allegation of her probation
violation. The trial court had also granted Hull’s previous request for continuance for the purpose
of locating the same witness. The record reflects the trial court refused to reinstate Hull’s
probation, in large part, due to Hull’s lengthy criminal history and a new arrest for theft of property.
In this regard, Hull has failed to demonstrate in what way the witness would have affected the trial
court’s decision or how she was prejudiced by the trial court’s denial of the motion. Thus, we
conclude that the trial court did not abuse its discretion in denying Hull’s motion to continue.

        II. Revocation of Probation. Hull argues that the trial court erred in revoking her
probation and reinstating her original sentence. Specifically, Hull contends that the trial court did
not consider the circumstances which led to her theft of property conviction. The State argues, and
we agree, that the trial court properly exercised its discretion in revoking the defendant’s probation
and reinstating her original sentence.

        Our law states that a trial court may revoke probation and order the imposition of the
original sentence upon a finding by a preponderance of the evidence that the defendant has violated
a condition of probation. T.C.A. §§ 40-35-310,-311(e) (2006). Probation revocation rests within
the sound discretion of the trial court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App.

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2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)). A trial court’s
decision to revoke probation will be upheld absent an abuse of discretion. State v. Beard, 189
S.W.3d 730, 735 (Tenn. Crim. App. 2005). In order to establish an abuse of discretion, the
defendant must show that there is no substantial evidence in the record to support the trial court’s
determination that she violated her probation. Id. (citations omitted).

        Here, the record clearly shows that Hull violated her probation because she admitted to
pleading guilty to theft of property while she was on probation. See State v. Johnson, 15 S.W.3d
515, 518 (Tenn. Crim. App. 1999) (holding that a defendant’s concession of an act constituting
violation of probation constitutes substantial evidence of violation, and trial court’s revocation
based thereon is not abuse of discretion). At the hearing, the trial court stated,

       [Hull] gets on the stand and tries to make compelling testimony and as I listen, I go
       back and look at [Hull’s] pre-sentence report. [Hull has] been convicted of at least
       40 crimes. In looking through your pre-sentence history, a lot of those they weren’t
       able to – there are even more beyond that they weren’t able to report on because of
       the age of them. You know, to try to have me have sympathy for you today, this is
       a long pattern. A lot of what you testified to today, I’ve heard from you over and
       over again. But you’ve led a life of crime, over 40 convictions. Most people live
       a life without any convictions. And you’ve had opportunities. And you don’t take
       advantage of your opportunities. You’ve had shock incarceration. That doesn’t
       work. You’ve been found guilty of a subsequent theft which gives the Court clear
       grounds to violate your probation or revoke your suspended sentence which I do
       without hesitation. You’ve been a problem for the community. You haven’t taken
       advantage of things which could have helped you or assisted you. So I’m not
       compelled by your testimony and I find that whatever it takes to get you off the
       streets, the Court is willing to do.

         The record reflects that the trial court considered Hull’s testimony as well as the
circumstances which led to her theft of property conviction. As evidenced by the above remarks,
the trial court was simply not persuaded by Hull’s attempt to convince the court to reinstate her
probation. After revoking Hull’s probation, the trial court acted within its authority and reinstated
Hull’s original sentence. See T.C.A. §§ 40-35-310, -311(e) (2006). Accordingly, we conclude that
the trial court did not abuse its discretion in revoking Hull’s probation and reinstating her original
sentence of confinement.

                                               CONCLUSION

        Based on our review, we conclude that the trial court did not err in denying Hull’s request
for a continuance and reinstating her original sentence after revoking her probation. Accordingly,
the judgment of the trial court is affirmed.


                                                       ______________________________
                                                       CAMILLE R. McMULLEN, JUDGE




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