              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                          FILED
                                 AT KNOXVILLE
                                                                        December 29, 1999

                            NOVEMBER 1999 SESSION                       Cecil Crowson, Jr.
                                                                       Appellate Court Clerk




STATE OF TENNESSEE,                  )
                                     )
             Appellee,               )   No. 03C01-9903-CC-00102
                                     )
                                     )   Blount County
v.                                   )
                                     )   Honorable D. Kelly Thomas, Jr., Judge
                                     )
JIMMY D. JOHNSON,                    )   (Probation revocation)
                                     )
             Appellant.              )



For the Appellant:                       For the Appellee:

Stacey D. Nordquist                      Paul G. Summers
Assistant District Public Defender       Attorney General of Tennessee
419 High Street                                 and
Maryville, TN 37804                      Elizabeth B. Marney
                                         Assistant Attorney General of Tennessee
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         Michael L. Flynn
                                         District Attorney General
                                                 and
                                         Kirk E. Andrews
                                         Assistant District Attorney General
                                         363 Court Street
                                         Maryville, TN 37804-5906




OPINION FILED:____________________



AFFIRMED

Joseph M. Tipton
Judge
                                      OPINION



              The defendant, Jimmy D. Johnson, appeals as of right from the Blount

County Circuit Court’s revocation of his probation. The defendant pled guilty to incest,

a Class C felony, and was sentenced as a Range I, standard offender to six years

confinement in the Department of Correction. The defendant was ordered to serve one

hundred eighty days in the Blount County Jail with the remainder to be served on

supervised probation. He contends that the trial court erred by revoking his probation

and sentencing him to incarceration. We affirm the judgment of the trial court.



              The defendant was originally indicted for rape but pled guilty to incest. He

was originally sentenced to one year in the Blount County Jail followed by four years in

community corrections. On December 31, 1996, a warrant was issued for a violation of

community corrections, alleging that the defendant failed to meet with his community

corrections officer, used alcohol in violation of his community corrections agreement,

failed to attend sex offender group therapy, failed to pay fines and court costs, and

failed to pay supervision fines. At the revocation hearing on March 21, 1997, the trial

court amended the judgment to five years in the Department of Correction and released

the defendant on appeal bond, conditioned upon the defendant’s meeting the

requirements of the community corrections program. On July 26, 1997, another warrant

for a violation was issued.



              This court vacated and remanded the defendant’s original conviction in

order for the indictment to be amended to reflect a charge of incest. State v. Jimmy D.

Johnson, No. 03C01-9602-CC-00062, Blount County (Tenn. Crim. App. Oct. 16, 1997).

The indictment was amended, and the defendant pled guilty to the amended charge of

incest. The trial court sentenced him to six years in the Department of Correction, with

one hundred eighty days to be served in jail and the remainder on probation.



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             On October 5, 1998, a warrant for violation of probation was issued,

alleging various failures by the defendant to follow probation requirements. At the

revocation hearing, the defendant’s probation officer, Mike Lane, testified that the

defendant’s probation began on November 4, 1997. He testified that the defendant

abided by the terms of his probation until September 1998 when the defendant failed to

report on three different occasions. Mr. Lane testified that the defendant also failed to

report to his sex offender counselor, wrote a worthless check for twenty-five dollars, and

provided deceptive answers regarding his participation in sex counseling during a

polygraph examination.



              Mr. Lane testified that the last contact he had with the defendant was on

September 17, 1998, when the defendant called to say that he had missed his

appointments because he had been drinking and having “women problems.” Mr. Lane

testified that he instructed the defendant to report on September 24 in order for Mr.

Lane to help him with his problems but that the defendant did not keep the

appointment. Mr. Lane testified that the defendant missed his follow-up appointment

on November 30, 1998. He said he then learned that the defendant had failed to report

a public intoxication charge from August 1998, and he filed a violation report.



              The defendant testified that his main problem was drinking and that he

stopped going to sex offender counseling because of his drinking. At the conclusion of

the hearing, the trial court summarized the defendant’s lengthy history of prior offenses,

including numerous public intoxication and driving under the influence convictions. The

trial court revoked the defendant’s probation and ordered that the defendant spend the

remainder of his sentence in the custody of the Department of Correction, finding that:

              Doing the best that you can do fighting alcoholism, you know,
              I mean, that’s – the best a person can do is the best a person
              can do, and I’m not being critical of that. But that’s not the only
              consideration. There are lots of alcoholics, Mr. Johnson, that
              don’t commit incest and that don’t have six or seven DUI’s.
              You don’t have to break the law to be an alcoholic and even be


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              drinking. Some people do, some people don’t. And the bad
              thing about that is, it’s public safety and your safety. . . . .
              What I’m saying is that I can’t take the risk anymore because
              of this repeated behavior and how dangerous it is.



              The defendant contends that the trial court erred by revoking his probation

and sentencing him to incarceration. The state contends that the trial court properly

revoked the defendant’s probation and sentenced him to incarceration.



              The decision to revoke probation is within the discretion of the trial court.

State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). Upon revoking probation, the trial

court has the discretion to order the original sentence to be served. See Tenn. Code

Ann. § 40-35-310, -311(d). An abuse of discretion may be found only if the record

contains no substantial evidence to support the conclusion of the trial court. See State

v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).



              Although the defendant contends that the trial court erred by revoking his

probation, he concedes in his brief that sufficient proof was presented at the revocation

hearing to establish that he violated the terms of his probation by drinking and failing to

complete sex offender counseling. Furthermore, he has not demonstrated that the trial

court abused its discretion by ordering him to serve his sentence in incarceration. The

defendant’s lengthy criminal history, his inability to abide by the terms of an alternative

sentence, and his admitted alcohol abuse support the trial court’s decision.



              In consideration of the foregoing and the record as a whole, we affirm the

judgment of the trial court.



                                          ________________________________
                                          Joseph M. Tipton, Judge




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CONCUR:


_____________________________
Jerry L. Smith, Judge


_____________________________
Thomas T. Woodall, Judge




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