        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs January 25, 2005

                 STATE OF TENNESSEE v. RICHARD P. HOLT

                 Direct Appeal from the Circuit Court for Warren County
               Nos. F-8713, F-8674, F-8681, F-8583 Larry B. Stanley, Judge



                  No. M2004-00733-CCA-R3-CD - Filed February 22, 2005


The Defendant, Richard P. Holt, pled guilty to various drug related felonies in four separate
cases, and he was placed on community corrections, and then transferred to supervised probation
for a period of eight years. Subsequently, a probation violation warrant was issued because the
Defendant left the state without permission, and the Defendant was indicted and arrested for
theft of property valued over $500.00. After a hearing, the trial court revoked the Defendant’s
probation and ordered the Defendant to serve the remainder of his sentences in prison. The
Defendant now appeals, contending that: (1) the evidence is insufficient to revoke the
Defendant’s probation; and (2) the trial court erred in ordering the Defendant to serve the
remainder of his sentence in prison. Finding no error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, and
JERRY L. SMITH, JJ., joined.

Keith S. Smartt, McMinnville, Tennessee, for the appellant, Richard P. Holt.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Dale Potter, District Attorney General; and Larry Bryant, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION
                                            I. Facts

        On November 9, 2001, the Defendant entered guilty pleas in four separate indictments,
resulting in eight felony drug convictions, and an effective probated sentence of eight years. On
September 8, 2003, the Defendant’s probation officer swore out a probation violation warrant for
the Defendant, alleging that the Defendant left the state without permission, and that the
Defendant was arrested and indicted for theft of property over $500.00.


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        The following evidence was presented at the Defendant’s probation revocation hearing:
Wanda Evans testified that the Defendant was placed on probation on December 10, 2001, for a
period of eight years, and that Officer Lynn Bourgeois was the Defendant’s probation officer
from that date until February 2, 2004.1 Evans testified that Bourgeois filed a violation of
probation warrant against the Defendant based on an indictment and arrest in Maury County and
because the Defendant left the state without prior permission from his probation officer. Evans
said that the Defendant’s probation records indicated that, on August 15, 2003, the Defendant
reported to his probation officer that he went to Florida and that he was aware that he was
prohibited from leaving the state of Tennessee without prior permission from his probation
officer. On cross-examination, Evans admitted that the Defendant has complied with all
requirements of his probation, before and after she took over for Bourgeois, except for the two
instances upon which the probation violation warrant was issued.

        Katie Bryant testified that she is a pharmacy clerk at Stewart’s Pharmacy. She said that,
when a person comes to fill a prescription at her pharmacy, the pharmacy employee calls out the
last name on prescriptions when they are ready, and the customers go to the counter and ask for
their prescriptions by name. She recalled that, on February 3, 2003, the Defendant came to the
pharmacy counter and asked for a prescription for “Russell,” but she did not remember if the
Defendant said a first name. She said that the prescription bag contained several different
prescriptions. She testified that the person who picks up a prescription must sign a pharmacy log
that also lists the prescription number, and when the Defendant picked up the “Russell”
prescription, he signed “Bill Jones.” On cross-examination, Bryant admitted that sometimes
prescriptions are picked up by family members or friends of the patient. She said that the
pharmacy does not require identification to pick up a prescription. She did not remember
whether the Defendant claimed to be a family member or a friend of the Russells. She recalled
that the Defendant used to fill his own prescriptions at Stewart’s pharmacy, but she had not
reviewed the records to see how often he did so. She admitted that she did not review the
pharmacy records to see if there was a prescription for “Trussell” the day the Defendant picked
up the “Russell” prescription.

        Nathan Hale testified that he is a pharmacy technician and clerk at Stewart’s Pharmacy.
He recalled that, on February 3, 2003, the Defendant came into the pharmacy to fill a
prescription for himself. He said that the Defendant picked up this prescription, for six
medications, and he signed the name “Richard Holt.” Hale recalled that, after picking up his
own prescriptions, the Defendant returned to the counter and spoke with Katie Evans, but he
could not hear what the Defendant said to Evans. Hale testified that, according to pharmacy
records, there was a prescription filled for “Mr. or Mrs. Trussell” the day before the Defendant
came to the store, but he had no records indicating whether this prescription had been picked up
or was still at the pharmacy when the Defendant picked up the “Russell” prescription. On cross-
examination, Hale admitted that a patient’s family members and friends sometimes pick up a

1

         Evans became the Defendant’s probation officer February 2, 2004, when she took over Officer Bourgeois’
cases.



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prescription, and the pharmacy does not require identification. He said that the pharmacy looked
for, but could not locate, any records to indicate that the “Trussell” prescription was picked up.
Hale said that patients had mistakenly picked up other people’s prescriptions before, but these
patients usually returned the incorrect prescription to the pharmacy to remedy the mistake. Hale
reiterated that the Defendant signed “Bill Jones” when he picked up the “Russell” prescription.
Hale testified that he did not actually witness the Defendant give a prescription to Evans or
physically take a prescription bag from the counter.

        James Trussell testified that, on February 3, 2003, he asked the Defendant to pick up a
prescription that he had filled at Stewart’s Pharmacy. He said that he did not know which
medication the prescription was for, because he is taking six or seven different medications. On
cross-examination, Trussell testified that the Defendant returned with his own prescription, but
did not have Trussell’s prescription. Further, he said that he asked the Defendant where his
prescription was, and the Defendant said he did not pick it up. The Defendant did not tell
Trussell that he picked up someone else’s prescription by mistake.

        The Defendant testified that he is disabled and takes a lot of medication due to a car
accident in which he suffered brain damage and lost part of his arm. He said he has had
prescriptions filled at Stewart’s Pharmacy at least once a month since the year 2000. The
Defendant said that, on February 3, 2003, he went in to pick up his own prescription and
Trussell’s prescription. He said that he had had surgery “that day or a couple of days before,”
but could not remember because he was on pain medications. He said that he forgot to get
Trussell’s prescription, so he went back inside to the pharmacy. He said that he asked for
Trussell’s prescription, the pharmacist handed him a bag, and he left. He testified that, after he
was driving home, he realized that he had the wrong prescription, and “threw it out the window,”
because he was scared. He said that he did not intend to pick up the wrong prescription. The
Defendant could not explain why he signed “Bill Jones” when he picked up the prescription, and
he stated, “I assumed I signed [my name] . . . . Like I said, I was on drugs.” The Defendant
admitted that he left the state of Tennessee without permission from his probation officer.

       On cross-examination, the Defendant said that his only felony convictions were the seven
or eight convictions for which he was on probation. He did not know whether he had ever been
diagnosed with a dual personality, but stated that he “might draw a check for something like
that.” He denied having any alter ego named “Bill Jones.” He admitted that he drove himself to
the pharmacy on the day in question, despite being under the influence of pain medications.

       After hearing the evidence, the trial court stated:

       [Defendant], [I]t is clear that you have violated your probation. I don’t know
       whether you just don’t have any sense or you are cocky or what. I mean, what
       you did was dumb. Number one, you are going to get caught. Number two, you
       testified that you went to Florida. You know that you weren’t supposed to go.
       You violated your probation. You are looking at eight (8) years in the
       penitentiary. I don’t know what that says. Like I said, you are either [a] brave or
       stupid one. It is one of the two. It is clear that you violated your probation in two

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       different ways. I don’t believe anything you just said about those prescriptions. I
       think you intended to get them. Of course, you violated your probation by going
       to Florida. You were given an opportunity. You were charged with serious
       offenses. Sale of mari[j]uana. Sale of Schedule 2 substance. Possession with the
       intent to sell Schedule 2, and Schedule 3, and Schedule 6. You were given an
       opportunity, and you chose not to abide by the rules. Therefore, your probation is
       revoked in Cases F-8713, F-8674, F-8618, and F-8513. You will serve the
       balance of your sentences in each one of those cases.

The Defendant appeals the trial court’s order, contending that: (1) the evidence is insufficient to
revoke the Defendant’s probation; and (2) the trial court erred in ordering the Defendant to serve
the remainder of his sentence in prison.

                                           II. Analysis

        The Defendant argues that the trial court abused its discretion in revoking his probation
because insufficient evidence was presented that he violated his probation. Specifically, the
Defendant argues that the probable cause standard of proof for an indictment and arrest is lower
than the preponderance of the evidence standard of proof for probation revocation, and,
therefore, the trial court abused its discretion in basing the probation revocation on the
Defendant’s arrest. The State counters that the evidence presented was sufficient.

        When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke
probation. Tenn. Code Ann. § 40-35-311(e) (2003). The decision to revoke probation is in the
sound discretion of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991). The judgment of the trial court to revoke probation will be upheld on appeal unless there
has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). To find an
abuse of discretion in a probation revocation case, the record must be void of any substantial
evidence that would support the trial court’s decision that a violation of the conditions of
probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614
S.W.2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it
allows the trial court to make a conscientious and intelligent judgment. State v. Milton, 673
S.W.2d 555, 557 (Tenn. Crim. App. 1984).

       We conclude that sufficient evidence was presented that the Defendant violated his
probation. The Defendant admitted that he violated his probation when he left the state without
his probation officer’s permission. This alone would be sufficient evidence upon which to
revoke the Defendant’s probation. In addition, however, evidence was presented that the
Defendant was arrested and indicted for theft of property over $500.00. There was evidence that
the Defendant went to Stewart’s Pharmacy and picked up a prescription that did not belong to
him. The Defendant signed the name “Bill Jones,” and he made no effort to remedy his alleged
“mistake.” The trial court specifically stated that he did not believe the Defendant’s claim that
the Defendant made a mistake. The evidence does not preponderate against the trial court’s


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findings. Thus, we conclude that the trial court did not abuse its discretion by revoking the
Defendant’s probation.

        Next, the Defendant contends that the trial court erred in ordering the Defendant to serve
the remainder of his sentence in prison, rather than in some form of alternative to incarceration.
Once the trial court makes a finding that a defendant has violated his or her probation, it is
vested with the statutory authority to “revoke the probation and suspension of sentence and
cause the defendant to commence the execution of the judgment as originally entered . . . .”
Tenn. Code Ann. § 40-35-311(e). When probation is revoked, “the original judgment so
rendered by the trial judge shall be in full force and effect from the date of the revocation of such
suspension . . . .” Tenn. Code Ann.§ 40-35-310. In State v. Timothy A. Johnson, this Court
explained that the trial court has discretion to order a defendant to serve the remainder of his
sentence in prison. State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL
242351 *2 (Tenn. Crim. App., at Nashville, Feb. 11, 2002) no perm. app. filed. In Johnson, this
Court stated, “A defendant who is already on probation is not entitled to another grant of
probation or another form of alternative punishment.” Id. Likewise, the Defendant here is not
entitled to another grant of probation. Although he pleads for leniency, arguing that he served
two years of his probation without incident, his probation was for a period of eight years, and he
violated his probation. This issue is without merit.

                                          III. Conclusion

       Based on the foregoing reasoning and authority, we affirm the judgment of the trial court.



                                                      ___________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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