                                                                                       03/01/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                       Assigned on Briefs December 18, 2018

                 STATE OF TENNESSEE v. JOE T. BROOKS

                 Appeal from the Hamilton County Criminal Court
                       No. 301045    Don W. Poole, Judge


                            No. E2018-00445-CCA-R3-CD


The Defendant, Joe T. Brooks, appeals as of right, from the Hamilton County Criminal
Court’s revocation of his probationary sentence and order of nine months’ incarceration
for his conviction of reckless endangerment. The Defendant contends that the trial court
abused its discretion by ordering him to serve nine months of confinement before being
returned to supervised probation. Following our review, we affirm the judgments of the
trial court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Steven E. Smith, District Public Defender; and Jay A. Perry, Assistant District Public
Defender, for the appellant, Joe T. Brooks.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Neal Pinkston, District Attorney General; and Andrew Coyle,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION
                             FACTUAL BACKGROUND
       On May 25, 2017, the Defendant pled guilty to possession of a deadly weapon in
count one, reckless endangerment in count two, and simple possession of marijuana in
count three. Tenn. Code Ann. §§ 39-13-10, -17-418, -17-1307. The trial court sentenced
the Defendant to a term of two years’ confinement for count one and eleven months and
twenty-nine days’ confinement for count three, to be served concurrently. The trial court
ordered the Defendant to two years of supervised probation for count two, to be served
consecutively to the sentences for counts one and three. The Defendant was granted
determinate release on August 10, 2017, and began probation on August 14, 2017.
       On October 6, 2017, a probation violation warrant was issued for the Defendant
based upon multiple alleged violations. On February 18, 2018, a probation revocation
hearing was held.
       At the hearing, David Sharrett testified that he worked as a probation and parole
officer for the Tennessee Department of Correction and that he was assigned to the
“Chattanooga Community Impact Program.” According to Mr. Sharrett, the program
supervised eighteen to twenty-four-year-old offenders who must have had a “charge with
an aggravated component, a drug charge[,] or a history of drug charges” to be eligible for
the program. Mr. Sharrett said that the Defendant participated in this program and that he
was the Defendant’s supervisor. Mr. Sharrett’s supervision of the Defendant began on
approximately September 20, 2017.
       Mr. Sharrett explained that the Defendant was released from custody on
determinate release in August 2017 and that the Defendant would have signed paperwork
that discussed the rules of determinate release. At the Defendant’s initial intake
following his release, he tested positive for marijuana. Mr. Sharrett testified that the
Defendant also failed a drug screen by testing positive for marijuana in September and
that he failed to report to the probation office on October 5, 2017.
       On October 6, 2017, Mr. Sharrett and his partner went to the Defendant’s
residence and placed a GPS monitor on his ankle, as required by the Chattanooga
Community Impact Program. Mr. Sharrett said that when he placed the monitor on the
Defendant, he explained how to charge and take care of the device. Mr. Sharrett also
explained to the Defendant that tampering with the device would result in a new
misdemeanor charge and that if the device could not be recovered, the Defendant would
receive a theft charge. Mr. Sharrett testified that the Defendant wore his GPS monitor for
only four hours before removing it. Mr. Sharrett explained that he received a call around
noon on October 6, 2017, from the Defendant, who asked “why the cops were looking
for” him. Mr. Sharrett did not know, but he attempted to calm the Defendant and
encouraged him not to remove the GPS monitor. However, he received information that
the Defendant had tampered with the GPS monitor at 1:30 p.m. Mr. Sharrett and his
partner began looking for the Defendant, but they were unable to locate him. Mr.
Sharrett did find the GPS monitor, with the band clearly cut, in a vehicle located in the
front yard of the Defendant’s residence. Mr. Sharrett took out a vandalism warrant for
the Defendant’s cutting off the monitor and “submitted the violation of probation.”
Approximately five days later, the Defendant was located through the efforts of “a group
of special agents” whose “job is to hunt down people who have absconded supervision.”
The Defendant was taken into custody.
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       Furthermore, Mr. Sharrett explained that the Chattanooga Police Department kept
a record of all known gang members in the area and that the Defendant was a “validated
member of the Rollin 100 Crips” gang.
       The Defendant testified that he began probation following his determinate release
from incarceration. He stated that he knew he was prohibited from using marijuana but
admitted to failing drug screens because he used the drug. The Defendant failed to meet
with Mr. Sharrett on October 5, 2017, but he explained that this was because he had to
take his son to the hospital. The Defendant told Mr. Sharrett this when Mr. Sharrett
arrived and placed the GPS monitor on the Defendant on October 6. When asked what
happened next, the Defendant explained that shortly after Mr. Sharrett put the monitor on
him, a police officer arrived at the Defendant’s house with a warrant for his arrest. The
Defendant stated that he “didn’t stick around to find out” what the warrant was regarding,
and he cut off the GPS monitor. The Defendant confirmed that officers eventually found
him at the home of his then pregnant girlfriend.
       The Defendant explained that he wished to be placed on probation so that he could
take care of his girlfriend and their newborn baby. He testified that his girlfriend was
assaulted in January 2018 and that this resulted in her delivering the baby early. The
Defendant said that their “child was at the hospital in an incubator[.]” He testified that
his child had undergone “at least three to four surgeries” since birth and that he needed to
be able to care for the baby.
       The Defendant also testified that he suffered from mental health issues. He
explained that he had been diagnosed and prescribed medication “since the second
grade[.]” The Defendant asserted that he was no longer a member of a gang. The
Defendant also affirmed that he would “do what [he] need[ed] to do as far as being on
probation[.]”
       On cross-examination, the Defendant admitted that on October 6, 2017, he fled
from the police and a few hours later removed his GPS monitor. The Defendant testified
that he went to his girlfriend’s home, where he remained until October 10, 2017. That
night, he took his girlfriend to the emergency room, and he was arrested the following
day. The Defendant also admitted to smoking marijuana every day while incarcerated
and confirmed that he had used marijuana while released on probation.
       At the conclusion of the hearing, the trial court found that the Defendant violated
the terms of his probation by a preponderance of the evidence. The trial court found that
the Defendant violated the terms by testing positive for marijuana on September 25,
2017, and by cutting off the GPS monitor on October 6, 2017. The trial court found the
Defendant’s temporary disappearance a violation as well. The trial court reasoned that
the Defendant “was on determinate release” and that he “should know what to do and not
to do” on determinate release and ordered the Defendant’s two-year sentence for counts
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one and three into execution. Regarding count two’s two-year sentence, the trial court
ordered the Defendant to serve eleven months and twenty-nine days in the workhouse
consecutively to the remaining time on the determinate release sentence. The trial court
later reduced this to nine months to serve in the workhouse following the remainder of
the determinate release sentence. The Defendant filed a timely notice of appeal.
                                        ANALYSIS
       On appeal, the Defendant argues that the trial court abused its discretion in
ordering the Defendant to serve nine months’ incarceration before being placed on
supervised probation. Specifically, the Defendant argues that this was his first probation
violation and serving “the balance of the sentence that he had been released on
determinate release was sufficient punishment given his age, mental health issues, and
lack of any other criminal convictions.” The Defendant posited that an alternative to
incarceration should have been given regarding the conviction for count two. The State
responds that the trial court exercised proper discretion in ordering the Defendant to serve
nine months in custody. We agree with the State.
        Upon finding by a preponderance of the evidence that a defendant has violated the
conditions of his release, the trial court “shall have the right . . . to revoke the probation
and suspension of sentence” and either “commence the execution of the judgment as
originally entered” or “[r]esentence the defendant for the remainder of the unexpired term
to any community-based alternative to incarceration.” Tenn. Code Ann. § 40-35-311(e).
In a probation revocation hearing, the credibility of the witnesses is determined by the
trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
        Furthermore, the decision to revoke probation is in the sound discretion of the trial
judge. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); Mitchell, 810
S.W.2d at 735. 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, “it must be
established that the record contains no substantial evidence to support the conclusion of
the trial judge that a violation of the conditions of probation has occurred.” Id. (citing
State v. Gear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim.
App. 2011). Such a finding “‘reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)
(quoting State v. Moore, 6. S.W.3d 235, 242 (Tenn. 1999)).
      Here, the trial court reasoned that there was “overwhelming evidence” the
Defendant violated the terms of his probation. The trial court found that the Defendant
had drug use violations and cut off his GPS monitor. This court has repeatedly held that
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“an accused, already on probation, is not entitled to a second grant of probation or
another form of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-
CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999); see also State v.
Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn.
Crim. App. Feb. 11, 2002). The trial court properly considered the evidence presented
at the revocation hearing and the facts of the case before ordering the Defendant to serve
a portion of his sentence. Accordingly, the Defendant is not entitled to relief regarding
this issue.
                                    CONCLUSION
        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
                                                     _____________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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