        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 13, 2015

        STATE OF TENNESSEE v. TIMOTHY LEWAYNE MORTON

               Appeal from the Criminal Court for Sumner County
              Nos. CR771-2013, CR500-2014    Dee David Gay, Judge


                 No. M2014-02029-CCA-R3-CD – Filed May 15, 2015


The defendant, Timothy Lewayne Morton, appeals the revocation of the probationary
sentence imposed for his Sumner County Criminal Court convictions of disorderly
conduct, public intoxication, repetitive telephone harrassment, and solicitation to bribe a
witness. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

David A. Doyle, Assistant District Public Defender, for the appellant, Timothy Lewayne
Morton.

Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Sidney Preston,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

               On August 13, 2014, the defendant, originally charged in case CR771-2013
with one count of repetitive telephone harrassment and one count of bribing a witness,
pleaded guilty to one count of repetitve telephone harassment and one count of
solicitation to bribe a witness. In addition, in case CR500-2014, the defendant pleaded
guilty as charged to one count each of disorderly conduct and public intoxication. The
trial court ordered all four sentences to be served concurrently and imposed an effective
two-year sentence to be served on supervised probation.

             On August 19, 2014, the defendant’s probation officer, Brian Stanley, filed
a probation violation report alleging that the defendant had violated the terms of his
probation by arriving for his initial appointment while intoxicated, resulting in his arrest
for public intoxication. On September 12, the defendant’s probation supervisor, Scott
Little, filed an amended probation violation report alleging that the defendant had called
the probation offices from the Sumner County jail and threatened Mr. Little and his staff.

             At the September 12, 2014 revocation hearing, Mr. Little testified that,
when the defendant reported to the probation offices on the morning of August 19, “he
stumbled through the office” and had “a heavy odor of alcohol about him.” Mr. Little
inquired whether the defendant had been drinking, and the defendant responded that “he
had been drinking the night before and that that was his right as a citizen to be able to
drink.” The defendant also admitted that he had smoked marijuana. The defendant
became “extremely loud and disruptive” and was “verbally abusive” to other probation
officers. Mr. Little repeatedly asked the defendant to calm down, at which point the
defendant turned his verbal abuse on Mr. Little.

              Mr. Little instructed Officer Stanley to take the defendant to the drug
screening room to administer a drug screen for marijuana usage, and Mr. Little then
contacted the Gallatin Police Department (“GPD”). GPD officers arrived shortly
thereafter, and the defendant was arrested and charged with public intoxication. The
defendant pleaded guilty to public intoxication on September 3.

             Later that same day, the defendant called Mr. Little from jail, and in a 15-
minute, profanity-laced tirade, the defendant “was extremely abusive and threatening,”
made multiple “racist” comments, and threatened to “physically assault[] or kill[] the
staff.” An audio recording of the telephone call was admitted into evidence.

               The defendant testified that the recent events in Ferguson, Missouri
involving “the boy getting shot in the abdomen and twice in the head” were the impetus
for his outburst at the probation office and his subsequent profane and threatening
telephone call. The defendant explained that the Ferguson events had really upset him
and that he had “some rage” and “some hard feelings about white folks at the time.” The
defendant also explained that the healing process from his gastric bypass surgery was
taking much longer than he had anticipated, impacting his ability to work and earn
money, and he believed that, due to the surgery, the small amount of liquor he had
consumed on the evening of August 18 affected his “system” more than it would have
prior to the surgery. The defendant denied smoking marijuana on August 18, explaining
that he mentioned the marijuana to Mr. Little on August 19 because he believed that his
drug usage in late July would prevent him from passing a drug screen.

              The defendant apologized to Mr. Little for his behavior on August 19,
explaining that he “was upset because the boy got shot” and because he could no longer
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work. The defendant admitted that he had pleaded guilty to the public intoxication
charge stemming from the August 19 incident and that the conviction was a violation of
his probation. The defendant also acknowledged that, when he was sentenced on August
13, the trial court had informed him that it was his “last chance on probation.”

             At the conclusion of the hearing, the trial court made the following
findings:

                   Mr. Morton, it’s really a sad commentary here. I
             remember the day that you came in to plead guilty . . . and
             everybody was here working to help you out; releasing you.
             Like you said, things were looking good.

                    And then I hear proof today that when you come in for
             an intake you’re intoxicated. I hear proof today that you are
             slandering, bad-mouthing, the probation officers. And it’s so
             bad that they have to call the police and you are arrested.

                    And subsequent to that, you are charged with public
             drunk and you were convicted of public drunk from coming
             into the probation office on your intake.

                    But another thing that really disturbs me is why in the
             world you would call Mr. Scott Little and have that profane,
             vile, vulgar, abusive type of a conversation with any human
             being regardless of the circumstances. He was just there
             answering the phone. He was there doing his job.

                     And, Mr. Morton, we absolutely cannot have that kind
             of attitude or conduct toward our probation officers and have
             any effective method of probation or supervision. That is
             about as bad as it gets. That phone conversation is scary. It
             is scary, Mr. Morton. And then, by doing that, you also
             violated another rule of probation. So you have violated two
             rules of probation the first day that you reported to probation.

                    It’s very clear that the rules of probation have been
             violated. And I find that you have violated the rules of
             probation. I also find, based on history and the nature and the
             circumstances of these violations, that this sentence will be

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              served in the Tennessee Department of Correction. That will
              be the order of the Court.

The trial court revoked the defendant’s probation and ordered his sentence into execution,
with credit for time served.

              In this timely appeal, the defendant contends that the trial court abused its
discretion by revoking his probation. We disagree.

              The accepted appellate standard of review of a probation revocation is
abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). The 1989 Sentencing Act expresses a burden of proof for
revocation cases: “If the trial judge finds that the defendant has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence. . . .” T.C.A. § 40-35-311(e)(1).

              Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant’s probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “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.” Id. § 40-35-310.

              In the present case, the defendant admitted violating his probation by
pleading guilty to public intoxication on September 3. Thus, the defendant conceded an
adequate basis for a finding that he had violated the terms of his probation. See State v.
Neal Levone Armour, No. E2003-02907-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App.,
Knoxville, Sept. 9, 2004) (citations omitted). Moreover, the trial court determined that
the State established by a preponderance of the evidence two violations of the terms of
probation, to wit: failure to obey the law and failure to refrain from engaging in
assaultive, abusive, threatening or intimidating behavior. The record supports these
determinations, and, therefore, revocation of probation was unquestionably justified.

              We hold that the trial court acted within its discretion, and we affirm the
order of revocation and the imposition of the original sentence.
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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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