        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2011

                STATE OF TENNESSEE v. DANNY D. HOLMES

            Direct Appeal from the Circuit Court for Rutherford County
                        No. F-63344     Don R. Ash, Judge


                  No. M2010-01770-CCA-R3-CD - Filed June 3, 2011


The Defendant-Appellant, Danny D. Holmes, appeals the revocation of his probation. He
pled guilty in the Circuit Court of Rutherford County to robbery and aggravated assault, both
Class C felonies. Holmes received an effective sentence of six years in the Tennessee
Department of Correction. Pursuant to the plea agreement, he was granted an alternative
sentence of six years on probation. Holmes claims on appeal that the trial court abused its
discretion by revoking his probation and imposing the original term of confinement. Upon
review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Brian Jackson, Nashville, Tennessee, for the Defendant-Appellant, Danny D. Holmes.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
William C. Whitesell, Jr., District Attorney General; and Trevor Lynch, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

        Background. Holmes was placed on probation on December 21, 2009. Some three
months later, a violation report was filed alleging that Holmes failed to comply with the law
based on a new arrest, failed to report a new arrest to his probation officer, possessed an
illegal weapon, engaged in assaultive, abusive, or intimidating behavior, and associated with
convicted felons.

      Revocation Hearing. Detective John Singleton of the Murfreesboro Police
Department testified that he responded to an armed robbery and home invasion call on
February 25, 2010. He and two other officers went to the scene and were informed that there
were three perpetrators. He was also given a description of the perpetrator’s vehicle.
Detective Singleton testified that a vehicle matching the description was stopped by a patrol
officer. Detective Singleton stated:

              The vehicle was stopped, the investigation revealed, at the Toyota
       dealership on South Church. The front seat passenger, later identified as Mr.
       Holmes, bailed out of the vehicle and left on foot. The other two subjects, Ms.
       Perry and Mr. Peebles, [were] taken into custody by patrol.

        Detective Singleton said Holmes was eventually apprehended by the police. The
victims and the perpetrators were brought together at the Toyota Dealership. Each of the
three victims “individually identified Mr. Holmes, Ms. Perry, and the other individual” as the
perpetrators. Detective Singleton later clarified that Peebles was “the other individual” that
was identified. Detective Singleton testified that he heard Holmes threaten one of the victims
at the Toyota Dealership. Detective Singleton stated, “Mr. Holmes made some remarks to
Mr. Wallace that Mr. Wallace felt was in a threatening manner[.]” Detective Singleton stated
that Holmes said, “I know where you live, [and] I have got your zip code.” Based on these
remarks, Detective Singleton charged Holmes with coercion of a witness. Detective
Singleton said Holmes was also charged with three counts of armed robbery, three counts of
assault, and one count of possession of a weapon by a felon.

       On cross-examination, Detective Singleton testified that no weapon was found during
the investigation. The police searched the vehicle that was used by the perpetrators.
Detective Singleton said one of the victims, Mr. Wallace, suffered a wound to the head. Mr.
Wallace reported that Holmes hit him in the head with a gun. Detective Singleton testified
that Holmes was apprehended by a K-9 unit after he left the perpetrator’s vehicle. When
Holmes was apprehended, he was not in possession of a gun. Detective Singleton said he
believed Holmes and Peebles associated on February 25, 2010.

       The probation officer, Jordan Oliver, testified that he worked for the Tennessee Board
of Probation and Parole. He prepared the violation report in this case. The probation officer
said Holmes was placed on probation on December 21, 2009. The probation officer
determined that Holmes violated several conditions of his probation. He said Holmes was
arrested on February 25, 2010, for three counts of aggravated assault, three counts of
aggravated robbery, two counts of aggravated kidnapping, and one count of domestic assault.
Additionally, the probation officer alleged that Holmes failed to report the new arrests,
associated with a felon, and engaged in assaultive, abusive, or intimidating behavior. Lastly,
the probation officer found that Holmes possessed a weapon. He said Holmes had no prior
probation violations.

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       Following the testimony at the revocation hearing, the trial court determined that
Holmes violated the conditions of his probation. The trial court found that Holmes was
involved in threatening, assaultive, or intimidating behavior. It also found that Holmes
associated with a convicted felon. The trial court did not specify the factual basis of either
finding. The trial court noted that the defense presented no evidence to rebut the allegations
of Detective Singleton. The trial court revoked the probationary sentence and imposed the
original term of confinement. Holmes then filed a timely notice of appeal.

                                        ANALYSIS

       I. Probation Revocation. Holmes claims the trial court abused its discretion by
revoking his probation and imposing his original sentence. He argues that Detective
Singleton and the probation officer lacked personal knowledge of the facts supporting the
violations. Holmes asserts that Detective Singleton was not a witness to the alleged
violations or an arresting officer. In response, the State argues that the trial court properly
revoked the probationary sentence. The State claims the evidence supported the following
violations: failure to obey the law, possession of an illegal weapon, failure to inform the
probation officer of all arrests, association with a convicted felon, and engagement in
threatening, assaultive, or intimidating behavior. Upon review, we conclude that the trial
court did not abuse its discretion by revoking the probationary sentence and imposing the
original term of confinement.

        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 his or her probation. T.C.A. §§ 40-35-310, -311(e) (2009). Probation revocation rests
within the sound discretion of the trial court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn.
Crim. App. 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 regarding the probation violation. Id. (citations
omitted).

       Once the trial court has determined a violation of probation has occurred, it retains
discretionary authority to order the defendant to: (1) serve his sentence in incarceration; (2)
serve the probationary term, beginning anew; or (3) serve a probationary period that is
extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999).
Additionally, under Tennessee Code Annotated section 40-35-310(b), the trial court




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        may also resentence the defendant for the remainder of the unexpired term to
        any community-based alternative to incarceration authorized by chapter 36 of
        this title; provided, that the violation of the defendant’s suspension of sentence
        is a technical one and does not involve the commission of a new offense.

T.C.A. § 40-35-310(b). The determination of the proper consequence of the probation
violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647; State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).

        In this case, the trial court did not abuse its discretion by finding that Holmes violated
his probation. The trial court determined that Holmes associated with a convicted felon and
engaged in threatening, assaultive, or intimidating behavior. Both of these findings were
supported by substantial evidence at the revocation hearing. Detective Singleton said he
responded to a call regarding an armed robbery and home invasion. He went to the scene of
the offenses and spoke to the victims. Detective Singleton testified that the victims identified
Holmes and Peebles,1 a convicted felon, “as being the ones that committed this alleged
offense.” Detective Singleton stated that during the investigation, a patrol officer stopped
a vehicle that contained Holmes and Peebles. This evidence is sufficient to show that
Holmes associated with a felon. Testimony was also given that Holmes engaged in
threatening, assaultive, or intimidating behavior. Detective Singleton said one of the victims
reported that Holmes struck him in the face with a gun. Additionally, Detective Singleton
heard Holmes threaten a victim after he was apprehended. Detective Singleton said the
victims and the perpetrators were brought together at the Toyota dealership. Detective
Singleton stated, “Mr. Holmes made some remarks to Mr. Wallace that Mr. Wallace felt was
in a threatening manner, which is I know where you live, I have got your zip code.”
Detective Singleton testified that he charged Holmes with coercion of a witness based on
these remarks. The foregoing testimony provides substantial evidence that Holmes violated
his probation.

       We are not persuaded by the claim that Detective Singleton lacked adequate personal
knowledge of the violations. Holmes argues that this case is analogous to this court’s
decision in State v. Calvin Austin, No. W2005-02592-CCA-R3-CD, 2006 WL 4555240, at
*2 (Tenn. Crim. App., at Jackson, Aug. 9, 2006). In Calvin Austin, the trial court revoked
a defendant’s probation based on new arrests. Id. This court determined that the revocation
was improper because the evidence did not establish by a preponderance of the evidence that
the defendant violated the law. Id. It stated that “the trial court based its decision to revoke


        1
         Peebles was also on probation at the time of the new arrests. The revocation hearing in this case
covered violation reports for both Holmes and Peebles. Peebles’ probation officer testified that Peebles was
on probation for aggravated assault and possession of cocaine.

                                                    -4-
the appellant’s probation on the mere fact of an arrest rather than by a preponderance of the
evidence.” Id. The court pointed out that the record did not contain the new arrest warrant,
the indictment, or the probation violation warrant. Id. Additionally, the court emphasized
that the trial court “effectively prohibited” the State from presenting evidence of the alleged
violation. Id.

        Calvin Austin is distinguishable because the trial court in this case did not base its
decision on the new arrests.2 The trial court found that Holmes associated with a convicted
felon and engaged in threatening, assaultive, or intimidating behavior. As discussed above,
Detective Singleton presented substantial evidence in support of these violations. Detective
Singleton testified that he was directly involved in the investigation of this case. He said he
responded to the scene of the offenses and spoke with the victims and other officers.
Detective Singleton testified that he was present when the victims identified the perpetrators
at the Toyota Dealership. Detective Singleton was also present when Holmes verbally
threatened a victim. Holmes has offered no legal support for the claim that information
obtained by an officer during an investigation cannot provide the basis for a probation
violation. Holmes had the burden of proving that no substantial evidence supported the trial
court’s findings. Beard, 189 S.W.3d at 735. He has not met this burden. The trial court
properly found that Holmes violated his probation. Therefore, the trial court was authorized
to revoke his probation and impose the original sentence. Hunter, 1 S.W.3d at 647. Holmes
is not entitled to relief.

                                           CONCLUSION

        Based on the foregoing, the judgment of the trial court is affirmed.


                                                         ______________________________
                                                         CAMILLE R. McMULLEN, JUDGE




        2
         We recognize that the record contains limited evidence regarding the new offenses. The underlying
conduct for these offenses was not presented in detail at the revocation hearing. Additionally, the record
does not include the new arrest warrants or indictments.

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