        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               November 10, 2011 Session

                  STATE OF TENNESSEE v. KEITH HOWARD

             Direct Appeal from the Criminal Court for Davidson County
                   No. 2006-B-1400    Cheryl A. Blackburn, Judge




                  No. M2011-00621-CCA-R3-CD - Filed July 18, 2012


Defendant, Keith Howard, appeals the trial court’s revocation of his probation sentence.
Defendant pled guilty to selling more than .5 grams of cocaine with an agreed ten-year
sentence, which was suspended except for ninety days, with credit for time served. The
remainder of the ninety days was to be served on weekends. Subsequently, a probation
violation warrant was filed, which alleged that Defendant had failed to follow his probation
officer’s instruction that he submit to a drug test and that he absconded during his drug
screen. Following the hearing the trial court revoked Defendant’s probation and entered a
judgment placing Defendant’s original sentence into effect. We conclude that the evidence
does not preponderate against the trial court’s finding of a violation, and that the trial court
did not err by placing the original sentence into effect by ordering service in confinement.
We therefore affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Drew Justice, Franklin, Tennessee, (on appeal), and David Wicker, Nashville, Tennessee, (at
trial), for the appellant, Keith Howard.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; Shannon Poindexter,
Assistant District Attorney General; Jeff Burks, Assistant District Attorney General; and
Megan King, Assistant District Attorney General, for the appellee, the State of Tennessee.
                                       OPINION

      I. Background

       At the plea submission hearing, the Assistant District Attorney General gave the
following information as a factual basis for the plea:

      [O]n December 14th , 2004, a confidential and reliable informant working in
      conjunction with the Metro Police Department and the FBI purchased 10.7
      grams of cocaine from [Defendant] at the barbershop located at 602 16 th
      Avenue here in Davidson County. The transaction between the confidential
      informant and [Defendant] was audio recorded. Agents observed [Defendant]
      go in and out of the barbershop during the time of the transaction. And during
      a subsequent interview [Defendant] made statements to the agents with regard
      to additional fees and charges that were paid to the barbershop owner for his
      use of the barbershop as a location to sell drugs. [Defendant] was also
      interviewed on April 1st , 2005, at which time he did admit to selling cocaine
      on a regular basis from the barbershop.

      II. Probation Violation Hearing

       At the hearing, the trial court granted the State’s request to amend the probation
violation warrant because Defendant had been arrested for both evading arrest and criminal
impersonation on August 21, 2010. He was convicted on January 13, 2011. The trial court
also gave the following background information concerning petitioner’s file:

      Keith Howard, on 8-30 of ‘07 he pled guilty to Count 3, sale of over point five
      grams of cocaine, sentenced to ten years, had to serve thirty days on
      consecutive weekends and then placed on probation with a $2,000 fine. Then
      on 9-5 of ‘08 we had a probation violation where he had to serve sixty days
      and then was placed back on probation for the balance of the sentence. And
      then this was - - I signed on April the 17 th of ‘09 warrants brought to me by
      Ms. Duhack indicating he had failed to submit to a drug test and, let’s see,
      failed to follow the probation - - her orders. This is April of ‘09. Then we’ve
      amended it to include two new convictions. And then this was finally served
      on him January the 12th of this year. So assume he also hasn’t been in contact
      with probation during that time.

      Jeff Houchins, a general manager for American Roofing and Sheet Metal testified that
Defendant was employed there from September of 2009 until he was laid off in November

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of 2010. He said that Defendant was a diligent worker and did just about anything asked of
him. It was also pleasant to work with Defendant. There was no problem with Defendant’s
work ethic, and he never gave the company a reason to test him for drugs. Mr. Houchins
testified that Defendant was laid off during the winter season and was supposed to come back
to work but injured his leg. Mr. Houchins said that he would consider Defendant for a job
again if Defendant was released from jail and applied for a position. He was aware that
Defendant had past problems but was not sure that he knew Defendant had a felony drug
conviction.

       Defendant conceded that he “didn’t do the drug test, he hasn’t reported in that period
of time, and then he has these three new convictions.” However, he wanted to give the court
an explanation for the violations. Defendant testified that he began using marijuana and
dealing drugs around the age of thirteen or fourteen. He first went to prison at the age of
nineteen and has been incarcerated for most of his adult life. Defendant testified that his first
probation violation occurred because he tested positive for marijuana. He acknowledged that
he had a drug problem.

        Defendant testified that after the first violation, he entered a drug treatment program
at Meharry Medical College. He attended approximately six treatments or classes and was
told that he had thirty days to stop using drugs or he would be kicked out of the program.
Defendant said that he stopped using drugs for “two to three weeks.” However, as the time
for his drug test approached, his counselor advised him to stop using drugs because he could
be kicked out of the program, and his probation would be revoked. At that point, Defendant
said that he stopped going to treatment because he did not want to return to jail. He stopped
treatment in April of 2009, about two or three weeks before the second probation violation
warrant was issued.

       Defendant testified that he was called on April 13, 2009, by his probation officer to
do a drug screen. He explained that he had been working in the sun that day on the Ryman
Auditorium and after being at the probation office for approximately an hour, was unable to
give a sample. He said that while he was waiting, his foreman called and told him that he
would be terminated if he did not return to work. Defendant claimed that he looked for his
probation officer but could not find her so he went back to work without providing a urine
sample. Defendant said that he called the probation office after he left work that day to set
up another appointment but the person at the front desk indicated that his probation officer
was gone for the day.

       Defendant testified that he returned to work the following day and used a co-worker’s
cell phone to call the probation office. He was again advised that his probation officer was
out of the office. Defendant said that the person said, “[W]ell, you didn’t give urine, so

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that’s automatic grounds for refusal and as being dirty.” He said that the person also
informed him that he was “being violated.” Defendant testified that he did not turn himself
in at that point because he continued working. He said that “it was the first time in [his] life
that [he] was given an opportunity to do something right and be positive and working.”
Defendant testified that he was “paying taxes, and it looked good and felt so good to work
and see a check that [he] didn’t want to give up and . . . turn [himself] into jail.” He said that
he did not deal drugs, but had “relapsed with smoking marijuana.” Defendant testified that
he ran when police came to arrest him because he did not want to be locked up again. He
said, “So I evaded them.” Defendant testified that he was finally arrested for the violation
after being robbed and shot one day on his way back to work.

       At the conclusion of the hearing, the trial court stated:

       Well, obviously Mr. Howard violated his probation. This is not his first time.
       It’s the second time. Looking back at the file, this was an extensive drug
       situation, drug deal. Mr. Howard, interestingly enough, was the one who sold
       most of the cocaine out of the barbershop that this was done. Back when it
       occurred, it was no small operation. With that being said the State agreed to
       ten years on probation. But what Mr. Howard has done since then is he didn’t
       take a drug test, he left. He may have some explanation for that. But then he
       just drops out of sight for a year and a half. And his own statement is he just
       didn’t want to go back to jail because he knew he was going to go back to jail
       because he hadn’t been reporting. He got shot in the leg, which brings him
       here, which also is going to prevent me from sending him to CCA because
       they have absolutely no ability to deal with him in his physical condition as he
       is.

       III. Standard of Review

        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 person has violated a condition
of probation. Tenn. Code Ann. §§ 40-35-310, 311. The decision to revoke probation rests
within the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn.
Crim. App. 1991). Revocation of probation is subject to an abuse of discretion standard of
review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
Discretion is abused only if the record contains no substantial evidence to support the
conclusion of the trial court that a violation of probation or community correction sentence
has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof
of a violation need not be established beyond a reasonable doubt, and the evidence need only
show that the trial judge exercised a conscientious and intelligent judgment, rather than

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acting arbitrarily. Gregory, 946 S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995).

        In this case, as he conceded, Defendant violated the terms and conditions of his
probation by failing to submit to a drug test and failing to report to his probation officer. He
admitted that he ran when officers came to arrest him for the violation, and he specifically
said, “So I evaded them.” This resulted in additional charges against Defendant. The record
reflects that the warrant for the current probation violation was issued on April 17, 2009, and
was not served on Defendant until January 12, 2011, at the time that he was shot in the leg
during an alleged robbery. The trial court did not abuse its discretion by revoking
Defendant’s probation, and in fact Defendant concedes on appeal that the trial court correctly
revoked his probation.

        Defendant’s main contention is that the trial court should have granted him split
confinement and drug treatment instead of ordering him to serve his original sentence in
confinement. He argues that the trial court erroneously relied on the severity of the
underlying offense and that the trial court erroneously considered that the “jail’s lack of
medical facilities would ‘prevent’ it from allowing [Defendant] split confinement and drug
treatment.” Upon finding that a defendant has violated the conditions of probation, the trial
court may revoke probation and either: (1) order defendant’s incarceration; (2) order the
original probationary period to commence anew; or (3) extend the remaining probationary
period for a period not to exceed two years. State v. Hunter, 1 S.W.3d 643, 644 (Tenn.
1999); T.C.A. § § 40-35-308, -310, -311. In this case, we point out that Defendant had
previously violated his probation and agreed to serve sixty days before being reinstated to
probation. However, Defendant continues to violate his probation. This Court has held “that
an accused, already on probation, is not entitled to a second grant of probation or any other
form of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CCA-00504,
1999 WL 61065, at *2 (Tenn. Crim. App., Feb. 10, 1999) perm. app. denied (Tenn., June 28,
1999). Therefore, the trial court did not abuse its discretion in ordering Defendant to serve
his original sentence in confinement.

                                       CONCLUSION

        After a thorough review of the record before us, we conclude that the trial court did
not err in revoking Defendant’s probation and imposing his original sentence to serve.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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