        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 23, 2010

              STATE OF TENNESSEE v. BRIAN DAVID BLACK

                 Appeal from the Criminal Court for Hamilton County
                       No. 247152    Rebecca J. Stern, Judge


                 No. E2009-01622-CCA-R3-CD - Filed April 12, 2010


The Defendant, Brian David Black, appeals from the Hamilton County Criminal Court’s
order revoking his probation for theft of property over $500, a Class E felony, and ordering
him to serve his three-year sentence in the Department of Correction. He argues that the trial
court erred in ordering his sentence to be served, rather than imposing some less severe
sanction. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE
and D. K ELLY THOMAS, JR., JJ., joined.

Ardena J. Garth, District Public Defender; Richard Kenneth Mabee, Assistant Public
Defender (on appeal); and Kandi Rankin, Assistant Public Defender (at trial), for the
appellant, Brian David Black.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; William H. Cox, III, District Attorney General; and William H. Hall,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        The Defendant began serving his probation sentence in this case on February 27,
2008, following completion of a sentence in another case. The violation warrant was issued
on July 8, 2008, based upon allegations that the Defendant failed a drug screen, failed to
maintain employment, failed to report to his probation officer, failed to pay fees, and failed
to attend alcohol and drug counseling. A second violation report was filed on October 29,
2008, adding an allegation that the Defendant moved without notifying his probation officer
of his new address.
       The trial court conducted a revocation hearing at which Jennifer LaFerry, the
Defendant’s probation officer, testified that the Defendant tested positive for marijuana and
cocaine on April 25, 2008. She said the Defendant was given referrals to drug and alcohol
treatment, but he failed to attend the programs. Likewise, he failed to attend two
appointments with a program that would have assisted him in finding employment. She said
the Defendant failed to report to the probation office on several occasions and had not been
seen there since April 25. She said that on October 24, 2008, she learned from a law
enforcement officer that the Defendant had moved from his residence about a week earlier,
meaning he had absconded from probation. She said that although the Defendant was
supposed to take medication, she was unsure whether he was taking it at the time he began
probation. She acknowledged that some of his behavior could have resulted from his not
taking proper medication.

        Brenda Black testified that she was the Defendant’s mother. She said the Defendant
had suffered from mental health issues all his life. She stated that the Defendant was
currently taking his medication, although his prison psychiatrist had discontinued it when he
was incarcerated. She said he also had not received his medication at times when he was in
the county jail. She said the Defendant had a hard time remembering things. She said that
if the Defendant were released on probation, she or another family member would help him
attend his probation and mental health appointments. She acknowledged that she had been
available to assist the Defendant in his previous attempts at probation and that the Defendant
lived with his wife, not her.

        The Defendant testified that he had been diagnosed as “Bipolar Phase II, manic” and
that he took lithium and Elavil. He said that his doctor took him off medication when he was
in prison and that he was not taking the medicine when he was reporting to Ms. LaFerry. He
said that by the time of the July 6, 2009 hearing, he had been taking his medication for four
or five months.

       The Defendant testified that he did not understand he was supposed to report to
probation after his parole ended. He said that he thought the paperwork he signed was for
parole, not probation. He acknowledged that he was not current in paying his fees, but he
said he was unemployed. He said he had applied for disability but then failed to follow
through with the process. He said that if given another chance, he would report to his
probation officer. He explained that he moved in October 2008 because his wife lost her job
and they needed to live somewhere with less expensive rent.

       The Defendant acknowledged his positive drug screens. He said he was not taking
medication at the time of the drug screens. He said he had been working with doctors to find
the right medication.

                                             -2-
       Ms. LaFerry testified in rebuttal that the Defendant’s parole expired on February 27,
2008. She said he was informed that after that date, he was on probation, and he reported to
the probation office in March and April. She identified the forms from the days he reported
in March and April. She acknowledged that the forms were the same as the ones used for
parole reporting.

       After receiving the proof, the trial court made the following findings:

              I find that he has violated probation by failing drug screens on
              two occasions, failing to complete the first drug counseling
              program they assigned him to, failing to report to the second one
              that he requested, failing to report and complete Endeavors [job
              placement program] as ordered, failing several times to report to
              the probation officer and then finally absconding from
              probation.

                     The petition to revoke is sustained. His sentence is
              ordered into execution. He will be given credit for any time
              served.

       On appeal, the Defendant argues that the trial court erred in revoking probation and
in ordering the sentence into execution. He also argues that the court failed to make a finding
by preponderance of the evidence that the violations occurred. The State responds that the
record supports by a preponderance of the evidence that the Defendant violated probation,
given that he admitted several violations in his testimony, and that the trial court did not err
in revoking probation. We agree with the State.

       A trial court may revoke a suspended sentence upon its finding by a preponderance
of the evidence that a violation of the conditions of release has occurred. T.C.A. § 40-35-
311(e) (2006). If a trial court revokes a defendant’s probation, its options include ordering
confinement, ordering the sentence into execution as originally entered, returning the
defendant to probation on modified conditions as appropriate, or extending the defendant’s
period of probation by up to two years. T.C.A. §§ 40-35-308(a), (c), -310; see State v.
Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The judgment of the trial court in a revocation
proceeding will not be disturbed on appeal unless it appears that there has been an abuse of
discretion. See State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981).

       In the present case, the Defendant acknowledged that he had committed numerous
probation violations. He attempted to explain his behavior and asked the court for another
opportunity. The presentence report in the technical record reflects that the Defendant had

                                              -3-
numerous convictions and had been given several opportunities in non-incarcerative settings.
He had previous probation and parole revocations. We conclude that the trial court did not
abuse its discretion in revoking probation and ordering the Defendant to serve his sentence
in the Department of Correction. Further, given the undisputed evidence of the violations,
the trial court’s failure to specify that its findings were made by a preponderance of the
evidence is of no consequence.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                               ___________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -4-
