        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 25, 2012

              STATE OF TENNESSEE v. BRENDA WHITESIDES

               Direct Appeal from the Circuit Court for Cocke County
                        No. 2090 Ben W. Hooper, II, Judge




                  No. E2011-02317-CCA-R3-CD - Filed May 25, 2012




The Defendant, Brenda Whitesides, pled guilty to violating the habitual motor vehicle
offender law, driving on a revoked license, and violation of the financial responsibility law.
The trial court merged the Defendant’s convictions for driving on a revoked license and
violating the habitual motor vehicle offender law and then sentenced her to five years of
probation. The Defendant’s probation officer filed a probation violation warrant that alleged
that she had violated the terms of her probation by failing to report and by moving out of the
State. After a hearing, the trial court revoked the Defendant’s probation and ordered that she
serve her sentence in confinement. On appeal, the Defendant contends that the trial court
improperly based its revocation finding on considerations that were not presented by the
warrant or supported by the facts adduced at the hearing. After reviewing the record, we
affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
Jr., J., joined. J ERRY L. S MITH, J., not participating.

Keith E. Haas, Newport, Tennessee, for the appellant, Brenda Whitesides.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; James Dunn, District Attorney General; and Brownlow Marsh, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                 I. Facts and Background
       On May 10, 2011, the Defendant pled guilty to violating the habitual motor vehicle
offender law, driving on a revoked license, and violation of the financial responsibility law.
The transcript of the hearing during which she entered her plea is not included in the record.
We, therefore, cannot summarize the facts supporting her guilty plea. Her judgments of
conviction, however, reflect that the trial court merged the driving on a revoked license
conviction with her conviction for violating the habitual motor vehicle offender law and then
sentenced her to five years of supervised probation.

        On August 24, 2011, the Defendant’s probation officer filed a probation violation
report in which she alleged that the Defendant had violated her probation by committing the
following: changing her residence without notifying her probation officer, living out of state,
not reporting to the probation office 72 hours after being sentenced, and failing to report on
May 24, 2011 and in June 2011. The warrant alleged the following facts:

       The offender reported to probation that she lived in Sevierville, TN and does
       not. A home check was conducted on 08-23-11, which confirmed the offender
       did not live . . . at the residence she reported on her report forms for probation.
       On or about 08-22-11 @1200, Officer Rebecca Cowan pulled over the
       offender’s husband. It was stated to Officer Cowan that the offender and her
       husband are just in Sevier County for a DHS appointment and that they live in
       North Carolina. In the possession of the offender’s husband was her
       prescription bottle for []oxycodone that was filled 3 days prior and was empty
       when Officer Cowan pulled him over.

              . . . The offender was instructed to report to the probation office 72
       hours after being sentenced in court, [and] she failed to do so. The offender
       also missed her appointment that was scheduled for May 24, 2011. The
       offender finally showed up on May 25, 2011 for her appointment and at that
       time was instructed to report back on June 1, 2011. The offender failed to
       report again for the month of June 2011.

The trial court issued a warrant and, after the Defendant’s arrest, the trial court held a hearing
on the alleged probation violations.

       At the hearing, the following evidence was presented: The probation officer, Jennifer
Ramsey, testified that the Defendant had failed to report several times while she was under
supervision in Cocke County, so Officer Ramsey sent the Defendant a letter to allow her to
transfer her supervision to Sevier County. The Defendant failed to report for that
appointment, and her transfer was denied. Cocke County submitted another transfer letter,
and the Defendant appeared. The transfer of the Defendant’s probation supervision from

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Cocke County to Sevier County was granted on July 18, 2011. Officer Ramsey said that on
August 22, 2011, the Defendant was at the DHS office in Sevier County for an appointment
about her food stamps. While the Defendant was in the meeting, the Defendant’s husband
was stopped by police officers. The probation officer offered a printout given to her by the
Defendant on September 2, 2011, that showed that the Defendant had filled a prescription
for Oxycotin on August 22, 2011, only a few days before her husband was stopped. The
bottle was empty at the time the Defendant’s husband was stopped by police.

      Officer Ramsey testified that two other officers went to the Defendant’s listed address
on August 23, 2011, and they discovered she was not living at that address. The Defendant
had not given Officer Ramsey notice that she had moved or provided her an alternate
address. The officer said she was still, at the time of the hearing, unaware of the Defendant’s
permanent address.

       Officer Ramsey said the Defendant had failed to report four times since May 2011,
when she was sentenced, and that the Defendant had not offered any excuses for her failure
to report.

        Officer Ramsey testified that, after the Defendant was sentenced to probation, she
reported to the Cocke County probation office and asked for a transfer to Sevier County. On
June 7, 2011, Officer Ramsey sent a letter about the transfer to the Defendant at the
Defendant’s listed address. The letter was never returned to her, but, when the Defendant
failed to report, Officer Ramsey denied the Defendant’s transfer request. When the
Defendant reported for her next scheduled appointment on July 18, 2011, and again asked
for a transfer, Officer Ramsey granted her request.

         The Defendant reported as scheduled on August 11, 2011, and Officer Ramsey set her
next appointment for September 23, 2011 at 11:00 a.m. On August 22, Officer Cowan called
Officer Ramsey about stopping the Defendant’s husband. When Officer Ramsey could not
reach the Defendant by telephone because the Defendant’s phone was disconnected, she sent
the Defendant a letter asking her to come in to the office before her next appointment. The
police officer conducted a home visit and discovered the Defendant was not living at the
address she had provided to Officer Ramsey. When she could not reach the Defendant by
letter, she filed the warrant at issue in this case on September 1, 2011.

       Based upon this evidence, the trial court stated:

       Okay. Every now and then the Court is looking at something that really, really
       raises a red flag. Since 1983, Ms. Whitesides, you have been in court at least
       once or multiple times every year except when you were in the penitentiary.

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       Your criminal history is six pages long. You have numerous parole/probation
       violations. Sevier County, there’s two on this page, plus a one year felony
       escape charge. Your charges are overwhelmingly drinking related, driving
       related. Here is where you got three year[s] . . . out of criminal court of Knox
       County from operating a motor vehicle. I’ve never seen it framed in those
       words, but here you were an absconder from community corrections. That of
       course was revoked. You were resentenced to four years. Here’s another
       HMVO felony, and that’s what you’re doing here today I believe, isn't it,
       HMVO primarily?

              ....

             Right. Here’s another 1999 two year sentence for HMVO violation.
       Three year sentence for introduction of contraband in Sevier County jail.
       Forgery in 2002 at 45 percent, which of course means that you are a persistent
       offender.

              ....

             You’ve been – well, I couldn’t begin to tell you how many violations
       and misdemeanors that you have, but a bunch of them.

At that point, the Defendant asked to addressed the trial court and stated:

              I haven’t been in trouble since like 2004 except a violation that I got
       from 2004 that I had to do in 2007 or 2008, but that was something that
       happened, you know, in 2004 and I haven’t been in trouble since then. And
       my escape charge that you were talking about was when my mom passed away.
       I didn’t escape. I was let free to go to the hospital with her. I mean, I haven’t
       been in trouble. I mean, I did one time driving and I was driving from work.

The trial court responded:

              Well, in late 2003 you’ve got a four year sentence, TDOC at 45 percent.
       In December of 2003 you were charged with violation of probation then and
       – but reinstated on the basis of amount of time served, but then in 2005 your
       parole was revoked, so you did get into trouble since 2004.

The Defendant stated:



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              The reason it was revoked I had three months left on parole and I didn’t
       realize that I had still had that much time left.             We just had a
       misunderstanding, but by the time that I got in front of the parole hearing my
       time was up and I was released.

The trial court stated:

              But your record shows otherwise. . . . [I]n 2007, August, you were
       charged with theft under five hundred dollars as well as possession of drug
       paraphernalia, given 11/29 on each one of them. That’s since 2004. And then
       January the 5th of 2008 you were sentenced 120 days in jail for violation of
       probation. Then in June of 2008 in Knox County you were given 11/29 on two
       charges. Well, one you got in June for theft under five hundred and then in
       August another one, and then you got here, so you have been in trouble,
       ma’am. I don’t understand how you could have gotten all of that.

              ....

               Now, at your age, and you’re a young person, ma’am, but you’ve got
       a serious problem. Anybody that has made no more progress in rehabilitating
       themselves since at least 1984 and has amassed a six page criminal history
       reached a 45 percent persistent offender status needs some help. Now, I’m
       going to give you some help. I’m going to let you – I find you to be in
       violation for not reporting – and based upon what this record reflects, and
       you’re going to execute this sentence. Now, this is going to give you an
       opportunity, ma’am, to get on the right track. You don’t like what I’ve just
       said, you don’t like me for what I’ve just said, and that’s perfectly okay. I
       would dare venture to say that you may come back to see me one of these days
       and say, Thank you, Judge. It ain’t in you now and I don’t expect you to say
       that today. But I – you know, to turn you loose or give you a pat on the back
       and say, well, you failed to report; you see, that’s what the problem is, you
       must report. That’s the only way the system works. So that’s the judgment of
       the Court. You’ll be required to execute this sentence.

        The trial court stated that he considered the Defendant’s criminal record and the fact
that she “stood there under oath and told [him] things that were not true” as an indication that
she was “just not ready to get with the program.” It is from this judgment the Defendant now
appeals.

                                         II. Analysis

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       On appeal, the Defendant contends that the warrant is invalid because it was sworn
out by an officer who was not the affiant. The Defendant further contends that the proof at
the hearing did not support that the Defendant was not living at her listed address. Further,
the proof, she asserts, did not show that she failed to report to her probation appointments.
Finally, she asserts that the trial court improperly considered her prior criminal history when
revoking her probation. The State counters that there is ample evidence in the record to
support the trial court’s findings. We agree with the State.

      In Tennessee, the procedure for revocation of probation is covered in Tennessee Code
Annotated section 40-35-311. The statute provides as follows:

       Whenever it comes to the attention of the trial judge that any defendant, who
       has been released upon suspension of sentence, has been guilty of any breach
       of the laws of this State or has violated the conditions of probation, the trial
       judge shall have the power to cause to be issued under such trial judge’s hand
       a warrant for the arrest of such defendant as in any other criminal case.
       Regardless of whether the defendant is on probation for a misdemeanor or a
       felony, or whether the warrant is issued by a general sessions court judge or
       the judge of a court of record, such warrant may be executed by a probation
       officer or any peace officer of the county in which the probationer is found.

T.C.A. § 40-35-311(a) (2010).

        The essential question facing the trial court in a probation revocation proceeding is
whether the court’s determination will subserve the ends of justice and the best interest of
both the public and the probationer. See Hooper v. State, 297 S.W.2d 78, 81 (Tenn. 1956).
When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke
probation. T .C.A. § 40-35-311(e) (2010). Upon finding that the defendant has violated the
conditions of probation, the trial court may revoke the probation and either: (1) order
incarceration; (2) order the original probationary period to commence anew; or (3) extend
the remaining probationary period for up to two additional years. State v. Hunter, 1 S.W.3d
643, 644 (Tenn. 1999); see T.C.A. §§ 40-35-308, -310, -311 (2010). The defendant has the
right to appeal the revocation of his probation and entry of his original sentence. T.C.A. §
40-35-311(e)(2) (2010). After finding a violation, the trial court is vested with the statutory
authority to “revoke the probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered . . . .” T.C.A. § 40-35-
311(e)(1) (2010); accord Hunter, 1 S.W.3d at 646 (holding that the trial court retains the
discretionary authority to order the defendant to serve his or her original sentence in

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confinement). Furthermore, when probation is revoked, the trial court may order “the
original judgment so rendered to be in full force and effect from the date of the revocation
of the suspension . . . .” T.C.A. § 40-35-310(a) (2010).

        Because Tennessee law permits the trial court to revoke probation only upon finding,
by preponderance of the evidence, that the defendant has violated the terms of his or her
probation, this Court will not disturb the trial court’s determination absent an abuse of
discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Farrar, 355 S.W.3d
582, 586 (Tenn. Crim. App. 2011), perm. app. denied (Tenn. Oct. 18, 2011); State v. Reams,
265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). A finding of abuse of discretion “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.” Shaffer, 45
S.W.3d at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

       In the case presently before us, the Defendant first contends that the warrant was
invalid. She failed to present this argument before the trial court below and failed to offer
any proof to support this argument. Further, she failed to cite any legal authority for the
proposition that having the wrong affiant sign the warrant makes the warrant invalid.
Therefore, we deem this issue waived. See Tenn. R. Crim. P. 10(b); Tenn. R. Crim. P.
12(b)(2), (f) (issues presented for the first time on appeal are considered waived).

        We further conclude that the trial court did not abuse its discretion when the trial court
found by a preponderance of the evidence that the Defendant had violated her probation.
Importantly, it is not permissible for a trial court to revoke probation based on criminal acts
known at the time the probation was originally granted. State v. Marcus Nigel Davis, No.
E2007-02882-CCA-R3-CD, 2008 WL 4682238, at *4-5 (Tenn. Crim. App., at Knoxville,
Oct. 23, 2008), (citing State v. Shannon Lee Beckner, No. 923, 1991 WL 43545, at *5 (Tenn.
Crim. App., at Knoxville, Apr. 2, 1991), no Tenn. R. App. P. 11 application filed and State
v. Beard, 189 S.W.3d 730, 737 (Tenn. Crim. App. 2005)), no Tenn. R. App. P. 11 application
filed. In the record before us, the trial court discussed with the Defendant her previous
criminal history and her need for help. The vast majority of that discussion occurred after
the Defendant asserted to the trial court that she had not been in trouble since 2004, and the
trial court explained how her record refuted her statement.

       Ultimately, when revoking the Defendant’s probation, the trial court then stated, “I
find you to be in violation for not reporting.” The trial court did not abuse its discretion
when making this finding. The Defendant’s probation officer testified that the Defendant
had missed four appointments. She said the Defendant offered no excuse for her failure to
report. Further, the probation officer testified that, based upon the Defendant’s failure to



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report, she had denied the Defendant’s first transfer request. This evidence sufficiently
supports the trial court’s findings. The Defendant is not entitled to relief on this issue.

                                     III. Conclusion

      Based on the above mentioned reasoning and authorities, we affirm the trial court’s
judgment.


                                                  ___________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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