             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                             OCTOBER 1998 SESSION
                                                              FILED
                                                              October 20, 1998

                                                             Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )      C.C.A. No. 02C01-9803-CC-00087
      APPELLEE,                  )
                                 )      Obion County
v.                               )
                                 )      Honorable W illiam B. Acree, Jr., Judge
WANDA DENISE HARRIS,             )
                                 )      (Probation Revocation)
      APPELLANT.                 )




FOR THE APPELLANT:                            FOR THE APPELLEE:

Clifford K. McGown, Jr.                       John Knox Walkup
113 North Court Square                        Attorney General & Reporter
P. O. Box 26                                  425 Fifth Avenue, North
Waverly, TN 37185                             Nashville, TN 37243-0493
(On Appeal)
                                              Marvin E. Clements, Jr.
Joseph P. Atnip                               Assistant Attorney General
District Public Defender                      425 Fifth Avenue, North
111 Main Street                               Nashville, TN 37243-0493
P. O. Box 734
Dresden, TN 38225                             Thomas A. Thomas
(At Trial and Of Counsel on Appeal)           District Attorney General
                                              P. O. Box 218
                                              Union City, TN 38281




OPINION FILED: _________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE




                                      OPINION
       The defendant, Wanda Harris, appeals as of right from a ruling of the Obion County

Circuit Court revoking her probation. On August 12, 1991, the defendant pled guilty to the

sale of cocaine and received a sentence of eight years in the Department of Correction,

plus a fine of $2,000. After serving a confinement period of six months, the defendant was

placed on probation for seven years, six months. On March 22, 1995, the defendant pled

guilty to two offenses of sale of a controlled substance. The trial court imposed sentences

of six years in each case to be served concurrently and a fine of $2,000. The defendant

was ordered to serve five months in the county jail with the balance of the sentence to be

served in a community based alternative program. On August 11, 1995, the defendant

pled guilty to aggravated burglary and received a suspended sentence of five years with

probation.   After a review of the evidence in this record, briefs of all parties, and

appropriate law, we find the revocation of probation justified and affirm the trial court.



                                     BACKGROUND



       The defendant’s criminal endeavors began in December, 1990 with the sale of

cocaine. As a result, the defendant was indicted in cause no. 8092 by the Obion County

grand jury. On August 12, 1991, the defendant agreed to enter a plea of guilty to the sale

of cocaine. The agreed sentence was a $2,000 fine and eight years in the Department of

Correction, with confinement in jail for six months and a probationary period of seven

years, six months. As a condition of probation, the defendant was ordered to pay her fine

and submit to random drug screens.         Apparently, the defendant complied with the

conditions of probation until October 7 and October 10, 1994, when she was charged with

two separate offenses of selling cocaine. In cause nos. 9660 and 9661, the Obion County

grand jury indicted the defendant with the sales of cocaine occurring in October, 1994. As

a result of a plea agreement on March 22, 1995, the trial court sentenced the defendant

to six years in each case and fined her $2,000. The sentences were ordered to run

concurrently. As part of the plea agreement, the defendant was to serve five months and

then be placed in a community alternative based program, Westate Corrections Network,

for the balance of the sentence. On August 14, 1995, the trial court revoked the

defendant’s community based alternative program for the failure of the defendant to obtain

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employment, testing positive in a drug screen for cocaine, and the aggravated burglary

conviction. Again, the defendant was granted probation for these offenses.



       On June 6, 1995, the Obion County grand jury indicted the defendant for aggravated

burglary in cause no. 9856. On August 11, 1995, the defendant pled guilty to aggravated

burglary. As a result of the plea agreement, the trial court sentenced the defendant to five

years in the Department of Correction which the court suspended and placed the

defendant on probation for five years.



       The record establishes on October 20, 1997 a probation violation was filed by the

State in cause nos. 8092, 9660-1, and 9856 based on five forgery indictments, failure to

pay probation fees, failure to pay on her fine, and failure to report from May through

September, 1997. The record does not contain the disposition of this warrant.



       On February 9, 1998, the State filed a supplemental probation violation against the

defendant in cause nos. 8092, 9660-1, and 9856 for failure to pay probation fees, failure

to report since April, 1997, and failure to pay more than $10 of her $2,000 fine.



                           PROBATION REVOCATION HEARING



       On February 27, 1998, the trial court conducted a hearing to determine the merits

of the State’s request to revoke the defendant’s probation. In behalf of the State, Mr. Dale

Green, probation officer with the Department of Correction, testified that he had supervised

the defendant since 1995 and prior to that time, Mrs. Crocker had supervised the

defendant. As to the alleged violations of February 9, 1998, Mr. Green stated that the

defendant had failed to pay her supervisory fees and failed to report voluntarily since April,

1997 as instructed. Mr. Green attempted to contact the defendant via telephone on two

occasions, but was unsuccessful. Also, the defendant failed to pay her fine in cause no.

9856. Mr. Green advised the trial court the defendant had several arrests in July, 1995 and

January, 1996 for criminal trespass and public intoxication. The trial court gave this

testimony little weight.

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       In her own behalf, the defendant testified she was unable to pay her supervisory

fees, since she did not have a job and was taking care of an elderly father until he passed.

The defendant admitted she had only been employed for two months in the past three

years. As to the non-reporting violation, the defendant testified Mr. Green told her in April,

1997 “that as long as I could pay something that I was supposed to be gettin’ off, because

at the time, I had eight years, four supervised, four unsupervised, and I didn’t have to

report anymore. So, I never did report. Cause I didn’t think I was still on probation.” The

defendant testified she could not pay her fines since she was unemployed with no income.

She also stated Mr. Green could not have called her on the phone as she has no phone.



       In rebuttal, Mr. Green denied telling the defendant she did not have to report and

stated the defendant was well aware that she was to report.



       After weighing the evidence, the trial court succinctly ruled:


              Ms. Harris, you’ve had several breaks, but your luck just ran
              out. You are resentenced to TDOC.



       The standard by which we review a probation revocation case is abuse of discretion.

“In order for a reviewing court to be warranted in finding an abuse of discretion in a

probation revocation case, it must be established that the record contains no substantial

evidence to support the conclusion of the trial judge that a violation of the conditions of

probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).



       Also, we note the trial court is entitled to revoke probation upon a finding by the

preponderance of the evidence that a defendant has violated conditions of probation.

Tenn. Code Ann. § 40-35-311(d). The proof of a probation violation need not be

established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make

a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn.

Crim. App. 1984).



       We conclude there is material evidence in this record which justifies the trial court’s


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decision to revoke the defendant’s probation. The defendant has been given many

opportunities to rehabilitate herself since 1991. Since the initial period of probation in

August, 1991, the defendant has been charged and convicted of additional offenses of the

sale of a controlled substance in March, 1995 and aggravated burglary in June, 1995. A

reasonable inference may be drawn that the defendant was on bail at the time of the

aggravated burglary charge. Prior efforts to rehabilitate the defendant in her use of

cocaine were attempted by the trial court in 1995 by placing the defendant on a community

based alternative program, which had to be revoked. We believe the trial court stated it

best when the defendant was advised her luck ran out. We affirm the trial court’s

judgment.




                                         ________________________________________
                                         L. T. LAFFERTY, SENIOR JUDGE


CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
DAVID G. HAYES, JUDGE




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