        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 12, 2014

     STATE OF TENNESSEE v. JORDAN ALEXANDER RODRIGUES

                   Appeal from the Circuit Court for Marshall County
                    No. 2010-CR-95    Franklin L. Russell, Judge



                No. M2014-01001-CCA-R3-CD - Filed March 27, 2015



The Defendant-Appellant, Jordan Alexander Rodrigues, appeals the revocation of his
probation by the Marshall County Circuit Court. He previously entered a guilty plea to
burglary for which he received a three-year suspended sentence. In this appeal, he argues
that the trial court abused its discretion by revoking his probation and ordering a sentence
of full confinement rather than imposing split confinement. Upon our 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 N ORMA M CG EE
O GLE and R OBERT H. M ONTGOMERY, J R., JJ., joined.

William H. Harold, Lewisburg, Tennessee, for the Defendant-Appellant, Jordan
Alexander Rodrigues.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin E. D. Smith, Assistant
Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

       On March 14, 2014, a warrant for the Defendant-Appellant’s arrest was issued for
violating the terms and conditions of his probation based on a new arrest for domestic
violence assault against his brother, Joseph Rodrigues, and failing to refrain from
engaging in assaultive, abusive, or threatening behavior. On May 13, 2014, the
Defendant-Appellant entered a guilty plea to the probation violation in the instant case.
At the revocation hearing, Brittney Williams, the Defendant-Appellant’s fiancée, testified
that she had been in a relationship with the Defendant-Appellant for almost three years,
and they shared a one-year old daughter. She stated that the Defendant-Appellant had
worked at Andy’s Tires for almost one year and that she relied on his income because she
was unemployed. Ms. Williams was present during the altercation between the
Defendant-Appellant and his twin brother, Joseph Rodrigues, on March 8, 2014. She
stated that the Defendant-Appellant’s brother instigated the altercation and that the
Defendant-Appellant acted in self-defense.

        Gerard Rodrigues, the Defendant-Appellant’s father, testified that he and his wife
adopted the Defendant-Appellant when he was nine years old. Although Mr. Rodriques
was not present during the altercation between the Defendant-Appellant and his brother,
Joseph, he explained that Joseph was “mouthy” and that Joseph usually started fights.
Mr. Rodrigues stated that Joseph would “torment[] [the Defendant-Appellant] until
finally [Joseph] finds out it’s not doing anything and he’ll take and push [the Defendant-
Appellant] or something like that.”

      On cross-examination, Mr. Rodrigues was shown the January 12, 2012 arrest
warrant sworn out against the Defendant-Appellant for assaulting his other brother,
Robert Rodrigues, and agreed that the Defendant-Appellant had previously been charged
with domestic assault. Although Mr. Rodrigues said the warrant “left a lot out,” he
confirmed that the Defendant-Appellant’s probation had been revoked as a result.

      Andrew Junior Gill, the owner of Andy’s Tires and the Defendant-Appellant’s
former employer, testified that the Defendant-Appellant had worked for him for
approximately two and a half years, that he was a good employee, and that he would offer
the Defendant-Appellant a job if he was granted probation.

       The Defendant-Appellant testified and agreed that he struck his brother, Joseph
Rodrigues, on March 8, 2014. He explained that he was acting in self-defense because
his brother struck him first, several times. When asked why he did not call the police or
attempt to leave during the altercation, the Defendant-Appellant stated that he did not
have a phone and was unable to get away from his brother. The Defendant-Appellant
further explained that prior to the altercation, his brother had pestered him over the phone
and had come to his work looking for money. When he refused to give his brother any
money, his brother stole the Defendant-Appellant’s anxiety medication, which left the
Defendant-Appellant “on edge.” The Defendant-Appellant testified that he had been
without his medication for almost a week and a half at the time of the altercation. He said
he was not using any other drugs and had otherwise complied with the conditions of his
probation.

       On cross-examination, the Defendant-Appellant said he did not leave when his

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brother struck him because “[he] was trapped in a corner.” He further acknowledged that
he was found guilty of the instant domestic assault against his brother, Joseph Rodrigues,
in general sessions court.

       Crystal Gray, the Defendant-Appellant’s probation supervisor, filed a probation
violation report based on the Defendant-Appellant’s second domestic violence assault
arrest and his failure to refrain from engaging in assaultive, abusive, or threatening
behavior.1 Her report showed that the Defendant-Appellant had been originally sentenced
to three years probation on August 18, 2012, and that his probation had been revoked on
January 2, 2013, for assaulting his other brother, Robert Rodrigues. Following his
revocation for his first violation, the Defendant-Appellant was required to serve thirty
days’ incarceration and placed back on probation for the remainder of his sentence. She
explained that the Defendant-Appellant was subject to the same terms and conditions of
his probation as previously ordered. Upon his release, the Defendant-Appellant complied
with the conditions of his probation until he was arrested again for the instant domestic
assault against his brother, Joseph Rodrigues.

        At the concusion of the hearing, the trial court revoked the Defendant-Appellant’s
probation and ordered him to serve the balance of his sentence in confinement. It is from
this order that the Defendant-Appellant now timely appeals.

                                                 ANALYSIS

       On appeal, the Defendant-Appellant argues that the trial court erred by requiring
him to serve the balance of his sentence in confinement. He asserts that the trial court
should have imposed a sentence of split confinement and that a sentence of full
incarceration based on the facts “essentially amounts to an abuse of discretion.” In
response, the State contends that, based on the Defendant-Appellant’s history of violating
his probation by committing domestic assault, the trial court properly revoked his
probation. We agree with the State.

       After determining that a defendant “has violated the conditions of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right . . . to
revoke the probation and suspension of sentence, and . . . [c]ause the defendant to
commence the execution of the judgment as originally entered, or otherwise, in
accordance with § 40-35-310[.]” T.C.A. § 40-35-311(e) (2012). Probation revocation
rests within the sound discretion of the trial court, and this court will not disturb the trial
court’s ruling absent an abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554
(Tenn. 2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an
       1
          Ms. Gray signed the probation violation report by spelling her name as “Gray”; however, the
transcript spells her name as “Grey.”
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abuse of discretion, “there must be no substantial evidence to support the conclusion of
the trial court that a violation of the conditions of probation has occurred.” Id. (citing
Harkins, 811 S.W.2d at 82). Once the trial court decides to revoke a defendant’s
probation, it may (1) order confinement; (2) order the sentence into execution as initially
entered, or, in other words, begin the probationary sentence anew; (3) return the
defendant to probation on modified conditions as necessary; or (4) extend the
probationary period by up to two years. See State v. Hunter, 1 S.W.3d 643, 647 (Tenn.
1999) (citations omitted); State v. Larry Lee Robertson, No. M2012-02128-CCA-R3CD,
2013 WL 1136588, at *2 (Tenn. Crim. App. Mar. 19, 2013); State v. Christopher Burress,
No. E2012-00861-CCA-R3-CD, 2013 WL 1097809, at *6 (Tenn. Crim. App. Mar. 18,
2013); T.C.A. §§ 40-35-308, -310, -311 (2012). The trial court determines the credibility
of the witnesses in a probation revocation hearing. State v. Mitchell, 810 S.W.2d 733, 735
(Tenn. Crim. App. 1991) (citing Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App.
1978)).

       In support of its order revoking the Defendant-Appellant’s probation, the trial
court stated:

                     This is not the first time.       He’s had previous
              revocations, same problem. This, I was cornered, which is a
              self-defense issue being raised here. It was certainly not
              successful below. He was convicted. And therefore, I am
              going to revoke him to serve the balance of his sentence.

In challenging the court’s imposition of confinement, the Defendant-Appellant insists
that, “the sentence imposed was not that which was deserved for the committed infraction
of the rules of probation.” He argues that a sentence of split confinement would be more
commensurate with the totality of the circumstances surrounding the violation because he
was acting in self-defense. However, the trial court fully considered the testimony
regarding this issue at the revocation hearing and determined, based on the conviction in
general sessions court, that it was not credible. Moreover, the trial court revoked the
Defendant-Appellant’s probation because this was his second violation of probation
involving domestic violence assault. The record more than supports the trial court’s
revocation of the Defendant-Appellant’s probation and imposition of confinement. See
State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn.
Crim. App. Feb. 10, 1999), perm. app. denied (Tenn. June 28, 1999) (holding that “an
accused, already on probation, is not entitled to a second grant of probation or another
form of alternative sentencing”). Discerning no abuse of discretion, the Defendant-
Appellant is not entitled to relief.
                                         CONCLUSION


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Upon our review, we affirm the judgment of the Marshall County Circuit Court.


                                         _________________________________
                                         CAMILLE R. MCMULLEN, JUDGE




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