        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 29, 2012

             STATE OF TENNESSEE v. JAMES BYRON WRIGHT

           Direct Appeal from the Criminal Court for Cumberland County
                       No. 10-0272    David Patterson, Judge




                 No. E2011-01661-CCA-R3-CD - Filed August 3, 2012


Defendant, James Byron Wright, entered a guilty plea to violation of an habitual motor
offender order and to driving under the influence of an intoxicant (DUI) 6 th offense, and
received concurrent two-year sentences on the convictions to be served by incarceration.
Pursuant to Tennessee Code Annotated section 40-35-212, he was released from confinement
and placed on supervised probation. A little less than two months later, a probation violation
warrant was filed alleging that Defendant failed to report to his probation officer as required.
The trial court, following a hearing, found Defendant had violated his probation, revoked his
probation, and ordered him to serve the balance of the sentence by incarceration. On appeal,
Defendant asserts that the trial court’s disposition that Defendant serve the balance of his
sentence by confinement is too harsh. After full review of the record and the parties’ briefs,
we affirm the judgment of the trial court pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals of Tennessee.

                      Tenn. R. App. P. 3 Appeal as of Right;
         Judgment of the Cumberland County Criminal Court Affirmed
  Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which JERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

David Brady, District Public Defender; and John B. Nisbet, III, Assistant Public Defender,
Cookeville, Tennessee, for appellant, James Byron Wright.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Randall A. York, District Attorney General; and Gary McKenzie, Assistant District
Attorney General, for the appellee, State of Tennessee.
                              MEMORANDUM OPINION

        The only witnesses who testified at the probation violation hearing were Defendant
and Danny Williams, Defendant’s probation officer. Mr. Williams testified that Defendant
was placed on probation on February 3, 2011, and met with Mr. Williams for the first time
on February 8, 2011. Among the various rules for probation and Defendant’s responsibilities
which were discussed, Defendant was told that he had to report to Mr. Williams at least twice
per month for the first two months. Defendant never reported to Mr. Williams after the
initial meeting and before he was arrested on the probation violation warrant on May 14,
2011. Before filing a probation violation report on March 28, 2011, Mr. Williams went to
the home of Defendant’s mother, where Defendant had stated he was living, called the
residence five or six times, and left messages with Defendant’s mother, but Mr. Williams was
never able to make contact with Defendant.

       Defendant testified that he did not remember Mr. Williams telling Defendant to
contact Mr. Williams twice each month. Defendant initially stated that he believed he had
to report within thirty days of February 8th . The following excerpt from Defendant’s direct
examination fairly sums up the situation:

        [Defendant’s Counsel]:       All right. Let’s assume he gave you thirty
                                     days, did you report to him after thirty days?

        [Defendant]:                 No, I didn’t.

        [Defendant’s Counsel]:       Why not[?]

        [Defendant]:                 Well, I didn’t have a ride, I didn’t have any
                                     money to hire to get a ride to do anything. I
                                     don’t own a vehicle. Like I say, I didn’t have
                                     any money to, didn’t have anyway [sic] to get
                                     around anywhere.

        [Defendant’s Counsel]:       Got a telephone?

        [Defendant]:                 I do.

        [Defendant’s Counsel]:       Didn’t call him though did you?

        [Defendant]:                 No, I didn’t.



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        [Defendant’s Counsel]:        Why didn’t you?

        [Defendant]:                  Well, I thought I was revoked.

        ***

        THE COURT:                    Why would you think you were revoked?

        [Defendant]:                  Cause I had missed my appointment.

        Ultimately, Defendant explained that he did not call the probation officer because he
was in a state of depression. After finding that Defendant violated the conditions and
requirements of probation by failing to report to his probation officer, the trial court ordered
the balance of the sentence to be served by incarceration. This disposition was the result of
the trial court’s finding that Defendant had not done well on probation, and there was no
reason to believe that Defendant would do well on probation “this time either” if placed back
on probation.

        Defendant argues that the trial court should have extended his probation for an
additional year rather than order incarceration. When a trial court finds by a preponderance
of the evidence that a defendant has violated probation, the trial court can order the defendant
to serve the sentence by incarceration, place the defendant back on probation as it was
originally entered, or extend the remaining probationary period for not more than two
additional years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999). We conclude that the
trial court did not err by ordering Defendant to serve the balance of his sentence by
incarceration. Defendant is not entitled to relief in this appeal.

                                       CONCLUSION

       The judgment of the trial court was in a proceeding without a jury, it was not a
determination of guilt, the evidence does not preponderate against the finding of the trial
court, and no error of law requiring a reversal of the judgment is apparent on the record.
Accordingly, the judgment of the trial court is affirmed by memorandum opinion pursuant
to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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