         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 25, 2001

                    STATE OF TENNESSEE v. JANET LAWSON

               Direct Appeal from the Criminal Court for Cumberland County
                             No. 4769   Lillie Ann Sells, Judge



                                 No. E2000-02486-CCA-R3-CD
                                      September 19, 2001

The Defendant pled guilty to one count of theft over $1,000.00 and the trial court sentenced her as
a Range I standard offender to three years probation. The Defendant appeals from the revocation
of her probation, contending that the trial court abused its discretion by ordering her to serve the
remainder of her sentence in confinement. Because we conclude that the record supports that trial
court’s decision to revoke the Defendant’s probation, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
JAMES CURWOOD WITT, JR., JJ., joined.

Cynthia S. Lyons, Assistant Public Defender, Cookeville, Tennessee, for the Appellant, Janet
Lawson.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
William Edward Gibson, District Attorney General; and Anthony J. Craighead, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION


        On November 10, 1997, the Cumberland County Grand Jury indicted the Defendant, Janet
Lawson, for one count of theft over $1,000.00. On July 24, 1998, the Defendant pled guilty to the
indicted offense, a Class D felony, and received a three-year sentence as a Range I standard offender.
The Defendant was placed on probation to be supervised by the Community Corrections program.
On April 10, 2000, a probation violation warrant was issued against the Defendant, alleging that she
had been arrested and charged with disorderly conduct and driving under the influence.

      On September 28, 2000, the trial court conducted a violation of probation hearing. Officer
Jimmy Erwin of the Meigs County Sheriff’s Department testified that on March 24, 2000, he was
called to the Pleasure Island convenience store. Upon his arrival, the manager of the convenience
store asked Officer Erwin to remove the Defendant from his business establishment because she was
bothering customers and using vulgar language. Officer Erwin testified that the Defendant’s speech
was slurred, that she was unsteady on her feet, and that she appeared to be intoxicated, although he
did not smell alcohol on her. He stated that she was “very, very abusive.” After escorting the
Defendant out of the store, Officer Erwin attempted to give the Defendant “some tests and to talk
to her,” and she became very abusive, cursing and swearing at the officer. Officer Erwin then
arrested the Defendant for disorderly conduct. The officer testified that the Defendant was booked
and “processed through.”

        Approximately three to four hours later, Officer Erwin was driving on Highway 68 in Meigs
County when he noticed a vehicle pulling off the highway onto the shoulder of the road. The officer
turned his patrol car around and pulled behind the vehicle to see if its occupants “were okay or
having problems.” It was then that Officer Erwin saw that the driver of the vehicle was the
Defendant. The Defendant told Officer Erwin that her car had quit, and she pulled it over. After
asking the Defendant to step out of the car, Officer Erwin observed the Defendant to be “very
unstable,” and he noted that her speech was “even more slurred.” He recalled, “I could barely
understand her.” The Defendant failed the field sobriety tests that Officer Erwin administered to her.
The Defendant told Officer Erwin that she had not been drinking, but that she was on three or four
different pain medications. Officer Erwin testified that in his opinion, the Defendant’s behavior was
not consistent with that of someone taking several pain medications. Based upon his observations,
Officer Erwin arrested the Defendant and charged her with driving under the influence.

        The Defendant also testified at the hearing. She reported that she had been on disability since
1996 because she had undergone back surgery for a ruptured disc in 1995 and because she had
suffered a “nervous breakdown” in 1995. She stated that she was under the care of a psychologist.
The Defendant further testified that she was taking several prescription medications: “Lorcet 10 for
pain”; Xanax “for my nerves”; Soma “for muscle relaxers”; “Tolfron (spelled phonetically) . . . for
an anti-depressant”; and Tagamet “for my stomach.” She stated that the pain medication and muscle
relaxers were prescribed for her back problems.

         The Defendant maintained that the violation warrant at issue in this case was the first to be
filed against her since she was placed on probation. She testified that she had been paying monthly
restitution while on probation and had paid over $2,200 of the $3,000 ordered as restitution. The
Defendant also testified that she had been meeting regularly with her probation officer, as ordered,
and she maintained that she had passed drug tests administered to her as part of her probation, all
of which had come back negative for the presence of illegal drugs.

        The Defendant testified that she was on her prescription medication at the time of her arrests
by Officer Erwin. However, she claimed that she did not “feel like” she was impaired. With regard
to her arrest for disorderly conduct, the Defendant testified, “The only thing I said to [Officer Erwin]
was I asked him what I was being arrested for. And he told me disorderly conduct and I asked him
where was I supposed to have been disorderly at, because I had been in there playing the machine

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for like three hours.” The Defendant maintained that when Officer Erwin arrested her for driving
under the influence, she was driving to her mother’s home. She stated that her car “died,” forcing
her to pull over.

       Officer Mark Thomasson, the Defendant’s probation officer, testified that he had been
handling the Defendant’s case since February 2000. He stated that he took out a warrant to revoke
the Defendant’s probation after learning of the Defendant’s arrests in March 2000. On cross-
examination, Thomasson stated that since the time of her arrests for the current charges, the
Defendant had been reporting to him regularly and paying fines and court costs.

        After the conclusion of the hearing, the trial court found by a preponderance of the evidence
that the Defendant had violated her probation and ordered that the Defendant serve the remainder
of her sentence in the Tennessee Department of Correction. The trial court concluded that the
Defendant’s testimony was not credible as it related to the events surrounding her arrests and to her
condition at the time of her arrests. The court also concluded that the Defendant did not take
responsibility for her actions and did not appear to “take probation serious[ly].” The trial court
therefore ordered that the Defendant be taken into custody to serve her three-year sentence.

        Although the Defendant does not contest the sufficiency of the evidence supporting
revocation of her probation, she contends that the trial court should not have ordered her to serve her
sentence. In her brief, she claims that she “was a good probationer before and after the new arrests
took place, and she asserts that she adequately demonstrated to the trial court that she could continue
to do well on probation.” The Defendant argues that the trial court’s decision to require her to serve
the remainder of her sentence in confinement is “excessive.”

         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.
Tenn. Code Ann. § 40-35-311(d). The decision to revoke probation lies within the sound discretion
of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). A trial court’s
decision to revoke probation will be upheld on appeal unless there has been an abuse of discretion.
State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). To find an abuse of discretion
in a probation revocation case, an appellate court must conclude that the record is void of any
substantial evidence that would support the trial court’s decision that a violation of the conditions
of probation occurred. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows the trial
court to make a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn.
Crim. App. 1984).

         The Defendant has failed to establish that the trial court abused its discretion by revoking her
probation and by ordering her to serve the remainder of her sentence in confinement. The record
contains ample evidence supporting the trial court’s decision that a violation of probation occurred
in this case. Based upon our review of the record, the trial court acted well within its discretion in
revoking the Defendant’s probation.

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Accordingly, the judgment of the trial court is AFFIRMED.




                                           ___________________________________
                                           ROBERT W. WEDEMEYER, JUDGE




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