        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     Assigned on Briefs March 4, 2008

                   STATE OF TENNESSEE v. KENNETH LYLE DAVIS

                       Direct Appeal from the Circuit Court for Madison County
                                 No. 03-92 Donald H. Allen, Judge




                           No. W2007-00776-CCA-R3-CD - Filed June 10, 2008



The appellant, Kenneth Lyle Davis, appeals the Madison County Circuit Court’s order revoking his
probation and reinstating his original two-year sentence. Based upon the record and the parties’
briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T. WOODALL and D.
KELLY THOMAS, JR., JJ., joined.

Kenneth Lyle Davis, Tiptonville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Finley, Assistant Attorney General;
James G. Woodall, District Attorney General; and Anna Banks, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                                        OPINION

                                               I. Factual Background

        The record reflects that on June 9, 2003, the appellant pled guilty to driving under the
influence (DUI) and felony reckless endangerment and received an effective two-year sentence to
be served as five days in jail and the remainder on probation. On April 27, 2005, the appellant’s
probation officer filed a probation violation report, alleging that the appellant’s probation would
expire on June 3, 2005, and that he had not yet paid all of his supervision fees or court costs and still
had sixty-eight and one-half hours of community service work to complete. The trial court issued
a probation violation warrant, and a hearing occurred on May 16, 2005.1 On May 20, 2005, the trial


        1
            A transcript of this hearing is not in the appellate record.
court extended the appellant’s probation for one year. According to the trial court’s written order,
the appellant’s probation would expire if he paid his fines, court costs, and supervision fees by June
3, 2005.

         On July 21, 2005, the appellant’s probation officer filed a second probation violation report,
alleging that the appellant had violated his probation on July 14, 2005, by committing felony evading
arrest, possession of methamphetamine with intent to sell or deliver, and possession of marijuana
with intent to sell or deliver. The trial court issued another probation violation warrant. According
to a written order filed on August 25, 2005, a hearing was held on August 15, 2005. The trial court
found that the appellant had violated his probation by failing to remain arrest-free, revoked his
probation, and ordered him to serve the remainder of his two-year sentence in confinement. The
appellant appealed the trial court’s order, and this court affirmed the trial court’s judgment. See
State v. Kenneth Lyle Davis, No. W2005-02147-CCA-R3-CD, 2006 Tenn. Crim. App. LEXIS 471
(Jackson, June 22, 2006). According to the appellant’s brief and a written guilty plea form attached
to the brief, he subsequently pled guilty to several offenses as a result of his July 14, 2005 arrest and
agreed to a nine-year sentence to be served on probation.2

         Apparently, the appellant was released from prison on March 1, 2006, and was allowed to
serve the remainder of his two-year sentence on supervised probation, which would expire on June
7, 2007. On January 24, 2007, the appellant’s probation officer filed a third probation violation
report, alleging that the appellant had violated his probation on January 1, 2007, by being arrested
for reckless driving, driving on a suspended license, possession of methamphetamine with intent to
resell, conspiracy to manufacture marijuana, and possession of drug paraphernalia. The trial court
issued a third probation violation warrant.

        At the April 2, 2007 probation revocation hearing, Sergeant Shane Barnes of the Madison
County Sheriff’s Department testified that at 6:45 p.m. on January 21, 2007, he was in his patrol car
and was stopped at the traffic light at the intersection of Parkway and Highway 70 East. Sergeant
Barnes saw a gold Ford Ranger pickup truck traveling west on Highway 70. The truck turned right
at a high rate of speed and began traveling west on Parkway. Sergeant Barnes stated that as the truck
made the right turn, it “went completely over two lanes of traffic into the center lane almost into the
opposing lane there and came back into the lane of traffic.” Sergeant Barnes pulled in behind the
truck and stopped it at the intersection of Dr. F. E. Wright Drive and Parkway. He approached the
vehicle and explained to the driver, who was the appellant, why he had stopped the truck. Sergeant
Barnes ran a computer check of the appellant’s driver’s license and learned that the appellant’s
license had been suspended for failure to pay child support. Sergeant Barnes planned to issue a
citation and allow the appellant to call someone to pick him up. He asked the appellant if he could
search the vehicle, and the appellant gave consent. During the search, Sergeant Barnes found a
Game Boy bag in the truck’s center console containing 15.9 grams of methamphetamine, 0.4 grams

         2
          W e note that “arguments . . . and the recitation of facts contained in a brief, or a similar pleading, are not
evidence.” State v. Roberts, 755 S.W .2d 833, 836 (Tenn. Crim. App. 1988). Similarly, “documents attached to an
appellate brief but not included in the record on appeal cannot be considered by this court as part of the record on
appeal.” Grover L. Dunigan v. State, No. E2005-01574-CCA-R3-PC, 2006 Tenn. Crim. App. LEXIS 198, at *8
(Knoxville, Feb. 23, 2006); see State v. M atthews, 805 S.W .2d 776, 783-84 (Tenn. Crim. App. 1990).

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of methamphetamine, three bags of marijuana seeds weighing about thirty ounces, six clear glass
pipes, a small red plastic pipe, scissors, a white spoon, a small torch, multiple bags, scales, and a
small composition book containing names and telephone numbers. He also found a small metal
chrome container containing methamphetamine. A female had been riding in the truck with the
appellant, and neither of them claimed ownership of the bag.

         The appellant represented himself at the revocation hearing. On cross-examination, Sergeant
Barnes testified that he considered a “high rate of speed” to be any speed that created a reckless or
erratic environment. He stated that the appellant was driving too fast to make the right turn onto
Parkway safely and that the appellant drove into the opposing lane of traffic. After Sergeant Barnes
stopped the appellant and wrote him a citation, he allowed the appellant to use the officer’s telephone
to call a friend. He stated that if the appellant had not consented to the search of the truck, the stop
“would have been over with.” Sergeant Barnes stated that he did not remember why he asked to
search the truck but that it was “common practice” to search vehicles during traffic stops. After
finding the bag containing the drugs and drug paraphernalia, Sergeant Barnes arrested the appellant
and the appellant’s passenger. He did not seize the appellant’s truck because he did not know at that
time that the substances he found in the vehicle were controlled substances.

        In a written order filed on May 2, 2007, the trial court ruled that the appellant had violated
his probation by failing to remain arrest-free and by failing to report the arrests to his probation
officer in a timely manner. It revoked the appellant’s probation again and ordered that he serve his
sentence in confinement with credit for time already served.

       The appellant filed a timely pro se notice of appeal, “appealing the Circuit Court[’s] decision
on his Revocation Hearing that was held on April 2, 2007.” However, in his appellate brief, the
appellant details the procedural history of his case and argues that the trial court erred on May 20,
2005, by extending his probation for one year. He contends that he told the court that he did not
want his probation extended and that he “was about to pay off his debt and let the probation expire”
as scheduled on June 3, 2005. He argues that if the trial court had not extended his probation
sentence, he could have begun serving earlier the nine-year sentence he later received for his guilty
pleas.

                                             II. Analysis

        Tennessee Code Annotated section 40-35-308(c) provides that “at the conclusion of a
probation revocation hearing, the court shall have the authority to extend the defendant’s period of
probation supervision for any period not in excess of two (2) years.” A defendant may appeal as of
right from an order revoking probation. Tenn. R. App. P. 3(b). Under Tennessee Rule of Appellate
Procedure 4(a), the appellant was required to file a notice of appeal within thirty days from the date
that the judgment revoking his probation was entered. The appellant never appealed the May 20,
2005 revocation and probation extension. Moreover, even if we were to treat the appellant’s current
notice of appeal as an appeal of the trial court’s May 20, 2005 order, the notice would be grossly
untimely. Tennessee Rule of Appellate Procedure 4(a) provides that the notice of appeal is not
jurisdictional and that timely filing may, therefore, be waived in the interest of justice. We choose
not to waive the timely filing requirement in this case. Nevertheless, we will address whether the

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trial court properly revoked his probation on May 2, 2007.

         The appellant did not testify at his revocation hearing. However, in his notice of appeal, he
offers several explanations for why he did not inform his probation officer about the new charges
he received as a result of Sergeant Barnes’ traffic stop and why he should not have to serve the
balance of his sentence in confinement. He contends that he could not telephone his probation
officer to inform her about the new charges until he was released from jail three days after his arrest,
that he had a good record while on probation, and that he followed the probation rules. He also
argues that he had not been charged with any violent offense, that his release from confinement was
not a threat to the community, and that his release was very important to his young children.

        A trial court may revoke a sentence of probation upon finding by a preponderance of the
evidence that the defendant has violated the conditions of his release. Tenn. Code Ann. §
40-35-311(e). Upon finding by a preponderance of the evidence that the appellant has violated the
terms of his probation, the trial court is authorized to order an appellant to serve the balance of his
original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310, -311(e). On appeal, this
decision will not be disturbed absent a finding of an abuse of discretion. State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991). In order to find such an abuse, there must be no
substantial evidence to support the trial court’s conclusion that a violation of the conditions of
probation has occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Such a finding “‘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.’” State v. Shaffer, 45
S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

        The evidence at the hearing established that Sergeant Barnes arrested the appellant for
various offenses on January 21, 2007. In his appellate brief, the appellant acknowledges that his
arrest was a violation of his probation. Therefore, the trial court did not err by revoking his
probation and ordering him to serve the balance of his unserved two-year sentence in confinement.

                                           III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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