             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                          FEBRUARY 1998 SESSION
                                                         July 29, 1998

                                                     Cecil W. Crowson
STATE OF TENNESSEE                )                 Appellate Court Clerk
                                  )          NO. 01C01-9706-CC-00208
             Appellee             )
                                  )          MAURY COUNTY
v.                                )
                                  )          Hon. James L. Weatherford
WILLIE EARL CECIL                 )
                                  )          (Probation revocation)
             Appellant.           )
                                  )



For the Appellant:                           For the Appellee:

Hershell D. Koger                            John Knox Walkup
135 N. First Street                          Attorney General & Reporter
P.O. Box 1148
Pulaski, TN. 38478                           Georgia Blythe Felner
                                             Assistant Attorney General
                                             2d Floor, Cordell Hull Building
                                             425 Fifth Avenue North
                                             Nashville, TN. 37243-0493

                                             T. Michael Bottoms
                                             District Attorney General

                                             James Lee Bailey, III
                                             Assistant District Attorney
                                             10 Public Square
                                             P.O. Box 1619
                                             Columbia, TN. 38402-1619




OPINION FILED:______________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                OPINION

        The appellant, Willie Earl Cecil, appeals as of right from the Maury County

Circuit Court’s revocation of his probation. We affirm the judgment of the trial court.

        On August 14, 1996, the appellant pled guilty to possession of cocaine with the

intent to sell, a Class C felony; delivery of cocaine, a Class C felony; contributing to

the delinquency of a minor, a Class A misdemeanor; and selling over .5 grams of

cocaine, a Class B felony. The trial court sentenced the appellant to concurrent terms

of three (3) years for the possession and delivery of cocaine, eleven (11) months and

(29) days for contributing to the delinquency of a minor, and eight (8) years for the

selling of over .5 grams of cocaine. The effective eight (8) year sentence was to be

suspended upon the service of 120 days in the county jail.

        On August 15, 1996, one day following appellant’s plea hearing, the appellant

was arrested for criminal trespass and the possession of crack cocaine. Those

charges arose from his activities at the Columbia Housing Authority (C.H.A.) in Maury

County, Tennessee. After his arrest, a probation violation warrant was issued and the

trial court conducted an evidentiary hearing. 1

        Officer Christopher Munz, with the Columbia Police Department, testified that

he first observed the appellant in the C.H.A. on the day of appellant’s plea hearing.

The appellant was standing in a grassy yard at 1219 McBride Circle. Officer Munz told

the appellant that due to his criminal history, his presence in the C.H.A. constituted

criminal trespass.2

        The C.H.A. has a policy that any non-resident with a criminal history involving

drug related or violent offenses is considered a threat to the housing residents. As

such, non-residents with criminal records are prohibited from entering onto private


        1
          On August 30, 1996, while appellant was in custody for the alleged probation violation, he was
charge d with the a dditional offe nse of a rson. An ame nded p robation v iolation warra nt was iss ued to
reflect the arson charge; however, the record is silent as to the circumstances surrounding that alleged
offense.

        2
          Officer Munz testified that he had been informed of appellant’s drug convictions by another
officer with the Ma ury Coun ty Drug T ask F orce.

                                                     2
property within the C.H.A.. Officer Munz explained the C.H.A. policy to appellant and

told him that he must leave the housing area and not return. Appellant complied with

Officer’s Munz’s warning on August 14; however, he returned to the same property on

the following day.

      On August 15, while executing a search warrant in the C.H.A., Officer Munz

and officers with the Maury County Drug Task Force observed appellant at 1219

McBride Circle. The appellant was standing in the front yard with another man,

Darnell Moore, when police officers approached the two men and ordered them to lay

on the ground. Officers Tommy Goats and Lonnie Lyles with the Drug Task Force

testified that they noticed the appellant holding something in his hand before he was

apprehended. Officer Goats stated that he observed the appellant make a throwing

gesture as if he were discarding the object that was in his hand.

      Although officers suspected that the appellant possessed illegal contraband, no

drugs were found on his person at the scene. An empty medicine bottle was

discovered nearby under a parked car and Darnell Moore had crack cocaine in his

possession. The appellant was arrested for criminal trespass and possession of

cocaine.

      Appellant’s mother, Lovey Faye Cecil, testified for the defense that the

appellant had been helping her on the day of his arrest. Ms. Cecil lived in Columbia at

1515 Ryan Place, approximately two blocks from the C.H.A.. She stated that she had

no transportation of her own and that the appellant had assisted her in picking up his

younger brother and the brother’s medication earlier in the day.

      The trial court determined that there was sufficient evidence that the appellant

committed criminal trespass when he entered the residential property on McBride




                                           3
Circle.3 The court, therefore, revoked appellant’s probation and ordered him to serve

his eight (8) year sentence in the Department of Correction.

        On appeal, the appellant contends that the trial court abused its discretion in

finding that he violated the terms of his probation. We disagree.

        The appellant concedes that the trial court was empowered to revoke his

probation and order the execution of the original judgment upon finding by a

preponderance of the evidence that appellant violated the conditions of his probation.

Tenn. Code Ann. § 40-35-311(d)(Supp. 1996). Moreover, the revocation of a

probationary sentence is committed to the sound discretion of the trial judge and will

be sustained on appeal if the evidence is sufficient to allow the trial judge to render a

conscientious and intelligent decision. See State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991); State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).

        In this case, the proof of appellant’s criminal trespass was sufficient to support

the trial court’s decision to revoke appellant’s probation. The appellant has conceded

that he “was in the wrong place at the wrong time” when he entered the residential

property in the C.H.A.. The revocation of his probationary sentence was proper and

the judgment of the trial court is affirmed.



                                                         _____________________________
                                                         WILLIAM M. BARKER, JUDGE


CONCUR:


_____________________________
GARY R. WADE, Presiding Judge


_____________________________
J. CURWOOD WITT, JUDGE



        3
         The trial court questioned whether the evidence was sufficient to show that the appellant
possessed crack cocaine. The judge stated that if the case were based “just on the possession of
cocaine, it might very well be that I would just dismiss this warrant.”

                                                   4
