         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE

                            APRIL 1998 SESSION
                                                 FILED
                                                    May 29, 1998

                                                Cecil W. Crowson
                                               Appellate Court Clerk
STA TE O F TEN NES SEE ,         )
      APPELLEE                    )
                                  )
VS.                               )   C.C.A. NO. 01C01-9708-CR-00361
                                  )   SUMNER COUNTY
                                  )   Honorable Jan e Wheatcraft
WALTER LEE ELLISON, JR.           )
    APPELLANT                     )   (PROBATION REVOCATION)




FOR THE APPELLANT                         FOR THE APPELLEE

Dana L. Scott                             John Knox Walkup
Assistant Public Defender                 Attorney General and Reporter
18th Judicial District                    450 James Robertson Parkway
117 East Main St.                         Nashville, TN 37243
Gallatin, TN 37066
                                          Clinton J. Morgan
                                          Assistant Attorney General
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          Thomas Dean
                                          Assistant District Attorney General
                                          113 East Main St.
                                          Gallatin, TN 37066




OPINION FILED: _______________________


AFFIRMED

L. T. LAFFERTY, SPECIAL JUDGE
                                         OPINION

     The defendant, Walter Lee Ellison, Jr., appeals as of right from a ruling of the

Sumner Criminal Court that revoked his probation. On June 20, 1996, upon a plea of

guilty, the same Court sentenced the defendant in cause no. 9602, Count One, to two

(2) years in the Tennessee Department of Correction for Burglary of a Building in and

in Count Two, to two (2) years for Theft of Property over $1,000 to run concurrently.

The defendant was placed on two years supervised probation after serving four (4)

months in the Sumner County jail. The defendant complains that the trial court failed

to exercise a conscientious and intelligent judgment in finding by a preponderance of

the evid ence th at the de fendan t violated the term s and co ndition s of pro bation. W e

find the revo cation of pro bation justified and affirm the Court’s judgme nt.

     The standard by which we review a probation revocation case is abuse of

discretio n.

               “In order for a reviewing court to be warranted in finding
      an abuse of discretion in a probation revocation hearing, it must be
      established th at the record contains no substantial ev idence to
      support the conclusion of the trial judge that a violation of the
      conditions of probation has occurred.” State v. Harkins, 811
      S.W.2 d 79, 82 (Tenn . 1991) .

     We note that the trial court was entitled to revoke probation upon finding by the

prepond erance of th e evidenc e that the defe ndant viola ted several c onditions o f his

probation. Tenn. C ode Ann. §4 0-35-311(d).

     The record establishes that the trial court, on October 1, 1996, issued an arrest

warrant for the defendant for a violation of probation. The warrant alleges (1) the

defendant was charged with theft over $10,000, from the ABC Caulking Company on

August 13, 1996, (2) Defendant failed to report to the State Probation Office since

being granted prob ation on 6-2-96, (3) D efendant has failed to pay any of the Cou rt

ordered restitution and (4) Defendant left the State of Tennessee without the

permission, consent or authorization of the State Probation Office.




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     The State ’s evidence consisted o f the testimo ny of M r. Marvin P owell, State

Probation Officer. Mr. Powell, assigned supervising officer for the defendant, never

met with the defendant to discuss the conditions of probation. Apparently the

defendant upon release from the Sumner County Jail on June 20, 1996, entered the

Buffalo Valley Treatment Center on June 21, 1996. On June 20, 1996, a probation

officer, Carson Bumbalough, talked to the defendant and had him complete a plea

sheet and d epartme nt questionn aire for perso nal inform ation. At this sta ge, it is

routine for probation officers to advised defendants upon release from jail, to report or

contact the probation office before the end of the week. The plea sheet and

questionnaire have the same cautionary instructions. Since the defendant did not

report upon release from Buffalo Valley, Mr. Powell sent a letter, dated August 24,

1996, to the defe ndant’ s addre ss in Ch attanoo ga, Ten nessee . There was n o respo nse.

Since the defendant failed to report, Mr. Powell was unable to determine if the

defendant made restitution payments to ABC Caulking Company as required in the

judgment order. Mr. Powell testified that an arrest warrant had been issued for the

defendant on September 5, 1996, alleging the theft of a Chevrolet truck owned by

ABC Caulking Comp any on A ugust 13, 1 996. The defendan t was arreste d in

Colorado in this truck, and was extradited to Tennessee.

     The defendant’s proof reveals that the defendant entered the Buffalo Valley

Treatment Center on June 21, 1996. Mr. Rusty Graham, defendant’s counselor, was

aware the defendan t was on p robation, altho ugh the de fendant did not know his

assigned o fficer. Mr. G raham, v ia phone c alls, determin ed that M r. Marvin P owell

was the d efendant’s assigned o fficer. Graha m advise d the defen dant and g ave him

Powell’s phone number and permission to contact M r. Powell. This occurred b efore

the defend ant’s discha rge from the center an d return to h is mother’s home in

Chattanooga. Mr. Paul Swafford, counselor, testified the defendant was concerned

about who his assigned probation officer was and to his knowledge the defendant

attempted to contact his pro bation officer.


                                         3
     The defendant testified that he did not know who to pay restitution to, so he

attempted to contact his attorney, Nancy Myers, but she was unavailable. As to why

the defendant did not contact Mr. Powell upon his discharge from the center, the

defendan t returned to h is mother’s home in Chattano oga, due to some p roblems o f his

son. While at the center and his home, the defendant attempted on three or four

occasions to contact M r. Powell, bu t he was n ever in. Th e defenda nt testified he d id

not kno w he c ould no t leave th e State, s ince he was n ot a resid ent of S umne r Coun ty.

The defendant admitted going to Georgia, Colorado, Wyoming, and Knoxville,

Tennessee. The evidence is overwhelming the defendant knew he was on supervised

probation.

     The trial court had found the defendant violated his period of probation in a

numbe r of ways , more spe cifically, he left the state of Ten nessee, kn owing h is

probation officer’s name yet failing to contact him; and the defendant’s reasons or

excuse s were not the le ast bit cre dible. T hus, the defend ant’s pro bation w as revo ked.

   The defendant contends that the new indictment and arrest for the theft of a truck

belonging to ABC Caulking Comp any, is a m ere accusa tion and ca nnot be us ed to

revoke his probation. The defendant is correct. In State v. Harkins, 811 S.W.2d 79,

83 (Tenn. 1991), our supreme court held:

               A mere accusation, standing alone, is not sufficient to justify the
       revocation of a community corrections sentence. To the contrary, when,
       as here, the grounds for revocation ... is the commission of a new
       offense, the State is required to establish sufficient facts ... to permit the
       trial judge to m ake a con scientious an d intelligent jud gment a s to
       wheth er the co nduct in questio n violate d the law .




       The requirements for revoking placement in a community corrections program

involv ing "m ere acc usation s" are th e sam e in con sideratio ns of rev oking p robatio n.

The State, in order to rely on arrests as a violation to revoke probation, must produce

evidence in the usual form of testimony to establish probable cause a probationer has

comm itted another o ffense. Ho wever, this in troduction o f the arrest w arrant in this



                                         4
cause would support not only a mere accusation, but would support the violation of

the defendant leaving the State. We believe, in the facts o f this case, the trial court

could p roperly consid er this ev idence .

        The defendant contends he should not be revoked on the ground of non-

reporting sin ce he m ade attem pts to find ou t the name of his super vising officer , while

at the Buffalo Valley Treatment Center. Thus, he was not aware of the specific rules

of probation. The trial court found the defendant’s testimony regarding non-reporting

not to b e the lea st bit cred ible. Th e facts c learly su pport th e trial cou rt’s conc lusion.

State v. S mith, 909 S.W.2d 471 (TCC A 1995).




                                           5
     As to the grounds of non-payment of restitution and leaving the State, the

defendant argues that he was unsuccessful in contacting Mr. Powell and thus was not

made fu lly aware o f the rules and procedu res of proba tion. The trial c ourt found this

explanation not worthy of belief. The defendant’s testimony establishes that the

defendant has quite a history of criminal behavior and it is reasonable to infer that the

defendant would be aware of ordinary rules of probation.

     In sum, we co nclude that the record on appeal clearly justifies the trial court’s

finding that the defendant violated conditions of probation of which he was aware and

its conclusion that revoca tion was in order. The judgme nt of the trial cou rt is

affirmed.



                                            ___________________________________
                                            L. T. Lafferty, Special Judge

CONCUR:




_______________________________
Gary R. Wade, Judge



_______________________________
Thomas T. Woodall, Judge




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