            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE           FILED
                             JANUARY 1999 SESSION
                                                              March 9, 1999

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

STATE OF TENNESSEE,                      )    C.C.A. NO. 03C01-9707-CR-00291
                                         )
      Appellee                           )    HAMILTON COUNTY
                                         )
v.                                       )    HON. DOUGLAS A. MEYER,
                                         )    JUDGE
JERRY ALLEN ELLISON,                     )
                                         )    (Revocation of probation)
      Defendant/Appellant                )




FOR THE APPELLANT:                            FOR THE APPELLEE:

Ardena J. Garth                               John Knox Walkup
District Public Defender                      Attorney General & Reporter
11th Judicial District
                                              R. Stephen Jobe
Donna Robinson Miller                         Assistant Attorney General
Assistant District Public Defender            Criminal Justice Division
Suite 300 - 701 Cherry St.                    425 Fifth Avenue North
Chattanooga, TN 37402                         2d Floor, Cordell Hull Building
                                              Nashville, TN 37243-0493




OPINION FILED


AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
                                     OPINION

       This is an appeal by the defendant from the judgment of the trial court which

revoked a previously granted probation to him.

       The judgment of the trial court is affirmed.

       In December 1996, the defendant entered a plea of incest, which arose from

his sexual intercourse and oral sex with his step-daughter on eight to ten occasions

when she was fourteen and fifteen years of age. On March 13, 1997, the trial judge

sentenced the defendant to serve six years for the offense. The defendant served a

30 day “shock” time in jail and on April 21, 1997 the remainder of the sentence was

suspended and the defendant was placed on intense probation.

       On May 6, 1997, a petition was filed to revoke the probation because the

defendant had been arrested for assault. On June 18, 1997, the trial court revoked

the defendant’s probation and ordered him to serve the remainder of the six year

sentence.

       The record shows that the defendant and the mother of the child in the case

were divorced sometime before the case was concluded. When the defendant was

released from jail, he began to live with a woman named Benson, who was

apparently 19 years of age.

       The Benson woman testified that on May 4, 1997 she hid the telephone from

the defendant because she thought he was going to call the child upon whom he

had committed incest. The defendant found the telephone and they struggled over

the use.1 According to the woman, the defendant threw her onto the bed and began

to choke her. In the course of this altercation the defendant said “if I have to go to

jail, you’re going to die.” The evidence shows that an officer who investigated this

case saw marks upon the woman’s neck.




       1
           This was 13 days after the defendant had been placed on probation.

                                          -2-
       The record shows that the woman attempted to keep the defendant from

going to jail by telling the prosecution that she had lied about what occurred. She

was reminded that her sworn affidavit was a part of the record and that if she

testified to the contrary she would be prosecuted for perjury. 2 All of the impeaching

evidence was shown in the hearing and the woman testified that she spoke the truth

when she related how the defendant had assaulted her. The defendant testified

contrary to the woman’s version.

       The trial judge found the woman’s story of the assault to be credible and he

found the defendant had committed the assault.3

       The decision to revoke probation rests within the discretion of the trial judge,

State v. Mitchell, 810 S.W.2d 733 (Tenn. Crim. App. 1991), and it will not be

reversed on appeal unless there is a showing of an abuse of that discretion. State

v. Harkins, 811 S.W.2d 79 (Tenn. 1991). To reverse the judgment, there must be

no substantial evidence in the record to support the action of the trial judge. Id.

       In this case, the trial judge found that the defendant had committed the

offense of assault as he was accused. The evidence supports this finding. The trial

judge did not abuse his discretion in revoking the previously granted probation.

       The judgment of the trial court is affirmed. It appearing that the defendant is

indigent, costs of this appeal are taxed to the State.




                                          John K. Byers, Senior Judge




       2
           The indictment for assault was dismissed summarily after the revocation.
       3
        The trial judge had indicated that he was concerned about the defendant
having contact with the victim. However, he announced he would not consider this
because the probation grant did not prohibit this. The defendant raised this as an
issue on appeal, but this does not entitle the defendant to relief.

                                          -3-
CONCUR:




James Curwood W itt, Jr., Judge




Norma McGee Ogle, Judge




                                  -4-
