        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 10, 2012

          STATE OF TENNESSEE v. ROBERT KENNETH DUBOSE

               Direct Appeal from the Circuit Court for Hardin County
                       No. 8743     C. Creed McGinley, Judge


                  No. W2011-01422-CCA-R3-CD - Filed May 9, 2012


The defendant, Robert Kenneth Dubose, appeals the decision of the Hardin County Circuit
Court revoking his probationary sentence. The defendant pled guilty to rape, a Class B
felony, and received a sentence of eight years. The sentence was to be suspended to
supervised probation following the service of one year. Subsequently, a violation warrant
was issued charging the defendant with multiple violations of the terms and conditions of his
probation. Following a hearing, the trial court revoked the defendant’s probation and ordered
the balance of the sentence be served in the Department of Correction. Following review,
we conclude that the defendant has failed to show that the trial court abused its discretion in
ordering the revocation or in imposing a sentence of confinement. Therefore, the judgment
of the trial court is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry, Assistant Public
Defender, for the appellant, Robert Kenneth Dubose.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Hansel
Jay McCadams, District Attorney General; and Ed N. McDaniel, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION




                                    Procedural History
       On March 24, 2008, the defendant pled guilty to rape and received an eight-year
sentence, which was to be suspended to supervised probation following the service of one
year. On August 18, 2008, and on April 30, 2009, warrants were issued charging the
defendant with violations of his probation. However, it appears from the record that the 2008
warrant was dismissed, and no resolution was reached on the 2009 warrant. Nonetheless, a
third warrant was issued on October 8, 2009, alleging violations of four conditions of the
defendant’s probation. A hearing was held on the matter on June 9, 2011.

        The first witness called at the hearing was Millicent Mann, the defendant’s probation
officer. She testified that she began supervising the defendant in February 2009. Ms. Mann
stated that the defendant had failed to report to her since April 3, 2009. She further indicated
that she was aware that the defendant had been arrested and served time in the Hardeman
County jail from April until October 2009 for driving on a revoked/suspended license. The
new arrest was not reported to her by the defendant. Further, even after the defendant was
released in October, he did not report to her office as required, and had failed to do so in the
ensuing two years. Ms. Mann concluded her testimony by stating that if at any time the
defendant had attempted to report to her office and she was not there, he would have been
instructed to report to the sheriff’s office to complete a form, which would be relayed to her.
No such form was ever received by her.

        The defense called Roger Mosier, the son of the defendant’s mother’s landlord, to
testify for him. Mr. Mosier stated that on several occasions during the “summer months” of
2009, he had driven the defendant to the probation officer for his scheduled meetings. Mr.
Mosier testified that he assumed no one was present to meet with the defendant, as he
returned to the car soon after he entered the building each time.

        The final witness to testify was the defendant himself. He acknowledged that he had
not met with his probation officer personally since April 2009. However, he claimed that he
had attempted to do so on several occasions, but she was never in her office. The defendant
testified that he did then go to the sheriff’s office as instructed, but denied that he was ever
told to fill out a form there.

        The defendant also admitted that he had been arrested for driving on a revoked license
and had served time in jail. However, he stated that he believed that the lady at the police
station had faxed his probation officer to inform her of the charges.

       After hearing the evidence presented, the trial court revoked the defendant’s probation
and ordered him to serve his sentence in confinement. The defendant has timely appealed
that determination.



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                                          Analysis

       On appeal, the defendant contends that the trial court erred in revoking his probation.
However, as an initial matter, we note that the defendant makes no argument as to why this
decision was error, as is his burden on appeal. See Tenn. R. App. P. 27(a)(7). Nonetheless,
we elect to review the issue.

        A trial court may revoke probation and order the imposition of the original sentence
upon a finding by a preponderance of the evidence that the defendant has violated a condition
of his or her probation. T.C.A. §§ 40-35-310, -311(e) (2010). Probation revocation rests
within the sound discretion of the trial court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn.
Crim. App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)).
To establish an abuse of discretion, the defendant must show that there is no substantial
evidence in the record to support the trial court’s determination regarding the probation
violation. Id. Proof of a violation does not need to be established beyond a reasonable
doubt. State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, the evidence
need only show that the trial court exercised a conscientious and intelligent judgment as
opposed to an arbitrary one. State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App.
1997). In probation revocation hearing, the credibility of witnesses is to be determined by
the trial court. Mitchell, 819 S.W.2d at 735.
        Once the trial court has determined a violation of probation has occurred, it retains
discretionary authority to order the defendant to: (1) serve his sentence in incarceration; (2)
serve the probationary term, beginning anew; or (3) serve a probationary period that is
extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999);
see also T.C.A. § 40-35-310(b). The determination of the proper consequence of the
probation violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647.

       The trial court, in revoking the defendant’s probation, made the following findings
from the bench:

              The Court’s had an opportunity to listen to testimony here. I find it
       incredible that this length of time [the defendant] went without reporting to an
       officer.

              [The] Court finds that he has willfully failed to follow the rules and
       conditions of probation, both by the additional charge and conviction that he’s
       had, but by far and away the most - - the thing that most concern[s] the Court
       is that he was out in 2009 until latter part of 2010 [with] absolutely no
       supervision.



                                              -3-
              The court finds he willfully violated the terms and conditions of his
       probation. Therefore, remanded to TDOC for service of sentence.

        Nothing in the record before us indicates that the trial court’s determination that a
willful violation of probation had occurred was an abuse of discretion. Indeed, the defendant
himself admitted in his testimony that he had not reported and met with his probation officer
since April 2009. He further admitted that he had incurred a new charge for which he served
time in jail. It has previously been held by this court that a defendant’s admission to
violating probation is substantial evidence supporting a trial court’s decision to revoke
probation. State v. Bryan James Farve, No. E2008-00939-CCA-R3-CD (Tenn. Crim. App.,
at Knoxville, Mar. 23, 2009); State v. Christopher Nathaniel Richardson, No. M2006-01060-
CCA-R3-CD (Tenn. Crim. App., at Nashville, March 15, 2007).

        While the defendant, and his witness Mr. Mosier, offered excuses for the failure to
report as ordered, the court was free to find that their testimony was not credible. See
Mitchell, 819 S.W.2d at 735. This court will not reweigh the credibility determinations made
by the trier of fact. Indeed, even if we were to do so, like the trial court, we would conclude
it “incredible” that the defendant was unable to meet with his probation officer at least once
in a two-year period.

        Upon finding that a violation had occurred, the trial court acted within its authority
in revoking the probation and ordering that the balance of the defendant’s sentence be served
in incarceration. The defendant has failed to carry his burden of establishing his entitlement
to relief.

                                      CONCLUSION

       Based upon the foregoing, the revocation of probation is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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