        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 30, 2010

      STATE OF TENNESSEE v. TREMAINE NATHANIEL POINTER

             Direct Appeal from the Criminal Court for Davidson County
             No. 2006-D-2927; 2007-B-1142     Cheryl Blackburn, Judge


                 No. M2009-01424-CCA-R3-CD - Filed June 30, 2010


The Defendant-Appellant, Tremaine Nathaniel Pointer, appeals the revocation of his
probation by the Criminal Court of Davidson County. In case number 2006-D-2927, Pointer
entered a guilty plea to possession with intent to sell .5 grams or more of cocaine, a Class B
felony. In case number 2007-B-1142, Pointer pled guilty to felony failure to appear, a Class
E felony. Pursuant to his plea agreement, he was sentenced as a Range I, standard offender
to an eight year term of imprisonment for the drug conviction and was ordered to have a
mental health and drug assessment. He was also sentenced to one year for the felony failure
to appear conviction, which was imposed to run consecutively to the eight year sentence, for
an effective nine-year sentence. The trial court ordered Pointer to serve six months in jail
and the remainder of his sentence on supervised probation. After a revocation proceeding
on September 19, 2008, Pointer was placed back on probation to be supervised by the
community corrections program, and that placement was revoked on June 1, 2009, when the
court ordered Pointer to serve his sentence. On appeal, Pointer contends that the trial court
abused its discretion by ordering him to serve his sentence in confinement after revoking his
probation. Upon review, we affirm the judgment of the trial court revoking Pointer’s
probation in cases 2006-D-2927 and 2007-B-1142.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Dawn Deaner, District Public Defender; Emma Rea Tennent (on appeal); Jessamine Grice
(at hearing), Assistant Public Defenders, Nashville, Tennessee, for the Defendant-Appellant,
Tremaine Nathaniel Pointer.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

       Guilty Plea Hearing. At the May 10, 2007 guilty plea hearing, the State summarized
the facts supporting the entry of Pointer’s guilty pleas:

               Your Honor, if Mr. Pointer’s case . . . had gone to trial, the State’s proof
       would be that on June [27,] 2006[,] the police served a search warrant at 1703
       Underwood Street, Apartment 2, where the defendant was there. The police
       found about thirteen grams of crack cocaine on the roof of the porch near
       where Mr. Pointer was when the police came up. They questioned Mr.
       Pointer. He admitted that he had been selling drugs. He had scales, but he
       claimed that he had stopped selling a couple of days prior. But he did have
       $266 in cash. He was charged with this offense. He was indicted. He was
       supposed to be here in court on March [8], 2007, on it, and he did not show up.
       All this was in Davidson County.

Pointer acknowledged that the aforementioned facts were true . The trial court discussed the
specific terms of the plea agreement with Pointer. Pointer acknowledged that he understood
the charges against him and understood the sentences he would receive under the plea
agreement. The trial court accepted his guilty pleas and sentenced him pursuant to the plea
agreement.

       At the revocation hearing on September 19, 2008, Pointer waived his right to a
hearing and conceded that he violated the terms of his probation by testing positive for
marijuana. At the conclusion of the hearing, the court ordered Pointer to enter a dual
diagnosis program. It also reinstated Pointer’s probation but required that the probation be
supervised by the community corrections program.

       On April 9, 2009, an arrest warrant was issued alleging that Pointer had violated the
terms of his probation by failing to complete his outpatient treatment and by testing positive
for Benzodiazepine. On April 17, 2009, an amended arrest warrant was issued that alleged
the aforementioned violations as well as the fact that Pointer had absconded.

      Probation Revocation Hearing. At the June 1, 2009 probation revocation hearing,
Brandi Jimmerson, Pointer’s supervisor at the community corrections program, testified that



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Pointer had been previously diagnosed with bipolar disorder, post-traumatic stress disorder,
and a dependency on cannabis. She said that she had been in contact with Pointer at least
once weekly and that Pointer had regularly attended the appointments with her, although he
would often be late for these appointments.

       Jimmerson acknowledged that Pointer went to Bradford Health Services after he
attended New Life Lodge. She said that she initially presented an arrest warrant to the court
because Pointer had tested positive for marijuana. The trial court declined to sign this
warrant because it knew that Pointer was going to receive inpatient treatment at New Life
Lodge. Jimmerson stated that Pointer did complete the twenty-eight-day inpatient treatment
at New Life Lodge. She said that the community corrections program required Pointer to go
to the Bradford Health Services program, which was an aftercare program, following his
treatment at New Life Lodge. She said that Pointer had to undergo mental health counseling
as a condition of his probation.

       Jimmerson stated that she had been initially notified by Bradford Health Services that
Pointer had not been attending his sessions. She informed Pointer that he had to attend his
sessions or “that would be a violation of the Community Corrections.” On March 31, 2009,
Bradford Health Services notified her that Pointer was being discharged because someone
had reported that he was selling Valium on the premises and that marijuana had been found
on his person. Jimmerson said that Pointer adamantly denied distributing drugs at Bradford:

       [Pointer] denied it and denied it. Because I told them, you know, it’s kind of
       coincidental – [Pointer] and I had discussions for weeks about the treatment
       because he wasn’t showing up. And he was telling me the counselor just
       didn’t like him and was making up this and so forth. I informed him that that
       was not the case. I mean, that’s the counselor’s job. He was either showing
       up late or he wasn’t. He said he was. So we had a talk about it, and then I got
       a call from the counselor saying that he was doing better. He had actually
       attended class every day that week. So things were looking up. And then I got
       the call again that said that someone else had reported [that he was distributing
       controlled substances at Bradford].

On April 1, 2009, Jimmerson performed a drug test on Pointer, wherein he tested positive for
Benzodiazepine or Valium. She then presented a warrant with a treatment plan to the trial
court, which included Pointer’s admission into a halfway house. The court signed the
warrant and set a fairly low bond. The court told Pointer that if he made bond, it would allow
him to attempt the treatment plan. Pointer subsequently made bond, and Jimmerson told him
that he needed to call her the next morning regarding his admission into the halfway house.
Jimmerson detailed the series of events following Pointer’s arrest for the first warrant:

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               [Pointer] reported on a Tuesday, and he was arrested in the office.
       That’s when I told him if he made bond he needed to call me. He called me
       that afternoon like he was supposed to. The following morning was when I
       told him he had to go [to the Recovery Consultants halfway house] that day.
       And he said that he had to take his baby to the doctor and so forth. So that was
       on Wednesday morning. He was supposed to have contacted me by lunchtime.

Jimmerson said that she presented an amended warrant to the trial court on Friday morning.
She said that she tried to contact Pointer several times prior to presenting the amended
warrant to the court. Pointer finally contacted her on Friday afternoon, and she told him
about the amended warrant. Jimmerson stated that Pointer told her, “I thought you were
supposed to call me.” She responded that “he knew that that was not the case because [they]
had had the conversation about the doctor’s appointment.” Jimmerson explained that Pointer
knew he was supposed to contact her and that she had tried several times to contact him, but
he refused to return her phone calls.

       Jimmerson said that the halfway house that Pointer was supposed to attend following
the first arrest warrant for a probation violation was called Recovery Consultants. She
informed the court that she had already gotten Pointer a bed in a different halfway house, the
Ann Betts Halfway Home Transitions, in case the trial court wished for Pointer to go to one
following this hearing. She explained that this second halfway house was not as good as
Recovery Consultants because it does not have as much to offer individuals, but Recovery
Consultants did not currently have room for Pointer.

        Jimmerson said that Pointer had been screened for Drug Court, but she thought he had
been denied because of his felony failure to appear charge. Jimmerson acknowledged that
Drug Court would be a good option for Pointer if he qualified because Pointer needed “quite
a bit of structure.”

       Jimmerson also stated that she contacted New Life Lodge. Although Pointer met New
Life Lodge’s criteria for admission, she said that Pointer would have to undergo an in-person
assessment before determining whether his insurance would pay for the treatment, since
Pointer had been incarcerated for so many days. Jimmerson acknowledged that the court
would not be able to do anything other than order confinement unless Pointer cooperated and
that Pointer had not cooperated as of the hearing date.

        Pointer testified that he was aware that this was his second violation of probation and
his first violation of the community corrections program. He also acknowledged that he had
a substantial amount of time remaining on his sentence. Pointer admitted that he had taken

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Valium prior to his drug test in April when he tested positive for Benzodiazepine. He said
that he did not have a prescription for Valium at the time of the drug test. Regarding his
discharge from Bradford Health Services, Pointer said that he had Valium at the time but that
he did not sell any of it or give any of it away to the other members. He said that he was
taking the Valium because it helped with pain he had in his back and hip. He admitted that
he never had a prescription for Valium. Pointer said that he had been prescribed Oxycodone
last December when he broke his ankle because he did not disclose that he was a drug addict
to the prescribing physician. Pointer stated that he had received a mental health diagnosis
and had been prescribed Risperdal. He said that he was diagnosed with post-traumatic stress
disorder when he was eighteen or nineteen but was unsure what caused him to have this
diagnosis. He also said that he had been diagnosed with bipolar disorder. He stated that he
believed that both of these disorders sometimes prevented him from completing probation.
Pointer then explained why he failed to contact Jimmerson regarding his participation in the
Recovery Consultants halfway house:

              I think we just had a misunderstanding because I wanted to do the
       halfway home. I wanted to get help. You know, I know I need help. I think
       we just had a misunderstanding because I called her on Friday and asked her
       what happened to the plan. But I didn’t know – I thought she was going to call
       me, you know. Of course, she said she couldn’t get a hold of me.

Pointer said that he was interested in going to the Ann Betts Halfway Home that had been
set up. He said that he had been living with his aunt but thought that the halfway house
would be better for him because it had more structure. Pointer also said that he was
interested in participating in the Drug Court, despite the fact that he had been denied. He
also said that he had already participated in the New Life Lodge program earlier that year and
that going back there would be helpful for him. Pointer said that, if he were allowed to
return, he would make an effort to complete his work. He informed the court that he had
been working part-time in landscaping and that his aunt and his grandmother were present
in the courtroom. He also stated that he had been attending the Mental Health Co-op since
he was eighteen. Pointer said that he had heard about a new program that combined drug
issues and mental health issues, and he said that he would like to be screened for that
program if it would help him.

        Gloria Jackson testified that Pointer was her grandson. Jackson said that Pointer was
close with her, his father, and his aunt. She said that Pointer’s mother kicked him out of the
house when he was a teenager and that “[h]e’s been abused and not knowing which way to
go.” Jackson said that Pointer never lived with her, although she had been an active part of
his life. She opined that jail would not help him, but a drug program would help him with
his drug addiction because “[h]e needs to be supervised and monitored and motivated.”

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Jackson said that Pointer does not get much supervision living with his aunt, although he
does help her because she is disabled. Jackson said that she would provide transportation so
that Pointer could be screened for New Life Lodge.

        The State declined to make a closing argument. During closing, defense counsel
presented the following three options regarding Pointer: (1) he could attend the Ann Betts
Halfway House, (2) he could be screened for the new drug program that has a mental health
component, and (3) he could be granted a furlough to be screened by the New Life Lodge
program to determine whether his insurance would pay for this program. Defense counsel
stated, “I think structure and supervision and someone standing over him is what he needs
to be successful on any form of probation.”

       At the conclusion of the hearing, the trial court refused to allow Pointer to participate
in any drug programs. On June 1, 2009, the trial court entered an order revoking Pointer’s
probation and ordering him to serve the original sentence in confinement. Pointer filed a
timely notice of appeal.

                                           ANALYSIS

        Pointer contends that the trial court abused its discretion by ordering him to serve his
sentence in confinement after revoking his probation. In response, the State argues that the
trial court properly revoked Pointer’s probation and ordered him to serve his nine-year
sentence in confinement. We agree with the State.

        If the trial judge determines that the defendant “has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have the
right . . . to revoke the probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered, or otherwise in accordance
with § 40-35-310.” T.C.A. § 40-35-311(e) (2006). Probation revocation rests within the
sound discretion of the trial court, and this court will not disturb the trial court’s ruling absent
an abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). In order to establish an abuse of discretion,
the defendant must show “that the record contains no substantial evidence to support the
conclusion of the trial judge that a violation of the conditions of probation has occurred.”
Harkins, 811 S.W.2d at 82 (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State
v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Once the trial judge has made the
finding that a violation of probation has occurred, he or she has the discretion 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



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two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999) (citations omitted); see also
T.C.A. §§ 40-35-308, -310, -311.

       Here, Pointer concedes that the trial court did not abuse its discretion in finding that
he had violated a term of his probation by using Valium without a prescription. However,
he claims the trial court abused its discretion in requiring him to serve his sentence in
confinement because, in his view, the violation did not warrant such a harsh sentence. He
also contends that his rehabilitative efforts during probation should have resulted in the
reinstatement of his probation. Pointer claims that the trial court’s willingness to set a low
bond and to allow him to complete a treatment plan following the April 9 arrest warrant
shows that a sentence in confinement was not appropriate. He argues that “nothing
transpired between the first warrant of April 9 and the second warrant of April 17 that
rendered him unsuitable for community placement.” In support of this argument, he asserts
that his failure to contact Jimmerson during this time period was directly related to his
bipolar disorder and post traumatic stress syndrome, which were things that Jimmerson’s
treatment plan was attempting to address. Finally, he argues that the court’s decision to
reinstate his entire sentence “does not serve the ends of justice, and is not in the best interest
of either the public or himself.” Consequently, he requests that this Court modify the trial
court’s judgment by allowing his probation to be reinstated.

        We conclude that the trial court did not abuse its discretion in ordering that Pointer
serve his sentence in confinement. The trial court stressed that confinement was necessary
in light of Pointer’s refusal to follow his probation terms:

               Well, Mr. Pointer, you know, I am willing to work with anybody who
       will demonstrate some willingness to cooperate or people who have really
       serious mental illnesses for which they have trouble understanding things and
       that – you don’t fall within that category. You just do kind of what you want
       to do when you want to do it. And, you know, two or three times of that – and
       we’ve thrown virtually every program we can at you, and you still won’t
       cooperate. You know, there comes a time, Mr. Pointer, where you’re just
       going to have to be in custody. And you have reached that point. So the
       sentence is going to be placed into effect.

Once the trial court determined that Pointer violated the terms of his probation, it was
authorized “to cause execution of the defendant’s original judgment as it was originally
entered.” Hunter, 1 S.W.3d at 647 (citing T.C.A. § 40-35-310). We conclude that the trial
court did not abuse its discretion in ordering Pointer to serve his sentence in confinement.
The record shows that after Pointer entered guilt pleas to possession with intent to sell .5
grams or more of cocaine and felony failure to appear, he violated the terms of his probation

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by being discharged from Bradford Health Services without completing his treatment, by
testing positive for Benzodiazepine, and by absconding. At the September 18, 2008 hearing,
the trial court reinstated Pointer’s probation rather than ordering confinement. The trial court
also gave Pointer an opportunity to avoid confinement when it approved the treatment plan
offered by Jimmerson when she presented the April 9, 2009 arrest warrant. Despite these
opportunities, Pointer failed to contact Jimmerson regarding his halfway house placement.
We conclude that the trial court acted well within its discretion by ordering Pointer to serve
his original sentence in confinement. Accordingly, Pointer is not entitled to relief.

                                       CONCLUSION

        Upon review, the judgment of the trial court is affirmed.


                                                    ______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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