         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 11, 2002

           STATE OF TENNESSEE v. PHILLIP THOMAS WILCOX

                   Direct Appeal from the Circuit Court for Coffee County
                           No. 29,702-F   L. Craig Johnson, Judge



                      No. M2002-00667-CCA-R3-CD - Filed May 9, 2003


The defendant contends the trial court erred in revoking his probation. He claims the trial court
improperly considered evidence of probation violations, because he was not given proper notice of
the violations by the probation revocation warrant. He further claims that the evidence adduced at
the probation revocation hearing was insufficient to revoke his probation. The trial court heard
evidence of probation violations that were not included in the probation warrant, but the trial court
specifically stated it did not consider such evidence in revoking the defendant’s probation. Because
sufficient evidence exists to prove the defendant violated Rule One of his Rules of Probation, we
affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
NORMA MCGEE OGLE , JJ., joined.

Joseph E. Ford, Winchester, Tennessee, for the appellant, Phillip Thomas Wilcox.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; and
Charles Michael Layne, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The defendant, Philip Thomas Wilcox, was indicted by a Coffee County Grand Jury on April
13, 1999, on four counts of statutory rape and one count of sexual exploitation of a minor. The
defendant pled guilty to all of the charges and was sentenced as a Range I standard offender to an
effective four-year sentence, as follows:
        Count 1:       Statutory Rape, Class E felony, 2 years incarceration, 7 months and
                       8 days probation;
        Count 2:       Statutory Rape, Class E felony, 2 years probation, consecutive to
                       Count 1;
       Count 3:        Statutory Rape, Class E felony, 2 years probation, concurrent with
                       Count 2, consecutive with Count 1;
       Count 4:        Statutory Rape, Class E felony, 2 years probation, concurrent with
                       Counts 2 and 3, consecutive with Count 1; and
       Count 5:        Sexual Exploitation of a Minor, Class E felony, 2 years probation
                       concurrent with Counts 2, 3, and 4, consecutive with Count 1.

        The defendant had a history of probation revocation hearings which resulted in dismissal or
increases in his probation requirements. The instant probation revocation warrant was filed on
December 13, 2001, and alleges the defendant had violated the terms and conditions of probation
by “his failure to obey the law as required by Probation Rule One.” The defendant had been arrested
on December 11, 2001, for the offense of assault. At his February 12, 2002, probation revocation
hearing, the testimony revealed the defendant had possessed illegal drugs and had access to a
firearm. Testimony at the hearing revealed the defendant violated his probation when he assaulted
his wife. The trial court ruled the defendant violated his probation and ordered him to serve four
years in the Tennessee Department of Correction. We affirm the judgments from the trial court.

                                              Analysis

        The defendant contends that he was denied due process by the introduction of allegations not
contained in the probation violation warrant at the revocation hearing. Our U.S. Supreme Court has
observed that “probationers have an obvious interest in retaining their conditional liberty, and the
State also has an interest in assuring that revocation proceedings are based on accurate findings of
fact and, where appropriate, the informed exercise of discretion.” Black v. Romano, 471 U.S. 606,
611, 105 S.Ct. 2254, 2257, 85 L. Ed. 2d 636 (1985). Due process rights of a defendant accused of
violating probation are as follows:
        (a) written notice of the claimed violations of his probation or parole;
        (b) disclosure to the probationer or parolee of evidence against him;
        (c) opportunity to be heard in person and to present witnesses and documentary
            evidence;
        (d) the right to confront and cross-examine adverse witnesses . . .
        (e) a ‘neutral and detached hearing body’ . . . and
        (f) a written statement by the fact finders as to the evidence relied on and reasons for
            revoking probation or parole.
Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762 (quoting Morrissey v. Brewer, 408
U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484 (1972)); see also State v. Wade, 863 S.W.2d
406, 408 (Tenn. 1993).

        A trial court may revoke the defendant’s probation if the trial judge finds that the defendant
violated the conditions of his probation by a preponderance of the evidence. Tenn. Code Ann. § 40-
35-311(d). Such revocation “rests in the sound discretion of the trial judge.” State v. Leach, 914
S.W. 2d 104, 106 (Tenn. Crim. App. 1995). The judgment of a trial court revoking probation will
not be disturbed on appeal, absent an abuse of discretion. State v. Harkin, 811 S.W.2d 79, 82 (Tenn.


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1991). In order for this Court to conclude the trial court abused its discretion, it must be established
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. Id. Proof of a probation violation is sufficient
if it allows the trial court to make a conscientious and intelligent judgment. State v. Milton, 673
S.W.2d 555, 557 (Tenn. Crim. App. 1984).

         The probation violation warrant charged the defendant with assault, in violation of Rule One
of his probation conditions, failure to follow the laws of the United States and to obey all laws. At
the probation revocation hearing, in addition to hearing evidence concerning the assault for which
the defendant was arrested, the trial court allowed the defendant’s wife to testify to the following
allegations: that the defendant consumed alcohol, that the defendant possessed illegal drugs, and
that the defendant threatened his wife with a handgun. The trial court, however, specifically stated
it did not consider such evidence in determining a probation violation.

         We conclude that the language of the warrant sufficiently apprised the defendant of the
charges against him, thereby complying with the requirements of due process. The warrant alleged
the date of the assault and the specific number of the condition of probation the appellant violated.
The probation revocation warrant clearly reflects that the appellant failed to comply with the laws
of the United States during the term of his probationary sentence. There need be only one violation
of the conditions of his probation to support revocation. In the instant case, the record does not
reflect the trial court based its decision to revoke the defendant’s probation on any evidence other
than that directly relating to the assault.

                                             Conclusion

        The evidence at the probation revocation hearing established that the defendant violated the
rules of his probation. Therefore, the trial court had the authority to revoke the defendant’s
probation. See Tenn. Ann. Code §40-35-311(d). For these reasons, we affirm the judgments of the
trial court.




                                               ___________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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