             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE                   FILED
                            JANUARY 1998 SESSION
                                                              February 13, 1998

                                                              Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
STATE OF TENNESSEE,     )
                        )
          Appellee,     )            No. 03C01-9705-CR-00175
                        )
                        )            Knox County
v.                      )
                        )            Honorable Richard Baumgartner, Judge
                        )
MAURICE TRAVON JOHNSON, )            (Probation Revocation)
                        )
          Appellant.    )


For the Appellant:                   For the Appellee:

Mark E. Stephens                     John Knox Walkup
District Public Defender             Attorney General of Tennessee
   and                                      and
John Halstead                        Georgia Blythe Felner
Assistant Public Defender            Assistant Attorney General of Tennessee
1209 Euclid Avenue                   450 James Robertson Parkway
Knoxville, TN 37921                  Nashville, TN 37243-0493
(AT TRIAL)
                                     Randall E. Nichols
Mark E. Stephens                     District Attorney General
District Public Defender                     and
   and                               Paula Gentry and C. Leon Franks
Paula R. Voss                        Assistant District Attorney General
Assistant Public Defender            City County Building
1209 Euclid Avenue                   Knoxville, TN 37902
Knoxville, TN 37921
(ON APPEAL)




OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The defendant, Maurice Travon Johnson, appeals as of right from the

revocation of his probation by the Knox County Criminal Court. He contends that the

trial court abused its discretion by revoking his probation. We affirm the revocation.



              On March 8, 1996, the defendant was convicted of possessing cocaine

with the intent to sell and deliver and of introducing drugs into a penal facility. He

received consecutive, Range I sentences of eight years and five years, respectively.

On August 15, 1996, the defendant’s sentences were suspended, and the defendant

was placed under the supervision of the Community Alternatives to Prison Program

(“CAPP”) for a period of thirteen years. On October 30, 1996, a probation revocation

warrant was filed against the defendant, alleging that he had violated the conditions of

his probation (1) by possessing or using alcohol or controlled substances, (2) by failing

to make a full and accurate report to his case manager, and (3) by failing to keep his

curfew.



              At the probation revocation hearing, Katherine Hancock testified that she

was employed by the Knox County Community Alternatives to Prison Program and that

she supervised the defendant. She stated that the defendant was placed in the CAPP

Care Program, where he was required to participate in six weeks of treatment followed

by job placement and follow-up treatment. She said that during the first six weeks, the

defendant did an excellent job. However, Ms. Hancock testified that the defendant had

a lot of problems with cocaine and that every drug screen that she gave to the

defendant was positive for cocaine. She said that the defendant admitted his drug use

to her.




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             Ms. Hancock stated that she then arranged for the defendant to attend

Another Chance, an in-patient treatment program. She said that the defendant

attended Another Chance for approximately one month. Ms. Hancock testified that

after a court appearance on October 11, the treatment coordinator for Another Chance

notified her that the defendant had stopped attending group meetings for a week and

that he had tested positive again for cocaine use. Ms. Hancock stated that the

defendant also failed to report regularly to CAPP after October 11 and did not return the

messages that she left at the defendant’s girlfriend’s house. She said that she then

prepared a probation revocation warrant. Ms. Hancock testified that she believed that

the defendant would no longer benefit from further rehabilitation efforts by CAPP.



              The defendant testified that he had a problem with crack cocaine. He

conceded that he used cocaine while participating in CAPP and that a drug screen

given before October 11 showed that he had used cocaine. He blamed his drug use

during the program on depression. He admitted that following a court appearance on

October 11, the trial court gave him thirty days to comply with the conditions of his

probation and warned him that it would revoke his probation if he did not stop using

drugs. The defendant stated that he stopped using drugs after the hearing, and he

claimed that he was not given any more drug tests. He explained that after the hearing,

he attended the in-patient program but missed a week of treatment because he was

sick with the flu. He claimed that he called the receptionist at Another Chance each

day that he missed, and he said that the reason he did not contact his CAPP supervisor

was that he believed that the personnel at Another Chance contacted CAPP. He said

that he did not return for treatment because he was notified a few days before his next

court appearance on November 1 that his insurance refused to pay for the treatment

due to his absences. Rather than reporting his absences to CAPP, the defendant

chose instead to appear in court.




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               At the conclusion of the hearing, the trial court revoked the defendant’s

probation and ordered the defendant to serve the remainder of his sentence in the

custody of the Department of Correction. In revoking the defendant’s probation, the

trial court stated:

               [I]t’s clear that you have a serious problem with the cocaine
               abuse. And I think that that’s affected your entire lifestyle for
               a significant period of time here. I was hoping -- I was
               optimistic, very candidly, back in August -- that you might have
               a shot at making it on the Care Program, but it just didn’t work
               out.

                      The most amazing thing to me is that when you were
               here in October, and I . . . explained to you very clearly that it
               was your absolutely last opportunity to get in compliance. And
               I candidly don’t find it very difficult to believe that whether you
               were sick or not, that you couldn’t even make a phone call or
               contact the people at the CAP Office. There’s no question you
               are in violation.

In its written revocation orders, the trial court stated that it found that the defendant was

“guilty of violating the laws of this State, and has otherwise violated the conditions of his

probation.”



               Initially, the defendant contends that his due process rights were violated

because the trial court did not adequately place its findings on the record. He cites

State v. Billy Carter, No. 03C01-9506-CR-00159, Sullivan County, slip op. at 6 (Tenn.

Crim. App. Apr. 16, 1996), in which this court stated that “the trial court’s failure to make

findings of fact in accordance with the principles of due process . . . coupled with the

records’ failure to reflect that the appellant was given written notice of the claimed

probation violation” required a remand for further proceedings to be conducted in

accordance with due process. We do not believe that the defendant’s due process

rights were violated. Although the trial court should have been more specific in its

factual findings, it obviously found that the defendant violated the conditions of his

probation by continuing to use drugs after being warned in October and by failing to

report to his supervisor at CAPP.




                                               4
              If the trial court finds by a preponderance of the evidence that a defendant

violated a condition of his probation, it is within the trial court’s discretion to revoke the

defendant’s probation and cause execution of the judgment as it was originally entered.

T.C.A. §§ 40-35-310, -311(d); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.

1991). For an appellate court to find an abuse of discretion and reverse a trial court’s

revocation of probation, it must be demonstrated that the record contains no substantial

evidence to support the conclusion of the trial court that a violation of the conditions of

probation has occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. Crim. App. 1991).



              The defendant asserts that the trial court abused its discretion by revoking

his probation because the evidence is insufficient to support a finding that he violated

the conditions of his probation. He argues that the only proof that the defendant used

cocaine after the trial court’s warning on October 11 was hearsay. He contends that his

right to confrontation was violated by the admission of Ms. Hancock’s testimony that the

treatment coordinator for Another Chance notified her that a drug screening showed

that the defendant had used cocaine. However, the defendant failed to object to the

introduction of the evidence. “When no objection to testimony is interposed, such

testimony may be properly considered and given its natural probative effect as if it were

in law admissible.” State v. Carney, 752 S.W.2d 513, 514-15 (Tenn. Crim. App. 1988).

Under these circumstances, the trial court was entitled to rely upon Ms. Hancock’s

testimony regarding the defendant’s continuing use of cocaine to revoke his probation.



              Although the defendant also argues that there is nothing in the record to

indicate that he was required to communicate directly with his CAPP supervisor, the

record does not contain a complete list of the defendant’s conditions of probation. At

the revocation hearing, the defendant did not dispute that he was required to

communicate with CAPP. Instead, he testified that he understood that the personnel at

the Another Chance program was contacting CAPP for him. Based on the record



                                               5
before us, we cannot say that the record preponderates against the trial court’s finding

that the defendant violated his probation by failing to make a full and truthful report to

his case manager.



               The evidence in this case does not preponderate against the trial court's

conclusion that the defendant has failed to comply with the conditions of his release.

We hold that the trial court properly revoked the defendant’s probation. The judgment

of the trial court is affirmed.




                                                         Joseph M. Tipton, Judge



CONCUR:




Gary R. Wade, Judge




William M. Barker, Judge




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