        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 24, 2009

           STATE OF TENNESSEE v. AGATHA RANNAH HODGE

              Direct Appeal from the Circuit Court for Marshall County
                     Nos. 17719 & 17720    Robert Crigler, Judge




               No. M2009-00751-CCA-R3-CD - Filed January 26, 2010


Appellant Agatha Rannah Hodge was charged with fifty counts of theft and one count of
burglary. She pled guilty to one count of theft of property valued between $1,000 and
$10,000 and one count of burglary. The remaining charges were dismissed. She was
sentenced to four years for the theft conviction and three years for the burglary conviction,
with the sentences to run consecutively. The trial court ordered the Appellant to serve seven
months in confinement, with the remainder to be served on probation. She subsequently pled
guilty to violating the rules of her probation, and the trial court ordered her to serve her
sentences in confinement. She appeals, arguing the revocation was excessive. We affirm.

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

N ORMA M CG EE O GLE, 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.

Michael J. Collins, Shelbyville, Tennessee, for the appellant, Agatha Rannah Hodge.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                 I. Factual Background

     At the revocation hearing, Appellant acknowledged that while on probation she
smoked three marijuana joints during a three and a half week period. She told the court that
each episode occurred in her car after work. She acknowledged that she consequently drove
her car under the influence of marijuana. When she tested positive for marijuana while on
probation, she told her probation officer that it was the result of second-hand smoke. The
State produced a chemist’s report excluding second-hand smoke as a possible cause, and
Appellant admitted that she had lied. Further, Appellant, who was 37 years old at the time
of her presentence investigation report, told her probation officer that she had smoked
marijuana only twice, both times when she was 14 years old. She admitted in the revocation
hearing that this was also a lie.

       Appellant also admitted that she had fallen behind on the restitution payments she was
ordered to make. She conceded that she was ordered to pay $200 each month but that she
paid the full amount only in June and July 2008. Thereafter, she made only partial payments.
She explained that her child support payment had increased, resulting in a reduced ability to
pay.

       Finally, Appellant also admitted that this was not the first time she had been cited for
violating probation.

       Appellant testified that she had a steady job before her probation was revoked and that
she anticipated being able to get another job. She told the court that she was the primary
breadwinner for her disabled mother and her two teen-age children with whom she lived.

        Appellant’s probation officer, Eugene Holman, also testified at the hearing. Holman
confirmed that Appellant tested positive for marijuana while on probation and that Appellant
claimed the positive result was caused by second-hand smoke. Thereafter, Mr. Holman
requested additional analysis to determine whether her explanation was plausible. The
reports revealed that Appellant’s positive result was caused by “recent and regular use of
marijuana.” Holman also confirmed that Appellant had not paid the full amount of her
restitution.

       At the conclusion of the hearing, the trial court denied Appellant’s request for split
confinement and revoked her probation. The court noted that Appellant’s drug use was
“without question” a violation of her probation. The court placed greater emphasis on
Appellant’s failure to make her restitution payments. It noted that Appellant owed a “great
amount” and that “to give [Appellant] another split sentence is really just to delay the
inevitable.” The court explained that it “gave [Appellant] a chance and [she] didn’t take
advantage of it.”

      On appeal, Appellant essentially makes three arguments. First, she claims the record
does not contain sufficient evidence to revoke her probation. Second, she asserts that full

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revocation is not commensurate with her violations and therefore runs contrary to the goals
of the Sentencing Act. Finally, she argues that full revocation is unwise because it will not
address her underlying drug problem.

                                         II. Analysis

       Upon finding by a preponderance of the evidence that a probationer has violated the
terms of her probation, a trial court is authorized to order her to serve the balance of her
original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e) (2006);
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Probation revocation rests in the sound
discretion of the trial court and will not be overturned by this court absent an abuse of that
discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of
discretion exists when “the record contains no substantial evidence to support the trial court’s
conclusion that a violation has occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim.
App. 1995)

        We conclude that the trial court did not abuse its discretion in revoking Appellant’s
probation. “[A]n accused, already on probation, is not entitled to a second grant of probation
or another form of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-
CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999); see also
State v. Timothy A. Johnson, No. M2001-01362- CCA-R3-CD, 2002 WL 242351, at *2
(Tenn. Crim. App. at Nashville, Feb. 11, 2002). Appellant acknowledged multiple violations
of her probation. Furthermore, her failure to make restitution payments, upon which the trial
court heavily relied, suggested a chronic inability to conform to the mandates of her
probation. Thus, the court had sufficient evidence to revoke her probation. As the trial court
noted, the Appellant was given an opportunity to stave off incarceration if she followed the
rules of probation. She did not take advantage of the opportunity to avoid incarceration.

                                       III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.


                                                    ___________________________________
                                                    NORMA McGEE OGLE, JUDGE




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