        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs July 23, 2013

               STATE OF TENNESSEE V. ANTHONY D. MATHIS

           Direct Appeal from the Criminal Court for Washington County
                       No. 32058     Lynn W. Brown, Judge


                No. E2013-00284-CCA-R3-CD - Filed August 15, 2013


The defendant, Anthony D. Mathis, appeals the sentencing decision of the Washington
County Criminal Court revoking his probationary sentence. The defendant pled guilty to
facilitation of the possession of a Schedule II controlled substance for resale, a Class C
felony, and was sentenced, as a Range II offender, to six years. However, the trial court
suspended the sentence and ordered the defendant to serve eight years probation. Thereafter,
a violation report was filed charging the defendant with multiple violations of the terms and
conditions of his probation. Following a hearing, the trial court found that the defendant had
left the county without permission in violation of the probationary agreement. The court
revoked the defendant’s probation and ordered him to serve the six-year sentence. On
appeal, the defendant contends that the court erred in that revocation. Following review of
the record, we find no error and affirm the revocation of probation.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and J EFFREY S. B IVINS, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal) and David Crockett, Elizabethton,
Tennessee, (at trial), for the appellant, Anthony D. Mathis.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Tony Clark, District Attorney General; and Janet Hardin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                      Procedural History and Factual Background

       On May 4, 2007, the defendant pled guilty to facilitation of the possession of a
Schedule II controlled substance for resale and was sentenced by the Washington County
Criminal Court as a Range II offender to six years. The court suspended the defendant’s
sentence and placed him on supervised probation for eight years. According to Amanda
Salyers, with the Department of Probation and Parole, she had supervised the defendant since
February of 2010. She noted that the defendant had originally been placed on probation in
2007 in Washington County. Thereafter, the defendant received permission to have his
probation transferred to Florida, then later back to Bradley County in Tennessee, before
being transferred to Monroe County.

       In April 2010, Ms. Salyers filed a violation warrant against the defendant alleging that
he had been charged with aggravated domestic assault and possession of a firearm by a felon
in Monroe County. A week after the first offense, the defendant was arrested in Knox County
for aggravated assault and aggravated arson. Both of the offenses were committed against
the same victim, the defendant’s then-girlfriend. On October 6, 2010, an order was entered
whereby the defendant’s probation was revoked. However, the trial court reinstated the
defendant to probation but ordered that the eight-year probationary sentence begin anew.
Included within the order was a notation that the defendant was to immediately report to his
probation officer, Ms. Salyers, upon release.

        During this period of time, the defendant was apparently incarcerated in the Knox
County jail for the charges pending there. However, at some point, he was released on bond.
Ms. Salyers testified at the probation revocation hearing that a hold was to have been placed
on the defendant, but it was not done, and the defendant was released. She testified that she
learned of this when the victim in the initial assault called and informed her that the
defendant was calling and threatening her with bodily harm. She worked with Knoxville
police officers in trying to locate the defendant. The defendant was found on November 18,
2010, in Chattanooga onboard a Greyhound bus traveling to Florida. Ms. Salyers testified
that the defendant did not have permission to leave the county of his probation and had not
reported to her since April of 2010. She issued a second violation warrant, the subject of this
appeal, charging that the defendant had violated his probation by leaving the county of his
probation without permission, failing to contact her as ordered by the court, and contacting
and threatening the victim.

        At the probation violation hearing held before the trial court on December 14, 2011,
Ms. Salyers testified as stated above and attempted to detail the rather complicated history
of the case. Detective Travis Kincaid of the Knoxville Police Department also testified. He
testified that he was the investigating officer in the case in which the defendant was charged
with aggravated assault and aggravated arson. The defendant was eventually arrested for
the April 25, 2010 crimes. Although the time-frame of events is not entirely clear from the
record, at some point, Detective Kincaid became aware that the defendant had been
erroneously released on bond. He testified that he spoke with both Ms. Salyers and the

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victim of the crime about the threats made by the defendant to the victim. Detective Kincaid
worked with the Tennessee Highway Patrol, and the defendant was eventually found in
Chattanooga onboard a bus bound for Florida.

       The defendant also testified at the hearing. According to the defendant’s version of
events, he had been incarcerated continuously since October 6, 2010. He stated that, during
this period, he had been transferred multiple times between the Knox County, Monroe
County, and Washington County jails but that he had never been released from custody.
Thus, he could not report to his probation officer as ordered. The defendant also testified that
he had not been onboard the bus in Chattanooga on November 18, 2010. He testified that
he was incarcerated in the Monroe County Jail on that date.

       Because the State did not have the jail records at the hearing, the trial court continued
the hearing in order to allow the State to assemble records to determine if the defendant had
in fact been incarcerated for the entire time. When the hearing was resumed, the State
provided documentation from the Monroe County Sheriff’s Department stating that the
defendant had been released from custody on September 21, 2010. The State also produced
a report from the Tennessee Highway Patrol stating that troopers had apprehended the
defendant at the Greyhound bus station on November 18, 2010.

       After hearing the evidence presented, the trial court found the defendant had violated
the terms and conditions of his probation by leaving the county without permission. The
court revoked the defendant’s probation and ordered the defendant to serve his original six-
year sentence in incarceration. The defendant now appeals the revocation.

                                           Analysis

        On appeal, the defendant contends that the trial court erred by revoking his probation.
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 (2010); 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)). On appeal, this court will not disturb the trial court’s ruling absent an abuse of
discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 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, if the trial court finds by a preponderance of the evidence that a violation has
occurred, the court may revoke the probation and suspension of the sentence. T.C.A. § 40-
35-311(e). In a probation revocation hearing, the credibility of witnesses is to be determined

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by the trial court. Mitchell, 810 S.W.2d at 735.

       Once the trial court has determined a violation of probation has occurred, it retains the
discretionary authority to order the defendant to: (1) serve his or her 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. § 40-35-308, -310, -311. The determination of the proper
consequence of the probation violation embodies a separate exercise of discretion. State v.
Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).

       In finding that the defendant had committed a violation, the trial court made the
following statement on the record:

              Well, the indication was you may have some problems, or the Knox
       County prosecutor may have some problems with that arson case, but that’s
       not particularly relevant. It appears that he - - he was out of the county. He
       was trying to leave the state. And Officer Kincaid from the police department
       in Knoxville was - - was very believable about the car blown up, building
       scorched and such. It appears he’s violated probation.

The defendant and the State both assert that this statement means that the trial court
considered the defendant to be outside of the county twice, on April 25 to commit the arson
and assault and on November 18 in Chattanooga. The defendant presents various arguments
regarding the trial court’s consideration of the April 25 incident. However, we need not
address those arguments, as our reading of that statement leads us to conclude that the trial
court found that the defendant had violated probation only by being in Chattanooga in
November. Regardless, even if the defendant’s arguments had merit with regard to the April
25 incident, the November incident would still support revocation if established.

       The defendant’s argument with regard to the Chattanooga violation is based upon the
lack of clarity and abundance of confusion in the record caused by the multiple convictions
in multiple counties and transfers of the defendant between the various jails. He contends
that:

       [t]he facts as presented by the State at the revocation hearing in this case leave
       too many unanswered questions and present too little evidence for the trial
       court to reasonably conclude by a preponderance of the evidence that the
       Defendant was on a bus in Chattanooga on November 18, 2010, in violation
       of the October 6, 2010 probation order, or that the Defendant was ever not in
       custody between October 6, 2010 and November 19, 2010.


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While we do agree with the defendant that the record lacks clarity with regard to various
periods of time, we cannot accept the argument that the record is not clear that the defendant
was in Chattanooga on a Greyhound bus bound for Florida.

       While the defendant contends that there is not enough evidence to establish that he
was on the bus in Chattanooga, that argument is based mostly upon his own testimony that
he was not there. Though not present when the defendant was apprehended, both Ms.
Salyers and Detective Kincaid were both aware of the circumstances under which that
happened and offered testimony as such. Moreover, the State presented a statement from the
Tennessee Highway Patrol indicating that officers had in fact removed the defendant from
a bus on that day. Ms. Salyers testified that the defendant did not have permission to travel
to Florida on the day he was apprehended on the bus. As such, the record in this case
supports the trial court’s finding that the defendant had violated the terms and conditions of
his probationary sentence by leaving the county without permission. After finding that a
violation had occurred, the trial court was statutorily authorized to revoke the sentence and
order the balance of the original sentence to be served in confinement. No abuse of
discretion is apparent on this record.

                                      CONCLUSION

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




                                                   _________________________________

                                                   JOHN EVERETT WILLIAMS, JUDGE




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