         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 21, 2004

                 STATE OF TENNESSEE v. JASON D. WALKER

                   Direct Appeal from the Circuit Court for Blount County
                           No. C-13500    D. Kelly Thomas, Judge



                                 No. E2003-01954-CCA-R3-CD
                                         June 9, 2004

On December 17, 2001, Defendant, Jason D. Walker, entered a guilty plea in the Blount County
Circuit Court to statutory rape. Defendant was sentenced as a Range I offender to two years to be
suspended on supervised probation. Defendant was ordered, as a condition of his probation, to
attend a sex offender treatment program, establish paternity of the child resulting from the offense,
and pay child support. A probation violation warrant was issued. Following a revocation hearing,
Defendant was sentenced to serve thirty days of his sentence in confinement and the remainder on
probation. Additional probation violation warrants were subsequently issued. Following another
revocation hearing, the trial court revoked Defendant’s probation and ordered that Defendant serve
the balance of his original sentence in confinement. Defendant appeals the trial court’s revocation
of probation. After reviewing the record, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and JOE
G. RILEY , JJ., joined.

Steve McEwen, Mountain City, Tennessee, (on appeal); Mack Garner, District Public Defender, (at
trial), for the appellant, Jason D. Walker.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Tammy Harrington, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                            OPINION

        At the August 4, 2003, revocation hearing, Terry Fowlkes, a probation officer, testified that
Defendant’s probation was previously revoked as a result of the March 27, 2002, probation violation
warrant, which alleged that Defendant had violated his probation by failing to obtain full-time
employment and failing to establish paternity, and which was later amended to include violations
for having an arrest for theft and failing to report the new arrest. Defendant was ordered to serve
thirty days in the Blount County Jail. Defendant was permitted to serve the thirty-day sentence on
weekends if he was employed full-time. Additional probation violation warrants were filed in
September, 2002, for failing to attend a sex offender treatment program, and in December, 2002, for
arrearage in payment of his probation fees. In April, 2003, Defendant was ordered to be in
compliance with the conditions of his probation.

        Ms. Fowlkes testified that at the time of the hearing, Defendant was in compliance with
payment of his probation fees, but that he had not obtained full-time, verifiable employment and he
had not attended the sex offender treatment program as instructed. Ms. Fowlkes testified that
Defendant had been drug-tested regularly, and the results of his drug tests were negative. Ms.
Fowlkes also testified that Defendant had submitted to a paternity test, which established that he was
the father of the child, and that he paid child support.

        Defendant was twenty-two years old at the time of the revocation hearing. He lived with his
grandparents. Defendant testified at the hearing that paternity had been established and that he paid
$287 per month in child support. Defendant admitted that he was “a little behind” in child support
payments because he had been unemployed for a period of time. Defendant had been paying his
probation fees and court costs. Defendant had not found a steady job, but he testified that he had
been hired at Cerami-Speed to begin working full-time on the day of the hearing. Defendant testified
that he had been working “side jobs,” and he was unable to keep a job because of his frequent court
appearances in this case. Defendant admitted that he had missed several sex offender counseling
meetings. Defendant had made up some of the missed meetings, but he was behind in attendance
for two meetings. Defendant was required to attend the meetings once every two weeks, and it
“slip[ped]” his “mind every now and then.” Defendant’s daughter was two years old at the time of
the revocation hearing, and the child’s mother was sixteen years old. At the time of the revocation
hearing, Defendant “usually” visited the child one day a week on the weekends.

        The probation violation warrant filed on September 20, 2002, states that Defendant violated
the conditions of his probation by failing to attend the sex offender treatment program on six dates.
The warrant also stated that paternity was established in April of 2002, that Defendant’s fees and
court costs were current, and that he was employed full-time and was serving his thirty-day sentence
on weekends. The probation violation warrant filed on December 11, 2002, alleged that Defendant
had failed to pay his probation fees for three months. The probation violation warrant filed on April
3, 2003, alleged that Defendant had failed to pay his probation fees for five months.

        At the conclusion of the revocation hearing, the trial court found that Defendant had violated
the conditions of his probation. The trial court noted that Defendant had been given an opportunity
to comply with the conditions of his probation following the first revocation, and Defendant had not
fully complied. The trial court revoked probation and ordered Defendant to serve the balance of his
original sentence. The trial court also gave Defendant credit for thirty days in confinement.

        In this appeal, Defendant concedes that he violated the conditions of his probation by failing
to attend the sex offender treatment program as instructed. Defendant argues, however, that he


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otherwise complied with the conditions of his probation, by reporting to his probation officer, testing
negative for drugs, paying probation fees and court costs, obtaining full-time employment,
legitimating his child, and paying child support. Defendant asserts that a sentence of split-
confinement and intensive probation would allow him to maintain a job and continue to pay child
support.

        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 person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, 311. The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Revocation of probation is subject to an abuse of discretion standard of review, rather than a de novo
standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abused only if the record
contains no substantial evidence to support the conclusion of the trial court that a violation of
probation has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof
of a violation need not be established beyond a reasonable doubt, and the evidence need only show
that the trial judge exercised a conscientious and intelligent judgment, rather than acting arbitrarily.
Gregory, 946 S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

        We acknowledge that our supreme court has held that a trial court may not require as a
condition of probation the legitimation of a child by a defendant who is the mother of an illegitimate
child. See State v. Mathes, 114 S.W.3d 915 (Tenn. 2003). However, in this case, although the trial
court imposed a similar condition on Defendant’s suspended sentence, a violation of that condition
was not alleged in the revocation warrant, and therefore is not the subject of this appeal.

       At the conclusion of the revocation hearing, the trial court found as follows:

         The proof has established that [Defendant] violated the terms of his probation.
         This is his second violation. I think what [defense counsel] argues and proposes
         is an excellent idea and it is one that we tried last April. That’s exactly what
         happened. And [Defendant] violated his probation after April. This violation was
         filed in September. It’s been held and not heard for nine months to give
         [Defendant] time to follow the rules.

         So, with the probation violation hanging over his head, he missed six more
         meetings of the Sex Offender’s Group and only made up three. And he has been
         under a child support obligation for six months and has only paid four months.

         Time’s up. You’ve had your chances. Plenty of chances. And just won’t do it,
         for whatever reason. I have no idea. And it really doesn’t matter. That’s your
         problem. This whole criminal episode began because of a totally irresponsible
         attitude about things, and it’s continued. So, I’m not going to wait until another
         opportunity presents itself to be irresponsible and commit another crime like this.



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         I think the proof I’ve heard, the likelihood of rehabilitation – that is following the
         rules of probation – is very slim. And the record is full of that.

       We conclude that substantial evidence exists to support the trial court’s findings that
Defendant violated the conditions of his probation. The trial court did not abuse its discretion in
revoking Defendant’s probation and ordering Defendant to serve the balance of his original two-year
sentence in confinement.

                                          CONCLUSION

       The judgment of the trial court is affirmed.


                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




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