         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs November 29, 2005

              STATE OF TENNESSEE v. RICHARD LEE FRAZIER

                      Appeal from the Criminal Court for Sullivan County
                           No. S48,302    Phyllis H. Miller, Judge



                   No. E2005-00776-CCA-R3-CD - Filed December 29, 2005


The defendant, Richard Lee Frazier, appeals the Sullivan County Criminal Court’s order revoking
his probation. On appeal, the defendant claims that although he violated his probation, the trial court
abused its discretion by revoking his probation and ordering him to serve his sentence in
confinement. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL, J., joined.

Stephen M. Wallace, District Public Defender, and Leslie S. Hale, Assistant Public Defender, for
the appellant, Richard Lee Frazier.

Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         This case relates to the defendant’s convictions for forgery and identity theft arising from the
theft and use of a credit card. In a thirteen count indictment, the Sullivan County Grand Jury charged
the defendant with four counts of forgery, a Class E felony, four counts of fraudulent use of a credit
card, a Class A misdemeanor, four counts of theft under $500, a Class A misdemeanor, and one
count of identity theft, a Class D felony. On August 20, 2004, the defendant entered guilty pleas to
four counts of forgery and one count of identity theft. The trial court merged the four counts of
fraudulent use of a credit card and four counts of theft under $500 into the four counts of forgery.
The defendant received one-year sentences for each of the forgery counts and a three-year sentence
for the identity theft count to be served concurrently as a Range I, standard offender. The trial court
placed the defendant on supervised probation for three years and ordered the defendant to pay a $100
fine, to pay restitution to the victims, to perform four hundred hours of community service, to refrain
from entering the stores where he committed the offenses, and to avoid using alcohol or drugs. On
February 2, 2005, the defendant’s probation officer filed a violation warrant alleging the defendant
violated the terms of his probation by committing the offenses of driving under the influence,
violation of the implied consent law, speeding, third offense driving on a revoked license, no
insurance, and violation of the registration law. The warrant also alleged that the defendant behaved
in a manner that posed a threat to himself and others and that he used alcohol to excess, thus
violating a special condition of his probation which prohibited the use of alcohol.

        At the probation revocation hearing, the defendant admitted to the trial court that he had
violated his probation. The defendant then took the stand and testified that he had reported the new
offenses to his probation officer. He said he had paid his restitution payments and supervision fees
as scheduled. He said he had completed thirty-two hours of community service. He said that after
being placed on probation, he and his wife separated. He said he had three children. He said he had
been working full-time for Gibson Electric as an electrician. He said he started drinking because he
and his wife had separated and before he knew it, he was intoxicated. He said that if allowed to go
to the Hay House program, he would enroll in alcohol and drug classes and after care and would not
drink alcohol again. He said he wanted to support his daughters and keep his job. He acknowledged
he had a DUI conviction in 1989 and a driving on a suspended license conviction in 1985.

        On cross-examination, the defendant acknowledged that he did not have a valid driver’s
license. He admitted he had not paid any of his court costs. He acknowledged that he had not
attended his alcohol and drug classes in January but explained that it was because he did not have
transportation.

        Upon questioning by the trial court, the defendant admitted that the State of Virginia
classified him as an habitual motor vehicle offender after two driving on a revoked license
convictions and a DUI conviction. He acknowledged he was convicted of robbery in 1990 after
taking a purse out of a shopping cart. He said his wife left him a few days before he was arrested
on the new charges. He said he drank six beers at his house. He admitted driving ninety-five to one
hundred miles per hour and crashing into a ditch after trying to pass another car. He said he did not
have insurance because he could not afford it and the car was his wife’s second car, which she rarely
drove.

        E.L. Breeding, Jr., testified that he worked with Armstrong Construction Company as the
project superintendent. He said the defendant worked on two jobs he had with Gibson Electric and
had worked with him as a subcontractor since November 2003. He said he was a fine electrician and
had a job if he was able to return to work. He said the defendant had never let alcohol interfere with
his work. He said that the defendant usually rode with another electrician to work but that he had
seen the defendant drive.

       The trial court found that the defendant had violated his probation. It stated




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               we’ve just heard the details of the robbery over there was a purse
               snatching, a strong-armed robbery in 1990. You had a DUI then ----
               you had a DUI conviction December 20th, 1989. According to you,
               you had two driving on revokes after you had your DUI. You’re an
               habitual traffic offender. You know, not only did you commit a
               crime; you committed a crime when the risk to human life was high,
               a DUI and driving 95 to 100 miles an hour. According to the
               Trooper’s affidavit she paced you, [you] tried to get away from her,
               according to her affidavit after she turned on the blue lights, then you
               tried to pass a car on the left hand side, of course that’s where you
               pass the cars, I guess, and wrecked and then you tried to get away
               after you wrecked because you were sitting in the ditch accelerating
               so, you know, your probation is revoked. You’re ordered to serve
               your sentence, what was it, three years, Range I standard offender in
               the Tennessee Department of Corrections. That’s about all I can say.
               There’s no reason not to revoke your probation.

        The defendant contends that the trial court erred by revoking his probation and ordering him
to serve his sentence. He asserts that other than these new offenses that he complied with probation.
He asserts the trial court should have extended his probation, allowing him to continue his
employment. He also asserts he had the potential to rehabilitate himself. The state contends that the
trial court properly ordered the defendant to serve his original sentence in confinement. It also
contends the evidence established that the defendant violated the terms of his probation and that the
defendant admitted the violations.

        A trial court may revoke probation upon finding by a preponderance of the evidence that the
defendant has violated a condition of probation. T.C.A. §§ 40-35-310, -311(e). If the trial court
revokes probation, it can “(1) order incarceration; (2) cause execution of the judgment as it was
originally entered; or (3) extend the remaining probationary period for a period not to exceed two
years.” State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The decision to revoke probation is within
the sound discretion of the trial court, and its judgment will be reversed only upon a showing of an
abuse of discretion, reflected in the record by an absence of substantial evidence to support the trial
court’s decision. State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

       In this case, the defendant admitted violating several conditions of his probation, including
the commission of new offenses. We conclude that the trial court did not abuse its discretion by
revoking the defendant’s probation and ordering him to serve his sentence in incarceration. The
judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE


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