        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2013

               STATE OF TENNESSEE v. THOMAS RAY WARD

                Direct Appeal from the Circuit Court for Dyer County
                         No. C98-339     Lee Moore, Judge


                No. W2012-02054-CCA-R3-CD - Filed March 1, 2013




The defendant, Thomas Ray Ward, appeals the Dyer County Circuit Court’s revocation of
his probationary sentence. Pursuant to a negotiated plea agreement, the defendant pled guilty
to three counts of burglary of a motor vehicle, Class E felonies, and was given consecutive
two-year sentences for each offense. However, the defendant was placed on probation for
a period of eight years. A violation warrant was subsequently issued, and, at the hearing, the
defendant acknowledged that he had committed the technical violations of his agreement.
The trial court found the defendant to be in violation of the terms and conditions of his
probation and ordered that the balance of the reinstated six-year sentence be served in
incarceration. On appeal, the defendant contends that the decision to revoke was error
because it was based upon the fact that the defendant had prior violations of his probation
rather than on the technical violations which were established at the hearing. Following
review of the record, we affirm the revocation of probation.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, JJ., joined.

H. Tod Taylor, Assistant Public Defender, for the appellant, Thomas Ray Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; C.
Phillip Bivins, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                      Procedural History and Factual Background


       On December 4, 1998, the defendant pled guilty to three counts of burglary of a motor
vehicle and received consecutive two-year sentences for each charge. He was placed on
supervised probation for eight years and was ordered to pay restitution of $9,866.41 at a rate
of $100.00 per month.

        On October 4, 2011, the instant violation report was filed in this case alleging that the
defendant had: (1) failed to report to his probation officer; (2) failed to pay court costs; (3)
failed to attend an administrative case review committee meeting; (4) failed to respond to
Board of Probation and Parole letters and telephone calls; and (5) failed to provide
verification of employment. The report, which was admitted into evidence, also contained
notations about prior probation violation reports issued in the case and their eventual
dispositions. In the “History of Supervision,” it states that:

              On 8/26/99, a violation report was submitted due to [defendant] failing
       to pay court costs/restitution. The [defendant] caught upon his payments. On
       11/23/99, the violation was dismissed.

              On 5/3/01, the [defendant] was arrested for Assault. He was sentenced
       to 11 months and 29 days, suspended to 5 days in Dyersburg Municipal Court.
       On 7/6/01, a violation report was submitted. The district attorney’s office did
       not approve the violation report.

              On 8/9/04, an Administrative Case Review Committee was conducted
       to address the [defendant’s] noncompliance with his rules of probation. His
       violations were:

                      Failure to provide employment verification
                      Failure to report for the months of May, June, and July
              2004
                    Failure to provide proof of court costs/restitution
              payments,
              He was given the following recommendations:
                    Report twice per month
                    Provide employment verification each month
                    Provide the number of hours you work to your officer
                    Call a temporary service twice per week
                    Instructed to leave multiple phone numbers so that the

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        temporary services can contact him.
              Pay $100 per month on restitution plus an addition $20
        towards your arrearage.

       On 3/15/05, a violation report was submitted.       The [defendant’s]
violations were:

               Failure to maintain employment or provide employment
        verification
               Failure to comply with BOPP home check policy on
        12/17/04
               Failure to report to BOPP for the months of May, June,
        November, December 2005, and January 2005
               Failure to pay court costs/restitution

       On 5/17/05, the [defendant] appeared in Dyer County Circuit Court in
reference to his violations. He agreed he violated his rules of probation. His
probation was extended for a period of ten years to expire on 12/4/16. He was
ordered to pay $100 per month in court costs/restitution.

        On 8/25/06, a violation report was filed. The [defendant’s] violations
were:
              Failure to provide employment verification or proof of
        seeking employment in January, February, March, May, and
        June 2006
              Failure to report to BOPP for the months of January,
        February, March, May, and June 2006.
              Failure to pay $100 per month court costs/restitution. He
        only paid $100 on 10/25/05, $50 on 5/26/06, and $100 on
        7/14/06.

      A follow-up violation report was filed on 5/12/08. The report stated the
[defendant] had not reported to BOPP since 7/11/06. He failed to respond to
home checks, letters, or phone calls. He was declared an absconder.

       On 5/17/11, the [defendant] appeared in Dyer County Circuit Court. An
agreement was made that the [defendant] would pay $500 in court
costs/restitution that day. He was ordered to have the balance of the court
costs and restitution ($6,398.41) paid within one year. The probation violation
was dismissed. He was ordered to remain on supervision for the balance of his

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       original 10 year extension to end on 12/4/16.

              The [defendant] reported to Officer Tubbs on 5/20/11. He was placed
       on maximum supervision. The [defendant] was advised he would be required
       to report twice per month. Officer Tubbs instructed the [defendant] to
       provide[] proof of a court cost/restitution payment each month to ensure his
       balance was paid in full by 5/17/12. He stated he understood.

A revocation hearing was held on the matter on June 12, 2012.

        The first witness to testify was Justin Tubbs, the defendant’s probation officer, who
testified that this was the fourth violation warrant filed against the defendant in this case.
Mr. Tubbs testified that he had no record of any restitution or court costs having been paid
by the defendant since May 17, 2011, and that the remaining balance due was $6,398.41. He
also testified that the defendant had failed to provide employment verification or to show
proof of any job searches during this period. Moreover, Mr. Tubbs testified that the
defendant failed to report for a mandatory meeting on July 20, 2011. He then left three voice
messages during the month of August instructing that the defendant contact him to set up a
time to meet. The defendant did not respond to the messages. Mr. Tubbs also sent two
letters to the defendant during the month of August instructing him when to report. The
defendant again failed to appear at any time during August 2011.

       Mr. Tubbs indicated that on August 30, 2011, he mailed the defendant a letter
instructing him that he had been scheduled for an Administrative Case Review Committee
(“ACRC”) meeting to discuss the technical violations of his probation and to attempt to get
the defendant back in compliance with his agreement. The defendant did not report to the
meeting.

       On August 1, 2011, the defendant did call during non-working hours and left a
voicemail for Mr. Tubbs. He testified that the message began with the defendant speaking
into the phone and apologizing for not reporting, but he was soon interrupted by a female
yelling at him regarding whom he was on the phone with. The call was disconnected. The
defendant also did come to the probation office on September 16, 2011, and acknowledged
that he had received the letter regarding the ACRC meeting. According to Mr. Tubbs, the
defendant had no excuse for his failure to attend. Mr. Tubbs then reiterated that the
defendant had failed to comply with the terms of his agreement by failing to meet with his
probation officer twice a month, failing to pay restitution, and failing to provide proof of
employment or job searches.

       In his defense, the defendant called three family members to testify. Each indicated

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that the defendant was having martial problems and that his wife had left him to raise his two
young daughters alone. The defendant also testified and stated that he had paid $1850.00 in
restitution since March 2012. Receipts were submitted by the defense which indicated that
payments of $1800.00 and a $50.00 had been received, and the balance now owing was
$4,548.41. The defendant testified that he had intended to pay the balance with his income
tax refund, but his estranged wife had taken the money from his home after he withdrew it
from the bank.

        The defendant acknowledged that he did not attend the mandatory ACRC meeting in
August 2011. He stated that he failed to attend because his wife had been called into work
that day, and he had no transportation and was babysitting his sick children. The defendant
indicated that he had attempted on multiple occasions throughout the day to call and let Mr.
Tubbs know he could not attend, but claimed the phone number was always busy. He went
on to testify that he had called the probation office in Union City and asked if they knew why
he could not get through. According to the defendant, a worker there said she would email
Mr. Tubbs that the defendant was trying to get in touch with him. The defendant claimed
that when he told Mr. Tubbs “he had no excuse” for not attending, he was referring to his
regular report dates, not the ACRC meeting.

        After hearing the evidence presented, the trial court concluded that the defendant had
violated the terms and conditions of his agreement and revoked his probation. The court
further ordered that the defendant was to serve the balance of his original six-year sentence
in the Department of Correction. The defendant has timely appealed the revocation.

                                           Analysis

         On appeal, the defendant asserts that the trial court erred in revoking his probationary
sentence. 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 probation. T.C.A. §§ 40-35-310, -311(e) (2010). Probation revocation
rests within the sound discretion of the trial court. 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)). 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).
Upon finding that the defendant has violated the conditions of probation, the trial court is
statutorily authorized to revoke the probation and either: (1) order incarceration; (2) order the

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original probationary period to commend anew; or (3) extend the remaining probationary
period for up to two additional years. State v. Hunter, 1 S.W.3d 643, 644 (Tenn. 1999);
T.C.A. Sec. 40-35-308, -310, -311. At a probation revocation hearing, the credibility of
witnesses is to be determined by the trial court. Mitchell, 810 S.W.2d at 735.

        The defendant in this case does not contest the fact that the technical violations of the
terms of his probation did in fact occur. Indeed, there seems to be no dispute that the
technical violations of the probationary agreement occurred. Mr. Tubbs gave testimony to
that effect, and the defendant himself acknowledged his failure to comply. The defendant’s
admission alone is an adequate basis for revocation of probation. See State v. Johnny Leon
Hatcher, No. M2011-02028-CCA-R3-CD (Tenn. Crim. App., at Nashville, Oct. 29, 2012).
Thus, it is clear that a preponderance of the evidence shows that the defendant violated the
terms of his probation. Caselaw is clear that, upon such a finding, the trial court was vested
with the statutory authority to revoke the probation and order the defendant to serve some or
all of his original sentence in confinement. See Hunter, 1 S.W.3d at 644.

        The defendant does not appear to dispute this reasoning. Rather, his argument is that
the trial court abused its discretion in ordering revocation because the decision was based
upon the defendant’s history of previously adjudicated probation violations rather than the
technical violations themselves. He contends that the “allegation of missed probation
meetings and unpaid restitution, in and of themselves, do not justify incarceration but rather
another opportunity at probation.” His contentions are based on caselaw which states that
“a probation revocation may not be imposed for previously adjudicated violations.” See State
v. Beard, 189 S.W.3d 730, 737 (Tenn. Crim. App. 2005).

        In its findings on the record, the trial court did rely heavily upon the fact that the
defendant had so many previous violations of probation in this case. The court stated, “if all
we had to deal with was the fact that he missed a meeting and has not paid his restitution,
then I would be -- I think another opportunity or another chance would be in line.” However,
the court went on to note previous violations and the numerous chances the defendant had
already been afforded in this case to comply with the terms and conditions of probation. The
record is abundantly clear that the defendant simply refused to comply with the condition of
his probation for any length of time- the record is riddled with continual failures to comply
with even the simplest conditions such as reporting to the officer or providing proof of
employment. We must agree with the trial court that “the record is choked full of
information that [the defendant] is simply not going to comply with the orders of probation.”


      We must initially point out that the defendant’s reliance upon State v. Beard is
misplaced. In that case, probation was revoked without evidence indicating that the

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defendant had been guilty of any additional violations of the terms of his probation. Id. at
736. That is not the case before us currently. The record establishes several instances of new
violations present here. It was from those that the trial court was statutorily authorized to
revoke the defendant’s probation. To say that the trial court is precluded from considering
prior violations in determining the appropriate re-sentencing following revocation is simply
erroneous. This court has noted on multiple occasions that an accused, already on probation,
is not entitled to a second grant of probation or another form of alternative sentencing. State
v. David Harris, Jr., No. E2011-00880-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Dec.
5, 2011); State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504 (Tenn. Crim. App., at
Nashville, Feb. 10, 1999). The defendant was granted chance after chance to comply in this
case and remain on probation. He chose not to do so. After review, we find no abuse of
discretion in the trial court’s decision to revoke the defendant’s probation and order service
of the balance of the original sentence imposed. No relief is warranted.


                                      CONCLUSION


       Based upon the foregoing, the revocation of probation by the Dyer County Circuit
Court is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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