                                                                                      02/01/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                       Assigned on Briefs November 28, 2018

                   STATE OF TENNESSEE v. ERIC HENRY

                  Appeal from the Circuit Court for Blount County
                     No. C-25425 Tammy Harrington, Judge


                            No. E2018-00537-CCA-R3-CD


The defendant, Eric Henry, appeals the Blount County Circuit Court’s order revoking his
probation and ordering him to serve the balance of his two-year sentence for reckless
endangerment in confinement. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, and ROBERT W. WEDEMEYER, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Shawn Graham, Assistant District
Public Defender (at hearing), for the defendant, Eric Henry.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Mike Flynn, District Attorney General; and Tracy Jenkins, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

             On October 16, 2017, the defendant pleaded guilty to one count of reckless
endangerment. The trial court imposed a two-year sentence, suspended to probation. On
January 4, 2018, a probation violation warrant issued, alleging that the defendant had
violated the terms of his probation by moving to a different county without the
permission of his probation officer and by failing to report as instructed.

             At the March 5, 2018 revocation hearing, Blount County Probation Officer
Ashley Watson testified that she was assigned to supervise the defendant’s term of
probation. She testified that the defendant “failed to report multiple times,” including
October 20, 2017, December 5, 2017, and December 12, 2017. On October 20, 2017, the
defendant called Ms. Watson “well after” intake began at “probably 9:30 or 10:00” and
told her that “he couldn’t wake up due to some type of medication that he takes.” He first
reported to probation on October 27, 2017, at 8:00 a.m. As part of the requirements of
his probation, the defendant was to undergo a mental health assessment. While meeting
with Ms. Watson on October 27, the defendant informed her that he had an appointment
scheduled for a mental health assessment on November 3, 2017, at Helen Ross McNabb.
Ms. Watson testified that the defendant never provided her with proof that he attended
the scheduled appointment or completed the mental health assessment.

                Sometime in November, Ms. Watson “got a call that [the defendant] had
checked himself into Buffalo Valley Treatment Center” (“Buffalo Valley”) with a
“tentative discharge date [of] December the 7th.” Later, a counselor at Buffalo Valley
informed Ms. Watson that “they went ahead and released [the defendant] because there
was nothing that they could do for him.” Ms. Watson was unaware of any drug addiction
issue with the defendant and was not aware of Buffalo Valley’s providing any mental
health services, only drug treatment. Ms. Watson stated that she had cancelled the
defendant’s scheduled reporting dates while he was at Buffalo Valley, but the defendant
later called Ms. Watson and informed her that he was “in Cookeville, living in a
mission.” Ms. Watson confirmed that Cookeville is in Putnam County. Ms. Watson
testified that the defendant never discussed moving to Cookeville with her, and he moved
without reporting to probation in Blount County. Ms. Watson advised the defendant to
report to Blount County probation on December 5, but the defendant told her that “he was
having car trouble” and could not report. On December 4, the defendant called Ms.
Watson and told her that he could not report the following day “because he was going to
check himself into treatment again.” Ms. Watson informed the defendant that he would
need to provide documentation for his treatment. The defendant faxed her proof of an
emergency room visit from December 5, 2017. Ms. Watson advised the defendant to
report to Blount County probation on December 12, but he did not report on that date.
Ms. Watson testified that she “heard from [the defendant] almost every day.”

              Ms. Watson testified that the defendant was “very belligerent and
argumentative” when discussing the terms of his probation. He called Ms. Watson and
her supervisor “racist devils” and “prejudiced.” When Ms. Watson instructed the
defendant to report to Blount County probation on December 12, he replied that Ms.
Watson “would have had a gang member waiting on the roof to take him out and he was
scared to report.” Ms. Watson had not been provided any proof that the defendant had
complied with his probation requirement of obtaining a mental health assessment.

             On cross-examination, Ms. Watson testified that at the defendant’s October
27 intake appointment, she met with the defendant after his meeting with the intake
officer. A few days after that meeting, the defendant called and informed Ms. Watson
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that he was at Buffalo Valley. A counselor at Buffalo Valley also called Ms. Watson to
confirm that the defendant was there and called again to inform her that the defendant
had left Buffalo Valley because “they couldn’t provide . . . enough care to get [the
defendant] to the tentative discharge date.” The defendant contacted Ms. Watson on
November 29 informing her that he was living at a mission in Cookeville. During that
phone call, Ms. Watson instructed the defendant to report to probation on December 5,
but the defendant replied that he would not be able to arrange transportation by that date.
Ms. Watson told the defendant that he must report on December 5, “that he did not have
permission to go to Cookeville in the first place, and that he needed to find a way to
Blount County if his car wasn’t working.” Ms. Watson never received any document
from the mission verifying that the defendant was living there, but some faxes that the
defendant sent to her originated from the mission’s fax number.

              Ms. Watson reiterated that the defendant called her on December 4 and told
her that he could not report the following day. Ms. Watson informed the defendant that
he must report on December 5 unless he provided “documentation proving that he was in
a treatment center.” The defendant did not report on December 5. The defendant
contacted her on December 6, at which time he informed her that he had gone to the
hospital on December 5. He faxed her documentation from his emergency room visit that
same day. During the December 6 telephone call, Ms. Watson instructed the defendant to
report on December 12. The defendant contacted Ms. Watson on December 11 and told
her that he was having problems with his car and did not have transportation to Blount
County. Ms. Watson’s supervisor was also on that phone call, and the conversation was
“more heated” than prior conversations. Ms. Watson instructed the defendant that he
must report on December 12. The defendant again failed to report, and Ms. Watson filed
a Probation Violation Report.

               Ms. Watson testified that she received a telephone call from a housing
program to which the defendant had applied to confirm whether the defendant was in
compliance with the terms of his probation. Ms. Watson informed them that he had
violated his probation. Afterwards, the defendant called Ms. Watson and scheduled a
time on January 4 to meet her at the Blount County probation office “in order to get the
transfer to Cookeville.” The defendant reported as scheduled on January 4. Ms. Watson
recalled that the defendant received disability payments monthly. She testified that the
defendant faxed her documentation regarding mechanical problems with his vehicle after
he failed to report on December 12.

              The defendant testified that he was released from custody on October 16,
2017, and he was scheduled to report to probation for initial intake. The defendant
admitted that he failed to report that day because he “didn’t hear [his] alarm go off that
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Friday due to [his] medication.” He contacted Ms. Watson and apologized for missing
the appointment. He reported the following week for his intake appointment. The
defendant stated that he was not asked about his income, whether he had a mental health
condition, or whether he had a substance abuse issue during his intake meeting. The
meeting lasted “about an hour.” The defendant testified that his drug test revealed
“benzos” in his system, but he provided Ms. Watson with his medical report from Helen
Ross McNabb showing that he was prescribed Seroquel, which could “give a negative
test for benzos.” The defendant stated that when he called Ms. Watson after missing his
first intake appointment on October 20, he explained to her that he “couldn’t wake up
because . . . [his] medicine was so sedating, [but] she was like that’s no excuse” and had
“no sympathy and no concern about [his] mental capacity and mental health at all.”

              The defendant testified that Ms. Watson told him to keep her informed of
where he was living, but at the time he was living in hotels. The defendant stated that he
“went to CSU because [he] . . . had negative thoughts of paranoia because [he] . . .
suffer[ed] from paranoid schizophrenia and chronic anxiety.” He was there for six days.
He said that he then obtained Ms. Watson’s permission to go to Buffalo Valley. The
defendant testified that he asked Ms. Watson at his intake meeting whether it was
possible for him to transfer to Cookeville, and “[s]he said yes it could be done.” The
defendant explained that he “knew [he] had to go to Buffalo Valley” when he met with
Ms. Watson on October 27. He remained at Buffalo Valley for two or three weeks, and
when he left Buffalo Valley, he relocated to Cookeville because he “told [his] probation
officer about that and she said that could be done.” The defendant acknowledged that he
had not received permission or an official transfer from probation, but he stated that after
his counselor at Buffalo Valley contacted Ms. Watson, he “didn’t hear nobody say, no,
you can’t go.”

               The defendant testified that he remained in contact with Ms. Watson by
telephone. He stated that when Ms. Watson told him that he had to report to Blount
County probation on certain dates, “[i]t made [his] anxiety real high” because his vehicle
had problems with its brakes. He went to the hospital on December 5 because of his
anxiety. Ms. Watson told the defendant to report on December 12, but he had not been
able to repair his vehicle because he was waiting on his disability payment. He asked
Ms. Watson for more time and told her that he would report “sometime in January.” The
defendant acknowledged that he did not report on December 12, but he remained in
contact with Ms. Watson by telephone and fax. He was able to get his vehicle repaired
shortly after January 1. After repairing his vehicle, the defendant reported to Blount
County and was taken into custody. The defendant testified that he had secured a place
to live at a “Christian-based program,” had a working vehicle, and had “money on [his]
credit card.” He also had made arrangements for mental health counseling at Plateau
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Mental Health in Putnam County. He said that if he was released from custody, he would
like to have his probation transferred to Putnam County.

              During cross-examination, the defendant testified that he had a prior
conviction for robbery and that this present conviction arose out of his pleading guilty to
stabbing someone with a knife. He also had a federal conviction for “a weapons charge.”
The defendant testified that he underwent a competency evaluation in his federal case and
was deemed competent. The defendant acknowledged that he failed to report on October
20, December 5, and December 12 and that Ms. Watson never gave him permission to
move to Putnam County.

              On redirect, the defendant testified that he appeared for intake on October
27, and, although he did not appear on December 5 and 12, he remained in contact with
probation by telephone.

              The defendant asked that the court grant him “a split confinement of 90
days.” The State argued that “alternative sentencing [wa]s inappropriate” because the
defendant had “shown himself unable to be supervised and to be argumentative and
disagreeable, thereby hindering probation’s ability to supervise him.”

               The trial court found that the defendant “did not have permission to move
to Cookeville, Tennessee” and that he “failed to report to probation as instructed” for
initial intake. The court noted the defendant’s explanation that his medication caused
him to oversleep but stated that “he would have known that before he was scheduled to
go for his intake if it’s a medication that he takes on a regular basis. That’s a phone call
to probation.” The court did not “give . . . much weight one way or the other” to the
defendant’s missing his December 5 report date because he told his probation supervisor
that “he was going into treatment,” but then he went to the emergency room. The court
found that the defendant failed to report for probation again on December 12 and that by
the time he reported on January 4, the violation warrant had already been issued. The
court also found that the defendant’s behavior displayed “a true sense of justification or
entitlement to not follow the rules.” The court revoked the defendant’s probation and
ordered him to serve the remainder of his sentence.

             In this timely appeal, the defendant argues that because “he had permission
to check into Buffalo Valley, he may have reasonably believed he was not prohibited
from finding a place to stay in Cookeville.” The defendant also argues that the
defendant’s missed reporting dates “may have been partially due to circumstances
beyond his control.” The defendant contends that the trial court abused its discretion by
revoking his probation because he remained in contact with his probation supervisor and
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demonstrated a willingness to obtain mental health treatment. The State disagrees,
arguing that the defendant admitted to violating the terms of his probation.

              The accepted appellate standard of review of a probation revocation is
abuse of discretion. See State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State
v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical
conclusion, bases its ruling on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d
436, 443 (Tenn. 2010). The 1989 Sentencing Act expresses a burden of proof for
revocation cases: “If the trial judge finds that the defendant has violated the conditions of
probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence . . . .” T.C.A. § 40-35-311(e)(1).

              Upon a finding by a preponderance of the evidence that the defendant has
violated the conditions of probation, the trial court may revoke the defendant's probation
and “[c]ause the defendant to commence the execution of the judgment as originally
entered, or otherwise in accordance with § 40-35-310.” Id.; see also Stamps v. State, 614
S.W.2d 71, 73 (Tenn. Crim. App. 1980). Following a revocation, “the trial judge may
order the original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension, and that it be executed accordingly.” T.C.A. § 40-35-
310(a). In other words, “[t]he trial judge retains the discretionary authority to order the
defendant to serve the original sentence.” Reams, 265 S.W.3d at 430 (citing State v.
Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995)).

              In the present case, the record supports the trial court’s finding that the
defendant violated the terms of his probation. The defendant admitted that he moved to
another county without the permission of his probation supervisor. He also admitted that
he did not report as scheduled on at least three occasions. These admissions are sufficient
to establish the defendant’s probation violations by a preponderance of the evidence.
Furthermore, the law is well-settled that the trial court does not abuse its discretion by
choosing incarceration from among the options available after finding that the defendant
has violated the terms of his probation.

              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE


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