# FILED
December 29, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE NOVEMBER 1999 S ESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9903-CC-00102

) ) Blount County v. ) ) Honorable D. Kelly Thomas,Jr., Judge ) JIMMY D. JOHNSON, ) (Probation revocation) ) Appellant. )
For the Appellant : For the Appellee : Stacey D. Nordquist Paul G. Summers Assistant District P ublic Defender Attorney General of Tennessee 419 High Street and Maryville, TN 378

04 Elizabeth B. Marney Assistant Attorney Gener al of Tennessee 425 Fifth Avenue North Nashville, TN 37243 Michael L. Flynn District Attorney General and Kirk E. An drews Assistant District A

ttorney General 363 Court Street Maryville, TN 378

04-5906

OPINION FILED:____________________

AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Jimmy D. Johnson, appeals as of right from the Blount County Circuit Cour

t’s revocation of his pr

obation. The defendant pled guilty to incest, a Class C felony, and was sentenced as a Range I, standard offend er to six years confinement in the Department of Correc tion. The defendant was ordered to serve one hundred eighty days i n the Blount County Jail with the remainder to be s erved on supervised probation. H e contends that the trial cour t erred by revoki ng his probation and sentencing him to incarc eration. We affirm the judgment of the trial court.
The defendant was originally indicted for rape but pled guilty to incest. He was originally sentenced to one year in the Blount County Jail followed by four years in community corrections. On December 31, 1996, a warr ant was issued for a vi olation of community corrections, alleging that the defendant failed to meet with his community corrections officer, used alc ohol in violation of his c ommunity corrections ag reement, failed to attend sex offender group therapy, failed to pay fines and court costs, and failed to pay supervisi on fines. At the revocation h earing on March 21, 1997, the trial court amended the judgment to fiv e years in the Department o f Correction and released the defendant on appeal bond, conditioned upon the defendant’s meeting the requirements of the community corrections program. On July 26, 1997, another w arrant for a violation was i ssued.

This court vacated and remanded the defen dant’s original conviction in order for the indictment to be amended to reflect a charge of incest. State v. Jimmy D. Johnson , No. 03C01-9602-CC-00062, Blount County (Tenn. Cri m. App. Oct. 16, 1997). The indictment was amended, and the defendant pled guilty to the amended charge of incest. The trial court s entenced him to six year s in the Department of Correction, with one hundred eighty days to be served in jail and the remainder on probation.3 On October 5, 1998, a warr ant for violation of probation w as issued, alleging various

failures by the defendant to follow probation requirements. At the revocation hearing, the defendant’s probation officer, Mik e Lane, testified that the defendant’s probation began on Nov ember 4, 1997. He testified that the defendant abided by the terms of his prob ation until September 1998 when the defendant failed to report on three different occasion s. Mr. Lane testified that the defendant also failed to report to his sex offender couns elor, wrote a wor

thless check for twenty -five dollars, and provided decept ive answers regarding his participation in sex counseling durin g a polygraph examinatio n.

Mr. Lane testified that the las t contact he had with the defendant was on September 17, 1998, when the defend ant called to say that he had missed his appointments because he had been drink ing and having “w

omen problems.” Mr. Lane testified that he instructed the defendant to report on September 24 in order for Mr. Lane to help him with his p roblems but that the defendant did not kee p the appointment. Mr. Lane testified th at the defendant missed his follow- up appointment on November 30, 1998. He said he then learned that the def endant had failed to report a public intoxication charge from August 1998, and he fil ed a violation report.

The defendant testified that his main probl em was drinking and that he stopped going to sex offender c ounseling because of his dri nking. At the conclusion of the hearing, the trial court summarized the defendant’s lengthy history of prior of fenses, including numerous public intoxication and driv

ing under the influence conv ictions. The trial court revoked the defendant’s probation and ordered that the defendant spend the remainder of his sentence in the c ustody of the Department of Correc tion, finding that: Doing the best that

you can do fi ghting alc oholism , you know, I mean, that’s – the best a person c an do is the best a person can do, and I’m not being critical of that. But that’s not the only consideration. There are lots of alcoholics, Mr. Johnson, that don’t commit incest and that d on’t h ave six or seven DUI’s. You don’t have to break the law to be an alcoholic and even be4 drinking. Some people do, some people don’ t. An d the bad thing ab out that is, it’s public safety and your safety. . . . . What I’m saying is that I can’t take the risk anymore because of this repeated behavior and how dangerous it is.

The defendant contends that the trial cour t erred by revoki ng his probation and sentencing him to incarceration. The state contend s that the trial court properly revoked the defendant’s probatio n and sentenced him to incarcer ation.
The decision to revoke prob ation is within the di scretion of the trial court

. State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). Upon revokin g probation, the trial court has the discretion t o order the original s

entence to be served. See Tenn. Code Ann. § 40-35-310, -311(d). An abuse of discretion ma y be found only if the record contains no substantial ev idence to support the conclusi on of the trial court. See State v. Harkins , 811 S.W.2d 79, 82 (T enn. 1991).

Although the defendant contends tha t the trial court erred by revoking his probation, he concedes in his brief that sufficient proof was pr esented at the revocation hearing to establish that he violated the terms of his p robation by drinking and failing to complete sex offender counseling . Furthermore, he has not demonst rated that the trial court abused its discreti on by ordering him to s erve his sentence in in carceration. The defend ant’s len gthy crimin al histor y, his inab ility to ab ide by the terms of an altern ative sentence, and his admitted alcohol abuse support the trial cour t’s decision.
In consideration of the foregoing and the record as a whole , we affirm the judgment of the trial court.

________________________________ Joseph M. Tipto n, Judge5

CONCUR:

_____________________________ Jerry L. Smith, Jud ge

_____________________________ Thomas T. Woodall, Judge