### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs S eptem

ber 25, 200 2
STATE O F TENN ESSEE v. TYLER WARD E NIX
Appeal from the Circuit Court for Blount County Nos. C-13354, C-13355 D. Kelly Thomas, Jr., Judge

No. E2001-03111-CCA-R3-CD

The defendant, Tyler Ward Enix, appeals from the Blount County Circuit Cou

rt’s rev oking his probatio n that was ordered for his sentences for ha rassing and stalking his estrange d wife. The defendant contends that although he violated his proba tion, the tr

ial cour t erred in sentencing him to confinement. We

affirm t he judg ment of the

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

J OSEPH M. T IPTON , J., deliver ed the opinion of the

court, in which D AVID H. W ELLES and A LAN E. G LENN , JJ., joined.
Ray mond M ack G arne

r, Di stric t Publ ic Defend

er, f or the appellant , Ty

ler Wa rd En ix.

Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; Michael L. F lyn n, Di st ri ct At to rn ey G enera l; and Ellen Lee Ber ez, Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On July 9, 2001, the defendant pled guilty to harassing and stalk

ing Allis on Enix, both

Class A misdemea

nors. Fo r the har assment c onviction , the tria l court se ntenced him to eleven months, twenty-nine

days with forty

days in jail and the re

mainder on probation. For the stalking conviction, the trial court sentenced him to a consecutive sent ence o f eleven months, twenty- nine days on probation. On Augu st 22, 2001 , a proba tion violat

i on warr ant w as issued

agains t the def

endant, alleging that he ha

d violate d his proba

tion by having contact with the vi c ti m and viola ting his curfew.

At the proba

tion revo cation he aring, Allison Eni x testif ied th at while the defendant was serving f orty day s in jail for h arassin g and sta lking he r, she se nt him car

ds and pic tures of

their young daughter. She said the defendant sent her a letter from

jail say ing that he was g oing to

change. She said that the day

the defendant got out of jail, he telephoned her a nd asked to see their daughter.-2-

She said that the next day, she an d her d aughte r met the d

efenda nt at Cancun Restau

rant in Knoxville. She said that when they we nt inside the restaurant, the defendant asked her if she was going to go through with a divorce. She said that she told the defe ndant yes and that he bec ame angry and asked her how she could destroy their family. She said she took their daughter and left the resta urant.

The victim testified that about a week later, she was ge tting ready

to take her daughter

to the Alcoa swimming pool when the defendant telephoned her. She said she told the defendant that she
was taking their daughter

to the pool. She said that while she and her daughter wer e at the pool, the defendant unexpectedly arr

ived and got into the pool with them. She said she took her daughter out of the swimming pool, gathered their belonging s, and went to her car. She said the defendant g ot into her car

and aske d her if

she was going t o go th rough with the divorce. She said the defendant told her that if she did, then “he had plans for me.” She said she took the defendant’s statement as
a threat and was scared. She said that when she trie d t o leave the pool parking lot, the defendant blocked her car with his truck. She said the defendant got out of the truck, walked to he r car, and started talking to her. She said she told the defendant, “Please just let us go.” She said the defendant got back into his truck and left.

The victim testified that after the swimming pool incident, the defendant started telephoning her at work tw enty

to thirty times a da

y. Sh e said he also c alled he

r home in the middle of the night and threatened her. She said that severa l times, she

called th e police and took her daug

hter toa safe place. She said that while the defendant was on probation, she filed severa l warra nts aga inst him for harassm ent. She said that on October 1, 2001, the defendant was arr ested and put back in jail for violating his probation.

On cross-e

xamination, the victim

acknowl edged

that the tr

ial court had ordere d her not t o contact the defe ndant. She acknowledged that despite the order, she sent letters to him while he was serving his forty

-day jail sente nce. She also ack nowledg ed that wh

ile the de fendant was in jai l, she may have talked to him about reconciling. She denied going any

where other than

Cancun Restaurant withthe defendant and acknowledged that her problems withthe defendant did not develop until the incident at the Alcoa swimming pool. She denied going to Court South, a health club, with him.
Jacqueline Vaughn , the vict im’s best friend, testified that the defendant sent her two letters while he was in jail for violating his probation. She said the defendant intended for her to give the letters to the vic tim. She said, though, she did not give them to the victim because she did not want to upset her . She said t

hat about two week s before

the proba

tion revo cation he aring, the victim found out about the letters and that she gave th em to her . Ms. Vaughn read the letters into evidence

. In the first letter, postmarked November

26, 20 01, t he defe ndant spoke direct ly to the victi m, saying, “I ’ve nev er m et a per son as e vi l as you. [O ur d aug ht er] wil l u nde rst and whe n sh e is ol der . I hav e learned from this and won’t let it happen again.” I n the second letter, which Ms. Vaughn received about Decemb er 5 , 20 01, the def end ant sta ted , “L et Allis on k

now abo ut th is st uff

. . . . Ju s t remember how many

times she’s lied to you and g one behind your ba ck.”-3-

The state introduced into evidence a transcript of the def enda nt’s Decembe r 3, 2001 bond hearing and pointed out to the trial cou rt that at th e hearing, the defendant stated he worked for United Parcel Se

rvice ( UPS). The

state then called Allen

Steel, a s ecurity

repres entative

for UPS, to testify at the probation re vocation hearing that the defendant had been fired from UPS on October 4, 2001. He said th at befor e firing the defe ndant, UPS s ent the de

fendant a letter warning him that he was going to be fired on October 4 if he did not return t o work. He sai d the defendant never contact ed UPS.

The defendant testified that he pled guilty to ha

rassing and

stalking the victim in July 2001. He s ai d he served forty

days in jail and was re

leased on probation on July 29, 2001. He said that while he was in jail, he received about eight letter s from the victim and that when he got out of

jail, his father told him that the victim wanted to know why the defendant had not telephoned her. He said that on July 30, he met the victim and their daughter at Cancun Restaurant. He said that after they ate dinner, the three of them went to the park. He said that over the next few day s, he met the victim at Burger King

and Buddy’ s Barbecue and that they talked on the telephone. He said he knew he was not supposed to have contact with the victim.

The defendant testified that oneweek af ter he g ot out of ja

il, the vic tim

telephoned him and askedhim to take

her and t

heir dau ghter s wimming. He said th at he met t he victim a

nd their daughter at Court

South and that they swam in the club’s pool for a bout three hours. He said that he and the victim argued and that she took their daug hter and lef

t. H e said he did not block the victim’s car with his truck and had never been to theAlcoa swimming pool. He said that after the incident at Court Sou

th, he con tinued to te

lephone t he victim e

ven thoug h she had told him not to call her.

The defendant testified

that he was arrested on October 1, 2001, for violating his probation. He said that

when he testified at the bond hea ring tha t he work ed for U PS, he did no t know tha

t UPS had firedhim. He said that when he got out of jail, he was going to live with

his mother

in Powell, Tennessee and try to g et his job back at UPS. He said that he was angry with the victim for

keeping him away fr

om his daughter and that he was not thinking when he tele phoned her.

On cross-examination, the defendant testified that in April 2001, he began r ecei v ing counseling for depression and stress and that he continued to receive counseling until he was arre sted
on October 1. He said he also was tak ing medi cation f or depre ssion and a

ttention de

ficit hyp eractiv

ity disorder (ADHD). He acknowledg ed that despite the counseling and medication, he made threate

ning tel ephone c alls to the victim while he w as on prob ation. He said he did not receive a letter from UPS te

rminating his employ

ment. Mary an d Bill Enix, the defendant’s parents, testified that the victim telepho ned the defendan t
as soon as the defendant finished serving his forty -day jail sentenc e. On c r oss-examination, the defendant’s father stated that he told the prosecutor over the telephone that the defendant sometimes got confused between the truth and a lie.-4-

The trial cou

rt deter mined tha t th e defen dant was in “extreme violation” of his probation. In determining that

the defendant had violated the terms of his probation, the trial court considered audiotapes of threatening telephone calls th at the defendant had made to the victim and that had been introducedat th e de fendant’s December 3 bond hearing . The trial court noted that the defendant knew he was no t supposed to have c ontact wi

th the victim when he telephoned her. I t also noted that the defendant continued to harass the victim despite the fact that he hadserved forty

days in jail and received counseling. The trial court revoked the def endant’s probation and ordered that he serve the remaind er of his sentenc es in conf inement.

The defendant claims that the trial cou rt erre d in orderin g him to se rve the r emainde r of his sentences in incarceration. Specifically , he contends that incarceration is not justified in this cas e because many of his contac ts with the victim were consensual and because he had been diagnosed withADHD and depression. The state contends that the trial court properly

revoked the defendant’s probation and ordered him to serve his sentences in confineme nt. We agree with the state.

A trial court may re

voke probation upon finding by a preponderance of

the evidence that the defendant has violat ed a co ndition of probation. Tenn. Code Ann. §§ 40-35-310, -311(e). The decision to revoke probatio n is within the sound discretion of the trial court, and its judgment will be reversed only

upon a showing of an abuse of discretion, ref lected in the record by

an absence of substant ial evidence to support the trial court’s findings. State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997) (citation omitted).

In this case, the defendant admitted violating the terms of his prob ation by ha ving contact withthe victi m. Wh ether c onsensua l or not, he

repeat edly met with or

telephoned her de spite knowing that the te

rms of his p

robation prohibite d it. We do not believe he has demonstrated that the trial court abus ed its discreti on by orderin g him to se

rve the r emainde r of his se

ntencesin incarceration. To the contrary , his repeatedly threatening the victim

and flag rantly disreg arding

this condition of his pro

bation sup

port the tr

ial cour t’s decis ion. The ju dgment of the tri al court is affirmed.

___________________________________ JOSEPH M. TIPTON, JUDGE