IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2003

STATE OF TENNESSEE v. TRAVIS ANDERSON

Direct Appeal from the Criminal Court for Shelby County

Nos. W03-00001, W03-00004 Bernie Weinman, Judge

No. W2003-00674-CCA-R3-CD - Filed December 30, 2003

The Defendant, Travis Anderson, pled guilty to two counts of aggravated burglary, with an agreed

sentence of three years on each count to be served concurrently. Pursuant to the plea agreement, the

trial court was to determine whether the Defendant merited for alternative sentencing. Following

a sentencing hearing, the trial court denied the Defendant’s application for judicial diversion,

suspended his sentence for three years, and placed the Defendant on probation for three years. On

appeal, the Defendant contends that the trial court erred in refusing to grant his application for

judicial diversion. Finding no error, we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., and ALAN E. GLENN, JJ., joined.

W. Mark Ward, Assistant Shelby County Public Defender, for the appellant, Travis Anderson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Jennifer L.

Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General, and Mike

Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

Opinion

I. Facts

The Defendant, Travis Anderson, pled guilty to two counts of aggravated burglary, a Class

C felony, with an agreed sentence of three years on each count to be served concurrently. Pursuant

to the plea agreement, the Shelby County Criminal Court held a sentencing hearing to determine

whether the Defendant qualified for either probation or judicial diversion. Following the sentencing

hearing, the trial court denied the Defendant’s application for judicial diversion, but found that the

Defendant qualified for probation. Accordingly, the trial court suspended his sentence for three years

and placed the Defendant on probation for three years. The Defendant now appeals.
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At the guilty plea proceeding held on January 23, 2003, the State presented the following

facts regarding the Defendant’s involvement in two burglaries that occurred in November of 2002,

and the Defendant stipulated to these facts. On November 12, 2002, the home of Phillip Stegall,

located in Memphis, was burglarized, and the intruders stole ten firearms, including five highpowered rifles. Detectives with the Memphis Police Department discovered fingerprints atthe crime

scene that matched the Defendant’s fingerprints. On November 14, 2002, the home of Wayne

Newsom, also located in Memphis, was burglarized by intruders who kicked in the rear door and

stole a small safe. A witness observed the incident and called the police. Police initially arrested

four suspects, and the investigation revealed that the Defendant was also involved in this burglary.

Police officers arrested the Defendant on November 15, 2002, and brought him to the police station,

where he gave a written statement admitting to his involvement in the burglary of Stegall’s house.

About a week after this confession, the Defendant, while still in custody, admitted to participating

in the burglary of Newsom’s house.

The following evidence was presented at the sentencing hearing held on February 14, 2003.

The Defendant testified that he was eighteen years old and lived with his mother in Memphis. He

stated that he attended Julia B. Hooks High School until he was arrested for burglary in November

of 2002. The Defendant reported that, before he quit school, he was in the eleventh grade and

participated in wrestling. He explained that he participated in the burglaries because he “hung

around” the wrong people on those days. The Defendant stated that he burglarized those homes “just

to do something, have fun.” He reported that he burglarized the homes with four of his classmates

at school and that he was not thinking when he participated in the crimes. He explained that, while

he did not steal anything from the houses, his accomplices stole some items and he expected to

receive some money from the pawned items. The Defendant testified that he and his accomplices

were arrested before they could sell the items. He stated that if he received probation he would not

associate with those former classmates anymore because “I know they [are] the wrong people to hang

around with.” The Defendant explained that he spent three months in jail because his mother refused

to make bond. He testified that, if the court placed him on probation, “I plan to go to college. I got

scholarships to go to college. If I finish–I still got a chance to graduate. If I go back to high school

and graduate, I still got scholarships [for] wrestling.” He stated that he could comply with the

requirements of probation.

On cross-examination, the Defendant stated that he did not know either Stegall or Newsom

when he burglarized their houses. He explained that Stegall and Newsom were probably mad

because he “broke into” their homes and stated, “I don’t want [any]body to break into my house.”

The Defendant stated that he should not be sent to jail because “[i]f I got another chance, I can make

it . . . right.” He explained that he would “[w]ork and pay them what they still say they’re missing.

. . .”

The trial judge then asked the Defendant to explain why he burglarized the two houses, and

the Defendant stated, “We were just sitting down at my house, and they were saying like I know this

dude that’s got this . . . got this . . . so let’s go over there. So we just went over there.” He explained

that he and his accomplices took a “little white safe” from Stegall’s house and “one little gun” from
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Newsom’s house. The Defendant stated that one of his accomplices kept the gun at his house

because the Defendant could not bring any guns into his home. When asked how he was “going to

make it right” with Stegall and Newsom, the Defendant replied, “Just pay them back for the damage

that’s been done.” The Defendant explained that he burglarized the homes because he thought that

he was going to get something for nothing. He stated that he wanted to sell the “little gun” for at

least $45.00, but the police arrested him before he could sell it. The Defendant admitted that, if

someone bought the gun, that person might shoot someone else with the gun.

Luvenia Anderson Willard, the Defendant’s mother, testified that the Defendant lived with

her and was attending Julia B. Hooks High School when he was arrested. She stated that, since

being in jail, the Defendant was remorseful for burglarizing the homes. Willard testified that she

believed that the Defendant could obey the law. She explained, “I asked him why he could be so

stupid and hang around people that do things like that? Why he was so stupid to do the same thing

they [were] doing?” She stated that the Defendant’s accomplices in the burglaries were teenagers

from her neighborhood. The trial judge then asked Willard what changes she had seen in the

Defendant, and she replied, “He told me that he wanted a job, and would I get him a job . . . if he

g[ot] out? And I told him I would get him a job where I work. . . .”

Following this proof, the trial court made the following ruling:

[Defendant], it is a horrible, horrible crime to break into somebody’s house,

invade their castle, invade their place to live–And what was your reason? Well I

wanted to have fun, I think, is the first time. And, then, as we got around to talk

about it, well I wanted to get some money for nothing. There is no way to make

these people whole again. You can pay for the door, you can pay for the property that

was taken, but you can’t make them–psychologically, you can’t straighten them out

ever.

And you didn’t do it just once. From what we know, we know that you did

it at least twice. . . . Spreading these guns out on the streets, trying to sell them to

criminals. Honest people are not going to buy them. And how frightening all that

is. Absolutely frightening that is.

[I]f you messed up your ability to get that wrestling scholarship, you messed

it up. You know, it’s just not a minor little thing that you got involved in, these two

burglaries into somebody’s house.

The trial court then denied the Defendant’s application for judicial diversion, suspended his sentence

for three years, placed him on probation for three years, and fined him $500.00. The trial court gave

the following requirements for probation: “You must finish school; you must be employed; 10:00

p.m. curfew; . . . random drug screens; and moral recognition therapy.”

II. Analysis
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The Defendant argues that the trial court abused its discretion in declining to impose a

sentence pursuant to Tennessee Code Annotated § 40-35-313 (1997 & Supp. 2002), commonly

referred to as “judicial diversion.” According to this statute, the trial court may, at its discretion,

following a determination of guilt, defer further proceedings and place a qualified defendant on

probation without entering a judgment of guilt. Tenn. Code Ann. § 40-35-313(a)(1)(A). A qualified

defendant is one who:

(a) Is found guilty of or pleads guilty or nolo contendere to the offense for which

deferral of further proceedings is sought;

(b) Is not seeking deferral of further proceedings for a sexual offense or a Class A or

Class B felony; and

(c) Has not previously been convicted of a felony or a Class A misdemeanor.

Tenn. Code Ann. § 40-35-313(a)(1)(B)(i)(a), (b), (c). 

When a defendant contends that the trial court committed error in refusing to grant judicial

diversion, we must determine whether the trial court abused its discretion by denying the defendant’s

request for judicial diversion. State v. Electroplating, Inc., 990 S.W.2d 211, 229 (Tenn. Crim. App.

1998); State v. Cutshaw, 967 S.W.2d 332, 344 (Tenn. Crim. App. 1997). Judicial diversion is

similar to pretrial diversion; however, judicial diversion follows a determination of guilt, and the

decision to grant judicial diversion is initiated by the trial court, not the prosecutor. State v.

Anderson, 857 S.W.2d 571, 572 (Tenn. Crim. App. 1992). When a defendant challenges the trial

court’s denial of judicial diversion, we may not revisit the issue if the record contains any substantial

evidence supporting the trial court’s decision. Cutshaw, 967 S.W.2d at 344; State v. Parker, 932

S.W.2d 945, 958 (Tenn. Crim. App. 1996). As this Court stated in Anderson:

We conclude that judicial diversion is similar in purpose to pretrial diversion and is

to be imposed within the discretion of the trial court subject only to the same

constraints applicable to prosecutors in applying pretrial diversion under Tennessee

Code Annotated § 40-15-105. Therefore, upon review, if “any substantial evidence

to support the refusal” exists in the record, we will give the trial court the benefit of

its discretion. Only an abuse of that discretion will allow us to overturn the trial

court. 

Anderson, 857 S.W.2d at 572 (citation omitted).

The criteria that the trial court must consider in determining whether a qualified defendant

should be granted judicial diversion include the following: (1) the defendant’s amenability to
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correction; (2) the circumstances of the offense; (3) the defendant’s criminal record; (4) the

defendant’s social history; (5) the defendant’s physical and mental health; and (6) the deterrence

value to the defendant and others. Cutshaw, 967 S.W.2d at 343-44; Parker, 932 S.W.2d at 958. An

additional consideration is whether judicial diversion will serve the ends of justice, i.e., the interests

of the public as well as the defendant. Cutshaw, 967 S.W.2d at 344; Parker, 932 S.W.2d at 958;

State v. Bonestel, 871 S.W.2d 163, 168 (Tenn. Crim. App. 1993), overruled on other grounds by

State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). Moreover, the record must reflect that the court has

weighed all of the factors in reaching its determination. Bonestel, 871 S.W.2d at 168 (citing State

v. Herron, 767 S.W.2d 151, 156 (Tenn. 1989)). The court must explain on the record why the

defendant does not qualify under its analysis, and if the court has based its determination on only

some of the factors, it must explain why these factors outweigh the others. Id.

In the case under submission, there is no dispute that the Defendant qualifies for

consideration for judicial diversion under Tennessee Code Annotated section 40-35-313 because he

pled guilty to two counts of aggravated burglary, a Class C felony, and had not been previously

convicted of a felony or a Class A misdemeanor. The Defendant complains that trial court abused

its discretion by denying the Defendant’s application for judicial diversion because the “trial judge

did not indicate that he considered all the appropriate factors or why the factors he did consider

outweighed all others.” 

In determining whether it should grant the Defendant’s application for judicial diversion,

the trial court did not explicitly articulate its consideration of the factors set forth in Cutshaw, 967

S.W.2d at 343-44. However, the record reflects that the trial court placed great emphasis on the

serious nature of the offenses and the circumstances surrounding the offenses. The trial court stated

that the Defendant’s acts of burglarizing two houses and stealing items from the houses were

“horrible” crimes. It further stated that the fact that the Defendant and his accomplices stole guns

during one of the burglaries was “[a]bsolutely frightening” because they had planned “to sell them

to criminals.” The trial court also noted that the Defendant’s motivation in participating in the two

burglaries was to “have fun” and “get some money for nothing.” It stated that “[t]here is no way to

make these [victims] whole again . . . . psychologically, you can’t straighten them out ever.” These

comments indicate that the trial court denied judicial diversion because of the troublesome nature

of the burglaries in this case and a pattern of criminal behavior by the Defendant. The Defendant

illegally entered the victims’ houses along with his accomplices and stole firearms that he and his

accomplices planned to sell on the street. Also, the Defendant committed aggravated burglary two

times, which shows a disturbing pattern of criminal behavior. Moreover, the trial court’s findings

indicate that it believed that the denial of judicial diversion would serve the ends of justice, i.e., the

interests of the public as well as the Defendant. After thoroughly reviewing the guilty plea

proceeding and the sentencing hearing, we conclude that substantial evidence supports the trial

court’s decision. Accordingly, we hold that the trial court did not abuse its discretion in denying

judicial diversion. 
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III. Conclusion

In accordance with the foregoing authorities and reasoning, we conclude that the trial court

did not abuse its discretion in denying the Defendant’s application for judicial diversion. Therefore,

we AFFIRM the trial court’s judgments.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE