### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs S ep te m be r 11, 200 7
STATE OF TENNESS EE v . ANTONIO LAMAR OSBO RN

Direc t Appeal from the Circ uit Court for Madison Cou nty

No. 04-772 Roge r A. P age, Judge

No. W2007-00217-C CA-R 3-CD - F iled October 29, 2007

The de fenda

nt, Antonio L amar

Osborn, appe als the revoc ation of his probation, ar g uing that the trial court lac ked jurisdiction to modify his probation order

beca use more tha

n t h i rt y d ay s had ela

psed sin c e the e ntr

y of the or de r. F oll ow ingour r e vie w, we a ff ir m th e jud g me nt o f t

he tr ia l c ourt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the cour t, in which D AVI D H. W EL L ES and J OHN E VE R E TT W I L L I AMS , J J ., joined. Paul E. Mey ers, Assistant Public Defe nder, f or the a ppellant, Antonio L amar

Osborn.

Rob e rt E. Coo pe r, Jr., At tor

ne y Ge ne ra l a nd Re po rt e r; Sop hia S. L e e , A ssi sta

nt A tto rn e y

Ge ne ra l; J ames G. ( J err

y ) Woodall, District Attorney Gene ral; and James W. Thompson, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

I n N ov emb er 20 04 , th e de fe nd a nt p le d g uil ty in t he Ma dis on

County Cir c uit Court to ag g ravated burg lary , vandalism under $500, a nd d ri v i ng while unlicense d in exchang e for an eff ective six -y ear -ele ven-month-twe nty -nine-da y sentenc e, suspende d to intensive supervised probation. Among the terms of the defe ndant’s probation were that he co m p l et e an outpatient substance a

buse prog ram a

nd ang er ma

nag ement cla sses, repor

t reg ularly

to his probation officer , perf orm 100 hours of community service , and not e ng ag e in “ any assaultive, abusive, threa tening or intimi dating behavior .”

On Marc h 3, 2005, a probation violation warra nt was issued alleg ing that the defe ndant had fa ile d to re po rt

to h is p ro ba tio n o ff

ic e r o n f ive oc casi on s, fa ile d to re po rt to s ub sta

nc e a bu se-2-

trea tment on two occa sions, mis sed cur fewon one occasion, failed to perfor m community

service work for the month of J anuar y 2005, failed to timely repor t a chang e of a ddress, a

nd tested positive for c ocaine on J anuar

y 18, 2005. On October 31, 2005, an ame nded probation violation warrant wa s issued alleg ing th at , i n addition to the above violations, the def endant ha d also absconde d from probation super

vision. On September 15, 2006, a r evocation hearingwas he ld at which the defe ndant, waiving his right to a f ull hearing , admitted that he wa s g uilty of the violations contained in the war

rants. The defe ndant also admitted t h at h e h ad a ser ious drug problem. At the
rec ommendation of the State, the trial court revoke d and then re instated the def endant’ s probation, order ing that the probationar y period be g in anew a

nd that, as a ne w condition of proba tion, the de fe nd a nt h a d to su c c e ssf ull y c omp le te a lon g -t e rm inp a tie nt dr ug tr e a tme nt pr og ra

m a nd re ma in i n jail while waiting for a

bed in such a

fac ility to become a

vailable.

I n J anuar y 2007, another

probation violation warr ant was issued alleg ing that the defe ndant ha d v iolated th e ter

ms o f h is p ro ba tio n b y

e ng a g ing“ in a

n in tim idatin g be havio r t ow a rd his pr ob a tio n o ff

ic e r t hr ou g h le tte rs he wr ote to he r in ja il wh ile a wa iti ng fo r a be d to be c ome a va ila

ble for substanc e abuse trea tment.” At the January 12, 2007, re v o ca tion hearing , the def endant’ s probation off

icer , Dinah Ellison, identified the letters the defe ndant had se nt her fr o m j ail , which
we re a dmi tte d a s a

c oll e c tiv e e xhib it to the he a ri ng . E lli so n s a id t hat th e de fe nd a nt r e qu e ste d in some of the earlier letters that his probation be revoke d. She said that in a letter dated Nove mber 27, 2 0 0 6, the def

endant c alled her

a “bitch” and informe d her tha t he would run a way from any trea tment center

in which he wa s place d. She stated that the defe ndant also sent her a pag e torn out of the B ible on which he ha d written obsce nities.

Ellis on testified that she wa s attempting to g et the def endant e nrolled in a drugtrea tment cente r during the time he sent he r the letter s. She said that the de fenda nt had bee n place d on the
wa iti ng lis t at “Jac k Ge a n She lte r” a nd that sh e c a lle d w e e kly to c he c k o n h is s ta tus . Wh e n s he la st
c he c ke d, a

pp ro xima te ly

on e we e k p ri or

to t he he a ri ng , th e de fe nd a nt w a s n int h o n the wa iti nglis t. On c ro ss- e xami na

tio n, El lis on

te sti fi e d th a t sh e ha d a lso tr ie d to get th e de fe nd a nt a dmi tte d to “Sy nerg y ” in Memphis. She said that offic ials at Sy nerg y wer e aw are of the de fenda nt’s char g es and sentenc e and w ere in the proce ss of eva luating his c ase. F inall y , s he testified that the de fenda nt
never threa tened to do any

thing to her

in the letters.

The defe ndant’s November 27, 2006, letter to Ellison states in pertinent part: “This will be my last time try ing to r eason w ith y ou

. Ok ay , I ’l l sit in j ail and collec t ‘jail time’ for my future incar cer ation in TDOC. But in the mea ntime I ’m alre ady

plannin g wh at I ’m g oing to do whe n I
arr ive at Jack Gene in Savannah.”

The de fenda

nt wrote the ne x t portion of the letter in lar g e block pr inting, using al l capital let ter s: “I P RO MI S E YOU B I TC H I W ON’T BE TH ER E A G OOD HOU R BE FOR E I RU N OFF FROM THA T MOTHERF UCKER. AND B I TCH YOU WON’T SEE ME AG AI N UNTI LYOU CH ECK TH E 6 :00 NE WS. I

B EL ON G I

N PR I S ON. I DO N’ T WA NT L ON G- TE RM TREATMENT!! FUCK TH AT B I TCH!!”-3-

I n either a continuation of t hat l etter or in another undated letter, the defendant wrote that he ag ree d to the S tate’s “so-ca lled ‘dea l’” only beca use he w as led to believe he would be tr ansfe rre d to a trea tment c enter within a matter of we eks. The de fenda nt stated that he now r ealized that Ellison had conspired to e ntrap him into admit ting the pr obation violations. He informed he r that he pla nned to spend his time in prison learning criminal law a nd “lea rning from [his] fellow inm ates how to be be tte r t he ne xt time .” He e nd e d w iththe fo llo wi ng wo rd s:
There is no God except Satan and no treatment ce nter available to me a nd the re fo re the re is e vid e ntl y no ho pe fo r m e to d o w hat is su pp os e dly “ g oo d” in t

his world.

An d o ne da

y y ou mus t be he ld ac c ounta

ble fo r wh a t y ou ’v e he lpe d th e m to do to m e a lon g wi th m y

da dd y wh o a bu se d me wh e n I wa s a chi ld. I tr us t Sa tan to keep his promise. Matthew 4:9 And He said to him, “All t hese things I will give you if y ou will fall down and wor ship me.” The last two page s of t he letter include drawing s of t wo ups ide down crosse s with the number

“ 6, ” c on ta ini ng a n e y e ba ll i ns ide the c ir c le of the “ 6, ” wr itt e n a t thr e e po int s o n th e c ro ss. Th e fi rs t draw ing is a ccompa

nied by the words “ SATAN F OREVER,” “L ucife r,” “ devil,” and “ evil.” The second draw ing depicts a body hang ing he ad down f

rom the cr oss with blood dripping fr om its head
a n d a r ms. This drawing is acc ompanied by the names “ CAI

N,” “ HI TL ER,” “JEFFREY D AHMER,” “JEZEB EL ,” “CHA RL ES MANSON,” and “LUC I FER” w ritten in capital letter s, and the names “De nmark,” “Mar ily

n,” and “Ellison” written in lowe rca se letters ve rtically beneath the “D,” “M,” and “E ” of “ DAHMER.”

I n h is l a st le tte r, da te d De c e mbe r 18, 20 06 , the de fe nd a nt ap olo g ize d to Ms. Elli so n for his previous l et ters and a sked for her f org iveness. At the r evocation hearing , the def endant r epeated his apolog y

to Ms. E l l i s o n and informe d the trial cour t that he was “ truly

sorry ” for

what he ha d done. He stated that he ha d acte d out o f fr u s t ra t i on and stress a fter w eeks of not rec eiving any response from Ms. Ellison to his inquiries reg arding the status of his case

. At the conc lusion of the hear ing, the trial court f ound that the def

endant’ s l et t er s did not amount to a cr ime under the hara ssment statute, as had been arg ued by the State, but that their tone and messag e, par

ticularly the def endant’ s statement that he would run awa y from a tr eatment c enter , indicated that the de fenda

nt would not comply

with the terms of probation. The trial court, ther efor e, revoke d the defendant’s probation and ordered that he serve his sentenc e in incar cer ation. The trial court c hara cter ized its actions as a n amendment of its previous orde r, in which it had re voked and
re ins ta te d th e de fe nd a nt’ s p ro ba tio n: [A] s the Court Iam cha

rg ed with the re sponsibili ty to f ind that e ach pe rson that I put on alternative sentenc ing, be it Com munity Correc tions or probation, is a prope r candidate.-4- . . . . Sin c e that’ s a

C f e lony , o f c ours e , th e Cou

rt pu t hi m on

pr ob a tio n to sta

rt wi th and orde red him to attend a ng er ma nag ement, g ave him st atus che cks to show that he would attend the ang er ma nag ement.

He ne ve r c omp le te d th a t, w hic h is a n in dic a tio n to me that he c a nn ot c omp ly wi th t he c on di ti ons o f p ro ba tio n. I n f a c t, t he la st t ime Iha d a

status c he c k f

or him on Marc h the 7th he didn’t show up for it so I issued a ca

pias for his ar

rest.
We didn’t hear f

rom him then for many months, over a y ear

. And finally the probation re vocation wa

rra nt was ser ved on him.

He c ame in to cour

t, was re voked and r einstated a nd put back on pr obation.

. . . An d w hil e he wa s awa iti ng lon g -t e rm tr e a tme nt h e -- No w, I ’ve go t th e se letters up her e and beca

use of the co[a]rse languag e I ’m not g oing to r ead e very thing fo r t he re c or d. B ut i n one ba sic a lly he te lls Ms. El lis on that he ’s no t g oin g to s tay in trea tment for an hour

befor e he’ ll run off a

nd the next ti me she’ll see him will be on the six o’cloc k news. And the re’ s sever al ot her incidents like that in here showing that he’s not a c andidate f or treatment.
So based on the e vidence I ’ve hear d, Ithink the proper le g al outcome is for
me to g o b a c k a

nd a me nd that pre vio us or de r, be c a us e ob vio us ly

the re we re ple nty of g ro un ds to re vo ke him on the pr e vio us ma tte r, plu s he ha s fur the r ind ic a te d to me that he is not a ca

ndidate for

probation.

. . . . So I ’m g oing [to] s how an amended probation revoc ation order and show that it a me nd s th e or de r o f 9 /15 . I t w ill be a full revo cat ion

a nd fi nd ingba se d o n th is hear ing that he’s violated the te rms of h i s p ro b ati on; I ’ll ag ain state that what I ’ve hear d today

along with what we hear d as it was announc ed in cour t on September 15th.

AN AL YSI S

On a pp e a l, t he de fe nd a nt c ite s State v. Mo or e , 8 14 S.W. 2d 38 1 ( Te nn . Cr im. Ap p. 19 91 ), to argue that the tria l court lac ked jurisdiction to amend the Septembe r 15, 2006, probation order beca use more tha

n thirty day s had elapsed si nce the entry of the orde r. I n essenc e, he a rg ues that the trial court imprope rly re l i ed on his previous probation violations beca use there was insuffic ient evidenc e pre sented a t the J anuar y 12, 2007, revoc ation hear ing to show a ne w violation of probation.-5-

I n support, he asser

ts tha t the trial court found that “the only alleg ation alleg ed [in the J anuar y 2007
war rant] did not rise to a crime unde r the ha rassment statute.” The State re sponds by arguing that Moore supports its position t hat the trial court ha d jurisdiction to revoke the de fenda nt’s probation upon a finding that he violated the te rms of the proba tion. The S t at e as s erts that the defenda nt’s vio l at i o n co n s isted of his threate ning a nd intimi dating letters to Ms. Ellison and that “a c are ful
rea ding of

the re cord c lear ly

demonstrates t hat the trial c ourt revoke d the def endant’ s probation based on the probation violation warr ant issued on J anuar y 3, 2007.”

The defenda

nt in Moore a

ppeale d the trial cour

t’s order that he pay

restitution as a condition of pr ob a tio n, a rguin g tha

t th e tr ia l c ourt

la c ke d ju ri sd ic tio n b e c a

us e the or de r w a s n ot e nte re d unti l more than thirty

day s after

the entry of the judg ment. I d. at 382. I n analy zing the issue, this court
wr ote :
Ob vio us ly , a se nte nc ingor de r, in c lud ingon e inv olv ingpr ob a tio n, is a judgme nt which bec omes final af ter thirty day s in the same manne r as ot her judgme nts in criminal case s. See T.C.A. §§ 40-35- 401(a) and -402( a); T.R.A.P. 3(b)
an d 4(a) . Although unde r pre sent law ther e ar e many instances in which the trial
c ourt ma int a ins jur isd ic tio n ov e r the de fe nd a nt a nd his se nte nc e , r e la tiv e to i ts l e ng th and manne r of se rvice , s u ch j u ri sdiction is li mited to that authorized by statute or
ru l e. S ee , e. g. , T en n

. R

. C ri m

. P

. 3 5 ; T

. C

. A. § § 4 0 -3 5 -2 1 2 (c ) an d (d ), -3 0 6 t h ro u gh -316, and - 319. Howeve r, a r eadingof t hese various laws and r ule indicates that the
on ly jur isd ic tio n to a me nd

a se nte nc e in a

mann e r m or e on e ro us tha n th a t in iti a lly impo s ed s t em s from probation violations , T.C.A. §§ 40-35-308( b), -310 a nd -311, vio la tio ns of

ja il or wo rk

ho us e ru le s, T. C.A . § 40 -3 5- 31 4( d) , o r c omm un ity
corr ections prog ram modifications or violations, T.C .A. § 40-36-106( e)( 2) and (3)

. None of these c ircumstance s apply in this case.

I d. at 383.

As we r ecog nized in Moore, our statutes expressly g rant the tria l court the a uthority to revoke and annul a

defe ndant’s suspension of sentenc e upon a finding by a pre pondera

nce of the evidenc e that t h e def

endant ha s violated the terms of his or he r probation. See Tenn. Code Ann. §§ 40-35-310, - 311 (2006); see also State v. Hunter, 1 S.W .3d 643, 646 (Tenn. 1999). The re vocation of probation lies withi n the sound discre tion of the trial cour t. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1 9 9 1 ) ; St a te v

. St u b b le f ie ld , 9 5 3 S. W. 2 d 2 2 3 , 2 2 6 ( T e n n

. Cr im

. A p p

. 1 9 9 7 ) ; St a te v. Mitchell, 810 S.W .2d 733, 735 (Tenn. Crim. App. 1991)

. T o s h o w an abuse of discr etion in a probation re vo ca t ion case , “a de fenda nt must demonstrate ‘that the r ecor d contains no substantial evidenc e to support the conc lusion of the trial judg e that a viol ation of the c onditions of probation has occ urre d.’” State v. Wall, 909 S.W .2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp, 614 S.W .2d 395, 398 (Tenn. Crim. App. 1 980)). The proof of a probation violation need not be established beyond a re asonable doubt , b u t i t i s s u fficie nt if it allows the trial court to make a conscie ntious and intelligent judg ment. Har kins, 811 S

. W

. 2 d at 82 (citing State v. Milton, 673 S.W .2d 555, 557 (Tenn. Crim. App. 1984) ).-6-

Although the trial court r efe rre d to the defe ndant’s previous probation violations and spoke of “ a me nd ing ” the Se pte mbe r 1 5, 20 06 , p ro batio n o rd e r, it a lso re fe rr e d to the de fe nd a nt’ s le tte rs to Ms. E llison and the testimony it heard at the J anuar

y 12, 2007, hear ing a s support for the r evocation of probation. W e ag ree with the State that this latter evidenc e, d espite not rising to the crime of hara ssment, was suffic ient to show that t h e d ef en d an t had violated the ter ms of his probation as
a lle g e d in the Janu a ry 20 07 re vo c a tio n warr a nt by e ng a g ing“ in a n in tim idatin g be havio r t ow a rd his pr ob a tio n o ff

ic e r t hr ou g h le tte rs he wr ote to he r in jai l whil e a wa iti ng fo r a b e d to be c ome a va ila ble fo r s ub sta

nc e a bu se tr e a tme nt. ” W e con clu de, the re fo re , th a t th e tr ia l c ou rt did no t a bu se its discretion by

revoking the def

endant’ s probation.

CO NC LU SION

Ba sed on our r eview, w e conc lude that the trial c ourt ac ted within its discretion in re voking the def endant’ s probation. Acc ording ly , the judg ment of the trial c ourt is affir med.

___________________________________ AL AN E. GL ENN, JUDGE