IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs August 14, 2012

STATE OF TENNESSEE v. ERIC PERNELL TAYLOR

Appeal from the Circuit Court for Montgomery County

No. 41001195 Michael R. Jones, Judge

No. M2011-01996-CCA-R3-CD - Filed February 26, 2013

Appellant, Eric Pernell Taylor, was on probation after entering guilty plea in the Montgomery

County Circuit Court on January 7, 2011. On July 13, 2011, a probation violation warrant

was issued alleging that Appellant had failed to report his arrest, failed to report to his

probation officer, failed to pay litigation taxes, and tested positive for cocaine. He also

admitted to the cocaine usage in writing. After holding a probation revocation hearing, the

trial court revoked Appellant’s probation and ordered him to serve his sentence in

incarceration. After a thorough review of the record, we conclude that the trial court did not

abuse its discretion in revoking the probation or ordering the service of the sentence in

incarceration. Therefore, we affirm the decision of the trial court.

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

JERRY L. SMITH,J., delivered the opinion of the court, in which ROBERTW.WEDEMEYER and

CAMILLE R. MCMULLEN, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee for the appellant, Eric Pernell Taylor.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; John W. Carney, Jr., District Attorney General, and Dan Brollier, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. FACTS

Appellant entered a guilty plea for aggravated assault in the Montgomery County

Circuit Court on January 7, 2011. As part of the plea agreement, the trial court sentenced
Appellant to four years and six months. The sentence was suspended, and Appellant was

placed on supervised probation.

On July 13, 2011, a probation violation warrant was filed against Appellant. The trial

court held a hearing on August 19, 2011. At the hearing, Amanda Guillot testified that she

lived next to Toni Valliant. One evening, she was sitting on her front porch and heard Ms.

Valliant screaming, “Please stop hitting me and don’t hurt my baby.” Ms. Valliant’s baby

was five or six months old at the time.

Ms Guillot ran next door to see what was happening. A man she did not recognize

opened the door. Ms. Guillot entered the home to retrieve the baby. Appellant had his foot

on the baby’s head. Ms. Guillot elbowed Appellant out of the way and grabbed the baby.

Appellant grabbed the baby back from her and Ms. Guillot began yelling for Ms. Valliant to

come back into the house. Ms. Valliant came back into the house. Appellant grabbed Ms.

Valliant by the hair. He pushed Ms. Valliant and the baby into the wall, and they fell down

onto the floor. This altercation caused Ms. Valliant to have a “busted lip.” Ms. Guillot

elbowed Appellant out of the way again and got Ms. Valliant and the baby out of the house.

When they got to the front of the house, the police had already arrived.

On cross-examination, Ms. Guillot admitted that she had had an altercation with Ms.

Valliant about four days before the incident in question. This altercation led to bruising on

one side of Ms. Valliant’s face.

Officer David Johnson with the Clarksville Police Department testified that on July

9, 2011, he was called to a domestic assault incident. When he arrived, there was a woman

screaming. Office Johnson proceeded to the trailer that was the site of the incident and saw

another distraught woman carrying a baby. She said that nothing was wrong. However, he

noticed that her lip was bleeding and he inquired further. He eventually discovered that the

woman holding the baby was Ms. Valliant. She originally gave him a false name because

there were warrants out for her arrest.

Officer Johnson also spoke with Appellant. He described Appellant as excited. As

he asked Appellant questions, Appellant responded that he had not done anything wrong.

Ms. Valliant also testified. She said that Appellant was staying at her house at the

time of the incident, and they were friends. She said that night they were intoxicated, and

they were playing. She said that he accidentally hit her in the mouth. She said that Appellant

thought that she was impaired and was holding her baby. Appellant fell on her while he was

holding the baby. Neither one of them was injured.

-2-
Ms. Barbara Strasser with the Department of Probation and Parole testified at the

hearing. She testified that the bases for the probation violation warrant included Appellant’s

failure to report his arrest for domestic assault, failure to report to his probation officer, and

that he had tested positive for cocaine. Appellant signed an admission that he had used

cocaine. Appellant also had not paid any litigation taxes.

At the conclusion of the hearing, the trial court held that Appellant had violated his

probation. The trial court based the revocation on the following:

He tested positive for cocaine and he has had since January 7 to at least make

th

some payments on the litigation taxes; apparently, he had done none, done

absolutely none of those.

He has also committed offenses, at least committed an assault, causing

bodily injury, it could be recklessly bodily injury, but at least the evidence is

preponderance standard, he’s guilty of at least an assault. Guilty of an assault

or at least an attempted child abuse.

The trial court ordered that Appellant’s sentence be put into effect and served with the

Tennessee Department of Corrections. Appellant appeals the revocation of his probation.

ANALYSIS

On appeal, Appellant argues that the trial court erred in revoking his probation. He

argues that the State failed to meet its burden that Appellant violated his probation by a

preponderance of the evidence and that the trial courtshould have resentenced Appellant “for

the remainder of the unexpired term to any community-based alternative to incarceration.”

A trial court may revoke probation and order the imposition of the original sentence

upon a finding by a preponderance of the evidence that the person has violated a condition

of probation. T.C.A. §§ 40-35-310 & -311. After finding a violation of probation and

determining that probation should be revoked, a trial judge can: (1) order the defendant to

serve the sentence in incarceration; (2) cause execution of the judgment as it was originally

entered, or, in other words, begin the probationary sentence anew; or (3) extend the

probationary period for up to two years. See T.C.A. §§ 40-35-308(c) & -311(e); State v.

Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision to revoke probation rests within

the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.

App. 1991). Revocation of probation and a community corrections sentence is subject to an

-3-
abuse of discretion standard of review, rather than a de novo standard. State v. Williamson,

619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). To find an abuse of discretion “there must

be no substantial evidence to support the conclusion of the trial court that a violation of the

conditions of probation has occurred.” State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).

The evidence at the revocation hearing need only show that the trial court exercised a

conscientious and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d

104, 106 (Tenn. Crim. App. 1995).

In the case at hand, we conclude that the trial court did not abuse its discretion in

revoking Appellant’s probation. The record reflects that Appellant had violated multiple

rules of his supervision. The fact that he had tested positive for cocaine and admitted in

writing that he had been using cocaine is alone sufficient support for revocation.

Appellant’s argument on appeal is essentially an attack on the credibility of the

witnesses and an assertion that the trial court believed the wrong story. “In probation

revocation hearings, the credibility of the witnesses is for the determination of the trial judge,

who is in the best position to observe witness demeanor.” Bledsoe v. State, 387 S.W.2d 811,

814 (Tenn. 1965); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). Therefore,

we cannot second-guess the trial judge’s determination with regard to this issue.

He also argues that “the trial court may not rely on the mere fact of an arrest or an

indictment to revoke a defendant’s probation sentence.” Appellant is correct about this

assertion. A new arrest and pending charges are proper grounds on which a trial court can

revoke a defendant’s probation, however a trial court may not rely on the mere fact of an

arrest or an indictment to revoke a defendant’s probation. See Harkins, 811 S.W.2d 79, 83

n.2 (Tenn. 1991). A revocation on this basis requires the State to “produce evidence in the

usual form of testimony” in order to establish the probationer’s commission of another

offense while on probation. State v. Walter Lee Ellison, Jr., No. 01C01-9708-CR-00361,

1998 WL 272955, at *2 (Tenn. Crim. App., at Nashville, May 29, 1998); see State v. Michael

Chaney, No. 01C01-9801-CC-00010, 1999 WL 97914, at *1 n.2 (Tenn. Crim. App., at

Nashville, Feb. 18, 1999).

The State presented the testimony of both a third party witness, Ms. Guillot, and

Officer Johnson. This Court has held that the testimony of a police officer concerning the

facts of an arrest may be sufficient to support the revocation of probation. State v. Eric L.

Abell, No. M2006-01981-CCA-R3-CD, 2007 WL 2088949, at *5 (Tenn. Crim. App., at

Nashville, Jul. 23, 2007) (citing State v. Chris Allen Dodson, M2005-01776-CCA-R3-CD,

2006 WL 1097497, at *3 (Tenn. Crim. App., at Nashville, Mar. 31, 2006)). Therefore, we

find no abuse of discretion with regard to the trial court’s reliance in part upon Appellant’s

arrest.

-4-
Appellant also argues that the trial court should have been resentenced to a

community-based alternative to incarceration. As stated above, a trial judge can: (1) order

the defendant to serve the sentence in incarceration; (2) cause execution of the judgment as

it was originally entered, or, in other words, begin the probationary sentence anew; or (3)

extend the probationary period for up to two years. See T.C.A. §§ 40-35-308(c) & -311(e);

Hunter, 1 S.W.3d at 647-48. The trial court may choose to order the defendant to serve his

sentence in incarceration as originally ordered. In the case at hand, the trial court decided

to do so. We find no abuse of discretion in this decision.

Based on the record before us, we find that there has been no abuse of discretion in

the revocation of probation and in ordering Appellant to serve his sentence in incarceration.

CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court.

___________________________________

JERRY L. SMITH, JUDGE

-5-