IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 30, 2010 

STATE OF TENNESSEE v. TREMAINE NATHANIEL POINTER

Direct Appeal from the Criminal Court for Davidson County

No. 2006-D-2927; 2007-B-1142 Cheryl Blackburn, Judge

No. M2009-01424-CCA-R3-CD - Filed June 30, 2010

The Defendant-Appellant, Tremaine Nathaniel Pointer, appeals the revocation of his

probation by the Criminal Court of Davidson County. In case number 2006-D-2927, Pointer

entered a guilty plea to possession with intent to sell .5 grams or more of cocaine, a Class B

felony. In case number 2007-B-1142, Pointer pled guilty to felony failure to appear, a Class

E felony. Pursuant to his plea agreement, he was sentenced as a Range I, standard offender

to an eight year term of imprisonment for the drug conviction and was ordered to have a

mental health and drug assessment. He was also sentenced to one year for the felony failure

to appear conviction, which was imposed to run consecutively to the eight year sentence, for

an effective nine-year sentence. The trial court ordered Pointer to serve six months in jail

and the remainder of his sentence on supervised probation. After a revocation proceeding

on September 19, 2008, Pointer was placed back on probation to be supervised by the

community corrections program, and that placement was revoked on June 1, 2009, when the

court ordered Pointer to serve his sentence. On appeal, Pointer contends that the trial court

abused its discretion by ordering him to serve his sentence in confinement after revoking his

probation. Upon review, we affirm the judgment of the trial court revoking Pointer’s

probation in cases 2006-D-2927 and 2007-B-1142.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Dawn Deaner, District Public Defender; Emma Rea Tennent (on appeal); Jessamine Grice

(at hearing), Assistant Public Defenders, Nashville, Tennessee, for the Defendant-Appellant,

Tremaine Nathaniel Pointer.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret T. Gunn,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Guilty Plea Hearing. At the May 10, 2007 guilty plea hearing, the State summarized

the facts supporting the entry of Pointer’s guilty pleas:

Your Honor, if Mr. Pointer’s case . . . had gone to trial, the State’s proof

would be that on June [27,] 2006[,] the police served a search warrant at 1703

Underwood Street, Apartment 2, where the defendant was there. The police

found about thirteen grams of crack cocaine on the roof of the porch near

where Mr. Pointer was when the police came up. They questioned Mr.

Pointer. He admitted that he had been selling drugs. He had scales, but he

claimed that he had stopped selling a couple of days prior. But he did have

$266 in cash. He was charged with this offense. He was indicted. He was

supposed to be here in court on March [8], 2007, on it, and he did not show up.

All this was in Davidson County.

Pointer acknowledged that the aforementioned facts were true . The trial court discussed the

specific terms of the plea agreement with Pointer. Pointer acknowledged that he understood

the charges against him and understood the sentences he would receive under the plea

agreement. The trial court accepted his guilty pleas and sentenced him pursuant to the plea

agreement.

At the revocation hearing on September 19, 2008, Pointer waived his right to a

hearing and conceded that he violated the terms of his probation by testing positive for

marijuana. At the conclusion of the hearing, the court ordered Pointer to enter a dual

diagnosis program. It also reinstated Pointer’s probation but required that the probation be

supervised by the community corrections program.

On April 9, 2009, an arrest warrant was issued alleging that Pointer had violated the

terms of his probation by failing to complete his outpatient treatment and by testing positive

for Benzodiazepine. On April 17, 2009, an amended arrest warrant was issued that alleged

the aforementioned violations as well as the fact that Pointer had absconded.

Probation Revocation Hearing. At the June 1, 2009 probation revocation hearing,

Brandi Jimmerson, Pointer’s supervisor at the community corrections program, testified that

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Pointer had been previously diagnosed with bipolar disorder, post-traumatic stress disorder,

and a dependency on cannabis. She said that she had been in contact with Pointer at least

once weekly and that Pointer had regularly attended the appointments with her, although he

would often be late for these appointments.

Jimmerson acknowledged that Pointer went to Bradford Health Services after he

attended New Life Lodge. She said that she initially presented an arrest warrant to the court

because Pointer had tested positive for marijuana. The trial court declined to sign this

warrant because it knew that Pointer was going to receive inpatient treatment at New Life

Lodge. Jimmerson stated that Pointer did complete the twenty-eight-day inpatient treatment

at New Life Lodge. She said that the community corrections program required Pointer to go

to the Bradford Health Services program, which was an aftercare program, following his

treatment at New Life Lodge. She said that Pointer had to undergo mental health counseling

as a condition of his probation.

Jimmerson stated that she had been initially notified by Bradford Health Services that

Pointer had not been attending his sessions. She informed Pointer that he had to attend his

sessions or “that would be a violation of the Community Corrections.” On March 31, 2009,

Bradford Health Services notified her that Pointer was being discharged because someone

had reported that he was selling Valium on the premises and that marijuana had been found

on his person. Jimmerson said that Pointer adamantly denied distributing drugs at Bradford:

[Pointer] denied it and denied it. Because I told them, you know, it’s kind of

coincidental – [Pointer] and I had discussions for weeks about the treatment

because he wasn’t showing up. And he was telling me the counselor just

didn’t like him and was making up this and so forth. I informed him that that

was not the case. I mean, that’s the counselor’s job. He was either showing

up late or he wasn’t. He said he was. So we had a talk about it, and then I got

a call from the counselor saying that he was doing better. He had actually

attended class every day that week. So things were looking up. And then I got

the call again that said that someone else had reported [that he was distributing

controlled substances at Bradford].

On April 1, 2009, Jimmerson performed a drug test on Pointer, wherein he tested positive for

Benzodiazepine or Valium. She then presented a warrant with a treatment plan to the trial

court, which included Pointer’s admission into a halfway house. The court signed the

warrant and set a fairly low bond. The court told Pointer that if he made bond, it would allow

him to attempt the treatment plan. Pointer subsequently made bond, and Jimmerson told him

that he needed to call her the next morning regarding his admission into the halfway house.

Jimmerson detailed the series of events following Pointer’s arrest for the first warrant:

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[Pointer] reported on a Tuesday, and he was arrested in the office.

That’s when I told him if he made bond he needed to call me. He called me

that afternoon like he was supposed to. The following morning was when I

told him he had to go [to the Recovery Consultants halfway house] that day.

And he said that he had to take his baby to the doctor and so forth. So that was

on Wednesday morning. He wassupposed to have contacted me by lunchtime.

Jimmerson said that she presented an amended warrant to the trial court on Friday morning.

She said that she tried to contact Pointer several times prior to presenting the amended

warrant to the court. Pointer finally contacted her on Friday afternoon, and she told him

about the amended warrant. Jimmerson stated that Pointer told her, “I thought you were

supposed to call me.” She responded that “he knew that that was not the case because [they]

had had the conversation about the doctor’s appointment.” Jimmerson explained that Pointer

knew he was supposed to contact her and that she had tried several times to contact him, but

he refused to return her phone calls.

Jimmerson said that the halfway house that Pointer was supposed to attend following

the first arrest warrant for a probation violation was called Recovery Consultants. She

informed the court that she had already gotten Pointer a bed in a different halfway house, the

Ann Betts Halfway Home Transitions, in case the trial court wished for Pointer to go to one

following this hearing. She explained that this second halfway house was not as good as

Recovery Consultants because it does not have as much to offer individuals, but Recovery

Consultants did not currently have room for Pointer.

Jimmerson said that Pointer had been screened for Drug Court, but she thought he had

been denied because of his felony failure to appear charge. Jimmerson acknowledged that

Drug Court would be a good option for Pointer if he qualified because Pointer needed “quite

a bit of structure.”

Jimmerson also stated thatshe contacted New Life Lodge. Although Pointer met New

Life Lodge’s criteria for admission, she said that Pointer would have to undergo an in-person

assessment before determining whether his insurance would pay for the treatment, since

Pointer had been incarcerated for so many days. Jimmerson acknowledged that the court

would not be able to do anything other than order confinement unless Pointer cooperated and

that Pointer had not cooperated as of the hearing date.

Pointer testified that he was aware that this was his second violation of probation and

his first violation of the community corrections program. He also acknowledged that he had

a substantial amount of time remaining on his sentence. Pointer admitted that he had taken

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Valium prior to his drug test in April when he tested positive for Benzodiazepine. He said

that he did not have a prescription for Valium at the time of the drug test. Regarding his

discharge from Bradford Health Services, Pointer said that he had Valium at the time but that

he did not sell any of it or give any of it away to the other members. He said that he was

taking the Valium because it helped with pain he had in his back and hip. He admitted that

he never had a prescription for Valium. Pointer said that he had been prescribed Oxycodone

last December when he broke his ankle because he did not disclose that he was a drug addict

to the prescribing physician. Pointer stated that he had received a mental health diagnosis

and had been prescribed Risperdal. He said that he was diagnosed with post-traumatic stress

disorder when he was eighteen or nineteen but was unsure what caused him to have this

diagnosis. He also said that he had been diagnosed with bipolar disorder. He stated that he

believed that both of these disorders sometimes prevented him from completing probation.

Pointer then explained why he failed to contact Jimmerson regarding his participation in the

Recovery Consultants halfway house:

I think we just had a misunderstanding because I wanted to do the

halfway home. I wanted to get help. You know, I know I need help. I think

we just had a misunderstanding because I called her on Friday and asked her

what happened to the plan. But I didn’t know – I thought she was going to call

me, you know. Of course, she said she couldn’t get a hold of me.

Pointer said that he was interested in going to the Ann Betts Halfway Home that had been

set up. He said that he had been living with his aunt but thought that the halfway house

would be better for him because it had more structure. Pointer also said that he was

interested in participating in the Drug Court, despite the fact that he had been denied. He

also said that he had already participated in the New Life Lodge program earlier that year and

that going back there would be helpful for him. Pointer said that, if he were allowed to

return, he would make an effort to complete his work. He informed the court that he had

been working part-time in landscaping and that his aunt and his grandmother were present

in the courtroom. He also stated that he had been attending the Mental Health Co-op since

he was eighteen. Pointer said that he had heard about a new program that combined drug

issues and mental health issues, and he said that he would like to be screened for that

program if it would help him.

Gloria Jackson testified that Pointer was her grandson. Jackson said that Pointer was

close with her, his father, and his aunt. She said that Pointer’s mother kicked him out of the

house when he was a teenager and that “[h]e’s been abused and not knowing which way to

go.” Jackson said that Pointer never lived with her, although she had been an active part of

his life. She opined that jail would not help him, but a drug program would help him with

his drug addiction because “[h]e needs to be supervised and monitored and motivated.”

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Jackson said that Pointer does not get much supervision living with his aunt, although he

does help her because she is disabled. Jackson said that she would provide transportation so

that Pointer could be screened for New Life Lodge.

The State declined to make a closing argument. During closing, defense counsel

presented the following three options regarding Pointer: (1) he could attend the Ann Betts

Halfway House, (2) he could be screened for the new drug program that has a mental health

component, and (3) he could be granted a furlough to be screened by the New Life Lodge

program to determine whether his insurance would pay for this program. Defense counsel

stated, “I think structure and supervision and someone standing over him is what he needs

to be successful on any form of probation.”

At the conclusion of the hearing, the trial court refused to allow Pointer to participate

in any drug programs. On June 1, 2009, the trial court entered an order revoking Pointer’s

probation and ordering him to serve the original sentence in confinement. Pointer filed a

timely notice of appeal.

ANALYSIS

Pointer contends that the trial court abused its discretion by ordering him to serve his

sentence in confinement after revoking his probation. In response, the State argues that the

trial court properly revoked Pointer’s probation and ordered him to serve his nine-year

sentence in confinement. We agree with the State.

If the trial judge determines that the defendant “has violated the conditions of

probation and suspension by a preponderance of the evidence, the trial judge shall have the

right . . . to revoke the probation and suspension of sentence and cause the defendant to

commence the execution of the judgment as originally entered, or otherwise in accordance

with § 40-35-310.” T.C.A. § 40-35-311(e) (2006). Probation revocation rests within the

sound discretion of the trial court, and this court will not disturb the trial court’s ruling absent

an abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State

v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). In order to establish an abuse of discretion,

the defendant must show “that the record contains no substantial evidence to support the

conclusion of the trial judge that a violation of the conditions of probation has occurred.”

Harkins, 811 S.W.2d at 82 (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State

v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Once the trial judge has made the

finding that a violation of probation has occurred, he or she has the discretion to order the

defendant to (1) serve his sentence in incarceration; (2) serve the probationary term,

beginning anew; or (3) serve a probationary period that is extended for up to an additional

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two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999) (citations omitted); see also

T.C.A. §§ 40-35-308, -310, -311.

Here, Pointer concedes that the trial court did not abuse its discretion in finding that

he had violated a term of his probation by using Valium without a prescription. However,

he claims the trial court abused its discretion in requiring him to serve his sentence in

confinement because, in his view, the violation did not warrant such a harsh sentence. He

also contends that his rehabilitative efforts during probation should have resulted in the

reinstatement of his probation. Pointer claims that the trial court’s willingness to set a low

bond and to allow him to complete a treatment plan following the April 9 arrest warrant

shows that a sentence in confinement was not appropriate. He argues that “nothing

transpired between the first warrant of April 9 and the second warrant of April 17 that

rendered him unsuitable for community placement.” In support of this argument, he asserts

that his failure to contact Jimmerson during this time period was directly related to his

bipolar disorder and post traumatic stress syndrome, which were things that Jimmerson’s

treatment plan was attempting to address. Finally, he argues that the court’s decision to

reinstate his entire sentence “does not serve the ends of justice, and is not in the best interest

of either the public or himself.” Consequently, he requests that this Court modify the trial

court’s judgment by allowing his probation to be reinstated.

We conclude that the trial court did not abuse its discretion in ordering that Pointer

serve his sentence in confinement. The trial court stressed that confinement was necessary

in light of Pointer’s refusal to follow his probation terms:

Well, Mr. Pointer, you know, I am willing to work with anybody who

will demonstrate some willingness to cooperate or people who have really

serious mental illnesses for which they have trouble understanding things and

that – you don’t fall within that category. You just do kind of what you want

to do when you want to do it. And, you know, two or three times of that – and

we’ve thrown virtually every program we can at you, and you still won’t

cooperate. You know, there comes a time, Mr. Pointer, where you’re just

going to have to be in custody. And you have reached that point. So the

sentence is going to be placed into effect.

Once the trial court determined that Pointer violated the terms of his probation, it was

authorized “to cause execution of the defendant’s original judgment as it was originally

entered.” Hunter, 1 S.W.3d at 647 (citing T.C.A. § 40-35-310). We conclude that the trial

court did not abuse its discretion in ordering Pointer to serve his sentence in confinement.

The record shows that after Pointer entered guilt pleas to possession with intent to sell .5

grams or more of cocaine and felony failure to appear, he violated the terms of his probation

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by being discharged from Bradford Health Services without completing his treatment, by

testing positive for Benzodiazepine, and by absconding. At the September 18, 2008 hearing,

the trial court reinstated Pointer’s probation rather than ordering confinement. The trial court

also gave Pointer an opportunity to avoid confinement when it approved the treatment plan

offered by Jimmerson when she presented the April 9, 2009 arrest warrant. Despite these

opportunities, Pointer failed to contact Jimmerson regarding his halfway house placement.

We conclude that the trial court acted well within its discretion by ordering Pointer to serve

his original sentence in confinement. Accordingly, Pointer is not entitled to relief.

CONCLUSION

Upon review, the judgment of the trial court is affirmed.

______________________________

CAMILLE R. McMULLEN, JUDGE

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