# FILED
July 7, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON
STATE OF TENN ESSEE, ) ) Appellee, ) C. C. A. NO. 02C01-9812-CC-00379 ) vs. ) MADISON COUNTY ) FREDERICK T. BRAY, ) No. 94-661, 95-373, 98-155 ) Appellant. )
O R D E R

This matter is before the Court u pon the state’s motion to affirm the tr ial court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant is appealing the trial court’s rev ocation of his probation. On Janua ry 4, 1995, the appellant pled guilt y to burglary, theft, and criminal impersonation and received an effective fiv e year sentence. The trial court ordered intensiv

e probation after the appellant served six months confinement . On February 6, 1996, the trial court revoked appellant’s prob ation finding that he had since been convicted of extorti on and theft, for which he receiv ed an effective four year sentence to be served consecutiv e to his previous sentences. The appellant was placed i n the community correction s program. Thereafter, on September 4, 1997, the appellant was ag ain placed on probation. On November 9, 1998, the appellant’s probation w as revoked.

After a heari ng, the tri al court found that the appel lant viol ated the terms and conditions of his probation by “having new conv

ictions [attempted robbery ], failing to pay probation fees, court c osts, and restitution, and fail ing to obtain inpatient dru g treatment.” T he appellant a nd his probatio n officer tes tified at the h earing.

A trial court may rev

oke probation and order the impos ition of the original sentence upon a finding by a pr eponderance of the evidence that the person has violated a condition of probation. T.C.A. § 40-35-311(e ). The decision to revoke probation rests withi n the sound discretion of the tri al court. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revoc ation of probation is subject t o an2

abuse of discretion standard of rev iew, rather than a de nov o standard. State v. Harkins , 811 S.W.2d 79 (Tenn. 1991). Discretion is abused only if the record co ntains no substantial evidence to support the conclusion of the tr ial court that a viol ation of probation has occurred. Id. ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need n ot be established beyond a re asonable doubt, and the evidence need only sho w that the trial judg e exercised a conscient ious and intelligent judgment, r

ather than acting arbitr arily. Gregory , 946 S.W.2d at 832; State v. Leach , 914 S.W.2d 104, 10 6 (Tenn. Crim. App. 1995).

On appeal, the appellant contends onl y that the trial court

abused its discretion in revoki ng his probation. He ar gues that “[t]he trial c

ourt should have, instead, incarcerated Mr . Bray for a short period of time and then released him on intensive probation after obtaining drug treatment for him. ” Having reviewed the record in light of the appellant’s argument, we find that the ev idence fully supports the t rial court’s action. The appellant has simply failed to show how the trial court abused its discretion.
Accordingly, the st ate’s motion is granted. It is hereby ORDERED that the judgement of the trial court i s affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. Costs of this appeal shall be assess ed to the state.

______________________________ JOE G. RILEY, JUDGE

______________________________ DAVID G. HAYES, JUDG E

______________________________ JOHN EVERETT WILLIAMS, JUDGE