FILED

July 7, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, )

)

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 upon the state’s motion to affirm the trial

court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The appellant is appealing the trial court’s revocation of his probation. On January 4,

1995, the appellant pled guilty to burglary, theft, and criminal impersonation and

received an effective five year sentence. The trial court ordered intensive probation

after the appellant served six months confinement. On February 6, 1996, the trial court

revoked appellant’s probation finding that he had since been convicted of extortion and

theft, for which he received an effective four year sentence to be served consecutive to

his previous sentences. The appellant was placed in the community corrections

program. Thereafter, on September 4, 1997, the appellant was again placed on

probation. On November 9, 1998, the appellant’s probation was revoked.

After a hearing, the trial court found that the appellant violated the terms

and conditions of his probation by “having new convictions [attempted robbery], failing

to pay probation fees, court costs, and restitution, and failing to obtain inpatient drug

treatment.” The appellant and his probation officer testified at the hearing.

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. § 40-35-311(e). 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 is subject to an
2

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

Harkins, 811 S.W.2d 79 (Tenn. 1991). Discretion is abused only if the record contains

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

probation has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App.

1997). Proof of a violation need not be established beyond a reasonable doubt, and

the evidence need only show that the trial judge exercised a conscientious and

intelligent judgment, rather than acting arbitrarily. Gregory, 946 S.W.2d at 832; State v.

Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

On appeal, the appellant contends only that the trial court abused its

discretion in revoking his probation. He argues that “[t]he trial court 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 evidence fully supports the trial

court’s action. The appellant has simply failed to show how the trial court abused its

discretion.

Accordingly, the state’s motion is granted. It is hereby ORDERED that the

judgement of the trial court is affirmed in accordance with Rule 20, Rules of the Court of

Criminal Appeals. Costs of this appeal shall be assessed to the state.

______________________________

JOE G. RILEY, JUDGE

______________________________

DAVID G. HAYES, JUDGE

______________________________

JOHN EVERETT WILLIAMS, JUDGE