IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 16, 2002

STATE OF TENNESSEE v. JOHN WINSTON McMURRY

Direct Appeal from the Criminal Court for Sumner County

No. CR 180-1999; CR 482-1999 Jane W. Wheatcraft, Judge

No. M2001-03117-CCA-R3-CD - Filed March 19, 2003

The defendant’s probation was revoked after his house was searched and a twelve-gauge shotgun

was found inside. The defendant contends there was insufficient evidence to revoke his probation.

The defendant contends the rules of probation and a police report were improperly admitted into

evidence. Because the trial court is only required to find a violation of probation by a preponderance

of the evidence, we affirm the trial court’s revocation of probation. 

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and

JERRY L. SMITH, JJ., joined.

David R. Howard, Gallatin, Tennessee, for the appellant, John Winston McMurry.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

Lawrence Ray Whitley, DistrictAttorneyGeneral; and Dee Gay, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

The defendant, John Winston McMurry, pled nolo contendere to two counts of sale of a

Schedule II drug, cocaine less than .5 grams, Class C felonies. On June 12, 2000, the defendant was

sentenced as a Range II multiple offender to six years on each count, to be served consecutively, and

was placed on probation. On August 29, 2001, a probation violation warrant was issued against the

defendant following his arrest for Unlawful Carrying or Possession of a Weapon as a Convicted

Felon, a Class E felony. After a preliminary hearing in General Sessions Court, the defendant was

bound over to the Sumner County Grand Jury. A probation violation hearing was held before the

Grand Jury met, at which time the defendant’s probation was revoked. The Sumner Count Grand

Jury returned a no true bill after the defendant’s probation was revoked. The defendant contends
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there was insufficient evidence in which to revoke probation. The defendant contends the Rules of

Probation and a police report were improperly admitted into evidence. 

Analysis

A trial court may revoke probation upon a finding by a preponderance of the evidence that

the defendant violated the conditions of his probation. Tenn. Code Ann. § 40-35-311(d) (1997).

This Court will not disturb the decision of a trial court to revoke probation absent a finding of an

abuse of discretion. To find an abuse of discretion, there must be no substantial evidence to support

the conclusions of the trial court that a violation of the terms of probation has occurred. See State

v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v. Harkins, 81 S.W.2d 79, 82 (Tenn.

1991)). 

The probation violation warrant stated that the defendant violated “Rule #3: Offender was

in possession of a firearm and ammunition.” Officer Don Bandy testified at the probation revocation

hearing that while searching the residence of the defendant and his brother, pursuant to a consent to

search given by the defendant, he found a Remington model 1400 12-gauge shotgun and one 12-

gauge round under the couch in the living room. The defendant offered no proof at the revocation

hearing. Because the trial court may find a violation of probation occurred if a preponderance of the

evidence exists, we conclude the finding of the trial court is supported by the testimony of Officer

Bandy. See Tenn. Code Ann. § 40-35-311(d). 

The defendant contends that Officer Bandy should not have been allowed to introduce the

police report of Sergeant Sorrells into evidence at the revocation hearing. The record reflects

Sergeant Sorrells’ report included the defendant’s admissions that the gun belonged to him and that

he purchased the gun from an acquaintance. The decision to exclude or admit evidence is left to the

discretion of the trial court. In reviewing such a decision, this Court may only disturb the trial

court’s decision if there has been an abuse of discretion. State v. Dubose, 953 S.W.2d 649, 652

(Tenn. 1997). We also recognize that hearsay evidence is admissible in a probation revocation

hearing “so long as it is shown not to be so unreliable as to violate due process.” State v. Wade, 863

S.W.2d 406, 409-10 (Tenn. 1993). In the instant case, this evidence was shown to be reliable

because Officer Bandy searched the defendant’s home and located the gun and ammunition. Officer

Bandy knew Sergeant Sorrells interviewed the defendant concerning the gun. We conclude the

record does not indicate the trial court improperly admitted this evidence. 

The defendant argues the trial court abused its discretion in including the Rules of Probation

in the record after the proceedings had come to a close. From the record, we conclude the trial court

included the Rules of Probation to complete the record. The defendant was inherently put on notice

that compliance with the criminal laws is a condition of probation. State v. Stubblefield, 953 S.W.

2d 223, 225 (Tenn. Crim. App. 1997). Furthermore, a trial court may take judicial notice of its own

rules of probation. State v. Kenneth Lee Kendrick, 2002 Tenn. Crim. App. LEXIS 49, No. E2001-

00817-CCA-R3-CD, Sullivan County (Tenn. Crim. App. filed January 23, 2002, at Knoxville).
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Therefore, we conclude the trial court did not abuse its discretion by including the Rules of Probation

into the record. 

Conclusion

For the above reasons, we affirm the judgments of the trial court. 

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE