IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville January 29, 2013

STATE OF TENNESSEE v. ROY BRIAN AVANS

Appeal from the Circuit Court for Marion County

Nos. 8478V.2, 8846V.1, 8847V.1 J. Curtis Smith, Judge

No. M2012-01680-CCA-R3-CD Filed - February 13, 2013

Appellant, Roy Brian Avans, appeals the trial court’s revocation of his probation and

reinstatement of his effective ten-year sentence in the Tennessee Department of Correction.

Appellant contends that the trial court abused its discretion by revoking his probation and

ordering service of the entire sentence without properly considering other available options.

We discern no error and affirm the judgment of the trial court.

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

ROGER A. PAGE,J., delivered the opinion of the court, in which ALAN E. GLENN and JEFFREY

S. BIVINS, JJ., joined.

B. Jeffery Harmon, District Public Defender, and Francis W. Pryor, Jr., Assistant District

Public Defender, Jasper, Tennessee, for the appellant, Roy Brian Avans.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; J.

Michael Taylor, District Attorney General; and Sherry Shelton, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

I. Procedural History

In December 2009, appellant entered a guilty plea to aggravated burglary, and the trial

court sentenced him to five years with eleven months and twenty days in incarceration and

1

the remainder of the sentence to be suspended. Appellant subsequently garnered two

Because appellant had earned 355 days, or eleven months and twenty days, of pretrial jail credit, 1

he was immediately released upon entry of the guilty plea. 
additional charges of aggravated burglary. On September 28, 2010, the trial court ordered

partial revocation of appellant’s probation and further ordered him to serve 219 days in jail.

Appellant had earned pretrial jail credit for 144 days, and the trial court allowed him to begin

participation in the drug court program while serving the remainder of the sentence, 75 days,

in jail.

Appellant also entered guilty pleas to the two new charges of aggravated burglary.

The trial court sentenced him to five years for each count and ordered the sentences for the

two subsequent aggravated burglary convictions to run concurrently with each other but

consecutively to the initial conviction, yielding an effective ten-yearsentence. The trial court

suspended the sentences pursuant to the terms enumerated above.

On May 4, 2012, the State obtained a probation revocation warrant alleging that

appellant had committed the following violations: (1) November 2, 2010: positive drug

screen for Soma and Oxycodone; (2) December 16, 2010: possession of contraband in jail;

(3) May 19, 2011: positive drug screen for opiates; (4) October 13, 2011: possession of

marijuana in his home and dishonesty; (5) November 11, 2011: positive drug screen for

opiates; (6) November 23, 2011: positive drug screen for benzodiazepines, amphetamine, and

alcohol; (7) February 2, 2012: positive drug screen for opiates; and (8) May 2, 2012: positive

drug screen for Oxycodone and benzodiazepines. On the same date, the trial court terminated

appellant from the drug court program. The trial court held a probation revocation hearing

on June 25, 2012.

II. Facts

At the hearing, the State called Barbara King as its first witness. Ms. King testified

that she was employed by community corrections and the drug court program. One of her

duties included supervising participants in the drug court program. Ms. King stated that

appellant was admitted to the drug court program in September 2010. Appellant was

incarcerated at the time, and employees of the drug court program would transport him and

other inmates from the jail to the drug court office for group counseling. At one such

meeting on October 26, 2010, appellant tested positive for Oxycodone. Appellant initially

2

denied using any drugs, but on the way back to the jail, he admitted using Oxycodone and

Somas. Ms. King drove appellant back to the drug court office where appellant admitted his

drug use to Ron Bailey, the director of the drug court program. Appellant was allowed to

remain in the program but was sanctioned and given fifty hours of community service. The

 Many of the dates to which Ms. King testified do not align with the dates listed in the probation 2

revocation warrant. The dates on the warrant refer to “sanction” dates, not necessarily the infraction date. 

Many of the sanction dates are not specifically noted in Ms. King’s testimony.

-2-
drug court program also sent appellant to a ninety-day residential treatment facility, English

Mountain Recovery, where he remained from December 15, 2010, to March 16, 2011.

On December 7, 2010, prior to appellant’s entering the program at English Mountain

Recovery, Ms. King transported inmates from the jail for a group session. At the drug court

office, she witnessed a woman who was acting strangely enter their lobby and go to the

bathroom. When the woman left, Ms. King searched the bathroom and found approximately

ten “plugs,” which she described as something used by inmates to transport contraband into

the jail. She left the “plugs” or “pods” in the bathroom, notified the jail, and began the group

counseling session. At the end of the session, Ms. King checked the bathroom and all of the

plugs had “disappeared.” When the inmates returned to the jail, they were locked down.

Jailers seized tobacco during the search. Ms. King visited the jail, gathered the drug court

inmates, and asked them each to write down their participation in the “contraband

conspiracy.” Appellant admitted that his role was to “make some more pods.” He was

supposed to have removed one of the pods from the bathroom, but he changed his mind and

decided not to do so. Appellant was again sanctioned and was given an additional twentyfive hours of community service.

After appellant returned from English Mountain Recovery, he lived in Franklin

County. On May 5, 2011, he tested positive for opiate use. Appellant denied using drugs,

so Ms. King obtained an independent laboratory analysis that confirmed his use of Codeine

and Morphine. Appellant then admitted that he “accidentally” took some of his daughter’s

liquid Codeine medicine instead of his son’s liquid Ibuprofen. He was sanctioned for the

positive drug screen on May 19, 2011.

On October 4, 2011, Ms. King and another drug court case manager performed a

home visit at appellant’s house. During the search of his home, Ms. King observed a saucer

containing marijuana. Appellant attributed the marijuana to his cousin, whom he allowed to

smoke in the house. Ms. King also learned that appellant’s girlfriend, who was taking

prescription narcotic pain medication, lived with him. This violated one of the drug court

rules that participants are not to associate with individuals who have prescriptions for

narcotics. Appellant initially indicated that his girlfriend did not have a problem with drug

addiction. Ms. King periodically drug tested his girlfriend, but appellant later admitted that

he supplied his girlfriend with “clean urine” for the drug screens. On October 13, 2011,

appellant wassanctioned for possession of marijuana and hisrole in falsifying his girlfriend’s

drug screens.

On November 11, 2011, appellant tested positive for Tramadol. Before the

confirmatory report arrived from the laboratory, appellant returned to the drug court office

and admitted he had used his nephew’s urine for that drug screen. He told Ms. King he did

-3-
so because he had obtained a prescription for opiates and had taken some of them without

informing the drug court about the prescription.

Also in November, appellant tested positive for benzodiazepine, amphetamine, and

alcohol. He signed a statement admitting to using Oxycontin and Xanax. He told Mr. Bailey

that he and his girlfriend had gotten into a fight and that she had taken the children and left.

Appellant’s neighbor arrived with a six-pack of beer, so appellant drank beer with his

neighbor and later took an amphetamine, an Oxycontin, and a Xanax. Appellant was

sanctioned but was allowed to remain in the drug court program.

On January 23, 2012, appellant was admitted to Centerstone for intensive outpatient

treatment. During his treatment, he tested positive for opiates, including Hydrocodone and

Morphine. He accused his girlfriend of “putting something in his food” and denied taking

the drugs. Ms. King confronted appellant and his girlfriend together about the positive drug

test, at which time appellant “switched from saying [his girlfriend] put something in his food

to saying that [her] family put something in his food.” Appellant was again sanctioned, but

this time, he went to jail. After being incarcerated for a short time, on February 13, 2012,

appellant admitted to Ms. King and Mr. Bailey that no one had tampered with his food and

that he had actually used Hydrocodone. Appellant was allowed to continue in the program.

On May 1, 2012, Ms. King’s supervisor notified her that appellant was being

transported to the emergency room because he had gotten metal shavings in his eyes. He was

incarcerated but had been allowed to serve his sentence on work release. During his work

release duties, he had sustained the injury. That night, Ms. King received a call from a

sheriff’s deputy informing her that appellant refused to submit to a drug screen. The

following morning, appellant agreed to the drug screen and tested positive for “Oxys” and

“Benzos.” He blamed the positive drug screen on medications that the hospital administered

to him. Ms. King requested that the hospital send over appellant’s treatment records by

facsimile. When Ms. King confronted appellant with the medical records proving that he

was not given these drugs, he admitted to obtaining the drugs from people with whom he was

working. He signed a statement to that effect and was terminated from the drug court

program.

On cross-examination, Ms. King acknowledged that she did not receive any negative

reports regarding appellant during his treatment at English Mountain Recovery. She

confirmed that the May 19, 2011 sanction mandated that appellant attend additional “selfhelp type meetings” such as Narcotics Anonymous and Alcoholics Anonymous. The

November 2011 sanction included serving three weekends in jail. Ms. King agreed that

appellant is a drug addict whose major addiction is pain pills.

-4-
Ron Bailey, the director of the Twelfth Judicial District Drug Court, testified that he

participated in the supervision of appellant. In reflecting on his conversations with appellant,

he stated that “[t]he violations[were] all indications that [appellant] ha[d] not reached a point

where he was ready to recover.” Mr. Bailey stated that appellant had not been able to comply

with any of the programs the drug court made available to him and that the drug court had

no additional programs to offer appellant. On cross-examination, Mr. Bailey acknowledged

that the program had been successful in preventing appellant from re-offending with regard

to offenses against others. He also noted that appellant had children for whom he provided.

Appellant testified on his own behalf, stating that he was first convicted in Tennessee

in 2009 but had been incarcerated in Alabama in 2004. He said that he was placed on

probation in 2009 but that he garnered additional offenses while on probation. After he

served a portion of his sentence in jail, he was admitted to the drug court program. Appellant

testified that before his experience with drug court, he did not know anything about recovery,

and he was not aware that he was an addict.

Appellant stated that he had two children and that he and the children’s mother shared

responsibility for them. He explained that the marijuana found by Ms. King belonged to his

cousin. He recalled that drug court personnel told him that they “expect[ed] him to do drugs,

. . . that’s part of . . . recovery.” He admitted that he “might have slipped up a few more

time[s] than others” but then added, “[W]ho is to say how many times a recovering addict

is going to mess up before he can conquer complete abstinence . . . [?]”

On cross-examination, he acknowledged that the “girlfriend” to whom Ms. King

referred was the mother of his children and his “common law” wife, with whom he had been

in a relationship for over twelve years. He admitted supplying her with clean urine for a drug

screen because the drug court would not have allowed them to live together if she had been

abusing pain killers. He said, “They would have [taken] her and my kids away from me.”

Appellant stated that the basis for one of his positive drug screens was that he accidentally

took his daughter’s Codeine cough syrup.

After consideration of the evidence presented at the probation revocation hearing, the

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

confinement.

III. Analysis

We first note that appellant does not contend that the trial court erred in revoking his

probation. His sole allegation is “that the trial court failed to reflect on all its options before

revoking [his] probation in full . . . .”

-5-
The revocation of a suspended sentence restsin the sound discretion of the trial judge.

State v. Gregory, 946 S.W.2d 829, 832 (Tenn. 1997) (citing State v. Mitchell, 810 S.W.2d

733, 735 (Tenn. Crim. App. 1991)). In determining whether to revoke probation, it is not

necessary that the trial judge find that a violation of the terms of the probation has occurred

beyond a reasonable doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the trial

court finds by a preponderance of the evidence that the defendant has violated the conditions

of probation, the court is granted the authority to revoke the probation and suspension of

sentence. Tenn. Code Ann. § 40-35-311(e)(1) (Supp. 2011). The appellate standard of

review of a probation revocation is abuse of discretion. See State v. Shaffer, 45 S.W.3d 553,

554 (Tenn. 2001); see also State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).

Generally, “[a] trial court abuses its discretion when it applies incorrect legal standards,

reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the

proof, or applies reasoning that causes an injustice to the complaining party.” State v. Phelps,

329 S.W.3d 436, 443 (Tenn. 2010) (citing State v. Jordan, 325 S.W.3d 1, 38-40 (Tenn.

2010)).

On the facts of this case, we cannot conclude that the trial court abused its discretion

in ordering execution of appellant’s sentence. Appellant enjoyed two opportunities to

comply with the terms of a sentence involving release into the community. He failed at his

first attempt by committing two new felony offenses. Even so, the trial court reinstated his

probation after a brief sentence of incarceration. Appellant began abusing the privilege of

the drug court program while he was still incarcerated, earning two sanctions during that

time. After his release, appellant garnered six additionalsanctions for violation of drug court

policies. With the exception of the jail contraband offense, each of the sanctions involved

controlled substances.

When a trial court revokes a defendant’s probation, the court may then order the

defendant to serve his or her original sentence. See Tenn. Code Ann. §§ 40-35-310 (2010);

Tenn. Code Ann.§ 40-35-311(e) (Supp. 2011). “This court has repeatedly cautioned that ‘an

accused, already on probation, is not entitled to a second grant of probation or another form

of alternative sentencing.’” State v. Juan Manuel Coronado, II, No. E2010-01058-CCA-R3-

CD, 2011 WL 704543, at *3 (Tenn. Crim. App. Mar. 1, 2011), perm. app. denied (Tenn. July

15, 2011) (citations omitted). Appellant in this case was not entitled to yet a third grant of

probation or other form of alternative sentencing. The trial court did not abuse its discretion

in ordering appellant to serve his sentence in confinement.

-6-
CONCLUSION

After thorough review of the record, the parties’ briefs, and the applicable law, we

discern no error and affirm the judgment of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

-7-