# FILED October 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9803-CC-00087 APPELLEE, ) ) Obion County v. ) ) Honorable W illiam B. Acree, J r., Judge WANDA DENISE HARRIS, ) ) (Probation Revocation) APPELLANT. )

FOR THE APPE LLANT: FOR THE APPELLEE: Clifford K. McGown, Jr. John Knox Walkup 113 North Court Square Attorney General & Repor ter P. O. Box 26 425 Fifth Avenue, North Waverly, TN 37185 Nashville, TN 37243-0493 (On Appeal) Marvin E. Clements, Jr. Joseph P. Atnip Assistant Attorney Gener al District Public Defender 425 Fifth Avenue, North 111 Main Street Nashville, TN 37243-0493 P. O. Box 734 Dresden, TN 38225 Thomas A. Thomas (At Trial and Of Counsel on Appeal) District Attorney General P. O. Box 218 Union City, TN 38281

OPINION FILED: ____________________________

_____ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE



### O P I N I O N2 The defendant, W anda Harris, appeals as of right from a ruling of the Obion County Circuit Court revoking her probation. On August 12, 1991,the defendant pled guilty to the sale of cocaine and received a sent ence of eight years in the Department of Cor recti on, plus a fine of $2,000. After serving a confinement period of six months, the defendantwas placed on probation for seven years, six

months. On March 22, 1995, the defendant pled guilty to two offenses of sale of a controll ed substance. The trial court imposed sentences of six years in each c

ase to be served concurrently and a fine of $2,000. The defendant was ordered to serve five months in the county jail with the balance of the sentence to be served in a community based alterna tive program. On A ugust 11, 1995, the defendant pled guilty to

aggravated burgl ary and received a s uspended sentence of five years w ith probatio n. After a review of the ev idence in this record, br iefs of all parties, and appropriate law, w

e find the revocation of probation justified and affirm the trial cou rt.
BACKGROUND

The defendant’s criminal endeavor s began in D ecemb er, 1990 with the sale of cocaine. As a result, the defendant was indicted in cause no. 8092 by the Obion County grand jury. On August 12, 1991, the defendant agreed to en ter a plea of guilty to the sale of cocaine. Theagreed sentence was a $2,000 fine and eight y ears in the Department of Correction, with confinement in jail for six months and a probation ary perio d of seven years, six

months. As a condition of probati on, the defendant was ordered to pay her fine and submit to random drug screens. Apparently, the def endan t complied with the conditionsof probation until October 7 and October 10, 1994, when she was charged with two separate offenses of selling cocai ne. In cause nos. 9660and 9661, the Obion County grand jury indicted the defendant w ith the sales

of cocaine occurring in October, 1994. As a result of a plea agreement on March 22, 1995, the trial court sentenced the

defendant to six years in each case and fined her $2,000. The sentences were ordered to run concurre ntly. As part of the plea agreement, the defendant was to serve fiv e months and then be placed in a community alternativ e based program, Westate Corrections Network, forthe balance of the sentence. On Aug ust 14, 1995, the trial court revoked the defendant’s community based alternativ e program for the failure of thedefendant to obtain3

employment, testing positive in a drug screen for cocaine, and the aggravated burglary conviction. Again, the defendant was granted probati on for these offenses.
On June 6, 1995, the Obion County grand j ury indicted the defendant for aggravated burglary in cause no. 9856. On August 11, 1995, the defendant pled guilty to aggravated burglary. As a result of the plea agr eement, the trial court sentenc ed the de fendan t to five years in the Departmen t of Corr ection which the court suspended and placed the defendant on probation for f ive years.
The record establishes on October 20, 1997 a probation violation was filed

by the State in cause nos. 8092, 9660-1, and 9856 based on f ive forgery indictments, failure to pay probation fees, f a ilure to pay on her f ine, and failu re to report fro m May through September, 1997. The record does not c ontain the disposition of this w arrant.
On February9, 1998, the State filed a supplemental probation violation

against the defendant in cause nos. 8092, 9660-1, and 9856 for failure topay probation fees, failure to report since April, 1997, and failure to pay more than $10 of her $2,000 fine.
PROBATION REVOCATION HEARING
On February 27, 1998, the tr ial court conducted a

hearing to determine the merits of the State’s request to revoke the defendant’s probation. In behalf of the State, Mr. Dale Green, probation officer with the Departmentof Correction, testified that he had supervised the defendant since 1995 and prior to that time, Mrs. Crocker had supervised the defendant. As to the alle ged violations of Februar y 9, 1998, Mr. Green stat ed that the defendant had failed to pay her superv isory fees and failed to

report voluntarily since April, 1997 as instructed. Mr. Green attempted tocontact t he defe ndant via telepho ne on two occasions, but was unsuccessful. Al so, the defendant failed to pay her fine in cause no. 9856. Mr. Green advised the trial court the defendant had several arrests in July, 1995 and January, 1996 for criminal trespass and publi c intoxic ation. The trial court gave this testimony little w

eight.4 In her own be half, the defendant testified she was unable to pa y her supervisory fees, since she did not have a j ob and was taking care of an elderly father until he passed. The defendant admitted sh e h ad only been employed for tw o months in the past three years. As to the non-reporting vi olation, the defendant testifiedMr. Green told her in April, 1997 “that as long as I could pay something that I was supposed to be gettin’ off, because at the time, I had eight years, four superv ised, four u nsupervised, and I didn’t have to report anymore. So, I nev er did report. Cause I didn’t think I w as still on probation.” The defendant testified she could not pay her fines since she was unemploy ed with no income. She also stat ed Mr. Gree n could no t have called her on the phone as she has no phone.

In rebuttal, Mr. Green denie d telling the defendant she did n ot ha ve to report and stated the defendant was well aware that she was t

o report. After weighing the ev

idence, the trial court s uccinctly ruled: Ms. Harris, you’ve had several breaks, but your l uck j ust ran out. You are resentenced to TDOC.

The standard by which we revi ew a probation revocation case is abuse of discretion. “In order for a reviewing c

ourt to be warranted in fin ding an abuse of discretion i n a probation revocation case, it must be established that the record contains no substantial evidence to support the conclusion o f the trial judge that a v iolation of the conditions of probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (T enn. 1991).
Also, we note the trial cour t is entitled to revok

e probation upon a finding by the prep onderance of the evidence that a defendant has v iolated conditions of probation
. Tenn. Code Ann. § 40-35-311(d). The proo f of a probation violation need not be established beyond a re asonabl e doubt, but it is su fficie nt if it al lows the trial judge to make a con scientiousand intelligent judgment
. State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).
We conclude there is material evidence in this record which justifies the trial court’s5

decision to r evoke th e defendant’s probation. The defendant has been g iven many opportunitiesto rehabilitate hers e lf since 1991. Since the initial period of probation in August, 1991, the defendant hasbeen charged and convicted of additional offenses of the sale of a controlled substance in M arch, 1995 and aggravated burglary in June, 1995. A reasonable inference may be drawn that the def endan t was on bail at the time o f the aggravatedburgla ry charg e. Prior efforts to rehabilitate the defendant in her use of cocaine were attempted by the trial court in 1995

by placing the defendant on a c ommunity based alternative program, w hich had to be revoked. We believe the trial court stated it best when the defendant was advised her luck ran out. W e affirm the trial court’s judgment.

__ ________________

_____________________ _ L. T. LAFFERTY, SENIOR JU DGE CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ DAVID G. HAYES, JUDG E