# FILED

July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE FEBRUARY 1998 SESSION

STATE OF TENNESSEE ) ) NO. 01C01-9706-CC-00208 Appellee ) ) MAURY CO UNTY v. ) ) Hon. James L. Weathe rford WILLIE EARL CECIL ) ) (Probation revocation) Appellant. ) )

For the Appellant : For the Appellee : Hershell D. Koger John Knox Walkup 135 N. First Street Attorney General & Repor ter P.O. Box 1148 Pulaski, TN. 38478 Georgia Blythe Felner Assistant Attorney Gener al 2d Floor, Cordell Hul l Building 425 Fifth Avenue North Nashville, TN. 37243-0493 T. Michael B

ottoms District Attorney General James Lee Bailey, III Assistant District A

ttorney 10 Public Square P.O. Box 1619 Columbia, TN. 38402-1619

OPINION FILED:______________________ AFFIRMED WILLIAM M. BARKER, JUDGE1 On August 30, 1996, whi le appell ant was in cust ody for t he alleged probation violat ion, he was charge d with the a dditional offe nse of a rson. An ame nded p robation v iolation warra nt was iss ued to reflect the arson charge;however, th e record is si lent as t o the circu mstances surrounding t hat all eged offense.

2 Officer Munz testifi ed that he had bee n informed of appel lant’ s drug convict ions by another officer with the Ma ury Coun ty Drug T ask F orce. 2 OPINION The appellant, Willie Earl Cecil, appeal s as of right from the Maury County Circuit Court’s r

evocation of his probation. We affirm the judgment of the trial court. On August 14, 1996, the appellant pled guilty to posses sion of cocaine with the intent to sell, a Class C felony; delivery of cocaine, a Class C felony ; contributing to the delinquency of a minor, a Class A misdemeanor; and sel ling over .5 gra ms of cocaine, a C lass B felony . The trial court senten ced the appel lant to concurrent term s of three (3) years for the pos session and delivery

of cocaine, eleven (11) months and (29) days for contributi ng to the delinquency of a minor, and eight (8) y ears for the selling of over .5 g rams of cocaine. The effective eig ht (8) year sentence w as to be suspended upon the service of 120 days in the county jail. On August 15, 1996, one day foll owing appellant’s pl ea hearing, the appellant was arrested for criminal trespass and the possession of crack cocaine. Th ose charges arose from his activities at the Columbia Housing Authority (C.H.A.) in Maury County, Tennessee. After his ar rest, a probation viol ation warrant was issued and the trial court condu cted an evidenti ary hearing. 1 Officer Christopher Munz , with the Columbia Poli ce Department, testified that he first observed the appell ant in the C.H.A. on the day of appellant’s plea hearing. The appellant was standing in a grassy yard at 1219 McBride Circle. Officer Munz told the appellant that due to his cr iminal history, his presence in the C.H.A. cons tituted criminal trespass. 2 The C.H.A. has a policy that any non-resident w ith a criminal history

involving drug related or vio lent offenses is considered a thre at to the housing residents . As such, non-residents wi

th criminal records ar

e prohibited from entering onto private3

property within th e C.H.A.. Officer Munz ex plained the C.H.A. policy to appellant and told him that he must leave the housing area and not return. Appellant complied with Officer’s Munz’s war

ning on August 14; howev er, he returned to the same proper ty on the following day. On August 15, while ex ecuting a search war

rant in the C.H.A., Officer M unz and officers with the Maury County Drug Task For ce observed appellant at 1219 McBride Circle. The appe llant was standing i n the front yard with another man, Darnell Moore, when p olice officers approached the tw o men and ordered them to lay on the ground. Officers Tommy Goats and Lonn ie Lyles with the Drug Task Force testified that they noticed th e appellant holding something in his hand before he was apprehended. Officer Goats stated that he observed the appellant make a throwing gesture as if he were di scarding the object that w as in his hand. Although officers suspected that the appellant possessed illegal contraband, no drugs were found on his per son at the scene. An empty medic ine bottle was discovered nearby under a parked car and Darnell Moore had crack cocaine in his possession. The appellant w as arrested for criminal t respass and possession of cocaine. Appellant’s mother, Lovey Faye Cecil, testified for the defense that the appellant had been helping her on the day of his arrest. M s. Cecil lived in Columbia at 1515 Ryan Place, approxi mately two blocks from the C.H.A.. She stated that she had no transportation of her own and that the appellant h ad assisted her in picking up his younger br other an d the brot her’s med ication e arlier in t he day. The trial court determined that there was sufficient evi dence that the appellant committed criminal trespass when he entered the resident ial property on McBr ide3 The trialcourt questi oned whether the evidence was suff icient to show that

the appell ant possessed crack cocaine. The judge statedthat i f the case were based “just on t he possession of cocaine, it might very well be that I would just dismiss this warrant.” 4 Circle. 3 The court , theref ore, revok ed appel lant’s pr obation and orde red him to serve his eight (8) year

sentence in the Department of Corr ection. On appeal, the appellant contends that the trial court abused its discretion in finding that he violated the terms of his probation. We disagree. The appellant concedes that the trial court was empowered to revoke his probatio n and ord er the exec ution of the origin al judgme nt upon f inding by a preponderance of the evidence that appellant violated the condi tions of his probation. Tenn. Cod e Ann. § 4

0-35-31 1(d)(S upp. 1996 ). Mor eover, the rev

ocation of a probationary sentence is committed to the sound discretion of the trial judge and will be sustained on appeal if the evidence is suff icient to allow the trial judge to render a conscientious and intelli gent decision. See State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991); State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). In this case, the proof of appellant’s criminal trespass was suff icient to support the trial court’s deci sion to revoke appellant’ s probation. The appellant has co nceded that he “was in the w rong place at the wron g time” when he entered the residential property in the C.H.A. . The revocation of his probat ionary sentence was p roper and the judgment of the trial court is affirmed.

_____________________________

WILLIAM M. BARKER, JUDGE

CONCUR:

_____________________________ GARY R. WADE , Presiding Judge

_____________________________ J. CURWOOD WITT, JUDGE