### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecember

18, 2001
STATE OF TENNESSEE V. WALTER BYERS
Appeal from the Circuit Court for Blount County No. C-9882 D. Kelly Thomas, Jr., Judge

No. E2001-00361-CCA-R3-CD March 21, 2002

The defenda

nt, Walte r Byers, a ppeals f rom the Blount County Ci rcuit Cour

t’s revo cation of

his community

corrections sentence imposed upon his guilty plea to delivery of one-half gram or more of cocaine. The defendant cont e nds that the trial c ourt abus ed its disc retion in r

evoking h

is community

corrections sentence and sentencing him to confineme nt. We affirm the judgmentof the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OSE PH M. T IPTON , J., delivered the opinion of the court, in which T HOMAS T. W OOD ALL an d R OBERT W. W EDEMEYER , JJ., joined.

Steve McEwen, M ount ain City, Te nnessee (on appe al); Raym

ond M. Gar

ner, Dist rict Public Defender; and George H. Waters, Assistant Public Defende r (at trial), for the appellant, Walter Byers.

Paul G . Summers, Attorney General and Reporter; Elizabeth B. Marne y, Assistant At torney General ; Michael L. Flynn, District Attorney General; and Edward P. Bailey, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

The defendant

pled guilty to delivery of one-half gram or more of cocaine, a Class B felony, and was sente

nced as a Range I, standar

d offend er to eight years. Upon the defendant serving one hundred eighty days in jail, the remainder of his sentenc e was to b e serve d in the co mmunity correction s program. The record reflec ts that in October 2000, the defendant’s communi t y corrections supervisor filed a violation warrant, alleging that the defendant had violated the terms of his community corrections contract by moving without her permission and violating curfew. In addition, the warrant stated that the defendant was mentally ill and had be come unmanageable.-2-

At the revocation hearing, Tracy White, the defendant’s community corrections supervisor, testified that when

she bega n supervi sing the de

fendant in November 1998, he was living with his sister and mother. She said that the d efenda nt had men

tal proble ms but that h

e did “oka

y” in community

corrections. She said that the defendant was a Vie tnam veteran, had bee

n honora bly discharged

from the m

ilitary, a nd was ab le to get tre atment fo r his menta

l problemsat the outpatient Veterans Administration Center. She said that becau se the defendant was drinking and having trouble at home, she convinced

him to go to th

e Veter ans Admini stration H ospital in Murfreesboro. She said that on August 24, 2000, she took the defendant to the bus station and that he went to the veterans hospital. She said th at in ear ly Octobe r 2000, she found o ut from a police officer that

the defendant was back in

Blount County. She said that she talked to the defendant’s sister and learned that the defendant had returned around October 2. She said that the defendant’s sister told her tha t the defendant had been arrested f or public intoxication and that the defendant’s sister could no longer take ca re of him. She said th at the de fendant ’s sister did not know

where to find the d

efenda nt.

Ms. Whit e testified that on October 5, she filed a violation warrant aga inst the defen dan t because he had moved without her permission and because she did not know where he was living. She said that later that day, the defendant came into her office to pay his court costs. She said that she could not s upervise

the defe ndant bec ause his sister an d mother w ould not let him live with them and because he had nowhere to stay. She asser ted t hat if the defend ant went back to the veterans hospital, he could stay there on ly for n inety days. She said that although she never saw the defendant drink alcohol, she knewthat he was drinking in violation of his community corrections contrac t. She said that in April 1999, the defendant tested positive for co caine. She said that she gave the defe

ndant a w arning a

nd did not f

ile a war rant aga inst him for the positive drug test. She said that s he gave

the defe ndant a dr ug test ev ery month

and that h

e never failed a nother te st.
On cross- ex amination, Ms. White testified that this was the first time that she had filed a violation warran

t against t

he defe ndant. She

said that t

he defe ndant alw ays made

his court cost payments on time.

The defendant testified that he served in the Vietnam War from 1972 to 1973, was diagnosed withschizophrenic paranoia in 1974, and had been on medication since 1976. He said that he moved in with his mother and sister when he started the community corrections program in Oc tober 1998. He said that on October 1, 2000, he was discharged from the ve terans hospital in Murfreesboro and that he returned to Blount County. He said that if the trial court would allow him to remain in the community c orrect

ions progr

am, he wo

uldcheck himself back into the vetera ns hospita

l. He said that if he could not stay at the veterans hospital, he wanted to go to a halfway house. He said that while he was in the community corrections program, he drank a couple of beers a day. He said that he could q

uit drinkin g and abid

e by the r ules of hi s community

correc tions cont

ract.
On cross-e

xaminatio n, the def

endant te stified th at he agreed to go to the veterans hospital in Murfreesboro because he was having problems with his mother and sister. He said that when he returned to Blount County on October 1, his sister and his mother picked him up at the bus station and took him hom

e wit h them. He s aid that he left the re and w ent to the

post offic e to chec

k his-3-

postal box. He said that

some Army checks were in his postal box and that he took the checks to the bank and cashed them. He said that he went out with some friends and drank a few beers. He

said that when he returned to his mother’s house that night, his sister called the police on him.

The trial court found that the defendant violated the terms of his community corrections contract by not main

taining a n addres s where

his super visor could locate and manage him. The trial court noted that the defendant had tested positive for cocaine onc e and that he had us e d alcohol repeatedly. The trial cou

rt deter mined tha t the def endant ha d two option s: (1) goin g to the veterans hospital for ninety days and then moving into a halfway house or (2) serving the rest of his sentence in confinement. The trial cou rt withhe ld senten cing for

two week s in order

to give the

defense time to find a halfway house for the defenda nt. When t

he defe nse repo rted to the

court tha t it had been unable to find a halfway house that the defendant could enter , the trial court revoked the defendant’s community

corrections sentenc e and order ed that he serve the remainder of his sentenc e in the Departm ent of Cor

rection ’s Specia

l Needs U nit.

The defendant contends that thetrial court ab used its dis cretion in revoki ng his comm

unity corrections sentence and ordering that he serve the remainder of his sentence in incarceration. He contends that the evidence did not support the trial court’s decision. The state claims that the trial court did not abuse its discretion. We agree with the state. Trial courts have the authority to revoke a community corrections sentence upon a finding by a preponderance of the evidenc e that the defendant has violated the conditions of the sentence. Statev. Harkins , 811 S.W.2 d 79, 82 (T enn. 1991 ); see Te nn. Code Ann . § 40-35-311. If the evidence of a violation is sufficient to enable the trial court to make a conscientious and intelligent judgment regarding revocation, that judgment will not be disturbed on appeal. Id.

The defendant testified that he left the veterans hospital in Murfre esboro on October 1. At
some point, his community corrections supervisor learned from a police office r that he had returned to Blount County. The supervisor stated that she filed the defendant’s violation warrant on October 5 because he left the veterans hospital and bec ause she did not kn ow where he was living. The record reflects the defendant’s consiste nt failur e to compl

y with the r

easonab le requi

rements of his community

corrections contract. The defendant has not demonstrated that the tr ial cour t abused its discretion by ordering him to serve the remainder of his sentence in incarceration.

___________________________________ JOSEPH M. TIPTON, JUDGE