# FILED
June 25, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE MAY 1997 SE SSION
STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9608-CR-00297

) ) Knox County v. ) ) Honorable Richard Baumgar tner, Judge ) ERIC EUGENE HOUSTON, ) (Probation Revocation) ) Appellant. ) For the Appellant : For the Appellee : Mark Stevens Charles W. Burson District Public Defender Attorney General of Tennessee and and John Halstead Michael J. Fahey, II Assistant Public Defender Assistant Attorney Gener al of Tennessee 1209 Euclid Avenue 450 James Robertson Parkwa y Knoxville, TN 37921 Nashville, TN 37243-0493 Randall E. Nichols District Attorney General and Paul Gentry Assistant District A

ttorney General City-County Buil ding Knoxville, TN 37902

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The defendant, Eric Eugene Houston, appe als as of right from the revocation of his probation by the Knox County C riminal Court. He conten ds that the trial court abused its di scretion by revoki ng his probation.

The defendant pled guilty to attempt ed possession of cocaine with the intent to sell, a Class C felony, and received a three-year sentence that w as to be served on supervised

probation. The trial court issued a probation revoc ation warrant for the defendant that alleged that the defendant had violated the conditions of his probation by being arr

ested for assault, failing to notify his probation officer of his arrest, and by being behind on his payment of court costs, supervision fees, and performance of community service work.

The victim’s girlfriend testified at the probation r evocation hearing. She said that she had been livi ng with the defendant for the past nine months and had called the police on Marc h 1st after an argument between her and the defendant had turned physical. She recalled that on that day she and the defen dant were at her aunt’s apartment when she hit the defendant and the defendant hit her in the face. She said that the defendant left her aunt’s apartment before she did and recalled that s he went to a store after she left the apartment. She said that the defendant arrived at the store as she was leaving . She said that the defendant continued t o argue with her and tha t he hit her in the face again.

The defendant’s girlfriend also t estified that she loves the de fendant and has tried to get the charg es against the defendant dropped. H owever, she admitted that over the past nine months she has had to call the polic e on other occasions for the3

same reason. S he also testif ied that the de fendant ha d threatened her that things could get even wors

e.
The defendant’s probation officer testified t hat the defendant was on probation for aggravate d assault when he committed the cocaine offense. He said that the defendant had been reporting to him regularly but that the defendant did not inform him that he had been charged w ith assault. The probation officer explained that the defendant was to maintain steady employment as a condition of his probation but that the defendant had been unemployed for the last few months. He admitted that he had heard that the defendant was wo rking at a nursing h ome before his arrest but said t hat he had not received any v erification of the defendant’s employment . He said that the defendant had only paid twenty dollars toward his court costs and probation fee s. He also testified that although the performan ce of ninety-six hours of community service was a condi tion of t he defe ndant’s probatio n, the de fendan t had onl y perform ed twentythree hours.

The defendant testified that he had been wor king at a nursing home for the past two months. He ex plained that the nursing home ow ed him a paycheck and that he would be able to use t he money to pay court cost s and fees. The defendant said that he was trying to change his ways. He said that he started attending church regularly and that he hoped to marry his girlfriend. He admitted that he hit her on March 1st, after she hit him, and admitted that he grabbe d her when they argued at the store later that day.

At the close of the proof, the trial court told the defendant that he w as not going to smack his g irlfriend for the next thr ee years because he was going to the T.D.O.C. to serve his sentence. The court commented that it would not tolerate domestic violence and als o said that the defendant had failed to compl y with the4

conditions of his probation in many material respects. In its written revocation order, the trial court found that “the defendan t has been guilty of violating the laws of this State, that he has been guilty of conduct inconsistent wi th good citizenship, a nd that he has otherwise viol ated the conditions of his probati on.”

The defendant contends that the trial cour t abused its discretion by revoking his probati on because it failed to make adequate findings of fact and failed to consider that the defendant’s gi rlfriend wanted the charg es against the defendant to be dropped and admitted striking him first. The def endant also contends that the trial court erred in relying upon the defendant’s failure to pay fees and cou rt costs and his failure to perform all of the required community service.

Primarily, the defendant arg ues that the trial court’s failure to make factual findings violated his due process rights. H e cites to State v. Billy Car ter , No. 03C01- 9506-CR-00159, Sullivan County (Tenn. Crim. App. Apr. 16, 1996), in which this court stated that “the trial cour t’s failure to make findings o f fact in accordance with the principles of due process . . . coupled with the rec ords’ failure to reflect that the appellant was giv

en written notice of the cl aimed probation violation . . .” required a remand for further proceedings to be conducte d in accordance with due process.

In the present case, the war rant that was served

on the defendant notified him that revocation wa

s being sought because he had been charged with assaul t, had failed to notify his probation officer of his arrest, and had been behi nd on his payment of court costs, supervision fees, and performance of community service work. Thus, the warrant gave the defendant sufficient notice of the allege d violations of the conditions of probation, a cir cumstance not present in Carter . Also, although the tri al court should have been more s pecific in its factual finding s, it obviously found th at the defendant violated the conditions of his probation by crimi nal behavior. Both the5

defend ant and h is girlfrie nd testif ied conce rning his a ssaultive behavior. In our view, the trial court’s findings regarding this i ncident, alone, warranted revocation of probation.

It is within the tri al court’s discretion to revoke the defendant’s probati on upon a finding by a preponderanc e of the evidence that the defendant v iolated a condition of his probation. T.C. A. §§ 40-35-310, -311(d); State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). As previously indicated, we believe that there was substantial evidence to support the trial court’s conclusion regarding the defend ant’s violation of the laws of Tennessee. Accordingly, we hold that the trial court properly acted within its dis

cretion by revoki ng the defendant’s probation. The jud gment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Joe B. Jones, Presiding J udge

Curwood Wi tt, Judge