State of Tennessee v. Robert Lee Mallard ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 21, 2004
STATE OF TENNESSEE v. ROBERT LEE MALLARD
Direct Appeal from the Circuit Court for Rutherford County
No. 46763 J. Steve Daniel, Judge
No. M2003-00953-CCA-R3-CD - Filed August 31, 2004
The defendant, Robert Lee Mallard, appeals the revocation of his probation relating to his
convictions for attempting to tamper with evidence and resisting arrest. On appeal, the defendant
contends: (1) the trial court erred in revoking his probation; (2) the drug tests administered by the
probation officers constituted improper body cavity searches; and (3) the drug tests violated his right
to privacy. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOE G. RILEY , SP . J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT W.
WEDEMEYER, JJ., joined.
Darwin K. Colston (on appeal) and John H. Baker, III (at hearing), Murfreesboro, Tennessee, for
the appellant, Robert Lee Mallard.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and Thomas F. Jackson, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant was convicted of attempting to tamper with evidence, a Class D felony, and
resisting arrest, a Class B misdemeanor. See Tenn. Code Ann. §§ 39-16-503(a)(1) (evidence
tampering); -602(a) (resisting arrest). He received an effective sentence of four years probation.
A probation violation warrant was subsequently issued against the defendant. Following a hearing,
the trial court revoked the defendant’s probation and ordered him to serve his original sentence in
confinement.
During the revocation hearing, Cheryl Jackson, the defendant’s probation officer, testified
the defendant violated the terms of his probation by testing positive for cocaine. AEGIS Laboratory
confirmed the results of the defendant’s drug screen. Jackson stated the defendant further violated
the terms of probation by failing to pay probation fees, failing to pay court costs and fines, failing
to obtain a drug and alcohol assessment from the Guidance Center, and failing to perform 100 hours
of community service at a rate of eight hours per month. Jackson acknowledged the defendant had
successfully completed an extensive substance abuse treatment program at the “VA.”
Jackson testified the defendant was found to be in violation of the terms of his probation on
a prior occasion. The defendant’s last violation order stated he would be required to serve his
original sentence in confinement if he incurred any further violations.
In revoking the defendant’s probation, the trial court found the defendant failed a drug
screen; did not pay the required fees, fines, and court costs; and did not perform the required amount
of community service.
I. PROBATION REVOCATION
The defendant contends the evidence is insufficient to establish that he violated the terms
of his probation and that the trial court abused its discretion in revoking his probation. We disagree
with the defendant’s contentions.
A trial court may revoke probation and order the imposition of the original sentence upon
a finding by a preponderance of the evidence that the person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, -311. The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Revocation of probation is subject to an abuse of discretion standard of review, rather than a de novo
standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
Jackson, the defendant’s probation officer, testified the defendant violated the terms of his
probation by testing positive for cocaine; failing to pay required fees, fines, and court costs; and
failing to perform the required amount of community service. The defendant did not testify at the
revocation hearing. Furthermore, no evidence was presented contradicting the probation officer’s
testimony as to these three violations. We conclude the evidence establishes by a preponderance
of the evidence that the defendant violated the terms of his probation. Therefore, the trial court did
not abuse its discretion in revoking the defendant’s probation.
II. REMAINING ISSUES
The defendant maintains the drug screens administered by probation officers constituted
impermissible body cavity searches and violated his right to privacy. However, the defendant failed
to cite to any authority in his brief to support his assertions. He concedes he was unable to locate
any such authority. We are also unable to locate authority supporting the defendant’s contentions.
Thus, this issue is waived. Tenn. Ct. Crim. App. R. 10(b); State v. Schaller, 975 S.W.2d 313, 318
(Tenn. Crim. App. 1997).
Accordingly, we affirm the judgment of the trial court.
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JOE G. RILEY, SPECIAL JUDGE
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