State of Tennessee v. Terry Bonds ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 29, 2012 Session
STATE OF TENNESSEE v. TERRY BONDS
Appeal from the Criminal Court for Hamilton County
No. 245247 Don W. Poole, Judge
No. E2011-01199-CCA-R3-CO - Filed May 31, 2012
Appellant, Terry Bonds, appeals the trial court’s revocation of his probation, claiming that
the trial court did not have jurisdiction to revoke his probation because his sentence had
expired. Appellant also claims that the trial court abused its discretion by revoking his
probation. The State contends that this court should dismiss the appeal because the notice
of appeal was untimely and deficient in form. Finding no error, we affirm the judgment of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL, J.,
joined. J ERRY L. S MITH, J., not participating.
Wesley D. Stone, Knoxville, Tennessee (on appeal); and James W. Clements, III,
Chattanooga, Tennessee (at hearing), for the appellant, Terry Bonds.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Lance Pope, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Procedural History and Facts
On December 15, 2003, appellant pled guilty to possession of less than one-half gram
of cocaine with intent to sell, a Class C felony, and possession of a weapon, a Class E felony.
Pursuant to the plea agreement, the trial court sentenced appellant to six years for the cocaine
charge and one year for the weapon charge, suspended the concurrent sentences, and placed
appellant on supervised probation. Appellant’s probation officer filed a probation violation
report on September 24, 2009, alleging that appellant violated the terms of his probation by
committing the offenses of aggravated arson and reckless endangerment; failing to pay court
costs; and engaging in threatening behavior toward his victims. On September 29, 2009, the
trial court ordered the issuance of a “Probationary Capias” for appellant’s arrest, and the
court clerk issued a “Capias for Arrest for Probation Violation” on the same day. The sheriff
served the capias for arrest on October 2, 2009.
At the probation revocation hearing, the parties stipulated that if appellant’s probation
officer were to testify, she would state that appellant had not violated his probation during
the five years and nine months he had been on probation. Officer Cameka Bruce, with the
Chattanooga Police Department, testified that while patrolling on the night of September 18,
2009, she saw appellant walking away from the front porch at 801 East 49th Street shortly
after 3:00 a.m. Less than five minutes after seeing appellant, Officer Bruce received a call
reporting a fire at the house from which she saw appellant leaving.
On cross-examination, Office Bruce testified that appellant caught her attention that
night because nobody else was outside in the area. Appellant was not acting suspicious or
nervous when Officer Bruce observed him. She did not see appellant with an incendiary
device nor did she see a fire at the home. Officer Bruce was less than one hundred feet from
appellant when she observed him. Based on the time she began her shift, Officer Bruce
estimated that it was 3:00 a.m. when she saw appellant. Officer Bruce testified that she
immediately returned to the home when she received the call about the fire. She was not
involved with appellant’s arrest or the arson investigation.
Lakesha Patterson testified that she was appellant’s former girlfriend. She lived at
801 East 49th Street at the time of the fire. She said that the entry to her house had a walk-up
porch. Her front door, which led to the “front” room, was wooden with three windows.
Appellant came to Ms. Patterson’s home after 9:00 p.m. on September 18, 2009, and
they “had a few words.” Ms. Patterson stated that she told appellant “to leave, [she] was
tired of him, [and she] wasn’t ready to put up with him no [sic] more[.]” She told appellant
that she was ending their relationship, and he responded, “I’ll deal with you later.” Ms.
Patterson said that her daughters, Tashayla and Desharla Anderson, were in the home while
she and appellant argued. At that time, Tashayla1 was nineteen years old and Desharla was
thirteen years old. Ms. Patterson stated that she and her aunt called Tashayla “Piggy” as a
nickname. She said that appellant had heard them calling Tashayla “Piggy” and began
calling her that as well.
1
Because Ms. Patterson’s daughters share the same last name, we will refer to them by their first
names to avoid confusion. In doing so, we intend no disrespect.
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After the argument, Ms. Patterson and Tashayla went to the home of Ms. Patterson’s
aunt, leaving Desharla in Ms. Patterson’s home with appellant. Appellant left Ms.
Patterson’s house and went to a nightclub. Ms. Patterson and Tashayla returned to Ms.
Patterson’s home shortly after 10:00 p.m. At approximately 10:30 p.m., Ms. Patterson left
her house again, leaving Tashayla and Desharla inside, and did not return until she received
a phone call reporting that her house was on fire. Ms. Patterson testified that she returned
to her house at 3:45 a.m. She said that the house was “smoked out,” and the insulation had
burned. Ms. Patterson stated that she and her daughters lost everything they had in the fire.
On cross-examination, Ms. Patterson testified that her neighbors said appellant had
gone to the 45th Street Lounge nightclub with them before the fire. She said that the
nightclub was approximately a fifteen-minute drive from her home. Ms. Patterson did not
know how long appellant stayed at the nightclub. Ms. Patterson said her neighbors reported
that appellant did not ride back home with them. According to Ms. Patterson, Captain Leslie
Morgan, an investigator with the Chattanooga Fire Department, spoke to the neighbors with
whom appellant went to the nightclub.
Ms. Patterson further testified that she left her house the second time to go see her
boyfriend who had just been released from prison. She stated that Tashayla was at home
with Desharla, except when Tashayla went out for a walk. Ms. Patterson said that on
previous occasions she and Tashayla smoked inside their home. She knew that Tashayla was
not smoking the night of the fire because “it was confirmed, [they] did not have no [sic]
cigarette butts or roaches or anything . . . in the house when the fire investigator went through
the house and did the investigation.” Ms. Patterson stated that she knew appellant had
thrown something through her window because her daughters heard noises, and they heard
appellant yelling “Piggy.” Ms. Patterson said that her daughters did not see appellant, but
they recognized his voice.
Ms. Patterson denied consuming alcohol on the day of the fire. When she received
the call about the fire, it took her approximately forty-five minutes to return to her house.
Ms. Patterson stated that her couch was blocking the front door to her house, and she used
the back door for entry and exit. Ms. Patterson described her front door as a thick wooden
door. The bottom window was plexiglass, and if someone knocked out the window, he or
she could stick a hand inside. Ms. Patterson testified that appellant did not make any threats
other than telling her that he would deal with her later. She said that appellant was wearing
a black t-shirt over a white t-shirt, a red Saint Louis Cardinals baseball cap, blue jean shorts,
and black and yellow sneakers.
On redirect examination, Ms. Patterson testified that her neighbor, Joselyn Norwood,
told her that appellant went to Ms. Norwood’s house after he left the nightclub. On recross-
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examination, Ms. Patterson testified that she talked to Ms. Norwood the day after the fire
when Ms. Norwood came to check on her and her family. Ms. Norwood told Ms. Patterson
that appellant left the Norwood house at approximately 2:30 a.m. the morning of the fire.
Ms. Patterson gave the police Ms. Norwood’s name, and the police went to speak with Ms.
Norwood.
Tashayla testified that she lived at 801 East 49th Street with her mother, Ms.
Patterson, and her sister, Desharla. She stated that her mother and appellant argued at her
mother’s house. Tashayla and her mother left their house and went to their aunt’s house.
Desharla and appellant remained at home. When Tashayla and Ms. Patterson returned
approximately ten minutes later, appellant had left. Tashayla said that she left the house
again at approximately 11:00 p.m. to take a walk around the block with a friend and left
Desharla asleep on the couch. Desharla was still asleep on the couch when Tashayla returned
to her home at approximately 12:00 a.m. Tashayla stated that she locked the doors, checked
the windows, moved Desharla off the couch, took their dog, and went into her room.
Tashayla said that nothing was burning in the front room when she took Desharla back to her
bedroom. Tashayla denied doing anything in the house that could have caused a fire.
Tashayla and Desharla were both in Tashayla’s room in the back of the house.
Tashayla fell asleep, and appellant awakened her by banging on her bedroom window and
saying “Piggy, open the door.” She said that she did not respond to appellant. Tashayla did
not look out the window, but she was positive that it was appellant because she “knew his
voice.” She stated that she was familiar with appellant’s voice because her mother had dated
him. Tashayla said that her mother and aunt nicknamed her “Piggy,” and appellant began
calling her that as well. According to Tashayla, nobody else called her “Piggy.”
Appellant eventually left, but Tashayla did not go back to sleep. Approximately five
minutes after appellant left, Tashayla heard a loud noise toward the front of the house.
Tashayla thought that appellant had entered the house through her mother’s window. She
stated that she “was just laying [sic] there waiting on him to come to [her] room and ask [her]
where [her mother] was because she was gone.” Tashayla said that their dog began to pace
and whine, but Tashayla ignored her. When the dog jumped on the bed, Tashayla arose and
smelled rubber burning. Tashayla awakened Desharla, and Desharla asked Tashayla what
she had done. Tashayla replied that she had not done anything and that she had made sure
everything was off before they went to sleep. They opened the bedroom door, saw flames,
and quickly closed it. Tashayla, Desharla, and the dog jumped out of the window. Tashayla
stated that her neighbors called the police.
On cross-examination, Tashayla testified that when she left to take a walk, she was
with a male friend. She said that she was sitting on her porch when she saw her friend
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walking. She joined him for approximately twenty minutes. Tashayla said that she had
smoked cigarettes and marijuana in the past but denied smoking that night. Tashayla said
that the kitchen was next to the front room and denied cooking anything the night of the fire.
Tashayla stated that her mother had dated appellant “for a little minute.” She said that
appellant called her Shara before he began calling her “Piggy.” A sheet covered Tashayla’s
window so that nobody could see inside the window and Tashayla could not see outside.
Tashayla stated that nobody came back and knocked on the door after she heard the loud
noise. She said that the couch consisted of cloth and had no rubber on it. She further said
that nothing in the living room would have smelled like rubber burning. She testified that
she was “absolutely sure” that she had not smoked in the house that night.
Captain Leslie Morgan testified that she investigated the fire at 801 East 49th Street.
Captain Morgan explained that “[t]he circumstance was an unexplained fire that occurred in
a duplex with two young girls in it that had . . . to escape out a window.” She stated that the
firefighters on the scene were not trained to investigate arson and did not know how the fire
had started. Based on what Tashayla and Desharla had told them, the firefighters suspected
that someone may have started the fire. The firefighters called Captain Morgan to investigate
a suspicious fire. Captain Morgan spoke with Tashayla and Desharla at the scene of the fire
and determined that they were in the back of the house when the fire started in the front
living room area on the couch.
Captain Morgan testified that when investigating fires she looks for the source using
the process of elimination. She explained that fires leave distinct patterns. Captain Morgan
said that the fire at Ms. Patterson’s house was not electrical. She further said that smoking
did not cause the fire because the smoke detector was working, and smoking would have
activated it. Captain Morgan stated that she tried to eliminate all sources of ignition, and
“[t]he only possible source of ignition would have been human hands.” Captain Morgan
determined that the fire was arson.
Captain Morgan took samples from the scene and sent them to the Tennessee Bureau
of Investigation. The samples tested negative for the presence of an accelerant. Captain
Morgan stated that although the samples were negative, the fire could have still been
intentionally set. Captain Morgan stated that, based on the fire patterns, the fire started on
the couch. She said that the couch did not have accelerant on it but was still very flammable.
The fire department did not test appellant’s clothes for accelerant or signs of fire.
Captain Morgan testified that the glass and plexiglass on the door were pushed out,
and appellant either set the couch on fire or dropped something flammable, like a paper bag,
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on the couch. Captain Morgan said that the couch was six inches from the door, and it was
possible to reach through the front door and touch the couch.
On cross-examination, Captain Morgan testified that the couch was on the front porch
of the house when she arrived. She explained that firefighters removed furniture that had
been on fire “to keep smoke down and get it out of the building.” Captain Morgan
acknowledged that the samples from the upholstered couch did not contain accelerant but
stated that the fire could have consumed the accelerant or water from the fire hose may have
diluted the accelerant.
Captain Morgan testified that she believed that the fire started on the couch because
the fire left a distinct “V pattern.” She said that when she and the firefighters reconstructed
the scene, the soot and fire patterns went “straight up the wall.” Captain Morgan further said
that the rest of the room had smoke damage. However, the only fire damage “was coming
off the couch, had consumed the couch, gone up the walls[,] and had rolled across the ceiling
and out the door.”
In her report, Captain Morgan noted that no residue from the plexiglass was present,
which was abnormal. She explained that if the plexiglass had been in place during the fire,
it would have melted and rolled down the outside of the door. If the plexiglass had been
broken from the inside, it would have been on the front porch. Captain Morgan stated that
the lack of residue suggested that someone from the outside pushed the plexiglass into the
house and the fire consumed it.
Captain Morgan testified that officers found a lighter and cigarettes when they
arrested appellant. Captain Morgan said that authorities could have tested appellant’s clothes
for residual accelerants, but they did not. Likewise, they did not swab appellant’s hands to
test for accelerant because there was no method by which to do so. Captain Morgan
interviewed appellant and said that appellant denied starting the fire. He told Captain
Morgan that he had been at the house earlier in the day but was not there that evening.
Captain Morgan spoke with Ms. Norwood, and Ms. Norwood told her that appellant arrived
at her apartment at 2:45 a.m. Captain Morgan estimated that the fire started between 2:45
a.m and 3:08 a.m. Ms. Norwood also told Captain Morgan that appellant was intoxicated.
On redirect examination, Captain Morgan reviewed her prosecution report and said
that Ms. Norwood actually told her appellant arrived at her house at 2:30 a.m. and left at 2:45
a.m. According to Captain Morgan, the dispatch call came in at 3:08 a.m.
After hearing the evidence, the trial court found by a preponderance of the evidence
that appellant had violated his probation. The trial court revoked appellant’s probation and
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ordered that he serve his six-year sentence in confinement. Appellant appeals the trial court’s
revocation of his probation and execution of his original sentence
II. Analysis
On appeal, appellant argues that (1) if this court determines that the notice of appeal
was untimely, we should allow the late-filed appeal in the interest of justice; (2) the trial
court lacked jurisdiction to revoke his probation; and (3) the trial court abused its discretion
by revoking his probation.
A. Notice of Appeal
We first address the issues concerning appellant’s notice of appeal. Appellant argues
that if this court determines that he untimely filed his notice of appeal, we should waive the
untimely filing in the interest of justice because “he was not properly advised of the right to
appeal the revocation of probation in this matter.” The State responds that appellant failed
to perfect his appeal because his notice of appeal did not accurately designate from which
judgment he appealed and that appellant untimely filed his notice of appeal. Thus, the State
contends that this court should dismiss the appeal.
Tennessee Rule of Appellate Procedure 3(f) mandates that “[t]he notice of appeal
shall specify the party or parties taking the appeal[,] . . . the judgment from which relief is
sought, and shall name the court to which the appeal is taken.” This court will not dismiss
an appeal merely for informality of form or title of the notice of appeal. See Tenn. R. App.
P. 3(f). The notice of appeal is an appellant’s formal declaration of his or her intent to
appeal. See Tenn. R. App. P. 3(f) Advisory Comm’n Cmt. If an appellant’s notice of appeal
meets this purpose, “it is irrelevant that the paper filed is deficient in some other respect.” Id.
The body of appellant’s notice of appeal, filed May 23, 2011, reads as follows:
Comes the appellant, Terry Bonds, TDOC # 115922, pro se, hereby
appeals the Trial Court’s Ruling in the above styled case to the Tennessee
Court of Criminal Appeals, pursuant to T.R.A.P. Rule 3 Appeal as of right.
The judgment of the Trial Court was entered on the 13th day of April 2011 and
as such, the appellant is timely.
The trial court entered its probation revocation order in this case on December 16,
2010. On March, 31, 2011, appellant, pro se, filed a document asking the court to reinstate
his probation. The trial court treated the document as a motion to correct or reduce the
sentence. See Tenn. R. Crim. P. 35. The trial court denied the motion in an order filed April
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12, 2011. The order states that the court entered it on April 13, 2010. It is obvious from the
record, as the State concedes in its brief, that the April 13, 2010 date on the order denying
the motion was a clerical error, and the year should be 2011. Thus, appellant’s notice of
appeal designated the judgment from which he appealed. However, the trial court’s April
2011 order was not the one in which the trial court revoked appellant’s probation.
It is apparent from the entire record that appellant requested the reinstatement of his
probation multiple times. In its April 13, 2011 order, the trial court noted that appellant
asked the court to place him back on probation. Appellant filed another “Motion to Rehear
Probation Violation” in June of 20112 , after he filed the notice of appeal. The trial court
again treated the June 2011 motion as a Rule 35 Motion for Correction or Reduction of
Sentence. Appellant attempted to appeal approximately five months after his revocation
order was entered. While the form of the notice of appeal was not technically proper, it is
obvious from the entire record that appellant was aggrieved by his revocation and attempted
to appeal it. We have concluded that in the limited circumstances of this case, we will not
preclude consideration of the merits based on deficiencies in the notice of appeal as appellant
was without benefit of counsel when he filed the notice of appeal.
Having concluded that we will not dismiss the appeal because of deficiencies in the
notice, we now address the timeliness of appellant’s notice of appeal. “In an appeal as of
right to the . . . Court of Criminal Appeals, the notice of appeal required by Rule 3 shall be
filed with and received by the clerk of the trial court within 30 days after the date of entry of
the judgment appealed from[.]” Tenn. R. App. P. 4(a). Unlike the procedure involving the
motion for new trial, the time for filing the notice of appeal to this court is not jurisdictional.
See Tenn. R. App. P. 4(c); see also State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App.
1989). This court may waive the notice of appeal time requirement in the “interest of
justice.” Tenn. R. App. P. 4(a). Appellant filed his notice of appeal on May 23, 2011, more
than five months after the trial court’s December 16, 2011 order of revocation and several
days after the time limit for appealing the trial court’s order denying the motion to correct or
reduce the sentence. Thus, appellant did not timely file his notice.
Consequently, this court must determine whether we should waive the deadline in the
interest of justice. In his brief, appellant contends that this court should waive the filing
deadline because he “was not properly advised of the right to appeal the revocation of
probation in this matter.” Appellant acknowledges that the trial court advised him at the
conclusion of the revocation hearing that he had thirty days to file a notice of appeal.
However, appellant contends that the trial court’s statements created an ambiguity as to filing
2
The file stamped copy in the record is illegible, and we cannot determine when in June appellant
actually filed this motion.
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the notice of appeal. Appellant points to several pro se motions that he filed under the
mistaken belief that the trial court still had jurisdiction. Appellant also asserts that his
appointed counsel should have filed the notice of appeal as part of his continued
representation pursuant to Rule 37(e)(3) of the Tennessee Rules of Criminal Procedure. The
State responds that because the trial court advised appellant of the thirty-day filing deadline
at the revocation hearing and in the trial court’s order denying appellant’s motion to correct
or reduce the sentence, the interest of justice does not require that we waive the timely filing
requirement.
At the probation revocation hearing, the trial court stated the following concerning
appellant:
[you will be]here for so long as whatever happens to this other case or till y’all
make a determination of it. He does have, however, 30 days to decide whether
he wants to file notice of appeal. . . . Mr. Bonds, you have to file notice of
appeal within 30 days. I assume that you will want [trial counsel] to represent
you and I would appoint him to represent you if you do decide to file that
appeal.
. . . So if you decide to appeal the decision - - but you will be here,
you’re still in the jurisdiction of this court for so long as you’re here.
The trial court appointed trial counsel to represent appellant. Trial counsel was to
represent appellant throughout the proceedings, including appeal, until conclusion of the case
or a court allowed him to withdraw. Tenn. R. Crim. P. 37(e)(3). There is no evidence in the
record that trial counsel sought to withdraw from representing appellant. Trial counsel did
not file a notice of appeal for appellant, thus appellant filed a pro se notice of appeal. Even
after filing the notice of appeal, appellant continued to file pro se motions asking the trial
court to reinstate his probation and reconsider its ruling. Considering trial counsel’s failure
to file a notice of appeal and the trial court’s statements that may have confused appellant,
the timely filing of a notice of appeal is waived, and we will address appellant’s claims in
the interest of justice.
B. Trial Court’s Jurisdiction
Appellant argues that the trial court lacked jurisdiction to revoke his probation
because the trial court did not file a probation violation warrant during his probationary
sentence. The State responds that the “Probationary Capias” filed by the trial court met the
requirements of a revocation warrant, tolled the limitations period, and preserved the trial
court’s jurisdiction.
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A trial court may revoke a suspended sentence if it finds by a preponderance of the
evidence that a defendant has violated the conditions of release. Tenn. Code Ann.
§ 40-35-311(e) (2010). A trial court may revoke a suspended sentence “at any time within
the maximum time that was directed and ordered by the court for the suspension, after
proceeding as provided in § 40-35-311(a) [.]” Tenn. Code Ann. § 40-35-310 (2010). “If a
petition to revoke is initiated within the term of the sentence, any limitation of the time
within which to act is tolled.” State v. Lewis, 917 S.W.2d 251, 256 (Tenn. Crim. App. 1995)
(citing McGuire v. State, 292 S.W.2d 190, 193 (Tenn. 1956); State v. Carden, 653 S.W.2d
753, 754-55 (Tenn. Crim. App. 1983)).
Generally, revocation may occur only within the probationary period. Alder v. State,
108 S.W.3d 263, 267 (Tenn. Crim. App. 2002) (citing State v. Shaffer, 45 S.W.3d 553, 555
(Tenn. 2001); Tenn. Code Ann. § 40-35-310 (1997)). However, if a trial court issues a
probation revocation warrant within the term of probation, it tolls the limitation of time in
which the court may act to revoke probation. Shaffer, 45 S.W.3d at 555; State v. Clark, 970
S.W.2d 516, 518 (Tenn. Crim. App. 1998). The filing of a probation violation report during
the probation term is insufficient to toll the limitations period. State v. Anthony, 109 S.W.3d
377, 381(Tenn. Crim. App. 2001). Thus, the filing of a revocation warrant, not the report,
tolls the limitations period. See generally Shaffer, 45 S.W.3d at 555.
When the trial court becomes aware of a defendant’s potential probation violation,
“the trial judge shall have the power to cause to be issued under the trial judge’s hand a
warrant for the arrest of the defendant as in any other criminal case.” Tenn. Code Ann.
§ 40-35-311(a) (2010). “A warrant of arrest is an order, in writing, stating the substance of
the complaint, directed to a proper officer, signed by a magistrate, and commanding the arrest
of the defendant.” Tenn. Code Ann. § 40-6-201 (2006). Even if a trial court does not
caption its order as an arrest warrant or probation violation warrant, it may still satisfy the
definition of “warrant for arrest” if it contains the judge’s signature, lists the violations of the
defendant’s suspended sentence, and directs an officer to arrest the defendant. State v.
Almeko Chiffon Woods, No. W2007-02025-CCA-R3-CD, 2008 WL 3983107, at * 4 (Tenn.
Crim. App. Aug. 28, 2008).
The “Probationary Capias” that the trial court issued on September 29, 2009,
contained the judge’s signature, listed appellant’s probation violations, and directed an
officer to arrest appellant. The document also stated that the court clerk should attach a copy
of the order to the process to be served on appellant. Appellant’s probationary sentence was
set to expire on December 15, 2009. The clerk issued the capias on September 29, 2009, and
an officer served process on appellant on October 2, 2009. Accordingly, we conclude that
the “Probationary Capias” filed by the trial court satisfied the requirements of a probation
violation warrant, the court filed the violation warrant during appellant’s probationary period,
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and the warrant tolled the revocation limitations period. Thus, the trial court retained
jurisdiction to revoke appellant’s probation. Appellant is not entitled to relief on this issue.
C. Revocation
For his last issue, appellant argues that the trial court’s revoking his probation and
ordering him to serve his sentence in the custody of the Tennessee Department of Correction
after he almost completed his entire probationary term was an unreasonable abuse of
discretion. Appellant further posits that the trial court’s probation revocation was
unreasonable because the State dismissed the underlying charges. The State replies that,
considering the serious charges against appellant, the trial court acted reasonably and that
appellant failed to cite any authority stating that the dismissal of the underlying charges is
relevant to the probation revocation.
The revocation of a suspended sentence rests in the sound discretion of the trial judge.
State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); State v. Mitchell, 810 S.W.2d
733, 735 (Tenn. Crim. App. 1991). In determining whether to revoke probation, it is
unnecessary that the trial judge find that a violation of the terms of the probation has
occurred beyond a reasonable doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If
the trial court finds by a preponderance of the evidence that the defendant violated the
conditions of probation, the court is granted the authority to revoke the probation and
suspension of sentence. Tenn. Code Ann. § 40-35-311(e)(1) (2010). The appellate standard
of review for a probation revocation is abuse of discretion. See Shaffer, 45 S.W.3d at 554;
State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). Generally, “[a] trial court
abuses its discretion when it applies incorrect legal standards, reaches an illogical conclusion,
bases its ruling on a clearly erroneous assessment of the proof, or applies reasoning that
causes an injustice to the complaining party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn.
2010).
Here, the record supports the trial court’s order of probation revocation based on
appellant’s conduct while on probation. After hearing the testimony at the probation
revocation hearing, the trial court found by a preponderance of the evidence that appellant
set fire to the victims’ house. The evidence at the probation revocation hearing established
that appellant had a motive to set the fire, that appellant told Ms. Patterson that he would
“deal with her later,” and that appellant was at the scene of the fire shortly before it occurred.
Although appellant had almost successfully completed his entire probationary sentence, the
trial court did not abuse its discretion by revoking his probation. When revoking appellant’s
probation, the court stated that it “searched for alternatives because [appellant had] done so
well . . . , but . . . other than first degree murder, there can’t really be much worse than
[arson.]” Regarding appellant’s claim that the trial court’s revocation was unreasonable
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because the underlying charges were dismissed, this court has previously held that a trial
court may premise a revocation upon proven allegations of a violation warrant, even if the
charges have been dismissed. State v. Agee Gabriel, No. M2002-01605-CCA-R3-CD, 2004
WL 1562551, at *3 (Tenn. Crim. App. July 12, 2004) (holding that “validity of the original
warrant was not affected by the dismissal of the criminal charges arising from the acts
alleged in the warrant”); State v. Larry D. Turnley, No. 01C01-9403-CR-00094, 1994 WL
714227, at *3 (Tenn. Crim. App. Dec. 22, 1994) (“The fact that the Defendant was not
convicted of any of the offenses with which he was charged does not mandate dismissal of
the probation violation warrant.”); State v. Delp, 614 S.W.2d 395, 396-97 (Tenn. Crim. App.
1980) (revocation may be based upon criminal acts alleged in violation warrant even though
defendant was acquitted of charges for underlying acts). Thus, we conclude that the trial
court did not abuse its discretion by revoking the appellant’s probation and ordering that he
serve his sentence in confinement. Appellant is not entitled to relief.
III. Conclusion
Based on the foregoing, we affirm the judgment of the trial court.
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ROGER A. PAGE, JUDGE
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