State v. Frederick Bray ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE, )
FILED
) July 7, 1999
Appellee, ) C. C. A. NO. 02C01-9812-CC-00379
) Cecil Crowson, Jr.
vs. ) MADISON COUNTY Appellate Court Clerk
)
FREDERICK T. BRAY, ) No. 94-661, 95-373, 98-155
)
Appellant. )
ORDER
This matter is before the Court upon the state’s motion to affirm the trial
court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals.
The appellant is appealing the trial court’s revocation of his probation. On January 4,
1995, the appellant pled guilty to burglary, theft, and criminal impersonation and
received an effective five year sentence. The trial court ordered intensive probation
after the appellant served six months confinement. On February 6, 1996, the trial court
revoked appellant’s probation finding that he had since been convicted of extortion and
theft, for which he received an effective four year sentence to be served consecutive to
his previous sentences. The appellant was placed in the community corrections
program. Thereafter, on September 4, 1997, the appellant was again placed on
probation. On November 9, 1998, the appellant’s probation was revoked.
After a hearing, the trial court found that the appellant violated the terms
and conditions of his probation by “having new convictions [attempted robbery], failing
to pay probation fees, court costs, and restitution, and failing to obtain inpatient drug
treatment.” The appellant and his probation officer testified at the hearing.
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. T.C.A. § 40-35-311(e). 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 (Tenn. 1991). Discretion is abused only if the record contains
no substantial evidence to support the conclusion of the trial court that a violation of
probation has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App.
1997). Proof of a violation need not be established beyond a reasonable doubt, and
the evidence need only show that the trial judge exercised a conscientious and
intelligent judgment, rather than acting arbitrarily. Gregory, 946 S.W.2d at 832; State v.
Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).
On appeal, the appellant contends only that the trial court abused its
discretion in revoking his probation. He argues that “[t]he trial court should have,
instead, incarcerated Mr. Bray for a short period of time and then released him on
intensive probation after obtaining drug treatment for him.” Having reviewed the record
in light of the appellant’s argument, we find that the evidence fully supports the trial
court’s action. The appellant has simply failed to show how the trial court abused its
discretion.
Accordingly, the state’s motion is granted. It is hereby ORDERED that the
judgement of the trial court is affirmed in accordance with Rule 20, Rules of the Court of
Criminal Appeals. Costs of this appeal shall be assessed to the state.
______________________________
JOE G. RILEY, JUDGE
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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