State v. Houston

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 25, 1997
• Docket: 03C01-9608-CR-00297
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MAY 1997 SESSION FILED June 25, 1997 STATE OF TENNESSEE, ) ) Cecil Crowson, Jr. Appellate C ourt Clerk Appellee, ) No. 03C01-9608-CR-00297 ) ) Knox County v. ) ) Honorable Richard Baumgartner, 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 General of Tennessee 1209 Euclid Avenue 450 James Robertson Parkway Knoxville, TN 37921 Nashville, TN 37243-0493

Randall E. Nichols District Attorney General and Paul Gentry Assistant District Attorney General City-County Building Knoxville, TN 37902

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The defendant, Eric Eugene Houston, appeals as of right from the

revocation of his probation by the Knox County Criminal Court. He contends that the

trial court abused its discretion by revoking his probation.

The defendant pled guilty to attempted possession of cocaine with the

intent to sell, a Class C felony, and received a three-year sentence that was to be

served on supervised probation. The trial court issued a probation revocation warrant

for the defendant that alleged that the defendant had violated the conditions of his

probation by being arrested 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 revocation hearing. She

said that she had been living with the defendant for the past nine months and had

called the police on March 1st after an argument between her and the defendant had

turned physical. She recalled that on that day she and the defendant 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 she 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 to argue with her and that

he hit her in the face again.

The defendant’s girlfriend also testified that she loves the defendant and

has tried to get the charges against the defendant dropped. However, she admitted

that over the past nine months she has had to call the police on other occasions for the

2 same reason. She also testified that the defendant had threatened her that things

could get even worse.

The defendant’s probation officer testified that the defendant was on

probation for aggravated 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 with 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 working at a nursing home before his arrest but said that

he had not received any verification of the defendant’s employment. He said that the

defendant had only paid twenty dollars toward his court costs and probation fees. He

also testified that although the performance of ninety-six hours of community service

was a condition of the defendant’s probation, the defendant had only performed twenty-

three hours.

The defendant testified that he had been working at a nursing home for

the past two months. He explained that the nursing home owed him a paycheck and

that he would be able to use the money to pay court costs 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 grabbed her when they argued at the store

later that day.

At the close of the proof, the trial court told the defendant that he was not

going to smack his girlfriend for the next three 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 also said that the defendant had failed to comply with the

3 conditions of his probation in many material respects. In its written revocation order,

the trial court found that “the defendant has been guilty of violating the laws of this

State, that he has been guilty of conduct inconsistent with good citizenship, and that he

has otherwise violated the conditions of his probation.”

The defendant contends that the trial court abused its discretion by

revoking his probation because it failed to make adequate findings of fact and failed to

consider that the defendant’s girlfriend wanted the charges against the defendant to be

dropped and admitted striking him first. The defendant also contends that the trial court

erred in relying upon the defendant’s failure to pay fees and court costs and his failure

to perform all of the required community service.

Primarily, the defendant argues that the trial court’s failure to make factual

findings violated his due process rights. He cites to State v. Billy Carter, No. 03C01-

9506-CR-00159, Sullivan County (Tenn. Crim. App. Apr. 16, 1996), in which this court

stated that “the trial court’s failure to make findings of fact in accordance with the

principles of due process . . . coupled with the records’ failure to reflect that the

appellant was given written notice of the claimed probation violation . . .” required a

remand for further proceedings to be conducted in accordance with due process.

In the present case, the warrant that was served on the defendant notified

him that revocation was being sought because he had been charged with assault, had

failed to notify his probation officer of his arrest, and had been behind on his payment

of court costs, supervision fees, and performance of community service work. Thus,

the warrant gave the defendant sufficient notice of the alleged violations of the

conditions of probation, a circumstance not present in Carter. Also, although the trial

court should have been more specific in its factual findings, it obviously found that the

defendant violated the conditions of his probation by criminal behavior. Both the

4 defendant and his girlfriend testified concerning his assaultive behavior. In our view,

the trial court’s findings regarding this incident, alone, warranted revocation of

probation.

It is within the trial court’s discretion to revoke the defendant’s probation

upon a finding by a preponderance of the evidence that the defendant violated 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 defendant’s

violation of the laws of Tennessee. Accordingly, we hold that the trial court properly

acted within its discretion by revoking the defendant’s probation. The judgment of the

trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Joe B. Jones, Presiding Judge

Curwood Witt, Judge