Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 28, 2018 at Knoxville
from the Criminal Court for White County No. CR6493, CR7510,
CR6120 Gary McKenzie, Judge.
T. Usrey, the Defendant, pled guilty to theft of property
over the value of $500 in case numbers CR6120, CR6493, and
CR7510. In 2017, the Defendant was arrested for violating the
terms of his probation by committing domestic assault and
aggravated assault. After a hearing, the trial court fully
revoked the Defendant's probation in all three cases and
imposed the original sentences. On appeal, the Defendant
argues that: (1) the trial court should not have placed any
probative value on the victim's testimony because she was
intoxicated at the time of the offenses; and (2) the evidence
was insufficient for the trial court to have found that the
Defendant violated his probation. After a thorough review of
the facts and applicable case law, we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Patrick Hayes, Cookeville, Tennessee, for the appellant,
Shane T. Usrey.
Herbert H. Slatery III, Attorney General and Reporter; Leslie
E. Price, Senior Counsel; Bryant C. Dunaway, District
Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams and J. Ross Dyer, JJ., joined.
L. HOLLOWAY, JR., JUDGE.
Factual and Procedural History
Defendant pled guilty to theft of property over the value of
$500 in case number CR6120 on June 27, 2013. The Defendant
received a sentence of one year suspended to supervised
probation to be served consecutively to a prior violation of
probation sentence. In case number CR6493, the Defendant pled
guilty to theft of property over the value of $500 on January
9, 2014. His two-year sentence was suspended to supervised
probation to be served consecutively to case numbers CR5938
and CR6120. In case number CR7510, the Defendant pled guilty
on November 6, 2015, to theft of property over the value of
$500 and received a sentence of three years. The trial court
ordered the Defendant to serve three months in confinement
and the remaining two years and nine months of the sentence
was suspended to supervised probation to be served
consecutively to a prior "TDOC"
March 2, 2017, Deputy James Reels of the White County
Sheriff's Office ("WCSO") filed an incident
report alleging that the Defendant committed domestic assault
against his wife by slapping her and burning her with a lit
cigarette. On March 20, Melanie Cowen filed a probation
violation warrant which alleged that the Defendant violated
the terms of his probation by failing to obey state laws and
by engaging in assaultive behavior. On March 30, 2017,
Sergeant Allen Hale arrested the Defendant on a violation of
probation warrant. The probation violation warrant was later
amended to include the allegation that, on March 10, 2017,
the Defendant committed two counts of domestic assault and
one count of aggravated assault.
probation violation hearing, Ms. Cowen testified that she
worked at the Tennessee Board of Probation and Parole
("the Board") as the Defendant's probation
officer. Ms. Cowen stated that the Defendant allegedly
committed two counts of domestic assault on March 2, 2017.
Ms. Cowen amended the affidavit to the probation violation
warrant to cite the Defendant for committing two counts of
domestic assault and one count of aggravated assault on March
10, 2017. She stated that she filed an "Affidavit
Violation of Probation" on March 20, 2017, which alleged
that the Defendant had committed new criminal offenses. On
cross-examination, Ms. Cowen testified that the
Defendant's probation began on November 6,
2015. She noted that this was the first
probation violation that had been filed against the
Usrey testified that she was the Defendant's wife and
that, on March 2, 2017, she and the Defendant were at their
residence, along with several of her family members. She and
the Defendant had been drinking, and they began arguing. The
Defendant slapped her. The Defendant also had a lit cigarette
in his hand which burned her neck. After the assault, Mrs.
Usrey's niece called the police, and the Defendant left
the residence. The police responded and spoke with Mrs. Usrey
and her family members. Shortly after the police left the
residence, the Defendant returned. Mrs. Usrey shut the door
to block the Defendant from entering, but the Defendant
"kicked the bottom of the door in." The Defendant
pushed Mrs. Usrey, and Mrs. Usrey's niece stepped in
between them. The Defendant left the residence before the
police responded for a second time. On March 10, 2017, the
Defendant, Mrs. Usrey, and her three-year-old son went to the
Highway 84 Market. While she was in the store, a store
employee informed Mrs. Usrey that the Defendant had pushed
Mrs. Usrey's son out the door. Mrs. Usrey stated that she
did not see the Defendant's actions and that her son was
not misbehaving. Mrs. Usrey, her son, and the Defendant
returned to their residence, where the Defendant grabbed Mrs.
Usrey's head, shook her, and "threw her
around." Mrs. Usrey's neighbors called the police,
but the Defendant left before they arrived. The police later
located the Defendant.
cross-examination, Mrs. Usrey testified that, while she and
the Defendant had argued previously, neither had been
arrested. She stated that, on March 2, she had been drinking
prior to the altercation with the Defendant. She explained
that she was "probably drunk" and that this could
have interfered with her memory of the event. She also stated
that, on ...