Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs February 26, 2019
from the Criminal Court for Sullivan County Nos. S66531,
S67284, S67351 James F. Goodwin, Jr., Judge.
Appellant, Talmadge D. Murphy, appeals the trial court's
revocation of his probationary sentence, specifically arguing
that the trial court abused its discretion by considering
evidence not elicited by either party during the hearing.
Upon review, we reverse the judgment of the trial court and
remand for a new revocation hearing.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Reversed; Case Remanded
William A. Kennedy, Blountville, Tennessee, for the
Appellant, Talmadge D. Murphy.
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Barry P.
Staubus, District Attorney General; and Lewis Combs,
Assistant District Attorney General, for the Appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ.,
McGEE OGLE, JUDGE.
Appellant was indicted on one count of aggravated domestic
assault, one count of failure to appear, and two counts of
aggravated assault. He pled guilty to attempted aggravated
assault, failure to appear, and two counts of assault. The
trial court imposed sentences of three years, one year, and
eleven months and twenty-nine days respectively. The
three-year sentence was to be served consecutively to the
one-year sentence for a total effective sentence of four
years, which was to be served on probation.
November 8, 2017, a probation violation warrant was issued
alleging that (1) the Appellant had been charged with
criminal trespass, (2) he had failed to report his arrest to
his probation officer, (3) he had failed to provide proof he
was employed or was seeking employment, and (4) he had failed
to pay probation fees and court costs.
beginning of the probation revocation hearing, defense
counsel acknowledged that the Appellant had pled guilty to
criminal trespass and that he was guilty of the violations
alleged in the warrant. Defense counsel asserted that the
Appellant had no prior violations.
Appellant testified that he pled guilty to criminal trespass
in exchange for a suspended sentence of thirty days. The
Appellant said that if he were released on probation, he
would live in Kingsport with his wife. The Appellant
acknowledged that he was not employed and that he had no
employment prospects, but he planned to get a job. The
Appellant stated that he was "doing great" on
probation prior to his violations. He said that he had not
started his community service but that he had been making
payments on his court costs.
cross-examination, the Appellant said that he did not know if
his wife was at home or in the hospital. He explained that
she was pregnant and had been diagnosed with Stage 2 cancer.
The Appellant denied threatening his wife after he was
arrested for criminal trespass and denied they were having
domestic problems at the time. The Appellant explained that
his wife made the allegations against him in November because
she had not taken her ...