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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs at Knoxville January 29, 2013 STATE OF TENNESSEE v. HOWARD B. LEWIS, III
Appeal from the Circuit Court for Dickson County No. 22CC-2011-CR-264 Robert E. Burch, Judge

No. M2012-02040-CCA-R3-CD - Filed February 27, 2013

A Dickson County grand jury indicted appellant, Howard B. Lewis, III, for especially aggravated burglary, aggravated assault, and domestic assault. He entered a guilty plea to aggravated assault, and the State dismissed the remaining charges. The parties agreed to submit the length of the sentence and any alternative sentencing decision to the trial court. Following a sentencing hearing, the trial court sentenced appellant to six years in the Tennessee Department of Correction. Appellant now challenges the trial court's findings, alleging that the trial court impermissibly enhanced his sentence. Discerning no error, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and J EFFREY S. B IVINS, JJ., joined. Peggy R. Smith, White Bluff, Tennessee, for the appellant, Howard B. Lewis, III. Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; and Timothy J. Peters, Assistant District Attorney General Pro Tem, for the appellee, State of Tennessee. OPINION I. Procedural History and Facts

The offenses in this case stemmed from appellant's entry into the home of his now exgirlfriend, striking her, and stabbing her friend.1 The presentence report indicated that appellant was released on probation at the time of the offenses. We glean from the record that the trial court had previously held a probation revocation hearing and had revoked appellant's probation. At the sentencing hearing, the defense presented Wendy James, appellant's probation officer, as a witness, who testified that she had supervised appellant's probation and had prepared appellant's presentence report. Ms. James testified that appellant was enrolled in a thirteen-week self-help class through the probation office. She acknowledged that she testified at appellant's probation revocation hearing and that she would be "fine" with the trial court's returning him to probation. On cross-examination, the State reviewed appellant's criminal history with Ms. James, and she acknowledged that he had previously violated the terms of probation on two occasions. Ms. James stated that when she confronted appellant with his actions underlying this case, he told her that he went into his girlfriend's house, found her in bed with another man, and stabbed the man. Rick Gordon, a production supervisor for Trinity Marine in Ashland City, testified that he had employed appellant for approximately one and a half years at the time of the hearing. Appellant was punctual and had a perfect attendance record, having only missed work because of a required surgery. Mr. Gordon had not received any complaints about appellant and had not issued any "write-ups" to him. Mr. Gordon stated that if the trial court gave appellant probation, he could return to work. Melva Lewis, appellant's mother, testified that appellant had lived with her for approximately two years at the time of the hearing. He helped pay the bills and did not stay out late. She stated that they had no problems in their relationship. She told the court that she believed appellant received a "raw deal" because he was just defending himself, and she did not think it was fair. Ms. Lewis explained that she needed appellant at home because her husband, appellant's father, was just diagnosed with cancer. If appellant received probation, she would allow him to continue to live with her.

The record does not contain a copy of the plea submission hearing. However, a recitation of the facts is included in the presentence report. The presentence report, the transcript of the sentencing hearing, and the remaining record are adequate for meaningful appellate review. See State v. Caudle, -- S.W.3d --, No. M2010-01172-SC-R11-CD, 2012 WL 5907374, at *6 (Tenn. Nov. 27, 2012).

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Appellant testified on his own behalf. He stated that on the day in question, he went to the house of his girlfriend,2 where he often stayed, to locate a jacket for work. When he went inside, he found her in bed with another man, Jeffrey Davidson. He had spoken with his girlfriend about Mr. Davidson because she sent frequent text messages to Mr. Davidson and saw him when she went out. Appellant's girlfriend denied any wrongdoing when he confronted her. On cross-examination, appellant clarified that when he walked into his girlfriend's home, appellant was in the living room, and he saw her walk out of her bedroom. He did not actually see her in bed with Mr. Davidson. Appellant stated that although he still lived there, he did not spend the night there the previous night because he and his girlfriend were arguing. However, he believed that they were still "together." Appellant stated that he felt bad that Mr. Davidson was injured but that he did not remember stabbing him. He recalled seeing Mr. Davidson on his girlfriend's bed and his "com[ing] at [appellant]." They began fighting. Appellant did not know where the knife came from, but he did not have one in his possession when he arrived. He admitted that he told the police where to find the knife he used to stab Mr. Davidson. Appellant also admitted that if he had just left his girlfriend's house immediately, no one would have gotten hurt. At the close of the evidence, the State asked the trial court to order that the sentence in this case be served consecutively to the sentence for the probation violation. In considering the appropriate sentence, the trial court considered the requisite factors on the record. The trial court found three enhancement factors: (1) appellant had a criminal history above that necessary to establish the appropriate range of punishment; (2) appellant had previously failed to comply with the conditions of release in the community; and (3) appellant was on probation when he committed the offense. See Tenn. Code Ann.

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