# FILED October 11, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9901-CR-00026 Appellee, ) ) Cumberland County v. ) ) Honorable Leo n Burns, Jr., Jud ge DAVID HOWARD PROFFITT, ) ) (Probation Revocation) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : DAVID NEAL BRADY PAUL G. SUMMERS District Public Defender Attorney General & Repor ter JOE L. FINLEY, JR. CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 215 Reagan Street 425 Fifth Avenue North Cookeville, TN 38501-3404 Nashville, TN 37243-0493 WILLIAM EDWARD GIBSON District Attorney General ANTHONY J. CRAIGHEAD Assistant District A

ttorney General 145 South Jefferson Avenue Cookeville, TN 38501-3424

OPINION FILED: ____________________________

____ AFFIRMED ALAN E. GLENN, JUDGE2 

### O P I N I O N
The defendant , David Howard Proff itt, pleaded gui lty to agg ravate d assault on December

3, 1 995 in the Cumberland County Criminal Court. He was sentenced to six years to be serve d in the co mmunity c o rrections program. The defendant was charged with driving under the influence on June 13, 1998. As a result of thi s offense, a violation warrant was issued June 19, 1998. A second violationwarrant was iss ued July 30, 1998, because the defendant was indicted for theft of a dump truck. A revoca tion hearing was held December

2, 1998. The trial court revoked the defendant’s probation and ordered him to serve the remainder of his six-year term in prison. The defendan t timely appealed. Based on our review o

f this matter, we affirm the decis ion of the trial court.
The defendant raises two issues on appeal: I. Whether the trial court erred in violating the defendant’s probation for allegedlycommitting the offense of driving under the influence and theft over $1 0, 000 when the State failed to esta blish the se violati ons by a preponderance of the evidence. II. Whet hert he trial erred in violating the defendant’s probation for violation of rules and conditions not placed in evidence.

The defendant entered a guilty plea on December 5, 1995, to the offense of aggravatedassault. According to the judgment, he was gr anted probation and placed effect ive “immediately” into the com mu nity corrections pr ogram. The community corrections

order, date d that same day, lists a number of conditions by which the defendant was to abide. Amon g these were the fo llowing:

3) not use intoxicants of any kind or

use narcotic drugs; marijuanaincluded; or visit places where intoxicants or drugs are unlawfull

y sold, disbursed or u sed. 10) obey the laws of the United States or any State in whic h he/she may be as well as any local ordinances.
Immediately ab ove the defen dant’s signature on this form is st ated the foll owing:3 Violation of any of the ter ms of t he Community Corrections sentence may be sufficient cause for revocation of Community Corre ctions. The expira tion date of this Community Cor rections sentence is the 5th day of December, 2001. I have read or have had r ead to me, the c onditions of m y Community

Corrections Sentence. I full y understand them and agree to comply with them. I hereby waive all extradition right

s and process and agree to retur n to Tennessee if at any time during my Community Corrections Sent ence t he Trial Judge directs me to do so.

On January 8, 1997, the trial court entered an order interrupting th e participation of t he def endant in the community corr ections program, and order ing that he be on supervised probatio n with the S tate of Tenness ee Proba tion Off ice in Cum berland County. It was while he was under the supervision of that office that the two violation of pr

obation warrants were fil ed.

The standard of review upon anappeal of an order revoking probation is the abuse of discretion standard. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). “In order for a reviewing

court to bewarranted in finding an abuse of discretion in a probation revocation case, it must be established that the record contains nosubstantial evidence to s upport the conclusion of the trial judge that a v iolation of the conditions of probati on h as occurred.” Harkins , 811 S.W.2d at 82. If the trial judge finds by a preponderance of the evidence that
a probation violation has occurred, the court may r evoke the defendant’s probation. Tenn. Code Ann. § 40-35-311(e) (1997). Proof of a violation is su fficient if it allows the trial jud ge to make a conscientious and intel ligent judgment. State v. Smit h , 909 S.W.2d 471, 473 (Tenn. Crim. App. 1995 ) (citing State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App.1984)).

In the case sub judice, two violation affidavits were filed, one for felony theft and one forDUI. Crossville Poli ce Officer Phillip Seiber te stified that he charged the defendant with DUI and violation of implied con sent. Officer Seiber stated that h e stopped the defendant because the defendant wasdriving with an expired tag. When the defendant got out of the car, the officer smelled a strong odo r of alcohol. The defendant failed to pass several field1 Althou gh the defendan t argued the te rms of his probation were n ot placed in evide nce, the community corrections order l isting the conditions of hi s probation was plac ed in the record. 4 sobriety tests. When taken into custody, the defendant refused to take a blood a lcohol test and told the officer he had been drinking at a bar. At the time of the revocation he aring, the defendant had been convicted on the D UI charge.

Tennessee Bureau ofInvestigation Agent Tommy Callahan testifiedthe defendant
was in possession of a stolen 1996 dump t ruck valued at $84,000. Acc ording to Agent Callahan the stolen truck’s vehicle identificatio n numb er (VIN) had been altered. The stolen 1996 truck was identified byits secondary identification numbers. The VIN plate had been removed and replaced w ith a VIN plate for a 1977 model For d L 90 purchased bythe defendant. The defen dant obtained a title for the 1977 truck and then sold the truck to a salvage yard. At the time of the revocation hearing, the defendant was scheduled to go to trial on the truck

theft.

Based on the testimony presented, the trial court revoked the defendant’s probati on and ordered him to serve the remainder of his six-year sentence in jail.
Compliance with state laws is an automatic condition of probation. State v. Stubblefield , 953 S.W.2d 223, 225 (Tenn. Cr im. App. 19 97). Pending charges can also be the basis for a re voca tion of probation. See State v. Ada ms , 650 S.W.2d 382, 383 (Tenn. Crim. App. 1983) (allowing revocation based, in part, on pending forgery charge). Further, the trial court can consider conduct inconsistent with good citizenship even when the defendant has been acquitted of a criminal cha rge arising fromthe conduct. State v. Delp , 614 S.W.2d 395 (Te nn. Crim. App. 1980).

The defendant was convicted on a DUI charge. He w as indicted for theft over $60,000. Evidence was also presented that the defendant violated the no consumption of alcohol term of his probation. 1 Based upon our review of the record, we find the trial court’s decision to revoke the defendant’ s probation was supported by substantial evidenc e.5 For the foregoing reasons , we affirm the decision of the tr ial court.

___ _______________________ _____________

_ ALAN E. GLENN, JUDGE
CONCUR:

____________________________________ JOSEPH M. TIPTON, JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE