### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J une 19, 2002
STATE OF TENNESSEE v. DE RRICK S. CHA NEY
Direct Appeal from the Circuit Court for Williamson County

No. II-22-201 Timothy L. Easter, Judge

No. M2002-00057-CCA-R3-CD - Filed July 31, 2002

The Defendant pleaded guilty to first offense DUI, for which he was sentenced to eleven months and twenty-nine days incarceration, suspended after service of

forty-eight hours; and to driving with a suspended, cancelled, or revoked license, for which

he was sentenced to six months incarceration, suspendedafter

service of forty-eight hours. The trial court ordered that the two sentences be serve d concurrently. The Defendant was subsequently arreste d for probation violation, and the trial court conducted

a hearing to determine whether the Def endant ’s proba tion should be revoked. At the conclusion of the he aring, the trial c ourt orde red that t he Defendant serve the remainder of hi s sentences in custody. T

he Defe ndant app eals this d

ecision, arguing t

hat the Sta

te faile d to prove by
a preponderance of the evidence that he had violated his probation and that the trial court erred by ordering him to serve his full sentence in custody. We conclude that sufficient evidence was presented at the hearing to support revocation of the Defendant’s probation and that the trial court didnot err by ordering the Defendant to serve his sentence in custody. We thus affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

R OBERT W. W EDEMEYER , J., delive red the o pinion of t

he court , in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined.

Gen e Hone a, Assista

nt Public De

fender (on appe al), and

John H. He

nderson, Jr., Distr

ict Public Defender, Franklin, Tennessee (at tria l), for the Appellant, Derrick S. Chaney.

Paul G. Summers , Attorne y Gener al and Re porter; K imR. Helper, Assistant

Attorney Genera l; Ronald L. Davis, Distri ct Attorney General; and Derek K. Smith, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

In August 2 001, the D efenda nt, Derrick S. Chaney , pleade d guilty to first offense DUI a

nd to driving with a suspended, cancelled, or revoked license. For the DUI conviction, the trial court-2-

sentenced the Defendant to eleven months and twenty -nine days inca rceration, suspended after service of forty

-eight hours. The trial court ordered the Defendant to pay

a $350 fine and to attend Alcohol Safety School; the court a lso suspended the Defendant’s license for a pe riod of one ye ar. For the driving with a suspended, cancelled, or re voked license conviction, the trial court sentenced the Defendant to six months incarceration, suspended after service of forty-e

ight hours. The trial court ordered that the two sentences be ser ved concurrently

. On November

9, 2001, a warrant issued against the Defendant, alleging that he had violated the conditions of his probation by testing positive for c ocaine use onOctober 2, 2001. Aprobation violation hearing was subseq uent ly held on Dece

mber 17, 2001, at which the following evidence wa s presented: Julie Oden, the Defendant’s probation officer, testified that she began supervision of the Defendant

on August 30, 2001. She state d that she complete d an initia

l intervie w of the D efenda

nt, at which time she explained the rules of probation to the Defendant and gave him a wr itten copy of the rules of probation. Oden stated that one of the rules expressly prohibited the De fendant from using intoxicants of any kind to excess and from using or posse ssing narcotic drugs or marijuana. According to Oden, the Defendant signed a document indicating his agr eement to adhere to the rules of probation.

Oden reported

that on October 2, 2001, the Defendant tested positive for coc aine use during
a random dr

ug screen. Oden

testifie d that the

test was per forme d by Redwo od Tox icolo gy Laboratory

in Califor

nia, and a n affida vit by the chief toxicologist of the laboratory, in which the toxicolog ist

stated that cocaine was found in the Defendant’s urine, was entered into evidence at the hearin g. Oden stated that the Defendant denied having a dr ug problem, and she reported that prior to taking th e t es t, th e D ef en da nt de ni ed in wr it in g t ha t h e h ad ev er us ed dr ug s o f a ny k ind. Ode n testified that on November 9, 2001, she swore out a warra nt for the Defend ant’s ar

rest for violation of the conditions of probation.

The Defendant testified on his own behalf at the probation revocation hearing. He re ported that he was t wenty-ni ne years ol d at th e tim e of th e heari ng. He also testified that he was divorced and that he had a four-y ear-old daughter. The De fendant stated that at the time of his arrest for violation of proba

tion, he w as working for a tempora ry agenc y, but planne d to start wo rk at his father’s business.

The Defendant

maintained that

he had ne ver used cocaine , marijua

na, or oth er illeg al drug s. He stated that

he could not explain

the results of his drug screen. The Def endant also complained that al though he had asked his probation officer for a second drug test, she refused to c onduct a second test.

The Defend ant test

ified that he had been arrested several times, but he maintaine d that on eachoccasion, he was in noc ent . Th e De fen dan t ad mi tt ed t hat he h ad t wic e be en c onv ict ed o f DU I. He stated that he was first charged with DUI after a car accident whic

h rendered

him uncons cious. He reporte d that hosp ital emplo ye es obtained a blood sample fr om him while

he was unconsciou s. He maintained that he did not feel that he was drunk at the time of the acc ident, but he stated that-3-

he pled guilty to DUI

because he did not have enough money to contest the charge. The Defendant reported that prior to his secon d arres t f or DUI , he dran

k “a cou ple of be ers,” bu

t he aga in maintained that he did not feel that he was guilty of the charged offense . He claimed that he passed
a sobriety test on thisoccasio n, but ref used blood

and brea th tests. He

stated tha

t his attor ney told him that his was “not a very

stron g case” an d that he cou ld eit her pay mor e mone y to fight the ch arge or “plead out.” The Defendant testified that he ha d no more money and the refor e opted to plead guilty to the cha

rged offense.

In addition, the Defe

ndant adm

itted th at he was arrested for writing bad checks in 1999. However, he claimed that the checks were written on his own a ccount, and he stated

that he had paid off all outsta

nding a mounts whe

n he was t

aken into custo dy for the charges in this case. The Defenda ntalso admitted that in 1999, he was arrested for possession of a Schedule I V controlled substance and for possession of drug parapher nalia. He explained that

when a police officer pulled him over while he was driving, his wife’s prescription for wha t he believed

was Loritab was found in the console of his car, and a lighter and “crack pipe” were also found in his vehicle. He stated that the drug paraphe rnalia w as not his and claimed that a woman who was with him at the time of the arrest threw the lighter and pipe into the seat when he was pulled over. The Defendant claimed that the charge for possession of a Sche dule IV controlled substance w as later dismissed.
The Defendant further testified that in 1991, while he wa s under the legal drinking age, he
was arrest ed afte r offi cers fo und al cohol in a car that t he Defe ndant and hi s brot her wer e driv ing. The Defend ant mainta

ined that the alcohol did not b elong to him and statedthat the charges were later dismissed. Finally , th e Defe ndant testified that he had been involved in two personal injury automo bile accide nts where someone had been hurt and that he had been involved in three automobile accidents involving property damage.

At the conclusion of the hearing, the trial court found by

a preponderance of the evidenc e that the Defendant was guilty

of violating the terms of his probation and ordered that the Def endant serve the remainder of his sentence in custody . The Defend ant now a ppeals th is finding by t he trial c ourt, arguing that

the prosecution failed to prove by a preponderance of the evidenc e that he had violated the terms of his probation and that the trial court abused its discretion by o

rdering him to serv e his
se nt en ce in cu st od y.
We begin our

analysis with several well-settled principles of law pertaining to the revocation of a probated senten ce. When a trial cou rt deter mines by a

prepond erance of the ev idence t hat a probationer

has viola ted the c onditions o f his or he r probat ion, th e trial c ourt has the a uthority to revoke probation. Tenn. Code Ann. § 40-35-311(e). Once the trial court makes suc h a finding, it is vested w ith the sta

tutory au thority to “revoke the probation and suspensio n of sente

nce and cause the defenda

nt to comme

nce the e xecution of the jud

gment a s originally e ntered . . . .” Id. When probation is revoked, “the original judgment so rendered by the trial judge shall be in f ull force and effect from the date of the revoc ation of such suspension . . . .” Id. § 40-35-310.1 A transcri pt of t he Defendant’s guil ty plea pr oceeding is not incl uded in the r eco rd. How ever, the trial court indi cate d at t

he probat

ion re vocati on heari ng that it had give n the Def

endant such a war ning.
-4- The decision to revoke probation is in the sound discretion of the trial judge. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The judgment of the trial court to revoke probation will be upheld on appeal unless there has been an a buse of discretion. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation revocation case, the record must be void of any substantial evidence that would support th

e trial c ourt’s decision tha t a violation of the conditions of probation occurred. Id. ; State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978); State v. D elp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows the trial court to make a conscientious and intelligent jud gmen t. State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).

The Defendant’s probation offi ce r testified at the probation revocation hearing that the Defendant

tested positive for cocaine use in a r andom dru g scre en. An af fidavit from the laboratory which conducted that test supported the probation officer’s testimony

and was entered into evidence. This is sufficient proof to allow the trial court to make a conscientious an d inte lligent j udgmen t. Alth ough the Defendant denied taking any kind of illegal drugs, the

trial judge obviously discredited the Defendant’s testimony

. On appeal, the Defendant challeng es the accuracy and reliabil i ty of the drug screening process. We note, however, that the laboratory test was introduced

pursuant to and in compliance with Tennessee Code Annotated § 40-35-31 1(c)(1 ), which sets fort h specif ic requi rements for the admissibility

of laboratory

reports regarding a

defendant’s drugt est in a probation revocation procee ding. At the hearin g, the Defendant presented no evidence contesting the accuracy

and reliabil ity of the drug screening pr

ocess other than his denial of drug usag e. This issue is without merit.

The Defend ant furth er arg ues, howe ver, tha t the tria l court e rred by orderin g him to se

rve his full sentence. He relies upon a comment byth e t ri al ju dg e t ha t o nc e i t w as sh ow n b y a preponderance

of the evidence that the Defendant had violated probation, the judge’s “ hands were tied.” The Def

endant c ontends th at this com ment indic ates th at the co urt proceeded under the assumption that it had

no discre tion in ord

ering t he Defe ndant toserv e his s entence i n cus tody . We respec tfully

disagree. I

n commenting that its “hands were tied,” the trial court apparently

referred to a prior w arning

it had given the Defendant that if he violated his probation, he would be ordered to serve the remainder of hi s sentenc e incu st od y. 1 The trial court heard evidence pertaining to the Defendant’s pr io r c ri mi na l h is to ry, including evidence of a history of alcohol and drug abuse by the Defend ant. The cour

t then ac ted well within its discretion in revoking the Defendant’s proba tion and ordering the Defe

ndant tose rv e h is se nt en ce in cu st od y. We find no abuse of discretion by the trial court. Accordingly , we AFFI RM the judgment of the trial court.-5- ___________________________________ ROBERT W. WEDEMEYER, JUDGE