             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                               AT KNOXVILLE
                                                                  October 11, 1999

                            AUGUST 1999 SESSION                  Cecil Crowson, Jr.
                                                                Appellate Court Clerk




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




FOR THE APPELLANT:                     FOR THE APPELLEE:

DAVID NEAL BRADY                       PAUL G. SUMMERS
District Public Defender               Attorney General & Reporter

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




OPINION FILED: ________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                      OPINION


       The defendant, David Howard Proffitt, pleaded guilty to aggravated assault on

December 3, 1995 in the Cumberland County Criminal Court. He was sentenced to six

years to be served in the community corrections program. The defendant was charged

with driving under the influence on June 13, 1998. As a result of this offense, a violation

warrant was issued June 19, 1998. A second violation warrant was issued July 30, 1998,

because the defendant was indicted for theft of a dump truck. A revocation 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 defendant timely appealed.

Based on our review of this matter, we affirm the decision of the trial court.



       The defendant raises two issues on appeal:

              I. Whether the trial court erred in violating the defendant’s
                 probation for allegedly committing the offense of driving
                 under the influence and theft over $10,000 when the
                 State failed to establish these violations by a
                 preponderance of the evidence.

              II. Whether the 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

aggravated assault. According to the judgment, he was granted probation and placed

effective “immediately” into the community corrections program.                The community

corrections order, dated that same day, lists a number of conditions by which the

defendant was to abide. Among these were the following:

              3)   not use intoxicants of any kind or use narcotic drugs;
                   marijuana included; or visit places where intoxicants
                   or drugs are unlawfully sold, disbursed or used.

              10) obey the laws of the United States or any State in
                  which he/she may be as well as any local
                  ordinances.



       Immediately above the defendant’s signature on this form is stated the following:



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              Violation of any of the terms of the Community Corrections
              sentence may be sufficient cause for revocation of Community
              Corrections. The expiration date of this Community Corrections
              sentence is the 5th day of December, 2001.

              I have read or have had read to me, the conditions of my
              Community Corrections Sentence. I fully understand them and
              agree to comply with them. I hereby waive all extradition rights
              and process and agree to return to Tennessee if at any time
              during my Community Corrections Sentence the Trial Judge
              directs me to do so.



       On January 8, 1997, the trial court entered an order interrupting the participation of

the defendant in the community corrections program, and ordering that he be on

supervised probation with the State of Tennessee Probation Office in Cumberland County.

It was while he was under the supervision of that office that the two violation of probation

warrants were filed.



       The standard of review upon an appeal 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 be warranted in finding an abuse of discretion in a probation revocation

case, it must be established that the record contains no substantial evidence to support the

conclusion of the trial judge that a violation of the conditions of probation has 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 revoke the defendant’s probation. Tenn.

Code Ann. § 40-35-311(e) (1997). Proof of a violation is sufficient if it allows the trial judge

to make a conscientious and intelligent judgment. State v. Smith, 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

for DUI. Crossville Police Officer Phillip Seiber testified that he charged the defendant with

DUI and violation of implied consent. Officer Seiber stated that he stopped the defendant

because the defendant was driving with an expired tag. When the defendant got out of the

car, the officer smelled a strong odor of alcohol. The defendant failed to pass several field



                                               3
sobriety tests. When taken into custody, the defendant refused to take a blood alcohol test

and told the officer he had been drinking at a bar. At the time of the revocation hearing,

the defendant had been convicted on the DUI charge.



       Tennessee Bureau of Investigation Agent Tommy Callahan testified the defendant

was in possession of a stolen 1996 dump truck valued at $84,000. According to Agent

Callahan the stolen truck’s vehicle identification number (VIN) had been altered. The

stolen 1996 truck was identified by its secondary identification numbers. The VIN plate

had been removed and replaced with a VIN plate for a 1977 model Ford L 90 purchased

by the defendant. The defendant 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 probation

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. Crim. App. 1997). Pending charges can also

be the basis for a revocation of probation. See State v. Adams, 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 charge arising from the conduct. State v.

Delp, 614 S.W.2d 395 (Tenn. Crim. App. 1980).



           The defendant was convicted on a DUI charge. He was 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 evidence.




       1
     Although the defendant argued the terms of his probation were not placed in evidence, the
community corrections order listing the conditions of his probation was placed in the record.

                                              4
     For the foregoing reasons, we affirm the decision of the trial court.




                                        ________________________________________
                                        ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JOSEPH M. TIPTON, JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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