         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 14, 2004

        STATE OF TENNESSEE v. FERNANDO DEANDRA VAUGHN

                 Direct Appeal from the Criminal Court for Sumner County
                          No. 782-2000    Jane Wheatcraft, Judge



                  No. M2004-00552-CCA-R3-CD - Filed February 16, 2005


The defendant, Fernando Deandra Vaughn, appeals the revocation of his probation, arguing that the
trial court erred by not waiting for the disposition of the drug charges against him before revoking
his probation on the basis of those charges. Following our review, we affirm the judgment of the
trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE , P.J., and JAMES
CURWOOD WITT , JR., J., joined.

Charles R. Bobbitt, Jr., Hendersonville, Tennessee, for the appellant, Fernando Deandra Vaughn.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
Lawrence R. Whitley, District Attorney General; and Dee Gay, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

        From what we have been able to glean from the sparse record on appeal, the defendant
entered best interest guilty pleas on January 31, 2001, to one count of aggravated assault and one
count of attempted aggravated robbery, both Class C felonies, for which he was sentenced as a Range
II, multiple offender to concurrent terms of six years in the Department of Correction, with the
sentences suspended and the defendant placed on five years of supervised probation following
service of twelve months in the Sumner County Jail. The judgment forms for these convictions
reflect that the defendant was ordered to serve the sentences consecutively to a sentence in another
case, and the defendant’s total period of probation was apparently eleven years.1

         On September 2, 2003, a probation violation warrant was filed on the defendant alleging he
had been arrested on August 29, 2003, and charged with possession of a Schedule II drug with the
intent to sell and the introduction of a Schedule II drug into a penal institution. Two witnesses
testified at the defendant’s January 12, 2004, revocation hearing: the police officer who arrested the
defendant on the drug charges and the correctional officer who discovered the drugs on the
defendant’s person during his strip search at the jail.

        Gallatin Police Officer John Birdwell testified the defendant’s drug arrest occurred as the
result of a citizen complaint about drug activity occurring at 344 Union Park, a location where there
was a “letter of no trespass” in effect, or a request from the property owner that the police department
enforce the trespassing laws on the property. When Officer Birdwell arrived at that location, the
defendant, who matched the description of the drug suspect, was sitting in a lawn chair in the
driveway of the residence. After first ascertaining that the defendant had no business on the
property, officers searched in a fence row five to ten feet from where the defendant was sitting and
found a clear plastic bag containing one-and-one-half grams of crack cocaine, “in the exact spot that
the complainant said it would be in.” Officer Birdwell testified he cited the defendant for
trespassing, arrested him for possession of a Schedule II drug for resale, and transported him to the
jail, where 4.7 grams of a substance that field-tested positive for crack cocaine was found during the
routine strip search of the defendant’s person. Officer Birdwell stated he patted the defendant down
before placing him in his patrol car and warned him before taking him into the jail that it was a
felony to bring drugs into the jail. He said he also asked the defendant if he had any more drugs
concealed on his person, and the defendant told him he did not. On cross-examination, Officer
Birdwell acknowledged the residence where he arrested the defendant was in a known drug area and
there was another individual present when he arrived at the scene.

        Officer Predrag “Boz” Pajdak, a correctional officer with the Sumner County Sheriff’s
Department, testified that he and a fellow correctional officer found 4.7 grams of crack cocaine
concealed in the defendant’s buttocks as they strip-searched him following his August 29, 2003,
arrest. According to Officer Pajdak, the defendant was asked three different times upon his entry
into the jail if he had any drugs, drug paraphernalia, or weapons, and each time he replied that he did
not. Officer Pajdak testified that no drugs were found in the defendant’s pockets, but when the
defendant eventually complied with their repeated instructions to bend over, spread the cheeks of
his buttocks, and cough, he saw and removed a plastic bag of white powder from the defendant’s
buttocks, which was subsequently identified as containing 4.7 grams of crack cocaine.



         1
          The probation violation warrant filed on the defendant states that he was convicted of attempted aggravated
robbery, aggravated assault, and theft over $10,000, and was sentenced to eleven years probation. In addition, at the
probation revocation hearing, the trial court stated that the defendant “was placed on probation on January 31, after
having received a composite sentence of 11 years.”

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       Based on the officers’ testimony, the trial court found that the defendant had violated the
terms of his probation by his arrest on drug charges. Accordingly, the court revoked the defendant’s
probation and ordered that he serve his sentences as originally imposed.

                                             ANALYSIS

        The defendant contends that the trial court erred by not waiting for the disposition of his drug
charges in criminal court before revoking his probation. In essence, he argues that our current
procedure, by which a trial court may revoke a defendant’s probation upon a finding that the
defendant violated its terms by a preponderance of the evidence, is unfair to a defendant, who “could
be framed for a crime that he did not commit, have his probation revoked, be sent to prison and then
be acquitted.” The State argues that it was clearly established by a preponderance of the evidence,
the standard of proof required for a revocation of probation, that the defendant violated his probation
by his possession of cocaine. We agree with the State.

         A trial court is granted broad authority to revoke a suspended sentence and to reinstate the
original sentence if it finds by the preponderance of the evidence that the defendant has violated the
terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311
(2003). The revocation of probation lies within the sound discretion of the trial court. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim.
App. 1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse
of discretion in a probation revocation case, “a defendant must demonstrate ‘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.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)).

         Although the defendant might wish otherwise, the proof of a probation violation need not be
established beyond a reasonable doubt but is, instead, sufficient if it allows the trial court to make
a conscientious and intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v. Milton, 673
S.W.2d 555, 557 (Tenn. Crim. App. 1984)). While a trial court may not rely upon a mere arrest or
accusation to revoke probation, id. at 83 n.3, it may properly revoke a defendant’s probation upon
a finding by a preponderance of the evidence that the defendant has committed a breach of the laws
of this state, see Tenn. Code Ann. § 40-35-311(a), (b), (e) (2003). Before revoking the defendant’s
probation, the trial court heard testimony from the arresting police officer about the circumstances
surrounding the defendant’s arrest, including the fact that the defendant was discovered trespassing
on property on which the owner had signed a letter of no trespass with the police department, that
the defendant matched the description of an individual a citizen had reported to be involved in drug
activity at that location, and that a bag containing one-and-one-half grams of crack cocaine was
found in a fence row near where the defendant was sitting, in the exact location the citizen informant
said he had seen the defendant drop it. Furthermore, the court also heard detailed testimony from
one of the two correctional officers who strip-searched the defendant following his arrival at the jail
about the exact circumstances and location in which the officers found another bag of cocaine hidden



                                                  -3-
on the defendant’s body. This proof was clearly sufficient to show by a preponderance of the
evidence that the defendant had violated the terms of his probation.

         The defendant argues it would not have inconvenienced the trial court to wait for the
disposition of his pending drug charges before revoking his probation and would, moreover, “have
guaranteed that an innocent man would not be unjustly incarcerated.” However, he has apparently
lost sight of the fact that the incarceration resulting from his revocation of probation is not a
punishment for his still-pending drug charges but is, instead, a return to the original sentences he
received in the Department of Correction for his 2001 convictions. Probation is a privilege, not a
right, see State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), which the defendant lost
by the criminal behavior he displayed on August 29, 2003. Consequently, we find no abuse of
discretion by the trial court in revoking the defendant’s probation.

                                          CONCLUSION

       Based on our review of the record, we conclude that the trial court did not abuse its discretion
in revoking the defendant’s probation. Accordingly, the judgment of the trial court is affirmed.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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