       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                        Assigned on Briefs February 9, 2016


         STATE OF TENNESSEE v. TERRY EUGENE FISHER, JR.

               Appeal from the Criminal Court for Davidson County
                   No. 2013-B-1267     Steve R. Dozier, Judge




              No. M2015-01388-CCA-R3-CD – Filed February 12, 2016
                       _____________________________

Terry Eugene Fisher, Jr. (“the Defendant”) pleaded guilty to robbery and was sentenced
to nine years’ probation. Thereafter, the Defendant’s probation was revoked based on the
accrual of new charges, including a charge for a homicide that occurred prior to the
Defendant’s being placed on probation. On appeal, the Defendant contends that the trial
court erred when it revoked probation based on criminal conduct that occurred prior to
the Defendant’s being placed on probation. Discerning no error, we affirm the judgment
of the trial court.

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

ROBERT L. HOLLOWAY, JR. J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and ALAN E. GLENN, JJ., joined.

Nicholas McGregor, Nashville, Tennessee, for the appellant, Terry Eugene Fisher, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Glenn Funk, District Attorney General; and Chris Buford, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                       I. Factual and Procedural Background

      The Davidson County Grand Jury indicted the Defendant with one count of
aggravated robbery that occurred on January 24, 2013. The Defendant pleaded guilty to
robbery on March 31, 2015. The judgment of conviction, entered nunc pro tunc to May
1, 2015, shows that the Defendant was sentenced to nine years’ “intensive” probation,
effective May 1, 2015. On June 15, 2015, the Board of Probation and Parole filed a
violation of probation affidavit, alleging that the Defendant was arrested on June 12,
2015, for tampering with evidence and evading arrest. On June 29, 2015, the Board of
Probation and Parole filed another violation of probation affidavit against the Defendant,
alleging that the Defendant was charged with homicide on June 25, 2015.

        At the probation revocation hearing, Detective Andrew Chouanard, of the Metro
Nashville Police Department, testified that he was the lead detective assigned to the
investigation of the death of Mr. Andrea Cooper, who died on January 8, 2015. Detective
Chouanard stated that DNA evidence was collected from the crime scene and sent to the
Tennessee Bureau of Investigation (“TBI”) for testing. The DNA results were returned
on May 22, 2015, and matched the DNA of the Defendant. At that point, the Defendant
became a suspect in the crime. Detective Chouanard also stated that Mr. Cooper’s
girlfriend was present at the scene and had identified the Defendant from a photo lineup.
Detective Chouanard stated that he prepared and administered the photo lineup after the
TBI had returned the DNA results matching the DNA found at the scene to the
Defendant.

       The Defendant also conceded that he had pleaded guilty to evading arrest and
received a twenty-day sentence.1 The trial court indicated from the bench that, although
the homicide occurred prior to the Defendant’s sentencing hearing, the court was not
aware of the homicide charges when it sentenced the Defendant to probation. The trial
court found that the preponderance of the evidence showed that the Defendant committed
the homicide and that he pleaded guilty to evading arrest. Therefore, the trial court
revoked the Defendant’s probation. This timely appeal followed.

                                             II. Analysis

      On appeal, the Defendant argues that the trial court could not revoke his probation
based upon the homicide charge because the homicide occurred prior to the Defendant’s
being placed on probation. The State argues that the trial court properly considered the
criminal homicide charges to revoke the Defendant’s probation because the trial court
was not aware of the charges at the time the Defendant was placed on probation. We
agree with the State.

       Upon a finding by a preponderance of the evidence that a defendant has violated a
condition of his or her probation, a trial court may revoke probation and order the
imposition of the original sentence. Tenn. Code Ann. §§ 40-35-310, -311 (2014); State v.
Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810

      1
          The record does not indicate when the Defendant pleaded guilty to evading arrest.
                                                  -2-
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling
on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse
of discretion, a defendant must show that there is “no substantial evidence” in the record
to support the trial court’s determination that a violation of probation has occurred. Id.
Proof of a violation does not need to be established beyond a reasonable doubt. State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, if a trial court finds by a
preponderance of the evidence that a violation has occurred, the court may revoke the
probation and suspension of the sentence. Tenn. Code Ann. § 40-35-311(e) (2014).

       Due process requires that, before penal sanctions can be imposed, a person must
have reasonable notice of the conduct that is prohibited. State v. Stubblefield, 953
S.W.2d 223, 225 (Tenn. Crim. App. 1997). Generally, a trial court cannot revoke a
defendant’s probation based on violations of probation conditions that occurred before
such conditions were set. Id.

       However, revoking probation based upon criminal acts a defendant
       committed before being placed on probation does not implicate these due
       process concerns because, unlike other conditions of probation that may be
       imposed, the defendant is deemed to have notice that his or her conduct
       must conform to the requirements of the law from the time of the law’s
       enactment.

Id. This court has previously stated that a trial court may revoke a defendant’s probation
for criminal acts that the defendant committed before he received the probationary
sentence “if the trial court was without knowledge of the other criminal acts when it
imposed the sentence.” Id. (citing State v. Deloris Jean Click Signoracci, No. C-2681,
1981 WL 388073 (Tenn. Crim. App. Jan 27, 1981)).

        Upon finding a violation, the trial court is vested with the statutory authority to
revoke the probation and suspension of sentence and “[c]ause the defendant to commence
the execution of the judgment as originally entered.” Tenn. Code Ann. § 40-35-
311(e)(1)(A). Furthermore, when probation is revoked, the trial judge may order “the
original judgment so rendered to be in full force and effect from the date of the
revocation of the suspension.” Tenn. Code Ann. § 40-35-310(a). The trial court retains
the discretionary authority to order the defendant to serve the original sentence. See State
v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).




                                           -3-
       In this case, the judgment states that the Defendant was sentenced to probation
effective May 1, 2015.2 Mr. Cooper was killed on January 8, 2015. However, Detective
Chouanard testified at the probation revocation hearing that the Defendant was not
developed as a suspect in Mr. Cooper’s death until May 22, 2015, when the TBI results
matched the DNA found at the crime scene to the Defendant’s DNA. Additionally, Mr.
Cooper’s girlfriend did not identify the Defendant in a photo lineup until after May 22,
2015. The trial court indicated that it was not aware of the homicide charge against the
Defendant at the time it placed the Defendant on probation and found that the
preponderance of the evidence showed that the Defendant was “involved in” the
homicide because testimony showed that the Defendant was present at the scene of
offense and the Defendant’s DNA was on the victim’s clothing. Further, the trial court
found that the Defendant had pleaded guilty to evading arrest. Therefore, the trial court
did not err by considering the homicide charge as evidence of a violation of a rule of
probation. The trial court did not abuse its discretion when it revoked the Defendant’s
probation based upon a new conviction for evading arrest and a charge of homicide.

                                           III. Conclusion

        For the aforementioned reasons, the judgment of the trial court is affirmed.



                                                         _________________________________
                                                         ROBERT L. HOLLOWAY, JR., JUDGE




        2
          In his brief, the Defendant cites to the sentencing hearing transcript and asserts that the trial
court conducted a sentencing hearing on May 1, 2015. We note that the sentencing hearing transcript is
not included in the record on appeal.
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