         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 6, 2009

               STATE OF TENNESSEE v. LONTRELL WILLIAMS

                  Direct Appeal from the Criminal Court for Shelby County
                         No. 04-05980    John T. Fowlkes, Jr., Judge



                  No. W2009-00275-CCA-R3-CD - Filed October 30, 2009


The defendant, Lontrell Williams, appeals the revocation of his probation, arguing that the trial court
applied an incorrect legal standard when finding that he had violated the terms of his probation. He,
therefore, requests that this court remand for a new probation revocation hearing. The State
concedes that the trial court applied an incorrect standard and joins in the defendant’s request for a
new revocation hearing under the appropriate standard. We agree that the trial court erroneously
based the revocation of the defendant’s probation on a probable cause, rather than a preponderance
of the evidence, standard. Accordingly, we reverse the judgment of the trial court and remand the
case for a new probation revocation hearing.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and
                                        Remanded

ALAN E. GLENN , J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
CAMILLE R. MCMULLEN , JJ., joined.

Howard L. Wagerman, Memphis, Tennessee, for the appellant, Lontrell Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Theresa McCusker, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                               FACTS

        In 2006, the defendant pled guilty in the Shelby County Criminal Court to accessory after
the fact, a Class E felony, and was sentenced by the trial court to one year in the county workhouse,
with the sentence immediately suspended and the defendant placed on supervised probation. On July
20, 2007, the defendant was arrested and charged with being a felon in possession of a firearm and
several felony drug offenses. As a result, a probation violation warrant was issued on him in
September 2007.

        At the January 15, 2009, probation revocation hearing, Detective Kittrel Robinson of the
Memphis Police Department testified as follows. In July 2007, he and his fellow officers executed
a narcotics search warrant at 784 Porter, apartment three, which was a location they had been
investigating for drug trafficking since early June. He was the first man through the door, and as he
started up the stairs, he saw a man “r[u]n from the apartment on the left to an apartment on the
right.” As he proceeded forward, he heard the sound of breaking glass and people saying, “Go man,
go.” At about that time, a 75-pound pit bull came rushing from around the corner toward him. He
shot the animal three times, and it retreated into the kitchen of the apartment, where it later died. He
and his fellow officers repeatedly told the defendant, who was the only person in the kitchen at the
time, to come out and show them his hands. After approximately fifteen seconds, the defendant
finally complied. A broken window and broken glass and a tennis shoe on the kitchen floor
indicated to Detective Robinson that someone had jumped out of the kitchen window.

        Detective Robinson further testified that the officers found the following items in the
apartment: 12.5 grams of a substance that field-tested positive for cocaine; eight pounds of a
substance that field-tested positive for marijuana; two digital scales found on the kitchen counter;
a box of nine millimeter ammunition, also on the kitchen counter; a “rockin’” [sic] tool used to cook
crack cocaine; a measuring cup; and a Smith and Wesson weapon found on the living room couch.
In addition, the officers found approximately $10,000 in cash in one of the defendant’s front pockets.

        On cross-examination, Detective Robinson insisted that both the defendant and his cousin,
Rico Johnson, were the subjects of their investigation, but he acknowledged that Johnson was the
only one named in the search warrant. He testified that the officers executed the warrant
immediately after seeing Johnson enter the apartment with a black bag. He said that Johnson was
the man who ran between the apartments when they entered the building. Finally, he acknowledged
that he never saw the defendant trying to escape out the kitchen window or otherwise attempting to
flee.

        The defendant’s probation officer, Debra Taylor, testified that she filed a probation
revocation report on the defendant in August 2007, primarily based on his new arrest. The defendant
owed $45 in court costs at the time the report was filed and she did not know whether that had been
paid, but the defendant was current with his fees. The defendant had reported the arrest on August
3, 2007, and, prior to his arrest, had regularly reported to her office. There were a few times when
he did not show up on his scheduled report date, but he always reported the next day and she
therefore did not count those times as not reporting. Since his arrest, the defendant had continued
to report but had missed two months. Taylor testified that the defendant reported that he was self-
employed as the owner of a music business called “Mob Ties,” and that he had provided her with
a copy of his business license, which expired on July 1, 2007, but that he never provided her with
proof of his income.




                                                  -2-
        On cross-examination, Taylor acknowledged that the defendant had basically been a good
probationer and that the last time she had checked, he was in compliance with the “Federal pretrial
office,” where he was required to report twice a month and to undergo regular drug screening.

         Audrea Tillman, the mother of the defendant’s fiancée and a preschool teacher at the school
that the defendant’s son attended, testified that the defendant dropped his son off at the school every
morning, picked him up each evening, and consistently attended the school’s monthly parents’
meetings. She stated that the defendant owned and worked at a record company called “Mob Ties,”
and she agreed that he often had “cash money around.”

       Marquita Thomas, the defendant’s fiancée, testified that she and the defendant, who had been
together seven years, lived together with the defendant’s son from a previous relationship and the
couple’s two children. She said that the defendant owned his own record label, went to work every
day, and was home regularly in the evenings.

       Laveshia Williams testified that she had worked almost four years in public relations for the
defendant at Mob Ties Records. She said that they were “always busy,” with a show or event every
weekend in the southern tri-state area.

       After reciting the evidence presented at the hearing, the trial court revoked the defendant’s
probation based on a finding that there was probable cause that he had committed the offenses with
which he had been charged. The trial court summarized its findings as follows:

              So based upon all of the evidence that has been presented, the nature of the
       evidence and the circumstances under which he was taken into custody, I have to find
       probable cause to believe that he has violated the terms of probation.

              And because of that the petition to revoke the suspended sentence has to be
       granted.

                                            ANALYSIS

        A trial court is granted broad authority to revoke a suspended sentence and to reinstate the
original sentence if it finds that “the defendant has violated the conditions of probation and
suspension by a preponderance of the evidence.” Tenn. Code Ann. § 40-35-311(e) (2006) (emphasis
added). A trial court may properly base a revocation of probation on the fact that a defendant has
been arrested while on probation and has pending charges, provided that the State has produced
evidence to establish that the defendant committed the offense with which he has been charged. See
State v. Sandra Davidson, No. M2008-01260-CCA-R3-CD, 2009 WL 1162730, at *3 (Tenn. Crim.
App. Apr. 30, 2009) (citing State v. Harkins, 811 S.W.2d 79, 83 n.3 (Tenn. 1991); State v. Walter
Lee Ellison, Jr., No. 01C01-9708-CR-00361, 1998 WL 272955, at *2 (Tenn. Crim. App. May 29,
1998); State v. Michael Chaney, No. 01C01-9801-CC-00010, 1999 WL 97914, at *1 n.2 (Tenn.
Crim. App. Feb. 18, 1999)). Because the trial court in this case did not find by a preponderance of
the evidence that the defendant had violated the terms of his probation by committing the new
offenses, we reverse the judgment of the trial court and remand for a new revocation hearing.

                                                 -3-
                                        CONCLUSION

       Based on the foregoing authorities and reasoning, we reverse the judgment of the trial court
and remand the case for a new probation revocation hearing.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




                                                -4-
