         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 18, 2002

                     STATE OF TENNESSEE v. ERIC T. DAVIS

                   Appeal from the Circuit Court for Montgomery County
                     Nos. 37362A, 38578 John H. Gasaway, III, Judge



                 No. M2002-00035-CCA-MR3-CD - Filed December 20, 2002


Eric T. Davis appeals the Montgomery County Circuit Court’s revocation of his probationary
sentences and order that he serve the sentences as originally imposed in the Department of
Correction. He claims that the lower court erred in finding that he committed a criminal offense
based upon the uncorroborated testimony of a law enforcement informant. Because we are
unpersuaded of error, we affirm.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which THOMAS T. WOODA LL,
J., joined. ROBERT W. WEDEMEYER , J., not participating.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Eric T. Davis.

Paul G. Summers, Attorney General & Reporter; Helena Walton Yarbrough, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and C. Daniel Brollier, Jr., Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

               On January 29, 1997, the defendant was adjudicated guilty upon his plea to the
offense of robbery. He received a six-year probationary sentence. He was found guilty, again upon
his plea, of the offense of possession of cocaine with intent to sell on July 17, 1998. He was
sentenced to serve eight years on probation consecutively to the sentence in the robbery case.

                On August 23, 1999, a probation violation warrant issued which alleged that he had
violated his probation in both cases by incurring new charges of assault and domestic assault, failing
to pay his supervision fees, and failing to pay his costs and fines. The warrant was amended on
February 14, 2000, to allege the additional basis that he had incurred a new charge in the federal
system for possession of five grams of cocaine with intent to sell or deliver.
               After many delays,1 a hearing was conducted in July 2001. At that time, the state
announced its intention to seek revocation only upon the basis of the federal drug charge. The only
evidence presented was that of a law enforcement informant who testified about the drug transaction
with the defendant that formed the basis of the federal charge.

               Lewis Spencer testified that he had known the defendant for ten to fifteen years. In
the Fall of 1999 and Winter of 2000, Spencer was involved in an undercover drug operation in
conjunction with the DEA and the Clarksville Police Department. As part of that operation, Spencer
arranged for the defendant to sell him two and one-half ounces of crack cocaine for $3,000. The
transaction was consummated at a lounge in Clarksville. On cross-examination, Spencer
acknowledged having one prior drug conviction and one prior theft conviction. He also admitted
that he received over $50,000 from law enforcement agencies for his services as an undercover
operative.

                At the conclusion of proof, the court found by a preponderance of the evidence that
the defendant committed the crime of selling cocaine. The court noted that the defendant had been
given the opportunity to rehabilitate himself while on probation but had failed to do so. Based on
those findings, the court found the defendant in violation of probation and ordered him to serve the
balance of his effective fourteen-year sentence in the Department of Correction.

                 On appeal, the defendant alleges error in the lower court’s finding of a probation
violation. The standard of review upon 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 an abuse of
discretion to occur, the reviewing court must find that the record contains no substantial evidence
to support the conclusion of the trial judge that a violation of the terms of probation has occurred.
Id. at 82; State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The trial court is required
only to find that the violation of probation occurred by a preponderance of the evidence. Tenn. Code
Ann. § 40-35-311(e) (Supp. 2001). Upon finding a violation, the trial court is vested with the
statutory authority to "revoke probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered." Id. Furthermore, when probation
is revoked, "the original judgment so rendered by the trial judge shall be in full force and effect from
the date of the revocation of such suspension." Tenn. Code Ann. § 40-35-310 (1997). The trial
judge 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).

               The defendant advocates that we find fault with the lower court’s determination that
he had violated his probation based upon the quantum of the state’s proof at the revocation hearing.
He argues first that we should not accept as sufficient proof Lewis Spencer’s testimony that the
substance he bought from the defendant was cocaine. The defendant posits that Spencer was not
shown to have any expertise in drug testing or identification, and the state failed to offer any other
proof of the chemical composition of the substance. Second, the defendant attacks Spencer’s


       1
           Apparently, the delays were occasioned at the request of the federal prosecutor.

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credibility based upon his past criminal record and his status as a paid informant. Finally, the
defendant claims that we should find fault with the state’s case because it failed to offer proof that
the defendant was actually on probation at the time of the drug transaction with Spencer or that the
alleged actions violated the probationary terms.

                Having considered these arguments, we are unpersuaded. It must be remembered,
of course, that the standard of proof in a probation revocation proceeding is that of preponderance
of the evidence. Tenn. Code Ann. § 40-35-311(e) (Supp. 2001). Thus, the level of proof necessary
to sustain a probation violation allegation is considerably less than the beyond-a-reasonable-doubt
standard applicable to conviction proceedings. In this regard, the state presented a preponderance
of proof that the defendant violated his probationary terms by committing a criminal offense.

                 The lower court accredited Lewis Spencer’s testimony, as was its prerogative as the
trier of fact. Despite his apparent shortcomings in that he was a convicted felon and paid informant,
Spencer gave testimony which the trial court found credible. Moreover, the court could infer from
Spencer’s background that he was familiar with crack cocaine and identified the substance he
purchased from the defendant as such.2 Additionally, if Spencer’s testimony is accredited, the
defendant clearly entered into an agreement to sell crack cocaine. Even if the substance was
counterfeit, the evidence nevertheless supports a finding that the defendant committed a crime. See
generally Tenn. Code Ann. § 39-17-423 (1997) (sale of counterfeit controlled substance). Finally,
the state was not deficient in failing to present proof that the defendant was on probation and that
the commission of a crime was a violation thereof. The record contains the judgments for the two
conviction offenses, from which it may be readily computed that the defendant was in his
probationary term at the time of the new drug offense. The probation orders setting forth the terms
of probation are likewise in the record. Just as these documents are before us in the appellate record,
they likewise would have been before the lower court inasmuch as they bear file stamps from the
trial court clerk.

               We conclude, therefore, that the defendant violated the terms of his probation.
Moreover, we see no error, and the defendant does not allege any, in the trial court’s order placing
the original incarcerative sentences into effect.3 Given the magnitude of the new offense the
defendant committed, any other more lenient result seems inadequate.

         2
          The defendant claims that under State v. Deloit, 964 S.W.2d 909, (Tenn. Crim. App. 1997) and Pru itt v. State,
393 S.W.2d 747 (Tenn. 1965), a lay witness may not offer testimony ab out scientific test or results. Ho wever, in this
case, Spencer did not purport to offer proof or interp retation of scientific evidence. H e merely testified, without
objection, that the sub stance was cra ck co caine, and his over all proof demonstrated that he was in a position to be
familiar with the identification, at least through street knowledge, of crack cocaine. Given these circumstances, we are
untroubled by the lower court’s reliance on Spencer’s testimony as proof that the defendant sold Spencer crack cocaine.

         3
           The defendant can be revoked on both consecutive sentences even though he hasn’t yet started serving the
second of the two. See Sta te v. Eric William Sanders, E1999 -00345-CC A-R3-CD (Tenn. Crim. App., Knoxville, Jan.
10, 200 1); State v. Sm ith, 909 S.W.2d 471, 473 (Tenn. Crim. App. 199 5); State v. Stone, 880 S.W .2d 746, 748 (Tenn.
Crim. App. 1994 ).



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The lower court is affirmed.



                                     ___________________________________
                                     JAMES CURWOOD WITT, JR., JUDGE




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