         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 19, 2002

                STATE OF TENNESSEE v. DERRICK S. CHANEY

                Direct Appeal from the Circuit Court for Williamson County
                         No. II-22-201   Timothy L. Easter, Judge



                      No. M2002-00057-CCA-R3-CD - Filed July 31, 2002


The Defendant pleaded guilty to first offense DUI, for which he was sentenced to eleven months and
twenty-nine days incarceration, suspended after service of forty-eight hours; and to driving with a
suspended, cancelled, or revoked license, for which he was sentenced to six months incarceration,
suspended after service of forty-eight hours. The trial court ordered that the two sentences be served
concurrently. The Defendant was subsequently arrested for probation violation, and the trial court
conducted a hearing to determine whether the Defendant’s probation should be revoked. At the
conclusion of the hearing, the trial court ordered that the Defendant serve the remainder of his
sentences in custody. The Defendant appeals this decision, arguing that the State failed to prove by
a preponderance of the evidence that he had violated his probation and that the trial court erred by
ordering him to serve his full sentence in custody. We conclude that sufficient evidence was
presented at the hearing to support revocation of the Defendant’s probation and that the trial court
did not err by ordering the Defendant to serve his sentence in custody. We thus affirm the judgment
of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID G. HAYES and ALAN
E. GLENN, JJ., joined.

Gene Honea, Assistant Public Defender (on appeal), and John H. Henderson, Jr., District Public
Defender, Franklin, Tennessee (at trial), for the Appellant, Derrick S. Chaney.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Derek K. Smith, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

        In August 2001, the Defendant, Derrick S. Chaney, pleaded guilty to first offense DUI and
to driving with a suspended, cancelled, or revoked license. For the DUI conviction, the trial court
sentenced the Defendant to eleven months and twenty-nine days incarceration, suspended after
service of forty-eight hours. The trial court ordered the Defendant to pay a $350 fine and to attend
Alcohol Safety School; the court also suspended the Defendant’s license for a period of one year.
For the driving with a suspended, cancelled, or revoked license conviction, the trial court sentenced
the Defendant to six months incarceration, suspended after service of forty-eight hours. The trial
court ordered that the two sentences be served concurrently.

        On November 9, 2001, a warrant issued against the Defendant, alleging that he had violated
the conditions of his probation by testing positive for cocaine use on October 2, 2001. A probation
violation hearing was subsequently held on December 17, 2001, at which the following evidence was
presented: Julie Oden, the Defendant’s probation officer, testified that she began supervision of the
Defendant on August 30, 2001. She stated that she completed an initial interview of the Defendant,
at which time she explained the rules of probation to the Defendant and gave him a written copy of
the rules of probation. Oden stated that one of the rules expressly prohibited the Defendant from
using intoxicants of any kind to excess and from using or possessing narcotic drugs or marijuana.
According to Oden, the Defendant signed a document indicating his agreement to adhere to the rules
of probation.

         Oden reported that on October 2, 2001, the Defendant tested positive for cocaine use during
a random drug screen. Oden testified that the test was performed by Redwood Toxicology
Laboratory in California, and an affidavit by the chief toxicologist of the laboratory, in which the
toxicologist stated that cocaine was found in the Defendant’s urine, was entered into evidence at the
hearing. Oden stated that the Defendant denied having a drug problem, and she reported that prior
to taking the test, the Defendant denied in writing that he had ever used drugs of any kind. Oden
testified that on November 9, 2001, she swore out a warrant for the Defendant’s arrest for violation
of the conditions of probation.

         The Defendant testified on his own behalf at the probation revocation hearing. He reported
that he was twenty-nine years old at the time of the hearing. He also testified that he was divorced
and that he had a four-year-old daughter. The Defendant stated that at the time of his arrest for
violation of probation, he was working for a temporary agency, but planned to start work at his
father’s business.

        The Defendant maintained that he had never used cocaine, marijuana, or other illegal drugs.
He stated that he could not explain the results of his drug screen. The Defendant also complained
that although he had asked his probation officer for a second drug test, she refused to conduct a
second test.

       The Defendant testified that he had been arrested several times, but he maintained that on
each occasion, he was innocent. The Defendant admitted that he had twice been convicted of DUI.
He stated that he was first charged with DUI after a car accident which rendered him unconscious.
He reported that hospital employees obtained a blood sample from him while he was unconscious.
He maintained that he did not feel that he was drunk at the time of the accident, but he stated that


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he pled guilty to DUI because he did not have enough money to contest the charge. The Defendant
reported that prior to his second arrest for DUI, he drank “a couple of beers,” but he again
maintained that he did not feel that he was guilty of the charged offense. He claimed that he passed
a sobriety test on this occasion, but refused blood and breath tests. He stated that his attorney told
him that his was “not a very strong case” and that he could either pay more money to fight the charge
or “plead out.” The Defendant testified that he had no more money and therefore opted to plead
guilty to the charged offense.

         In addition, the Defendant admitted that he was arrested for writing bad checks in 1999.
However, he claimed that the checks were written on his own account, and he stated that he had paid
off all outstanding amounts when he was taken into custody for the charges in this case. The
Defendant also admitted that in 1999, he was arrested for possession of a Schedule IV controlled
substance and for possession of drug paraphernalia. He explained that when a police officer pulled
him over while he was driving, his wife’s prescription for what he believed was Loritab was found
in the console of his car, and a lighter and “crack pipe” were also found in his vehicle. He stated that
the drug paraphernalia was not his and claimed that a woman who was with him at the time of the
arrest threw the lighter and pipe into the seat when he was pulled over. The Defendant claimed that
the charge for possession of a Schedule IV controlled substance was later dismissed.

        The Defendant further testified that in 1991, while he was under the legal drinking age, he
was arrested after officers found alcohol in a car that the Defendant and his brother were driving.
The Defendant maintained that the alcohol did not belong to him and stated that the charges were
later dismissed. Finally, the Defendant testified that he had been involved in two personal injury
automobile accidents where someone had been hurt and that he had been involved in three
automobile accidents involving property damage.

        At the conclusion of the hearing, the trial court found by a preponderance of the evidence that
the Defendant was guilty of violating the terms of his probation and ordered that the Defendant serve
the remainder of his sentence in custody. The Defendant now appeals this finding by the trial court,
arguing that the prosecution failed to prove by a preponderance of the evidence that he had violated
the terms of his probation and that the trial court abused its discretion by ordering him to serve his
sentence in custody.

         We begin our analysis with several well-settled principles of law pertaining to the revocation
of a probated sentence. When a trial court determines by a preponderance of the evidence that a
probationer has violated the conditions of his or her probation, the trial court has the authority to
revoke probation. Tenn. Code Ann. § 40-35-311(e). Once the trial court makes such a finding, it
is vested with the statutory authority to “revoke the probation and suspension of sentence and cause
the defendant to commence the execution of the judgment as originally entered . . . .” Id. 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 . . . .” Id. § 40-35-310.




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        The decision to revoke probation is in the sound discretion of the trial judge. State v.
Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The judgment of the trial court to revoke
probation will be upheld on appeal unless there has been an abuse of discretion. State v. Harkins,
811 S.W.2d 79, 82 (Tenn. 1991). To find an abuse of discretion in a probation revocation case, the
record must be void of any substantial evidence that would support the trial court’s decision that a
violation of the conditions of probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn.
1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation
is sufficient if it allows the trial court to make a conscientious and intelligent judgment. State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).

        The Defendant’s probation officer testified at the probation revocation hearing that the
Defendant tested positive for cocaine use in a random drug screen. An affidavit from the laboratory
which conducted that test supported the probation officer’s testimony and was entered into evidence.
This is sufficient proof to allow the trial court to make a conscientious and intelligent judgment.
Although the Defendant denied taking any kind of illegal drugs, the trial judge obviously discredited
the Defendant’s testimony.

         On appeal, the Defendant challenges the accuracy and reliability of the drug screening
process. We note, however, that the laboratory test was introduced pursuant to and in compliance
with Tennessee Code Annotated § 40-35-311(c)(1), which sets forth specific requirements for the
admissibility of laboratory reports regarding a defendant’s drug test in a probation revocation
proceeding. At the hearing, the Defendant presented no evidence contesting the accuracy and
reliability of the drug screening process other than his denial of drug usage. This issue is without
merit.

        The Defendant further argues, however, that the trial court erred by ordering him to serve his
full sentence. He relies upon a comment by the trial judge that once it was shown by a
preponderance of the evidence that the Defendant had violated probation, the judge’s “hands were
tied.” The Defendant contends that this comment indicates that the court proceeded under the
assumption that it had no discretion in ordering the Defendant to serve his sentence in custody. We
respectfully disagree. In commenting that its “hands were tied,” the trial court apparently referred
to a prior warning it had given the Defendant that if he violated his probation, he would be ordered
to serve the remainder of his sentence in custody.1 The trial court heard evidence pertaining to the
Defendant’s prior criminal history, including evidence of a history of alcohol and drug abuse by the
Defendant. The court then acted well within its discretion in revoking the Defendant’s probation and
ordering the Defendant to serve his sentence in custody. We find no abuse of discretion by the trial
court.

         Accordingly, we AFFIRM the judgment of the trial court.



         1
           A transcript of the Defendant’s guilty plea proceeding is not included in the record. How ever, the trial court
indicated at the probation revocation hearing that it had given the Defendant such a warning.

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      ___________________________________
      ROBERT W. WEDEMEYER, JUDGE




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