Mark Austin Purcell v. State

• Court: Court of Appeals of Texas
• Decided: May 16, 2012
• Docket: 10-11-00326-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00326-CR

MARK AUSTIN PURCELL, Appellant v.

THE STATE OF TEXAS, Appellee

From the 85th District Court Brazos County, Texas Trial Court No. 08-03181-CRF-85

MEMORANDUM OPINION

In this appeal, appellant, Mark Austin Purcell, argues that, after revoking his

community supervision, the trial court abused its discretion by imposing the sentence

originally assessed—two years’ confinement in a State-Jail Facility. We affirm.

I. BACKGROUND

On November 21, 2008, Purcell pleaded guilty to the offense of unlawful

possession of marihuana in an amount greater than four ounces but less than five

pounds pursuant to a plea-bargain agreement with the State. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(a), (b)(3) (West 2010).1 The trial court accepted Purcell’s guilty

plea, sentenced him to two years’ confinement in a State-Jail Facility, suspended the

sentence, and placed him on community supervision for three years. Further, as

conditions of his community supervision, Purcell was required to, among other things:

(1) abstain from consuming controlled substances and dangerous drugs; (2) not violate

any laws of the State of Texas; (3) pay various court-ordered fees; (4) submit to regular

drug testing; and (5) enroll in and complete a State-mandated and approved education

program for drug offenders within 180 days of the trial court’s order granting

community supervision.

Apparently, Purcell violated several of the conditions of his community

supervision, and the State sought to modify the terms of his community supervision.

On October 28, 2010, Purcell signed a waiver of hearing on the State’s motion to modify

the conditions of his community supervision, wherein he admitted to using

methamphetamine on four different occasions, failing to pay various court-ordered fees,

and failing to successfully complete a drug-offender education program within 180

days of the trial court’s order granting community supervision. The trial court

subsequently modified the conditions of Purcell’s community supervision to: (1) order

him to enroll in and successfully complete the Brazos County Drug Court Program; (2)

1 Under section 481.121(b)(3) of the Texas Health and Safety Code, the underlying offense is a state-jail felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.121(b)(3) (West 2010). The corresponding punishment range is “confinement in a state jail for any term of not more than two years or less than 180 days” and a possible fine “not to exceed $10,000.” TEX. PENAL CODE ANN. § 12.35(a)-(b) (West Supp. 2011).

Purcell v. State Page 2 imposed a curfew; and (3) extend his community supervision an additional year to

November 20, 2011.2

Despite these modifications, Purcell continued to violate the conditions of his

community supervision. Bobby Baker, a caseworker with Brazos County Adult

Supervision, testified and the State alleged in its motion to revoke Purcell’s community

supervision that Purcell: (1) failed to attend drug-court meetings despite being

instructed that he should attend all meetings; (2) failed to pay various court-ordered

fees; (3) failed to participate in a drug-offender education program; (4) failed to provide

documentation that he attended a required “12-step” program and obtained a “12-step”

sponsor during the course of his community supervision; (5) failed to complete the

Brazos County Drug Court Program; (6) used methamphetamine on more than one

occasion; and (7) possessed a “Whizzinator.”3

On August 12, 2011, the trial court conducted a hearing on the State’s motion to

revoke. Rather than contest the allegations contained within the State’s motion, Purcell

pleaded “true” to the allegations, even though the trial court admonished him about the

potential consequences of such a plea. The hearing resumed, and Baker testified that he

was Purcell’s caseworker when Purcell was ordered to participate in the Brazos County

Drug Court Program. Baker noted that Purcell was highly educated—a college

graduate of Texas A&M University—and recounted Purcell’s numerous violations of

2 Due to additional violations, the conditions of Purcell’s community supervision were further

modified at later dates to include orders for temporary incarceration in the Brazos County Jail.

3 Baker described Purcell’s “Whizzinator” as “a device that the individual uses to provide fake urine to pass a drug test.”

Purcell v. State Page 3 his community supervision. Baker explained that Purcell had “a real bad attitude in the

program” because “he didn’t think he need[ed] the program.” Baker recalled that

Purcell told him that the positive drug tests were caused by Adderall, an amphetamine

he took for narcolepsy.4 Baker also testified that Purcell indicated that he received the

“Whizzinator” from a friend and that when he was caught with it, he was “just trying it

on.”

Jonathan Dille, a jailer for the Brazos County Sheriff’s Department, testified that

he conducted a strip search of Purcell when he was taken into custody on January 12,

2011. During the course of the search, Dille discovered that Purcell was wearing the

“Whizzinator” device and that the device was attached to a bag full of a “yellowish

fluid,” which police believed to be urine. When Dille discovered the “Whizzinator,”

Purcell exclaimed, “Well, I’m fucked again. I’m in trouble again.” Once Dille

completed the search, Purcell asked, “Can we leave it at this?” Dille informed Purcell

that a report would be written and that his supervisor would have to be notified about

the “Whizzinator.”

Michael Currie, a Sergeant with the Brazos County Sheriff’s Department,

recalled Dille showing him the “Whizzinator” that was taken from Purcell. Sergeant

Currie subsequently interviewed Purcell after Purcell waived his Miranda rights.

Purcell explained to Sergeant Currie that he put the “Whizzinator” on thirty minutes

prior to a drug-court meeting; that he wore the device during the meeting; and that he

4 Baker explained that amphetamine and methamphetamine are two different substances; that Purcell admitted to using methamphetamine; and that the positive drug tests for methamphetamine were confirmed by a laboratory to be caused by an illegal substance, not Adderall.

Purcell v. State Page 4 had forgotten to take it off. Sergeant Currie also stated that the bag attached to the

“Whizzinator” contained a “yellowish liquid,” which he assumed was somebody’s

urine.

Purcell called several witnesses to testify on his behalf, including his college

roommate, Glen Streater, and a former co-worker, Herbert Willett. Streater stated that

he and Purcell has been friends for many years and that he saw a great change in

Purcell’s behavior after a serious motorcycle accident in 2005, which resulted in Purcell

having one of his legs amputated. Streater was not aware that Purcell was abusing

drugs, and he believed Purcell to be a law-abiding citizen who could be a productive

member of the community. Willett testified that he had known Purcell for eight years

and that Purcell became disillusioned with the community-supervision process to the

point that he did not believe that the community-supervision process could help him or

that he could comply with its conditions.

Purcell testified on his own behalf, wherein he admitted to having been

previously incarcerated in the Texas Department of Criminal Justice twenty-seven years

ago for an offense involving methamphetamine. Purcell noted that he successfully

completed parole in that case. He also admitted that he was arrested and convicted for

unlawful possession of marihuana in 1976. With regard to the “Whizzinator,” Purcell

explained that he intended to take Zoloft for depression; that he was concerned that the

medication would cause him to have a dirty drug test; that he forgot to take it off prior

to the drug-court meeting; and that a friend gave him the device. Purcell later denied

ever taking Zoloft, claimed that he did not know the origin of the urine in the bag

Purcell v. State Page 5 attached to the device, and refused to reveal the identity of the friend who allegedly

gave him the “Whizzinator.”5 Purcell characterized his decision to wear the

“Whizzinator” as a “stupid—stupid lapse on my part.” Further, when asked by the

State whether he told a probation officer that he thought Adderall would mask

methamphetamine, Purcell responded:

I did—I—might have told her that I was surprised that it came up positive for methamphetamine because I was taking Adderall. I did—I don’t believe that that’s the right phrasing. No, it’s not what I said or how I said it. No. But I can see how it would be construed as that.

And finally, Purcell blamed his failure to attend drug-court meetings and drug-

offender-treatment program meetings on his inability to be punctual and his failure to

pay court-ordered fees due to lack of money.

At the conclusion of the evidence, the trial court found the allegations contained

in the State’s motion to revoke to be true, revoked Purcell’s community supervision,

and sentenced him to two years’ confinement in a State-Jail Facility. This appeal

ensued.

II. STANDARD OF REVIEW

We review a trial court’s decision to revoke a defendant’s community

supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d 759, 763

(Tex. Crim. App. 2006). The State’s burden of proof is by a preponderance of the

evidence, and proof of a single violation of community supervision is sufficient to

support revocation. Id. at 763-64; see Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App.

5Baker testified that he researched the “Whizzinator,” including how one could be obtained. He found that one could be purchased for $100 to $200.

Purcell v. State Page 6 2009). The State meets its burden when the greater weight of the credible evidence

creates a reasonable belief that the defendant violated a condition of community

supervision as alleged. See Rickels, 202 S.W.3d at 764; see also Jenkins v. State, 740 S.W.2d

435, 437 (Tex. Crim. App. 1983).

In a hearing on a motion to revoke community supervision, the trial court is the

sole trier of fact and is also the judge of the credibility of the witnesses and the weight to

be given to their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980);

see Trevino v. State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Moreover, on appeal, we examine the evidence in the light most favorable to the trial

court’s ruling. See Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008) (stating

that the reviewing court is to defer to the trial court’s resolution of disputed facts and

reasonable inferences that can be drawn from those facts); Garrett v. State, 619 S.W.2d

172, 174 (Tex. Crim. App. [Panel Op.] 1981); Duncan v. State, 321 S.W.3d 53, 57 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d); see also Pinon v. State, No. 12-10-00400-CR,

2011 Tex. App. LEXIS 7332, at *3 (Tex. App.—Tyler Sept. 7, 2011, no pet.) (mem. op., not

designated for publication).

III. ANALYSIS

In his sole issue on appeal, Purcell argues that, after revoking his community

supervision, the trial court abused its discretion by imposing the sentence originally

assessed. Specifically, Purcell contends that his best interest and the best interest of

society would be better served with a reduced sentence. In making this argument,

Purcell relies heavily on article 42.12, section 23(a) of the Texas Code of Criminal

Purcell v. State Page 7 Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(a) (West Supp. 2011).

Article 42.12, section 23(a) of the Texas Code of Criminal Procedure provides the

following, in pertinent part:

If community supervision is revoked after a hearing under Section 21 of this article, the judge may proceed to dispose of the case as if there had been no community supervision, or if the judge determines that the best interests of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted.

Id. Purcell asserts that the evidence supported a reduction in the two-year sentence

because: (1) many of the violations alleged had previously been punished by sanctions

imposed by the trial court; (2) the trial court mentioned that there was no need to

protect a victim in this case; (3) he did not commit an offense while he was on

community supervision; (4) he did not abuse a controlled substance while on probation;

and (5) when he is released, he will have no home and income and will have to start

over.

We agree that article 42.12, section 23 of the Texas Code of Criminal Procedure

vests the trial court with the authority and discretion to revoke an individual’s

community supervision and assess punishment as if there had been no community

supervision. See id.; Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.—Corpus Christi

1996, no pet.); see also Borchick v. State, No. 10-08-00409-CR, 2009 Tex. App. LEXIS 5842,

at *3 (Tex. App.—Waco July 29, 2009, no pet.) (mem. op., not designated for

publication). Furthermore, the trial court does not abuse its discretion by imposing the

sentence originally assessed. See Guzman, 923 S.W.2d at 799 (“The Code of Criminal

Purcell v. State Page 8 Procedure provides that if community supervision is revoked after a hearing under

Section 21 of this article, the judge may proceed to dispose of the case as if there had

been no community supervision. . . . In other words, the judge may impose the

sentence originally assessed.”) (internal quotations omitted); see also Borchick, 2009 Tex.

App. LEXIS 5842, at **3-4 (citing Mendoza v. State, No. 04-06-00135-CR, 2006 Tex. App.

LEXIS 7948, at *3 (Tex. App.—San Antonio Sept. 6, 2006, no pet.) (mem. op., not

designated for publication); May v. State, No. 07-03-00420-CR, 2005 Tex. App. LEXIS

5772, at **2-3 (Tex. App.—Amarillo July 25, 2005, no pet.) (mem. op., not designated for

publication) (“So, because appellant at bar was originally sentenced to a ten-year prison

term, the trial court did not abuse its discretion in assessing a like term upon revoking

his probation. In short, we refuse to hold that the trial court abused its discretion in

doing that allowed by statute.”).

Here, Purcell judicially confessed to the allegations contained in the State’s

motion to revoke pertaining to numerous violations of his community supervision, and

the record indicates that Purcell never fully complied with the terms of his community

supervision, though he agreed to do so pursuant to the plea-bargain agreement with the

State. See Rickels, 202 S.W.3d at 763-64 (holding that proof of a single violation of

community supervision is sufficient to support revocation); see also Smith, 286 S.W.3d at

342 (same). Based on the record before us and examining the evidence in the light most

favorable to the trial court’s ruling, we do not believe that Purcell has demonstrated

that the trial court abused its discretion by imposing the sentence originally assessed.

See Cantu, 253 S.W.3d at 282; see also Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.

Purcell v. State Page 9 App. 1984) (stating that the amount of punishment to impose lies within the trial court’s

discretion and that the sentence will not be disturbed on appeal if it is within the proper

range of punishment). Like the May court, “we refuse to hold that the trial court abused

its discretion in doing that allowed by statute.” May, 2005 Tex. App. LEXIS 5772, at *3;

see Guzman, 923 S.W.2d at 799. Accordingly, Purcell’s sole issue is overruled.

IV. CONCLUSION

Having overruled Purcell’s sole issue on appeal, we affirm the judgment of the

trial court.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed May 16, 2012 Do not publish [CR25]

Purcell v. State Page 10