Jonathan Edward Cessac v. State ( 2018 )

NUMBER 13-17-00640-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JONATHAN EDWARD CESSAC, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court
of Aransas County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Jonathan Edward Cessac appeals from a judgment revoking his
community supervision and sentencing him to eight years’ confinement for the offense of
sexual assault of a child, a second-degree felony. See TEX. PENAL CODE ANN. § 22.011
(West, Westlaw through 2017 1st C.S.). In one issue, Cessac contends that there is
insufficient evidence to show that he violated the terms of his community supervision.
We affirm.
I. BACKGROUND
On September 13, 2012, Cessac pleaded guilty to sexual assault of a child. The
trial court placed Cessac on deferred adjudication community supervision for ten years.
The community-supervision order included several terms and conditions, including that
Cessac not commit any offense against the laws of Texas and that he abstain from the
use of any controlled substance. As part of his community supervision, Cessac was
required to submit to periodic urine tests to determine if he used a controlled substance.
On June 29, 2017, his urinalysis tested positive for a metabolite of marihuana, a controlled
substance.
On September 28, 2017, the State moved to adjudicate guilt and to revoke
Cessac’s community supervision, alleging that he violated the aforementioned conditions
by possessing and using a controlled substance. 1 Particularly, the State alleged that
Cessac (1) possessed a useable quantity of marihuana of less than two ounces, and (2)
intentionally or knowingly used a controlled substance that was not prescribed by a
licensed physician. At the hearing, Abel Sanchez, Cessac’s probation officer, testified
that an outside lab confirmed the presence of tetrahydrocannabinol (THC) in Cessac’s
urine. He further testified that he had no knowledge of over-the-counter products
containing THC.
1 The State filed three previous motions to revoke. The first motion alleged that Cessac failed to
pay his financial obligations, accessed the internet, and possessed pornography. The second motion
alleged that Cessac was arrested for public intoxication, possessed a synthetic cannabinoid, and used or
possessed a mobile device. The third motion alleged that Cessac was again arrested for public
intoxication. The trial court found the previous violations to be true, but it continued Cessac’s term of
community supervision and ordered him to attend a substance abuse outpatient counseling program.
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Cessac did not deny consuming THC, but contended that he did so accidentally.
He testified that the positive urinalysis occurred as a result of the fact that he ingested
cannabinoid (CBD) oil and that he did not use marihuana in any capacity since the
beginning of his community supervision. He further testified that he used the CBD oil as
a replacement for his prescribed medications for his bipolar disorder and depression. He
testified that he did not know CBD oil contained THC and that he would not have taken it
if he had known it contained THC.
The trial court found not true the allegation that Cessac committed an offense
against the laws of Texas but found true the allegation that he used a controlled
substance. The trial court revoked Cessac’s community supervision, adjudicated him
guilty of sexual assault of a child, and sentenced him to eight years’ confinement. This
appeal followed.
II. DISCUSSION
Cessac contends that the State did not provide sufficient evidence that he violated
the terms of his community service.
A. Standard of Review and Applicable Law
The decision whether to revoke community supervision rests within the discretion
of the trial court. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013).
Appellate review of an order revoking community supervision is limited to abuse of the
trial court’s discretion. Id. In determining questions regarding sufficiency of the
evidence in community supervision revocation cases, the burden of proof is by a
preponderance of the evidence. Id. at 864–65. In the probation-revocation context, “a
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preponderance of the evidence” means “that greater weight of the credible evidence
which would create a reasonable belief that the defendant has violated a condition of his
probation.” Id. at 865 (citing Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App.
2006)). Evidence does not meet this standard when the evidence offered to prove a vital
fact is so weak as to do no more than create a mere surmise or suspicion of its existence.
Id. When the State has failed to meet its burden of proof, the trial court abuses its
discretion in issuing the order to revoke community supervision. Jones v. State, 176
S.W.3d 47, 51 (Tex. App.—Houston [1st Dist.] 2004, no pet.). When the sufficiency of
the evidence is challenged, we view the evidence in a light most favorable to the trial
court’s findings. Rodriguez v. State, 888 S.W.2d 211, 214 (Tex. App.—Corpus Christi
1994, no pet.); see Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.]
1981). The trial court is the sole judge of the credibility of the witnesses and the weight
to be given to their testimony. Hacker, 389 S.W.3d at 865.
The Texas Controlled Substances Act specifically identifies THC, synthetic
equivalents, and cannabinol derivatives as Penalty Group 2 and 2-A controlled
substances. See TEX. HEALTH & SAFETY CODE ANN. §§ 481.103–1031 (West, Westlaw
through 2017 1st C.S.).
B. Analysis
Cessac contends that the State did not show that he intentionally or knowingly
used a controlled substance. He argues that because he did not know that CBD oil
contained a controlled substance, he did not intentionally or knowingly use a controlled
substance.
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Generally, unless the issue in question is nonpayment of restitution or other
supervisory fees, the State has no duty to prove voluntary or intentional conduct when
the terms of the community supervision do not specify a mens rea. See Stanfield v.
State, 718 S.W.2d 734, 738 (Tex. Crim. App. 1986) (concluding that the State has the
burden of proving that a failure to pay fees and costs was intentional); see also Smith v.
State, No. 06-12-00065-CR, 2013 WL 238883, at *3 (Tex. App.—Texarkana Jan. 23,
2013, no pet.) (mem. op., not designated for publication) (noting that, except for the
nonpayment of fees, the State has no duty to prove intentional conduct where condition
of community supervision imposes no such requirement); Cano v. State, No. 01-00-
01210-CR, 2001 WL 1098023, at *1 (Tex. App.—Houston [1st Dist.] Sept. 20, 2001, no
pet.) (mem. op., not designated for publication) (concluding that the State had no duty to
prove voluntary or intentional conduct regarding a failure to report violation). Here, the
terms of the community supervision specifically state that Cessac must “abstain from the
use of controlled substances. . . .” It does not specify that the use must be intentional or
knowing.
However, in its motion to revoke the State alleged that Cessac “intentionally and
knowingly violate[d]” the terms of his community supervision “by using a controlled
substance that was not prescribed by a licensed physician[.]” This Court has previously
observed that “the authority of the trial judge to revoke probation is limited by the
allegations of which the probationer has due notice, meaning those which are contained
in the written motion to revoke filed during the term of the probationary period.” Hille v.
State, No. 13-11-00755-CR, 2012 WL 6719452, at *5 (Tex. App.—Corpus Christi Aug.
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28, 2012, no pet.) (mem. op., not designated for publication) (citing Caddell v. State, 605
S.W.2d 275, 277 (Tex. Crim. App. 1980)). In Hille, we concluded that the trial court’s
authority to revoke the appellant’s community supervision was limited by the allegation
that the appellant acted “intentionally and knowingly” as alleged in the State’s motion to
revoke. See id. Similarly, in this case, the State alleged an intentional or knowing
violation of the community-supervision terms. Therefore, we must determine whether
there was sufficient evidence that Cessac intentionally or knowingly used a controlled
substance.
A person acts intentionally with respect to the nature of his conduct or to a result
of his conduct when it is his conscious objective or desire to engage in the conduct or
cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West, Westlaw through 2017 1st
C.S.). A person acts knowingly with respect to the nature of his conduct or to
circumstances surrounding his conduct when he is aware of the nature of his conduct or
that the circumstances exist. Id. § 6.03(b). A person acts knowingly with respect to a
result of his conduct when he is aware that his conduct is reasonably likely to cause the
result. Id. Direct evidence of the required mental state is not required. Hart v. State,
89 S.W.3d 61, 64 (Tex. Crim. App. 2002). The fact-finder may infer both knowledge and
intent from any facts that tend to prove the existence of these mental states, including the
defendant’s acts, words, or conduct. Id.
Cessac’s urinalysis of June 29, 2017 tested positive for THC, which is a controlled
substance under section 481.103 of the health and safety code. See TEX. HEALTH &
SAFETY CODE ANN. § 481.103. Cessac does not dispute the validity of the test and
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acknowledges that he must have ingested THC during his period of community
supervision. However, he contends that the evidence establishes that his use of THC
was accidental. As stated above, the trial court is the sole judge of the testimony given,
and we will give great deference to its determinations. See Hacker, 389 S.W.3d at 865.
The trial court was allowed to disbelieve Cessac’s testimony that the THC likely came
from CBD oil and give greater weight to Sanchez’s testimony that products containing
THC are not available in Texas stores. See id.; see also In re A.J.E.M.-B., No. 14-14-
00424-CV, 2014 WL 5795484, at *14 (Tex. App.—Houston [14th Dist.] Nov. 6, 2014, no
pet.) (mem. op.) (concluding in parental termination appeal that the trial court was entitled
to disbelieve mother’s testimony that her ingestion of a controlled substance was
inadvertent in light of evidence of a positive drug test). Based on this testimony, the trial
court could reasonably infer that Cessac did not unintentionally ingest THC from an over-
the-counter medicinal supplement, but rather intentionally sought out an illicit product
which he knew contained THC. Thus, the trial court could have reasonably concluded
that Cessac intentionally or knowingly violated a term of his community supervision based
on the greater weight of credible evidence. See Hacker, 389 S.W.3d at 865.
Cessac also argues that by finding the allegation that Cessac possessed a useable
quantity of marijuana to be not true, the trial court must have necessarily accepted
Cessac’s version of events. We disagree. The trial court could have reasonably found
that Cessac violated the terms of his community supervision by consuming a controlled
substance—a cannabinol derivative containing THC—but that the State failed to prove
this substance was marihuana as alleged in the State’s motion to revoke.
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We conclude that the trial court did not abuse its discretion by revoking Cessac’s
community supervision. See id. We overrule Cessac’s sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
LETICIA HINOJOSA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
26th day of July, 2018.
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