### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nua ry 6, 200 9

STA TE OF TEN NES SEE v. JUST IN V AU LX

Direc t Appeal from the Circ uit Court forMadison Cou nty

No. 01-886 Donald H. Allen, Ju dge

No. W2008-00772-C CA-R 3-CD - Filed May 13, 2009

The de fenda nt, Justin Vaulx, appeals fr om the judg m en t o f the Madison County Circuit Court

re mov ing him fr om c omm un ity c or re c tio ns a nd or de ri ng him to s e rv e his se nte nc e in c on fi ne me nt. Following our re view of the rec ord, the parties’ briefs, and the applicable law, we determine no err or exists in the court’s re vocation of the defe ndant’s communit y corr ections sentence, a nd thus affirm the court’s judgment.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cir cuit Court Af firme d

J. C. M C L IN , J., delivere d t h e o p i n i o n o f the c ourt, in which A LA N E. G LE NN and C AM I LLE R. M C M ULLEN , JJ., joined.

Gre gory D. Gookin, Assistant Publ ic Def ender , Jackson, Te nnessee , for the a ppellant, Justin Vaulx.

Rob e rt E. Coo pe r, Jr
., At torne y Ge ne ra l a nd Re po rt e r; De sh e a Du la ny , As sis ta nt A tto rn e y G e ne ra l; Je rry W oo da ll, Di stric t A tto rn e y G e ne ra l; a ndShaun A. Br ow n, As sis ta nt Dis tr ic t A tto rn e y G e ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

FA CT S

The re cord r efle cts that the def endant pled guilty t o one count of attempted aggr avate d burglary, a Class D felony, and one count of vandalism under $500, a Class A misdemeanor. For his co n v ictions, the defe ndant re ceive d a sente nce of four ye ars at 30% for a

ttempted aggra vated burglary, a nd 11 months an d 2 9 days at 75% f or vanda lism. The sentence s were to be serve d

c on c ur re ntl y. Th e de fe nd a nt wa s or de re d to se rv e his se nte nc e s on pr ob a tio n i n a co mmuni ty

c or re c tio ns pr og ra m. O n O c to ber 4, 20 02 , a vio la tio n w arr a nt w a s is su e d a ga ins t th e de fe nd a nt, alleging that he ha d violated the terms and condit ions of his community correc tions sentence by using coca ine and marijuana

, failing to c omply with a rec ommended drug tre atment progra m, and failing to report a traf

fic c itation. After f

inding that t h e def

endant wa s in violation, t he trial c ourt-2-

revoke d the def

endant’ s sentence but returne d hi m to community correc tions with t he adde d

c on dit ion that th e de fe nd a nt atte nda lon g- te rm

dr ug a nda lc oh ol t

re a tme nt p ro gr a m.

On M ay 23, 2003, a violation war rant wa s issued against the def endant, a lleging that he had violated the terms of his community correc tions sentence by using c ocaine and alc ohol, and by failing to enroll and attend out-patient t reatment and AA/NA meetings. The de fenda nt was ar rested on October

16, 2006, and while re lease d pending a he aring, a nother violation war rant wa s issued on November

6, 2006, alleging that the def endant had tested posi tive for cocaine on October 30, 2006. Fol lowing a h e ari ng on De c e mbe r 1 8, 20 06 , th e tr ia l c ou rt fo un d th a t th e de fe nd a nt h a d f a ile d to

rema in drug-fr ee and re voked the de fenda nt’s sentenc e. The court then r einstated the de fenda nt’s
sentenc e and or dere d that the def endant a ttend in-patient drug and a lcohol trea tment and be plac ed in a dr ug c ou rt pr og ra m.

On Janua ry 28, 2008, the defe ndant’s case office r filed a violation warra nt, alleging that the defe ndant violated the terms of his sentence by failing to remain dr ug fre e whe n he tested positive for c ocaine and marijuana. A he aring was held on Marc h 17, 2008. At the hea ring, Clint M urley, the def endant’ s case office r, testified that the de fenda nt had bee n place d in the drug court progra m in Dece mber of 2006, af

t er h i s third Communi ty Correc tions viol ation. Murley explained that as part of the drug court progra m, he place d a Pharmche ck drug patch on the def endant on De cembe r 17, 2007. Murley said the drug pa tch was r emoved on Ja nuary 18, 2008, a nd sent to the laboratory for testing. Murley st ated that he followed proper proce dure w hen re moving the patch and pla ced the patch in a sterile bag provided by the la boratory. Mur ley stated that a n examination of the patch by th e Cl in ic a l Re f

e r e n c e L ab o r a to r y s h o w e d th e d e f e n d a n t te s te d p o s it iv e f

o r c o c a in e and marijuana . Murley re called that he talked to the de fenda nt after rec eiving th e l ab re s u l t s and the de fe nd a nt d e nie d u sin g th e dr ug s.

O n c r o s s

- e x a mi n a ti o n , M u r le y a c k n o w le d g e d th a t th e d e f e n d a n t h a d c o mp le ted a dr ug trea tment program pr ior to being en t er ed i n to drug court. Murle y rec alled that the de fenda nt was tested for drugs twice a

wee k while in the drug court program which started a fter A ugust 1, 2007. Murley ac knowledged that the defe ndant had ne ver f ailed to re port for a d ru g t es t o r failed a urinalysis drug test up to the time the drug patc h wa s t es t ed

. Murley ac knowledged that the defe ndant had a

bided by all the other

terms of his sentenc e. Murely reca lled that the def endant ha d voiced c oncern that the edges of the drug patch wer e pee ling a bit, however , Murley noted that it was nothing major and the pa tch was still applied to the def endant’ s skin.

The de fenda nt testified that he had previously violated his community corre ctions probation by te sti ng po sit ive fo r c oc a ine a ndmari jua na . He a lso re c a lle d tha t the c ou rt ha d sen t hi m tw ic e to the Jac k Gea n Shelter, an in-p at i en t d rug treatment program. The defe ndant said he attended afte rca re though Pathwa ys, as well as AA and NA meetings. The defe ndant asserted that he had not used cocaine or marijuana since his re lease from the in-patient treatment. The defe ndant said he w as “very surprised ” b y t he re sults of his drug patch test and did not know why he tested positive for dr ug s.

Th e tr ia l c ou rt

fo un d th a t th e de fend ant ha d v iol a te d th e te rm s a ndc on dit ion s o f h is community corre ctions sentence in that he fa iled to remain drug- fre e. The court a ccr edited the-3-

te sti mon y o f M ur le y, ind ic a tin g tha t the de fe nd a nt t e ste d p os iti ve fo r c oc a ine a ndmari jua na wh ile on probation and spe cifica lly while wearing the drug patc h. The c ourt noted that the de fenda nt’s testimony was discredited by his prior violations of his community corre ctions sentence wher ein he tested positive for c ocaine and marijuana and a dmitted to usi ng those substance s. The court revoke d the def endant’ s community corre ctions sentence and orde red him to serve the balanc e of his sente nce in the De pa

rt me nt o f C or

re c tio n w ith c re dit

fo r the tim e sp e nt i n ja il.

AN AL YSI S

On ap p e a l, th e d e f

e ndant contends the trial court e rre d in revoking his community corre ctions
sentenc e and or dering him to serve his sentenc e in the Department of Correc tion. Specifica lly, the de fe nd a nt a sse rt s th a t th e dr ug pa tc h te c hn olo gy is u nr e lia ble , a nd he ha d ne ve r f

a ile d a ur ina lys is test during his entire time in drug court. There fore , the trial court should not have remove d him from

c omm un ity c or

re c tio ns

. Like proba tion, the trial court may r evoke a community corr ections sentence upon f inding by a pre pondera nce of the evidenc e that the defe ndant has violated the conditions of the sentenc e. State v. Hark ins
, 811 S.W.2d 79, 82 (Tenn. 1991) . Appellate r eview of a re voked sente nce is subjec t t o an abuse of discre tion standard of r eview. Id

. I f th e tria l j u d g e h a s e x e r c is e d “ c o n s c ie n ti o us judgment in making the decision rathe r than a cting arbitra rily,” t hen there i s no abuse of discretion. State v. Leach , 9 14 S.W .2 d 1 04 , 1 06 (T e nn . Crim. Ap p. 19 95 ) ( c itatio ns omi tte d)

. Di scr etio n is abused only if the rec ord conta ins no substantial evidence to support the trial court’ s conclusion that a violation has occ urre d. Harkins , 8 11 S.W .2 d a t 82 ; Sta te v . G re go ry , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

In the pre sent ca se, the re cord supports the trial court’s finding that the def endant violated

a te rm of his c omm un ity c or

re c tio ns se nte nc e by us ing c oc a ine a ndmari jua na . T he de fe nd a nt’ s c a se office r testified that the de fenda nt tested p o s i t i v e for cocaine and marijuana on Janua ry 18, 2008, afte r receiving the results from the ana lysis of the drug patch pla ced on the defe ndant on Dec ember 17, 2007. The c ourt specif ically found the def

endant’ s testimony not t o be cr edible in light of the
pr ior vio la tio ns of his se nte nc e fo r u sin g c oc a ine a ndmari jua na . T he c ou rt

no te d: “ I’ ve se nt h im t o drug treatment twice. I put him in drug court and each and every time, [the defenda nt] has continued to use illegal drugs, spec i fi cally coc aine a nd marijuana .” Ac cordingly, we conclude that the trial court did not abuse its discretion in revoking the defe ndant’s community corr ections sentenc e and ordering confineme nt in the Department of Correc tion.

Ba se d o n th e fo re go ing a ndthe re c or d a s a wh ole , w e a ff

ir m th e or de r o f the tr ia l c ou rt

.

___________________________________-4- J.C. McLIN, JUDG E