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 
Purcell v. State Page 2

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 3

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 4

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 5

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 6

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 drugoffender-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. 

 

5 Baker 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 7

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 8

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 9

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 10

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

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