         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 6, 2009

                     STATE OF TENNESSEE v. JUSTIN VAULX

                  Direct Appeal from the Circuit Court for Madison County
                           No. 01-886    Donald H. Allen, Judge



                     No. W2008-00772-CCA-R3-CD - Filed May 13, 2009


The defendant, Justin Vaulx, appeals from the judgment of the Madison County Circuit Court
removing him from community corrections and ordering him to serve his sentence in confinement.
Following our review of the record, the parties’ briefs, and the applicable law, we determine no error
exists in the court’s revocation of the defendant’s community corrections sentence, and thus affirm
the court’s judgment.

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

J.C. MCLIN , J., delivered the opinion of the court, in which ALAN E. GLENN and CAMILLE R.
MCMULLEN , JJ., joined.

Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Justin Vaulx.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Shaun A. Brown, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

        The record reflects that the defendant pled guilty to one count of attempted aggravated
burglary, a Class D felony, and one count of vandalism under $500, a Class A misdemeanor. For
his convictions, the defendant received a sentence of four years at 30% for attempted aggravated
burglary, and 11 months and 29 days at 75% for vandalism. The sentences were to be served
concurrently. The defendant was ordered to serve his sentences on probation in a community
corrections program. On October 4, 2002, a violation warrant was issued against the defendant,
alleging that he had violated the terms and conditions of his community corrections sentence by
using cocaine and marijuana, failing to comply with a recommended drug treatment program, and
failing to report a traffic citation. After finding that the defendant was in violation, the trial court
revoked the defendant’s sentence but returned him to community corrections with the added
condition that the defendant attend a long-term drug and alcohol treatment program.

         On May 23, 2003, a violation warrant was issued against the defendant, alleging that he had
violated the terms of his community corrections sentence by using cocaine and alcohol, and by
failing to enroll and attend out-patient treatment and AA/NA meetings. The defendant was arrested
on October 16, 2006, and while released pending a hearing, another violation warrant was issued on
November 6, 2006, alleging that the defendant had tested positive for cocaine on October 30, 2006.
Following a hearing on December 18, 2006, the trial court found that the defendant had failed to
remain drug-free and revoked the defendant’s sentence. The court then reinstated the defendant’s
sentence and ordered that the defendant attend in-patient drug and alcohol treatment and be placed
in a drug court program.

         On January 28, 2008, the defendant’s case officer filed a violation warrant, alleging that the
defendant violated the terms of his sentence by failing to remain drug free when he tested positive
for cocaine and marijuana. A hearing was held on March 17, 2008. At the hearing, Clint Murley,
the defendant’s case officer, testified that the defendant had been placed in the drug court program
in December of 2006, after his third Community Corrections violation. Murley explained that as
part of the drug court program, he placed a Pharmcheck drug patch on the defendant on December
17, 2007. Murley said the drug patch was removed on January 18, 2008, and sent to the laboratory
for testing. Murley stated that he followed proper procedure when removing the patch and placed
the patch in a sterile bag provided by the laboratory. Murley stated that an examination of the patch
by the Clinical Reference Laboratory showed the defendant tested positive for cocaine and
marijuana. Murley recalled that he talked to the defendant after receiving the lab results and the
defendant denied using the drugs.

        On cross-examination, Murley acknowledged that the defendant had completed a drug
treatment program prior to being entered into drug court. Murley recalled that the defendant was
tested for drugs twice a week while in the drug court program which started after August 1, 2007.
Murley acknowledged that the defendant had never failed to report for a drug test or failed a
urinalysis drug test up to the time the drug patch was tested. Murley acknowledged that the
defendant had abided by all the other terms of his sentence. Murely recalled that the defendant had
voiced concern that the edges of the drug patch were peeling a bit, however, Murley noted that it was
nothing major and the patch was still applied to the defendant’s skin.

        The defendant testified that he had previously violated his community corrections probation
by testing positive for cocaine and marijuana. He also recalled that the court had sent him twice to
the Jack Gean Shelter, an in-patient drug treatment program. The defendant said he attended
aftercare though Pathways, as well as AA and NA meetings. The defendant asserted that he had not
used cocaine or marijuana since his release from the in-patient treatment. The defendant said he was
“very surprised” by the results of his drug patch test and did not know why he tested positive for
drugs.

     The trial court found that the defendant had violated the terms and conditions of his
community corrections sentence in that he failed to remain drug-free. The court accredited the

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testimony of Murley, indicating that the defendant tested positive for cocaine and marijuana while
on probation and specifically while wearing the drug patch. The court noted that the defendant’s
testimony was discredited by his prior violations of his community corrections sentence wherein he
tested positive for cocaine and marijuana and admitted to using those substances. The court revoked
the defendant’s community corrections sentence and ordered him to serve the balance of his sentence
in the Department of Correction with credit for the time spent in jail.

                                            ANALYSIS

        On appeal, the defendant contends the trial court erred in revoking his community corrections
sentence and ordering him to serve his sentence in the Department of Correction. Specifically, the
defendant asserts that the drug patch technology is unreliable, and he had never failed a urinalysis
test during his entire time in drug court. Therefore, the trial court should not have removed him from
community corrections.

         Like probation, the trial court may revoke a community corrections sentence upon finding
by a preponderance of the evidence that the defendant has violated the conditions of the sentence.
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Appellate review of a revoked sentence is subject
to an abuse of discretion standard of review. Id. If the trial judge has exercised “conscientious
judgment in making the decision rather than acting arbitrarily,” then there is no abuse of discretion.
State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995) (citations omitted). Discretion is
abused only if the record contains no substantial evidence to support the trial court’s conclusion that
a violation has occurred. Harkins, 811 S.W.2d at 82; State v. Gregory, 946 S.W.2d 829, 832 (Tenn.
Crim. App. 1997).

        In the present case, the record supports the trial court’s finding that the defendant violated
a term of his community corrections sentence by using cocaine and marijuana. The defendant’s case
officer testified that the defendant tested positive for cocaine and marijuana on January 18, 2008,
after receiving the results from the analysis of the drug patch placed on the defendant on December
17, 2007. The court specifically found the defendant’s testimony not to be credible in light of the
prior violations of his sentence for using cocaine and marijuana. The court noted: “I’ve sent him to
drug treatment twice. I put him in drug court and each and every time, [the defendant] has continued
to use illegal drugs, specifically cocaine and marijuana.” Accordingly, we conclude that the trial
court did not abuse its discretion in revoking the defendant’s community corrections sentence and
ordering confinement in the Department of Correction.

       Based on the foregoing and the record as a whole, we affirm the order of the trial court.




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      J.C. McLIN, JUDGE




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