                         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.


                                             5
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


                                              6
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.


                                             7
       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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