BRIAN ELTON RAY APPELLANT v. THE STATE OF TEXAS STATE (2016)

CONCURRING MEMORANDUM OPINION 1

I concur with the majority and write only to address one additional point.

In his brief, Ray appears to attempt to draw a distinction between the original condition of his probation, “[s]ubmit non-diluted urine for testing for controlled substances and cannabinoids at the direction of the supervision officer and pay for urine testing as required,” and the allegation in the State's motion to revoke that Ray “was ordered to submit to urine testing for controlled substances and cannabinoids at the direction of the supervision officer and pay for urine testing as required.” [Emphasis added.] Ray argues that he did submit to urine testing, but was unsuccessful—

The allegation is not that he refused, because he did not refuse, and the [S]tate did not allege he refused, but in fact appeared and attempted to provide the sample, but that he committed ․ an act the [S]tate refers to as “stall.”

Because I see no practical distinction between submitting urine for testing and submitting to urine testing, I would hold that there is no difference between the condition as stated in the Conditions of Community Supervision and the condition as alleged in the State's motion. In the first instance, Ray would be required to produce and supply his urine for testing; in the latter instance, Ray would be required to submit to a test, the execution of which would require Ray to produce and supply his urine. Either way, the result, as it relates to Ray, is the same: he must, at the direction of the supervision officer, produce and supply his urine to be tested.

Because Ray did not do so—whether as a result of a “stall” or otherwise—I agree with the majority opinion that the trial court did not abuse its discretion by revoking Ray's community supervision.

FOOTNOTES

1.   See Tex. R. App. P. 47.4.

BONNIE SUDDERTH JUSTICE