                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00371-CR


ROBERT JOSEPH GRYGAR,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 66th District Court
                               Hill County, Texas
                              Trial Court No. 36,023


                          MEMORANDUM OPINION


      After Appellant Robert Joseph Grygar was charged by indictment with five

counts of aggravated assault (deadly weapon), he pleaded “no contest” and entered

into a plea bargain that led to the trial court’s order of deferred adjudication. Grygar

was placed on community supervision for a term of ten years.

      A little over a year later, the State filed an application to proceed to final

adjudication.   It alleged six violations by Grygar of his conditions for community
supervision. At the hearing on the State’s application, Grygar pleaded “not true” to the

six alleged violations. The trial court found all six violations to be true and sentenced

Grygar to twelve years’ imprisonment on each count, to be served concurrently.

Raising one issue with three sub-issues, Grygar appeals. We will affirm.

        In his first and second sub-issues, Grygar asserts that the evidence is insufficient

to support the trial court’s findings of true and that the trial court should have found

the allegations to be not true. We review a trial court’s decision to revoke community

supervision for an abuse of discretion. See Leonard v. State, 385 S.W.3d 570, 576 (Tex.

Crim. App. 2012). The “trial court has discretion to revoke community supervision

when a preponderance of the evidence supports one of the State’s allegations that the

defendant violated a condition of his community supervision.” Id. The State is required

to show only a single violation to support the trial court’s order revoking community

supervision. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009). The trial judge

is the sole trier of the facts, the credibility of the witnesses, and the weight to be given

their testimony. Ex parte Tarver, 725 S.W.2d 195, 198 (Tex. Crim. App. 1986); Diaz v.

State, 516 S.W.2d 154, 156 (Tex. Crim. App. 1974).

        We have previously held that sufficiency points are not independent grounds of

error in an appeal of a probation revocation order, but are incorporated into a

determination of whether the trial court abused its discretion. Brumbalow v. State, 933

S.W.2d 298, 300 (Tex. App.—Waco 1996, pet. ref’d).           When the sufficiency of the

evidence to support the trial court’s order is challenged, we review the evidence in the

light most favorable to the trial court’s findings. Id.

Grygar v. State                                                                       Page 2
        The State’s first allegation was that Grygar violated a community-supervision

condition that he commit no offense against the State and that he did so by committing

the offense of driving while intoxicated on October 1, 2012 in Ellis County. Margie

Jeffcoat testified that she lived in rural Ellis County, and on October 1, 2012, around 5:00

p.m., she found a white, flatbed pickup truck blocking her driveway and the road while

she was driving to Waxahachie. She got out to investigate and found a man (Grygar)

slumped over in the cab. She also observed a carton for what she said was a 12-pack or

18-pack of beer. Jeffcoat called 9-1-1. Based on an earlier trip, she estimated that the

truck had been there for forty-five minutes to an hour. She parked and waited for

police to arrive, and she observed police have to get Grygar out of the truck and help

him to sit on the rear bumper because he was unable to stand. Jeffcoat said that Grygar

fell off the bumper while she was watching.

        Albert Partington, a Waxahachie police officer, testified that he responded to the

call and found Grygar in the truck’s driver’s seat. He said that Grygar was just waking

up and had a strong odor of an alcoholic beverage. Grygar had red, bloodshot eyes and

slurred speech, his physical factors were sluggish, and he seemed disoriented. On the

video of the stop, Partington asked Grygar how long he had been pulled over, and

Grygar responded that it was about an hour. Partington then asked Grygar if he had

drank anything after he pulled over, and he said no.          Partington then asked, “So

everything you drank was before you drove earlier?”             Grygar answered in the

affirmative. He then said on the video that he had drunk nothing that day. On the




Grygar v. State                                                                       Page 3
video of the stop, another officer asked Grygar if the beer in the truck was from last

night, and Grygar nodded in the affirmative.

        The video shows Grygar taking a portable breath test, and the officer remarked

that it was “15, twice the legal limit.” The officer took a 30-pack beer carton and three

unopened beer cans out of the truck. There were not any empty beer cans in the truck.

Grygar was arrested for DWI and consented to giving a blood sample after being read

the statutory warning. Partington also performed an HGN test on Grygar, and he

showed all six clues.    While being transported, Grygar, in answer to Partington’s

questions, said on the video that he was driving from Corsicana to Maypearl and that

he “did all the drinking before.”

        Kathy Meza, a nurse, testified that she took a blood sample from Grygar at 5:50

p.m. She said that Grygar was cooperative and seemed coherent in his interactions with

her. Andrew Macey, a DPS forensic scientist, testified that he performed an analysis on

Grygar’s blood sample and determined that the blood-alcohol content was 0.201 (grams

of alcohol per 100 milliliters of blood), which is about two and a half times the legal

limit. The lab report was admitted into evidence.

        Shannon Fant, community-supervision officer, testified that she met with Grygar

on March 7, 2013 at an administrative hearing and that he admitted to her that he had

used alcohol on October 1.

        Grygar testified. He said that on the day in question, he was cleaning out a

house in Navarro County that involved the removal of barrels of chemicals that had

been left on the property by a trucking company.          The name on a barrel was

Grygar v. State                                                                    Page 4
trichlorofluoromethane. He denied drinking alcohol that day and said that he had

found the beer that was in his truck at the property he was cleaning up that day; the

beer was in the refrigerator and he took it to give to friends who drink beer. He said he

had eaten very little that day and was dehydrated after working that day. He also said

that he took a lid off of one of the barrels and fluid sprayed on him from built-up

pressure in the barrel. The fluid smelled like alcohol to Grygar. Grygar loaded the

barrels on his truck to dispose of them. He said that he later learned that the chemicals

in the barrel that sprayed him could cause a person to be “drunk.”

        Grygar testified that on his drive home, he began to feel bad and pulled over. He

said he had a bad headache and felt like he had quickly gotten “drunk” from the

chemicals. He immediately fell asleep. Regarding Fant’s testimony that Grygar told

her that he had been drinking on October 1, Grygar said that he told her he had been

drinking, but he meant that he had been drinking coffee and water, not alcohol. On

cross-examination, Grygar again denied drinking alcohol that day but admitted to

drinking a beer the day before. He also admitted that he was an alcoholic.

        Viewing the evidence in the light most favorable to the trial court’s findings, and

deferring to the trial court’s role as the sole trier of the facts, the credibility of the

witnesses, and the weight to be given their testimony, we find that the trial court did

not abuse its discretion in finding sufficient evidence of a violation of Grygar’s

condition of community supervision by his commission of the offense of driving while

intoxicated. Because only a single violation is required to support the trial court’s

revocation order, Smith, 286 S.W.3d at 342, we need not review the evidence on the

Grygar v. State                                                                      Page 5
other five violations. Grygar’s first and second sub-issues are overruled. We need not

address the part of his third sub-issue that pertains to the disposition if we were to find

the evidence insufficient.

        The other part of Grygar’s third sub-issue contends that the judgment

adjudicating guilt is erroneous because it reflects that Grygar pleaded true to the

motion to adjudicate when he pleaded not true.           Grygar’s contention is correct;

accordingly, we sustain Grygar’s third sub-issue in part and modify the trial court’s

judgment adjudicating guilt to reflect that Grygar pleaded “NOT TRUE” to the motion

to adjudicate. See TEX. R. APP. P. 43.2(b); Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d).

        As modified, the judgment adjudicating guilt is affirmed.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed August 28, 2014
Do not publish
[CR25]




Grygar v. State                                                                      Page 6
