COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-371-CR
NICKOLAS SHANE LANCASTER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
A jury convicted Appellant Nickolas Shane Lancaster of driving while
intoxicated (“DWI”), and the trial court sentenced him to 120 days’
confinement, suspended for twenty-four months’ community supervision. In
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… See Tex. R. App. P. 47.4.
two points, Lancaster argues that the evidence is legally and factually
insufficient to support his conviction. We will affirm.
II. B ACKGROUND
On June 23, 2002, at approximately 8:00 p.m., Officer Ronny Desselles
of the Fort Worth Police Department received a broadcast about a vehicle
alleged to have been involved in a potential “road rage” incident. He later
observed a vehicle traveling at a high rate of speed that matched the
description of the vehicle identified in the broadcast. Officer Desselles saw the
vehicle lock up all four of its wheels and skid just before it entered a Wal-Mart
parking lot and parked. Officer Desselles entered the parking lot, parked his
vehicle, and made contact with the driver of the vehicle, Lancaster. 2
Officer Desselles asked Lancaster if anything was wrong, if he was in a
hurry, and if he needed help. Lancaster replied that nothing was wrong, that
he was in a hurry, and that he did not need help. Officer Desselles observed
that Lancaster’s eyes were heavy, bloodshot, and watery and that a strong
smell of alcohol was coming from his breath. Officer Desselles believed at this
point that Lancaster could be intoxicated. When Officer Desselles had
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… Officer Desselles did not have his vehicle’s emergency lights or siren
activated, and he described the contact that he made with Lancaster as
“consensual.”
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Lancaster exit his vehicle, “it appeared that [Lancaster’s] balance . . . swayed
and [was] unsteady.”
Officer Desselles asked Lancaster to perform a number of field sobriety
tests, including the horizontal gaze nystagmus (“HGN”), the walk-and-turn, and
the one-leg stand tests. Officer Desselles observed more than four “clues”
indicating impairment when Lancaster performed the HGN evaluation; both of
Lancaster’s eyes “jerked,” and he had distinct nystagmus at maximum deviation
in both eyes and nystagmus “prior to 45 degrees.” When Lancaster performed
the walk-and-turn test, he did not touch his heel to his toe on every step, he
lost his balance when turning, he turned incorrectly, he took an incorrect
number of steps, and he did not count out loud the steps that he took. When
Lancaster performed the one-leg stand test, he swayed while he was balancing,
he put his foot down, and he counted only to fourteen, not thirty as he was
supposed to do.
Considering all of his observations, Officer Desselles concluded that
Lancaster had lost the normal use of his mental and physical faculties, that
alcohol consumption had caused his intoxication, and that he was “DWI.”
Officer Desselles arrested Lancaster, and Officer Kenneth Pierce arrived to take
possession of Lancaster and transport him to jail. Officer Desselles released
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Lancaster’s vehicle to his wife, who was present when Officer Desselles first
approached Lancaster in the Wal-Mart parking lot.
Officer Pierce observed that Lancaster’s eyes were red and bloodshot and
that he had alcohol on his breath. Officer Pierce could smell the alcohol on
Lancaster when he spoke in the patrol car. At jail, Lancaster admitted to
Officer Pierce that he had been drinking, that he drank three twelve-ounce cans
of beer, that he was under the influence of an alcoholic beverage, and that he
drinks every day. Lancaster also agreed to give a breath specimen. The first
sample contained .116 grams of alcohol per 210 liters of breath, and the
second sample contained .130 grams of alcohol per 210 liters of breath.
Officer Pierce opined that Lancaster was intoxicated.
III. E VIDENTIARY S UFFICIENCY
A person commits DWI if “the person is intoxicated while operating a
motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a) (Vernon
2003). The penal code defines “intoxicated” as “not having the normal use of
mental or physical faculties by reason of the introduction of alcohol . . . into the
body” or “having an alcohol concentration of 0.08 or more.” Id. § 49.01(2).
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A. Legal Sufficiency 3
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all of the evidence in the light most favorable to the prosecution in
order to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives full play
to the responsibility of the trier of fact to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235
S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility
of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979);
Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008). Thus, when
performing a legal sufficiency review, we may not re-evaluate the weight and
credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000).
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… We address Lancaster’s factual sufficiency issue separately. See
Laster v. State, 275 S.W.3d 512, 519 (Tex. Crim. App. 2009) (stating that
appellate courts should not combine legal and factual sufficiency analysis).
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The record contains evidence that Lancaster exhibited multiple signs of
intoxication, that he performed poorly on each of the three field sobriety tests
administered by Officer Desselles, and that he blew breath tests containing at
least .11 grams of alcohol per 210 liters of breath. Both Officer Desselles and
Officer Pierce opined that Lancaster was intoxicated. The jury, as the sole
judge of the weight and credibility of the evidence, considered any conflicts in
the testimony and resolved them in favor of the State. Viewing all of the
evidence in the light most favorable to the prosecution, we hold that a rational
trier of fact could have found beyond a reasonable doubt that Lancaster
committed DWI. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. Accordingly, the evidence is legally sufficient to support
Lancaster’s conviction. We overrule Lancaster’s first point.
B. Factual Sufficiency
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129
S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.
2006). We then ask whether the evidence supporting the conviction, although
legally sufficient, is nevertheless so weak that the factfinder’s determination is
clearly wrong and manifestly unjust or whether conflicting evidence so greatly
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outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417.
We may not simply substitute our judgment for the factfinder’s. Johnson
v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d
404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals that a
different result is appropriate, we must defer to the jury’s determination of the
weight to be given contradictory testimonial evidence because resolution of the
conflict “often turns on an evaluation of credibility and demeanor, and those
jurors were in attendance when the testimony was delivered.” Johnson, 23
S.W.3d at 8. Thus, unless we conclude that it is necessary to correct manifest
injustice, we must give due deference to the factfinder’s determinations,
“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9. An opinion addressing factual sufficiency must include a
discussion of the most important and relevant evidence that supports the
appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.
Crim. App. 2003).
Lancaster argues that the evidence is insufficient to support his conviction
because his wife testified that he was not intoxicated at the time of his arrest.
Under the factual sufficiency standard of review, however, we are required to
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defer to the jury’s determination of the weight to be given contradictory
testimonial evidence of Lancaster’s intoxication. See Johnson, 23 S.W.3d at
8. Thus, we give deference to the jury’s decision to believe Officer Desselles’s
and Officer Pierce’s testimony that Lancaster was intoxicated. See id. at 9.
Lancaster also argues that the evidence is insufficient to support his
conviction because Officer Desselles did not correctly perform the field sobriety
tests. To support this argument, the portion of the record that Lancaster
directs us to contains the testimony of Lancaster’s wife that she did not see
Officer Desselles perform the one-leg stand test or the walk-and-turn test, that
Officer Desselles did not perform any field sobriety tests on her, that she felt
like Officer Desselles had “badgered” her, and that Lancaster works for a
plumbing business. None of her testimony relates to Officer Desselles’s alleged
incorrect administration of any of the field sobriety tests, nor does Lancaster
specify which conduct of Officer Desselles demonstrates the allegedly incorrect
performance of the field sobriety tests. Lancaster’s argument is consequently
unconvincing.
Other evidence supports Lancaster’s factual sufficiency argument.
Lancaster’s wife testified that Lancaster did not skid his vehicle’s tires when he
pulled into Wal-Mart and that he worked with certain chemicals earlier in the
day. And although Officer Desselles observed multiple clues of impairment
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when Lancaster performed the walk-and-turn test, Lancaster was able to keep
his balance while listening to instructions, he did not start performing the
exercise before the instructions were given, he did not step off of the line that
he was required to walk, and he did not use his arms to steady himself. While
this evidence supports Lancaster’s argument, the record also contains ample
evidence of Lancaster’s intoxication, including the multiple symptoms of
intoxication that he exhibited, his poor performance on the field-sobriety tests,
and the results of the breath tests indicating that he had at least .11 grams of
alcohol per 210 liters of breath. See Tex. Penal Code Ann. § 49.01(2) (defining
“intoxication”).
Viewing all the evidence in a neutral light, favoring neither party, the
evidence supporting the conviction is not so weak that the jury’s determination
is clearly wrong and manifestly unjust, nor does the conflicting evidence so
greatly outweigh the evidence supporting the conviction that the jury’s
determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson,
204 S.W.3d at 414–15, 417. Accordingly, we hold that the evidence is
factually sufficient to support Lancaster’s conviction. We overrule Lancaster’s
second point.
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IV. C ONCLUSION
Having overruled both of Lancaster’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MEIER, LIVINGSTON, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 14, 2009
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