                        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




      2
       … 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).




      3
       … 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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