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Click here for the full text of this decision FACTS:Theodore Saron Williams was charged with felony driving while intoxicated on Dec. 28, 1999. At his trial, the arresting officer, Robert Young, testified that when he approached Williams’ car, he smelled an alcoholic beverage. He said Williams fumbled with his wallet and had some slurred speech. The officer also said Williams’ performance on a horizontal gaze nystagmus test, as well as other field-sobriety tests, indicated he was impaired. One of those tests required Williams to count, and the office said Williams slurred his words and the officer couldn’t understand him. A search of Williams’ car yielded open and unopened beer cans in the rear passenger seat. Williams slurred his words during processing at the county jail, too, the officer said. Williams allegedly said his middle initial “S” stood for “Shit.” An officer who was riding with Young, Michael Holly, said what he observed and what he heard of Williams’ speech led him to believe that Williams was intoxicated. Frederick Bauer, another officer, testified that when he helped process Williams at the county jail, that Williams’ speech was slurred. He also testified that he struggled with Williams to get him out of the police car, that Williams cursed at him, and that he went limp when Bauer tried to move him. Also at Williams’ trial, the state played a videotape from the intoxilyzer room at the jail where Williams stared at the floor for a long period; where he stood still, without swaying or using his arms for balance; where he said his middle name and spelled it; where he saluted the officer who read him his DWI warnings; where he asked for a trash can to throw away the written copy of his rights; and where he refused to provide a breath specimen. During Williams’ case, he asked the trial court to let him give a personal demonstration to the jury of his speech patterns and the condition of his mouth: he had no upper teeth and was missing three lower teeth. Though Williams’ attorney said the jury needed to hear it because the arresting officers were not familiar with Williams’ normal speech, the trial court denied the request. In the rebuttal phase, the state reminded the jury of how Williams looked and talked, suggesting that Williams’ poor performance on the field sobriety tests, as well as the way he behaved and the fact that he gave “shit” as his middle name, all tended to prove that he was intoxicated. Further, the state said, “His speech says it all. Even with the worse [sic] speech impediment or defect in the world, nobody sounds like that unless you have had too much alcohol.” Williams was convicted, and on his initial appeal to this court, his conviction was affirmed. The Court of Criminal Appeals, however, reversed and remanded the case, holding, “that a voice exemplar is not testimonial and therefore does not waive a defendant’s right to be free from self-incrimination.” The court did not rule on the specific request to have the jury examine Williams’ mouth. HOLDING:Reversed and remanded. The court clarifies what the scope of review is on remand. The court concludes that while the Court of Criminal Appeals’ holding pertains only to Williams’ voice exemplar and does not specifically address his complaint as to the denial of his request to show the jury the condition of his mouth, this court will re-examine its holding on the latter issue before turning to the question of whether Williams was harmed by the trial court’s rulings. Williams claims that the if the jury had been able to see the inside of his mouth, they would have had evidence of what actually caused Williams’ slurred speech in the videotape from the intoxilyzer room. The court holds that a defendant who offers evidence of the physical condition of his or her mouth does not waive his Fifth Amendment rights and does not subject himself to cross-examination. The trial court abused its discretion by not allowing Williams to provide this personal demonstration. The court then conducts a harm analysis. Reviewing the evidence mentioned above, including the videotape and an audiotape, the court says it cannot conclude that the error did not influence the jury’s determination. Because the state emphasized and heavily relied on evidence of Williams’ manner of speech, even with other evidence tending to show that Williams was intoxicated at the time of his arrest, the error in disallowing Williams to present a personal demonstration of his manner of speech and the condition of his mouth “so disrupted the jury’s orderly evaluation of the evidence that his conviction is tainted.” OPINION:Gardner, J.; Dauphinot, Holman and Gardner, JJ.

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