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Click here for the full text of this decision FACTS:Shortly after midnight, on Aug. 12, 2003, appellant Robert J. Simon drove his vehicle across four lanes of traffic and cut off Officer Tony Tomeo and Officer Chad Nichols of the Houston Police Department, who were traveling in a marked patrol car on the same roadway. Tomeo and Nichols immediately signaled appellant to stop and pull over. Appellant complied. Based upon their observations and appellant’s poor performance on the field sobriety tests, Officers Tomeo and Nichols concluded that appellant had lost the normal use of his mental and physical faculties due to alcohol consumption, and they arrested him for driving while intoxicated. Appellant was taken to the police department. While there, Sgt. Paul George administered more sobriety tests, in addition to testing appellant’s breath with the Intoxilyzer 5000 infrared spectrometer instrument. George testified that the Intoxilyzer was working properly on the evening he tested appellant’s breath. The samples, taken from appellant approximately one hour after Tomeo stopped appellant from driving, showed .214 grams of alcohol per 210 liters of appellant’s breath at 1:10 a.m., and .233 grams of alcohol per 210 liters of appellant’s breath at 1:13 a.m. While at the station, appellant attempted and failed both the one-leg-stand test and the walk-and-turn test. These attempts were captured on videotape. George, observing appellant at the police station, noted appellant had glassy eyes, slurred speech, alcoholic breath and lack of balance without support. George testified that appellant admitted that he had been drinking earlier that night. On appeal, appellant asserted that the trial court improperly commented on the evidence by stating that appellant’s cross-examination of Tomeo “did not matter”; by volunteering information to explain why police patrol cars did not have video cameras; by telling the jury that appellant’s cross-examination of Ricky Viser of the Houston Police Department Crime Laboratory regarding the differences between the Intoxilyzer used in this case, and the newer “EN” model were irrelevant: and by stating that the reason the state did not have state-of-the-art technology was because of money. HOLDING:Reversed and remanded. The court examined the propriety of several comments as to which appellant preserved error: In his second point of error, the appellant referenced this testimony: “Mr. Trichter, I don’t want to hear all of the things that could have been done out there. You can cross him on everything that he is trained to do. And, what he did. But, I don’t want to go into all of”what else could have happened.’ Next, you will be talking about,”Why don’t we have a video in every patrol car?’ And, we all know that answer to that. A lot of lawyers ask that question, and leave it hanging out there as if there had been negligence, or not, by not having video tapes in their cars. And, when there’s really not money for it.” In his third point of error, the appellant referenced this testimony: “Well, we have what we have. And, I don’t think it’s relevant about what else is out there. So, I’m [sic] don’t want to go too far into this.” Also in his third point of error, the appellant referenced this testimony: “Well, you do. But, the fact . . . I will remind you that, well, the fact is that they might be better machines. But, we don’t have those machines, and in this case. And, it might not be as good of a machine. And, if so, you can pursue that. But, don’t go into the fact that there are actually other machines out there.” In viewing these comments in the context in which they were made, and in light of the entire record, the court concluded the trial court strayed beyond the boundaries of permissible remarks: 1. by introducing factual matters not in evidence and 2. by expressing the trial court’s opinions regarding the parties’ positions. The court found that jury could have been influenced toward the state’s position based on the trial judge’s comments regarding the Intoxilyzer used to test appellant’s breath and the newer version, as well as by the judge’s comments regarding audio or video recorders in patrol cars. The court found that the evidence regarding appellant’s guilt was not overwhelming and the testimony given by the officers who arrested appellant at the scene was inconsistent in places. The court further stated: “Though the trial court may have intended no ill result, the absence of improper motive does not diminish the damaging nature of the remarks. Viewed objectively, the trial court’s comments were reasonably calculated to benefit the State and prejudice appellant’s rights.” For this reason, the court could not state with fair assurance that the trial court’s comments did not influence the jury’s decision or had only a slight effect. The court held that trial court’s improper comments, considered as a whole, required reversal and warranted a new trial. OPINION:Frost, J.; Anderson, Edelman, and Frost, J.J.

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