Robert J. Simon v. State

Court of Appeals of Texas

Robert J. Simon v. State

DecidedSeptember 28, 2006

Docket14-04-00734-CR

StatusPublished

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Bluebook

Robert J. Simon v. State, (Tex. Ct. App. 2006).

Pincite

Opinion

Reversed and Remanded and Opinion filed September 28, 2006

Reversed and Remanded and Opinion filed September 28, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00734-CR

ROBERT J. SIMON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 1188279

O P I N I O N

Challenging his conviction for driving while intoxicated (ADWI@), appellant Robert J. Simon asserts various evidentiary complaints, and also contends that the trial court reversibly erred by commenting on the weight of the evidence on several occasions during the guilt-innocence phase of his jury trial. Finding merit in the latter contention, we conclude that the trial court=s improper comments on the weight of evidence were reasonably calculated, when considered from the jury=s standpoint, to benefit the State. Accordingly, we reverse the trial court=s judgment, and remand for a new trial.

I. Factual and Procedural Background

Shortly after midnight, on August 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. Officers Tomeo and Nichols immediately signaled appellant to stop and pull over. Appellant complied.

At trial, Officer Tomeo testified as follows:

! He was unsure whether he was distracted or talking to Officer Nichols just before appellant cut them off. He did not see appellant speed, weave, or fail to maintain a single lane prior to appellant cutting them off.

! Officer Tomeo smelled a strong odor of alcohol on appellant, which led him to believe that appellant had been drinking.^{^[1]}

! He asked appellant if he had been drinking that night, but could not remember appellant=s response.^{^[2]}

! Officer Tomeo administered three standard field sobriety tests, and one non-standardized field sobriety test. The first test was the Horizontal Gaze Nystagumus (AHGN@) test for which appellant displayed the maximum number (six) of clues of intoxication.^{^[3]}

! Appellant displayed all four possible clues on the one-leg-stand test, including swaying, dropping his foot, hopping, and using his arms to balance during the test.

! Appellant had difficulty performing the walk-and-turn test, but exhibited only three of the eight possible clues of intoxication for this test. Appellant was unable to touch heel to toe during his steps, but Officer Tomeo was unsure which ones. Appellant also stepped off the line.^{^[4]}

! A person needs to exhibit four clues on the walk-and-turn test before his performance counts as a failure. However, Officer Tomeo was not sure about the proper width of extension for the arms during this test, and he did not know whether appellant failed this portion. Officer Tomeo also did not know how far apart appellant=s feet were when appellant failed to place his feet heel to toe.^{^[5]} Appellant did not have shoes on when he performed this test on the parking lot.

! Officer Tomeo also administered the non-standardized Rhomberg test in which he asked appellant to tilt his head back, close his eyes, and estimate thirty seconds. While performing the test, appellant swayed noticeably from side to side.^{^[6]} In addition, consistent with the effects of alcohol, appellant estimated that sixty-five seconds was thirty seconds.

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 arrested him for driving while intoxicated. Appellant was taken to the police department. While there, Sergeant Paul George administered more sobriety tests, in addition to testing appellant=s breath with the Intoxilyzer 5000 infrared spectrometer instrument.

Sergeant 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 Officer 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=

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