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Duncan v. State9/19/2000
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A. Yes, sir, it did.
Q. Did Ronald Duncan pass or fail this test?
A. He failed the test.
During closing argument, the state argued the results of the portable breath test three times. First, at the close of his description of the field sobriety tests, the prosecutor said: "And then he gave him a portable breath test, and he failed the portable breath test." After the defense's closing argument, the prosecutor reminds the jury: "Then there was the portable breath test." After objection and the court correcting the prosecutor's characterization of the gaze nystagmus test, the prosecutor returned immediately, saying: "The portable breath test though, he failed that." Given this obvious reliance on the PBT to make its case, and the fact that the jury may have relied on the test in whole or in part to convict, we cannot say that the court's improper admission was "harmless without question" or that the record demonstrates the evidence did not influence the jury. Russell, 872 S.W.2d at 869. Absent the PBT results, there is a reasonable probability that the jury would have reached a different verdict. Point one granted.
We reverse the judgment of the trial court and remand for a new trial.
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