OPINION
Challenging his conviction for driving while intoxicated (“DWI”), 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 Torneo and Officer Chad Nichols of the Houston Police Department, who were traveling in a marked patrol car on the same roadway. Officers Torneo and Nichols immediately signaled appellant to stop and pull over. Appellant complied.
*584 At trial, Officer Torneo 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 Torneo 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 Torneo administered three standard field sobriety tests, and one non-standardized field sobriety test. The first test was the Horizontal Gaze Nystagumus (“HGN”) 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 Torneo 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 Torneo 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 Torneo 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 Torneo 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 Torneo and Nichols concluded that appellant had lost the nor *585 mal 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 In-toxilyzer was working properly on the evening he tested appellant’s breath. The samples, taken from appellant approximately one hour after Officer Torneo 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. Sergeant George testified that appellant failed the walk-and-turn test by demonstrating three of eight possible clues of intoxication, and that appellant demonstrated two of four possible clues of intoxication during his attempt at the one-leg-stand test. Sergeant George, observing appellant at the police station, noted appellant had the following symptoms of intoxication: (1) glassy eyes, 7 (2) slurred speech, (3) alcoholic breath, and (4) lack of balance without support. Sergeant George testified that appellant admitted that he had been drinking earlier that night. Based on his observations, Sergeant George concluded that appellant was intoxicated due to alcohol consumption.
II. Issues PRESENTED
Appellant asserts the following points on appeal:
(1) The trial court erred in overruling his objection to admission of the results of the HGN test because the proper screening questions were not asked.
(2) The trial court improperly commented on the evidence by stating that appellant’s cross-examination of Officer Torneo “did not matter” and by volunteering information to explain why police patrol cars did not have video cameras.
(3) The trial court improperly commented on the evidence 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.
(4) The trial court improperly commented on the evidence at trial by stating that appellant’s cross-examination of the State’s witness (Ricky Viser) was misleading and “outside of what it is” and by stating that the questions being asked by appellant’s counsel were “not real cross-examination.”
(5) The trial court erred in excluding the testimony of a witness offered to impeach the prior inconsistent statements of Officer Nichols and as substantive evidence.
(6) The trial court erred in excluding defense exhibit three, an offense re *586 port, allegedly signed by both Officer Nichols and Officer Torneo. 8
III. Analysis
In support of issues two through four, appellant points to several places in the record where he contends that the trial judge improperly commented on the weight of the evidence. The first instance occurred during appellant’s cross-examination of Officer Torneo regarding the absence of audio recorders in police patrol cars. In his second issue, appellant cites to the following exchange:
Q: [Mr. Trichter]: If an audio recording would have been made, then this Jury could have heard the instructions that you gave Robert?
A: [Officer Torneo]: (No response).
Q: [Mr. Trichter] Right?
[The State]: Objection. Argumentative.
[The Court]: 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 mil 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 — 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.
[Mr. Trichter]: So, the Court is commenting on the evidence?
[The Court]: So, I don’t want — I don’t want to go into that whole area. That’s the kind of thing that you’re leading into.
[Mr. Trichter]: Well, I object to this Court commenting on the—
[The Court]: We need to know what all happened out there at the scene and not what could have happened.
[Mr. Trichter]: I, again, object to the Court commenting. And, I move for a mistrial.
[The Court]: Denied. Let’s proceed.
[Mr. Trichter]: Is the Court denying the Defendant the right to go ahead and put on this theory of the case?
[The Court]: Well, you may proceed under the — under the guideline that I just set forth.
[Mr. Trichter]: Well, my question is — is the Court denying the citizen accused the right to put on his theory of the—
[The Court]: Well, no, I don’t want to hear talk like that. Let’s just move on with whatever. But, away from all the things that he could have done, and without sending for more cars. It’s a very narrow thing that I don’t want you to do on cross.
[Mr. Trichter]: Well, cross-examination is not supposed to be narrow, your Honor.
[The Court]: I know that. Let’s proceed.
Q:[Mr. Trichter]: It’s suffice [sic] to say, Officer, that had a tape recording where’s [sic] there an audio or a video been made, and preserved, we could have played it here for this Jury to see and hear?
A:[Officer Torneo]: If one had been produced, it would have been here, yes, sir.
*587 Q:[Mr. Trichter]: And, you made a decision to not try and preserve a videotape or audio recording that night?
A:[Officer Torneo]: (No response).
[The State]: Objection. Argumentative, Judge. There’s no—
[The Court]: Sustained.
(Emphasis added).
In his third issue, appellant attacks the trial court’s comments made during the testimony of the State’s witness, Ricky Viser, a technical supervisor with the Houston Police Department Crime Laboratory. During direct examination, Viser testified that the Intoxilyzer 5000 used to test appellant’s breath has been replaced by a newer version — the Intoxilyzer 5000 EN. Viser described the newer version as the same instrument as the one used to test appellant’s breath, but enhanced with some additional features. Through cross-examination, appellant sought to explore the differences between the two instruments. It is this testimony that appellant proffers to support his third issue:
Q:[Mr. Trichter]: What are the differences, and if you know, between the “EN” and the # 5000?
A:[Mr. Viser]: The “68” and the “68 EN”?
Q:[Mr. Trichter]: Uh-huh?
A:[Mr. Viser]: Okay. Thank you. The difference is ... the “68 EN” is an enhanced instrument. It has five filter wheels on it versus the three. The “68.” The instrument—
Q:[Mr. Trichter]: Well, if you will, Mr. Viser, stop right there. “Filter wheels.” A filter wheel is kind of a safeguard on the device. It’s to make sure that it reads alcohol and not something else?
A: [Mr. Viser]: That’s correct.
Q:[Mr. Trichter]: So, they added forty percent more filter wheels, and with the “EN,” didn’t they?
A: [Mr. Viser]: They added two additional filters.
Q:[Mr. Trichter]: Forty percent more filters?
A: [Mr. Viser]: That’s correct.
[The Court]: Well, Mr. Trichter, why are you — are you pursuing the “state of the art”? I mean, we don’t have the “state of the art.”
[Mr. Trichter]: Well, that’s it, your Hon- or. That’s it.
[The Court]: I mean it could have been because of money or something like that, I guess.
[Mr. Trichter]: Well, we’re going to get to money, and in a little bit, too, Judge.
[The Court]: Well, I—
[Mi’. Trichter]: And, because this was a “low bid” item.
[The Court]: 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.
[Mr. Trichter]: Well, that’s a comment on the evidence. And, the court is not supposed to do that. And, I object to the Court making a comment.
[The Court]: Overruled. So, any way, follow my instructions. And, not go there, again, unless it’s — it’s—
[Mr. Trichter]: Well, Judge, they’re the ones that brought in “how good this machine was.” And, that one being replaced, well, I wasn’t going to go there, and until they brought it up. And, I have a right to comment on what they’ve made.
[The Court]: 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 *588 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.
[Mr. Trichter]: Well, the new machines show the deficiency of the old machines. And, that’s why they’re relevant, your Honor. This Jury has the right to know that the science behind breath testing has increased so much, and dramatically, that the machines that are presently used are outdated. And, not worth the money that we pay for them.
[The Court]: Well, just follow my instructions, Mr. Trichter, please. Overruled.
[Mr. Trichter]: Well, it goes to his credibility, too. And, his credentials. Because he has to know what the other machines are in the field. So that, he knows what other advances, if any, are being made. How can he do quality assurance, and if he doesn’t know about what else is happening? He can’t live in a closet.
[The Court]: Well, this man is not the proper man to answer those kinds of questions.
[Mr. Trichter]: Well, he is, your Honor.
[The Court]: Well, he doesn’t have the authority to do anything about it. So, I don’t tvant to have any more discussion about this. So, let’s continue. But, do what I said.
[Mr. Trichter]: Well, what was your order, your Honor?
[The Court]: My order was to not proceed with questioning the ... witness, and with newer things about it. And, you can have your exception. And, you can put it in the record. And, right now. Just say that you want to say. [sic].
[Mr. Trichter]: Well, I want to ask this witness questions about the Intoxilyzer # 8000. And, I want to talk to him about the differences between the # 8000. Which is the state of the art. And, how it measures temperature. And, how it measures volume. And, that these devices that we have — the “68 Series” — doesn’t do that. And, the reason the manufacturer did that is because—
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[The Court]: Well, I knew that, yes. Yes. And, Mr. Trichter, do you need to put something else, and on the record here?
[Mr. Trichter]: Well, your Honor, you just told me to do what I do.
[The Court]: And, then, it stopped. Right?
[Mr. Trichter]: Yeah.
[The Court]: And, you’re overruled. So, then, let’s move on.
(Emphasis added).
In issue four, appellant attacks the following comments by the trial court:
Q:[Mr. Trichter]: Now, if we go to the memory of your computer, there will be a file that has “invalid tests” that came from this — that came from this device?
A:[Mr. Viser]: Yes, sir.
Q:[Mr. Trichter]: And, there are more than two “invalid tests” in your files, and since it’s been in use?
A: [Mr. Viser]: (No response).
Q:[Mr. Trichter]: Right?
A:[Mr. Viser]: (No response).
[The State]: Objection. Relevance.
[The Court]: Overruled.
A:[Mr. Viser]: That’s correct.
Q:[Mr. Trichter]: And, they [sic] are more — there are more than a hundred *589 “invalid tests” in that file, and since it has been in use. Correct?
A:[Mr. Viser]: That’s correct. That shows that the instrument is working.
Q:[Mr. Trichter]: Well, give me just a “yes” or a “no,” sir?
A:[Mr. Viser]: I said, ‘Tes.”
Q:[Mr. Trichter]: And, there are more than a thousand “invalid tests” in that file, sir?
A:[Mr. Viser]: (No response).
[The Court]: Well, Mr. Trichter, you need to allow him to give a full answer to that.
[Mr. Trichter]: Well, your Honor there is a difference between direct examination and cross-examination. The Court is not permitted to let him tell his story. The Court is supposed to have him answer the question. And, that’s what the adversary system is for. And, if they have questions, they can ask him. But, you cannot let him deny the right for us to tell our side of the facts.
[The Court]: Well, Mr. Trichter, it’s about time that we have cross-examination. And, it may be too late. And, when you ask a questions [sic] like— like — like you’re saying — all of these “invalid tests” — you’re leading outside of what it is. Is it so necessary, Mr. Trichter, for the Jury to have the— the—
[Mr. Trichter]: Well, the Court is commenting on the evidence, again, your Honor. And, I ... must say that I object to it. If you are taking the wrong—
[The Court]: Well, I will handle these, now. I’m going to let him give a full answer. A full answer.
[Mr. Trichter]: Well, I’ll just sit down, then, your Honor, because you are denying the Defendant the right to cross-examination. You’re denying the right to confront. You’re making me ineffective as his lawyer. And, until you take control of this witness, we cannot get a fair trial in here.
[The Court]: Well, I’m taking control of this trial, Mr. Trichter.
[Mr. Trichter]: Well, if you have not, you’re denying us a fair trial.
[The Court]: I am in control of this trial. (Pause). So, now, answer the question, and with a full answer.
[Mr. Viser]: The ... there have been a lot of invalid tests. But, that’s a misconception, Judge. That’s showing that the instrument is working properly. When it invalidate [sic] a test, it’s showing that the — that the subject — well, like a “RFI.” If it was — if it was a radio frequency interference, it would invalidate the test. And it’s doing just what it was designed to do. And, a lot — a lot of times, people take that as a misconception, and like it’s not working. But, Judge, it’s really doing exactly what it’s supposed to. And, it is working.
[The Court]: All right. Mr. Trichter, go ahead.
[Mr. Trichter]: Well, your Honor, I don’t know. Because every time I ask a question, you allow him to undercut the Defense’s case. So, with me continuing to ask questions, you are, and in effect, allowing — helping him— helping the State — undermine the Defense.
[The Court]: Well, Mr. Bailiff, take the Jury out.
(Jury Removed)
The trial judge shall maintain an attitude of impartiality throughout the trial.
Lagrone v. State,
Judge shall not discuss evidence
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
Tex.Code Ceim. PROC. Ann. art. 38.05 (Vernon Supp.2005). A trial court must refrain from making any remark calculated to convey to the jury its opinion of the case.
Brown v. State,
[Jjurors are prone to seize with alacrity upon any conduct or language of the trial judge which they may interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved.
Jurors tend to take hold of a trial judge’s remarks, which they often “interpret as shedding light upon his view of the weight of the evidence, or the merits of the issues involved.”
Backus v. State,
In ruling upon the admissibility of evidence, the trial court should abstain from anything beyond a simple announcement of the ruling.
Wilson v. State,
Within the record excerpts quoted verbatim above, we examine the propriety *591 of the following comments as to which appellant preserved error: 9
[The Court]: 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 — 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. (Issue two).
[The Court]: 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. (Issue three).
[The Court]: 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. (Issue three).
[The Court]: Well, Mr. Trichter, it’s about time that we have cross-examination. And, it may be too late. And, when you ask a questions [sic] like— like — like you’re saying — all of these “invalid tests” — you’re leading outside of what it is. Is it so necessary, Mr. Trichter, for the Jury to have the— the — (Issue four).
In viewing these comments in the context in which they were made, and in light of the entire record, we conclude 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 trial court’s role is to rule on the admissibility of the evidence, not to present evidence or share the court’s views of the case with the jury. Though there is nothing in the record to suggest that the
*592
trial judge acted with improper motives in presiding over the trial in this case, we nonetheless conclude that his comments indicated a disbelief in appellant’s position, and implied approval and support of the State’s position.
See McClory v. State,
We now must address whether these comments are material.
See Burge v. State,
Having determined that the trial court’s comments in issues two and three were material, we now must determine whether the error is reversible. To constitute reversible error in violation of Article 38.05, an improper comment on the weight of the evidence must be such that it is either reasonably calculated to benefit the State or to prejudice the defendant’s right to a fair and impartial trial.
Brokenberry v. State,
*593
Non-constitutional error that does not affect substantial rights is subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(b).
See Johnson v. State,
A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict.
King v. State,
In conducting the harm analysis, we consider everything in the record, including any testimony or physical evidence admitted for the jury’s consideration, the trial court’s instructions to the jury, the State’s theory, any defensive theories, closing arguments, and even voir dire if material to the appellant’s claim.
Motilla,
One of the most fundamental components of a fair trial is “a neutral and detached judge.”
Metzger v. Sebek,
Part of the trial court’s responsibility is to admonish counsel that in addressing the jury they are required to stay within the record so that the jury will not base its decision on any evidence not adduced at trial.
See McGee v. State,
Though nothing suggests the trial court intended any adverse consequences, his comments alerted the jury to the trial court’s opinion on a material fact issue raised by the evidence — whether appellant was intoxicated while driving. In his response to appellant’s counsel’s questions regarding audio recorders in patrol cars, and the differences between the Intoxilyzer used for appellant’s breath test, and the “newer” model, the trial judge injected new “facts” into the record, and in the process diminished the credibility of the defense’s approach to the case. When a trial judge takes on the role of an advocate for the State, introducing new “facts” that were not in evidence, his actions and conduct that inure to the State’s benefit not only impact the state of the evidence but also impact the dynamics of the trial.
See Clark v. State,
*595
In assessing the impact of a trial court’s improper comments, a reviewing court is concerned with whether the jury would be unfairly influenced by additional comments from the bench.
Strong,
The evidence regarding appellant’s guilt is not overwhelming and the testimony given by the officers who arrested appellant at the scene was inconsistent in places. Officer Nichols and Officer To-rneo contradicted both each other and themselves on the appropriate steps and procedures for all of the field sobriety tests conducted at the scene. In addition, the Intoxilyzer results (read by the technical supervisor, Ricky Viser) 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. However, Viser, during cross-examination, stated that in order for the results of the breath test to be accurate, appellant would have had to have consumed almost seventy drinks of Sam-buca, and a person at this level would be “commode hugging drunk.” This assessment is inconsistent with the descriptions of appellant’s behavior at the time he was actually stopped by Officers Torneo and Nichols (which was an hour earlier). Neither Officer Torneo nor Officer Nichols described appellant as manifesting this high level of intoxication. Some of the trial judge’s improper comments related directly to the reliability of the Intoxilyzer used to test appellant’s breath. 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.
See Valles v. State,
For this reason, we cannot say with fair assurance that the trial court’s comments did not influence the jury’s decision or had only a slight effect.
See
TexR.App. P. 44.2(b);
Kincade v. State,
Notes
. Officer Nichols, a trainee of Officer Torneo, testified that appellant had bloodshot eyes, slurred speech, and alcoholic breath. He also testified that appellant had a difficult time balancing without support.
. At trial, Officer Nichols testified that at some point appellant admitted that he had been drinking Sambuca earlier that evening.
. Officer Nichols also testified that appellant displayed all six clues on the HGN test. Officer Nichols, however, was not certified in this test and was not sure what clues he was "really looking for on the HGN” test.
. In contrast, Officer Nichols testified that he observed appellant step off the line, use his arms for balance, and miss heel to toe on both the first and second steps of the nine steps.
. Officer Nichols testified that although he was not certain, he believed that three clues (not four) were necessary to fail the walk-and-turn test. Officer Nichols acknowledged that he did not know what was required by the National Highway Traffic Safety Administration (NHTSA) in regard to this test.
. Officer Nichols testified that he thought Officer Torneo told appellant to remain still during the Rhomberg test, but later testified that he was unsure about the instructions given to appellant during this test.
. Sergeant George also stated that appellant's eyes could have been red because he had been adying.
. We address issues two, three, and four together because the analysis of all three issues is similar. And we address these issues first because our resolution of them is dispositive of the entire appeal.
. In regard to the comments in issue three, the State contends that appellant failed to timely object and preserve error regarding the following comments:
(1) “Why are you — are you pursing the 'state of the art?” " I mean, we don’t have the “state of the art.”;
(2) "it could have been because of money, or something like that, I guess.”; and
(3) “he doesn't have the authority to do anything about it.”
As a general rule, trial counsel must object to preserve error, even if it is "incurable” or "constitutional.”
See Cockrell v. State,