OPINION
A jury convicted Boston of robbery enhanced by one prior felony conviction and assessed his punishment at twenty-five years in prison. In a single point Boston complains that the court erred by denying his request to make an opening statement to the jury immediately following the State waiving its opening statement. See TEX. CODE CRIM.PROC.ANN. art. 36.01(b) (Vernon Supp. 1992). The State contends that Boston failed to preserve error by not specifying the grounds for the request, by not objecting to the trial court's denial of the request, and by later waiving an opening statement by not giving one at the conclusion of the State's case. The State also argues that the error, if any, was harmless.
The facts of this case are similar to those in Arriaga v.State, 804 S.W.2d 271 (Tex.App.-San Antonio 1991, pet. ref'd), except that in Arriaga the State made an opening statement and here the State waived the opening statement. In Arriaga, the court held the appellant's request for an opening statement was sufficient to preserve error without stating the specific grounds for the request and objecting to the court's ruling. Id. at 273; seealso Long v. State, 800 S.W.2d 545 (Tex.Crim.App. 1990). Accordingly, we find that Boston's request was sufficient and that no objection was necessary.
Article 36.01 of the Code of Criminal Procedure governs the order of trial proceedings, and provides in part: *Page 336
(a) A jury being impaneled in any criminal action, except as provided by subsection. . . . .(b) of this article, the cause shall proceed in the following order:
3. The State's attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.. . . . .4. The testimony on the part of the State shall be offered.
5. The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant's counsel.
(b) The defendant's counsel may make the opening statement for the defendant immediately after the attorney representing the State makes the opening statement for the State. After the defendant's attorney concludes the defendant's opening statement, the State's testimony shall be offered. At the conclusion of the presentation of the State's testimony, the defendant's testimony shall be offered, and the order of proceedings shall continue in the manner described by subsection (a) of this article.
TEX. CODE CRIM.PROC.ANN. art. 36.01 (emphasis added).
The State contends that, since the State waived its opening statement, subsection (b) does not apply and Boston's opening statement must then follow the State's case, as provided by subsection (a)(5). We disagree. In Farrar v. State,784 S.W.2d 54, 56 (Tex.App.-Dallas 1989, no pet.), the Dallas Court of Appeals held that article 36.01(a) and (b) gives defense counsel a choice of when to make an opening statement. The focus of article 36.01(b) is not onwhether a defendant may make an opening statement butwhen the statement may be made. Arriaga, 804 S.W.2d at 273. Once counsel chooses, the point at which the opening statement is to be made is mandatory as far as the trial court is concerned. Id. at 274. Article 36.01(b) has given the defendant a tactical choice of determining when to make an opening statement. There are situations, such as Boston points out here, in which an attorney might tactically decide to make an opening statement prior to the State's evidence. The right to make an opening statement is a valuable right, the denial of which constitutes error. See id.; Farrar, 784 S.W.2d at 55; Caraway v. State,417 S.W.2d 159, 161 (Tex.Crim.App. 1967); Crew v. State,387 S.W.2d 898, 899 (Tex.Crim.App. 1965). We find that Boston did not waive or forfeit his right to make an opening statement by failing to do so after the State presented its evidence. See Arriaga,804 S.W.2d at 274. Once the State presented its evidence, the right of Boston to present an opening statement was lost, not abandoned or waived.
Having found the court's refusal to allow Boston to make an opening statement before the State's presentation of evidence to be error, we must now consider whether it was harmless.See TEX.R.APP.P. 81(b)(2). In determining whether the error requires reversal, we are guided by Harris v.State, 790 S.W.2d 568 (Tex.Crim.App. 1989). First, we must isolate the error and all its effects, and second, ask whether a rational trier of fact might have reached a different result if the error and its effects had not resulted. Seeid. at 587-88.
The State contends that Boston was allowed to state his overall defense position, which purported that he committed theft and not robbery, by mentioning that position in his voir dire examination of the panel. However, the State does not contend that voir dire is a substitute for opening argument. Even though the defensive position was mentioned to the jury panel, the facts later relied on by Boston, when he testified in his own defense, never got before the panel during voir dire. Article 36.01(a)(5) specifically allows a defendant in his opening statement to tell the jury the defenses relied upon and the facts expected to be proved. Here, Boston was precluded from telling the jury those facts and thus the jury could not relate that posture to the *Page 337
his cross-examination of the State's only witness.
We find that the error was of such magnitude that it disrupted the juror's orderly evaluation of the evidence. By not being allowed to state the nature of the defense relied upon and the facts expected to be proved in their support before the State presented its evidence, Boston was not able to have the jury evaluate the State's evidence in the context of the defense position as that evidence was being heard. We cannot conclude beyond a reasonable doubt that the error made no contribution to the conviction based on the principles inHarris. Boston's point of error is sustained.
We reverse the judgment and remand the case.