Boston v. State

The majority holds that, although the State never made an opening statement, Boston was entitled under article 36.01(b) of the Code of Criminal Procedure to make an opening statement before the State presented its evidence and that he was harmed by the refusal to allow him to do so. I respectfully dissent.

ARTICLE 36.01(B) IS INAPPLICABLE Article 36.01(a) clearly provides that the defendant's opening statement shall follow the presentation of the State's case-in-chief. TEX. CODE CRIM.PROC.ANN. art.36.01(a)(4), (5) (Vernon Supp. 1992). Subsection (b), however, allows the defense — if it chooses — to advance its opening statement to a time "immediately after the attorney representing the State makes the opening statement for the State." Id. art. 36.01(b). Here, the State never made an opening statement because it waived its right to do so. The majority overlooks the plain language of subsection (b) and holds that Boston was entitled to advance his opening statement even though the State never made an opening statement. Under the circumstances, I would hold that subsection (b) was not applicable. Not being applicable, the court properly refused to allow Boston to proceed under subsection (b) but offered him the right to make an opening statement under subsection (a), which he later declined to do. This was not error. SeeBallard v. State, 514 S.W.2d 267, 268 (Tex.Crim.App. 1974); Johnson v. State, 167 Tex.Crim. 289, 319 S.W.2d 720,722 (1958).

The majority relies on Arriaga v. State, 804 S.W.2d 271 (Tex.App.-San Antonio 1991, pet. ref'd), to support its holding. Arriaga is inapplicable because the prosecution made an opening statement in that case.Id. at 272.

A court can require the prosecution to make an opening statement if its waiver will prejudice the defendant.Cannon v. State, 84 Tex.Crim. 479, 208 S.W. 660, 661 (1919). Thus, Boston could have preserved a complaint that the State's waiver deprived him of the valuable right to advance his opening statement under subsection (b) by either objecting to the waiver on that ground or requesting that the court order the State to make an opening statement. An adverse ruling on the objection or request would have preserved his complaint.See TEX.R.APP.P. 52(a). Because he did neither, I would hold that Boston waived any complaint about not being allowed to advance his opening statement.

STATEMENT OF "DEFENSES" Article 36.01(a) expressly limits the content of the defendant's opening statement: "The nature of thedefenses relied upon and the facts expected to be proved in their support shall be stated by defendant's counsel." TEX. CODE CRIM.PROC.ANN. art. 36.01(a)(5) (emphasis added). The defense is not entitled to include in an opening statement matters that are not legal defenses to the charged offense. Norton v. State, 564 S.W.2d 714, 718 (Tex.Crim.App. [Panel Op.] 1978); St. Pe. v. State, 495 S.W.2d 224, 225 (Tex.Crim.App. 1973).

Boston's complaint, as stated in his brief, is that he was not allowed to tell the jury about his "overall defensive posture, that this was a theft, not a robbery." Short and simple, he wanted to tell the jury that he was not guilty but, if he were, he was only guilty of theft, not robbery. A denial of guilt is not a legal defense and cannot be properly included in an opening statement. Norton, 564 S.W.2d at 718 (holding that a defendant is not entitled to tell the jury in an opening statement that he is relying on the defense of "not guilty"). Therefore, Boston would not have been entitled to make the statements he now complains he was prevented from making under either subsection (a) or (b) of article 36.01.

HARMLESS ERROR Assuming that subsection (b) of article 36.01 were applicable, that Boston was entitled to tell the jury in his opening statement that he was not guilty of robbery, that he has preserved the complaint for review, and that the court's ruling was error, I do not agree with the majority's harm analysis. See TEX.R.APP.P. 81(b)(2).

The guidelines for determining harmful error are inHarris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App. 1989). The majority concludes that the error — i.e., not allowing Boston to tell the jury of his overall defensive posture in the form of an opening statement before the State presented its evidence — was of such magnitude that it "disrupted the jury's orderly evaluation of the evidence." The majority concedes, however, that he had already mentioned his defensive posture to the jury panel during voir dire.

Boston questioned prospective jurors extensively during voir dire about whether they would distinguish between theft and robbery and whether they would convict him of theft if the State failed to prove the elements of robbery. He dwelled on the different elements of the two offenses in questions to juror after juror. Jurors selected to serve on the jury surely knew the thrust of the defense: If he was guilty, he was only guilty of theft. This is the same message he wanted to tell the jury just before the State began its case. Having told the jury during voir dire the substance of his so-called defense, any error in refusing to allow him to restate it in an opening statement was harmless beyond a reasonable doubt. SeeJohnson, 319 S.W.2d at 722 (holding that, assuming the court erred, reversal is not required when the defendant has stated the substance of his proposed opening statement to the jury during voir dire).

Finally, an opening statement is not evidence. Brooks v.State, 88 Tex.Crim. 520, 227 S.W. 673, 676 (1920) (on rehearing). Thus, assuming the court erred, it did not affect the quantum or quality of the evidence. In fact, Boston does not even question the sufficiency of the evidence to support his conviction.

Although a harm analysis cannot be determined solely by looking at the weight of the evidence showing the defendant's guilt, the appellate court must evaluate the effect of the error on the jury in light of the other evidence.Harris, 790 S.W.2d at 587. One simply cannot ignore the reality of the record in a harmless-error review.Id. at 585. After isolating the error and its effects, the appellatecourt must then ask whether a rational trier of fact would havereached a different result if the error and its effects were notpresent. Id. at 588. That is the pivotal question — Was the defendant harmed by the result?

Considering that the substance of the potential opening statement had already been communicated to the jury during voir dire, that the opening statement — if given — would not have affected the weight of the evidence, that Boston does not quarrel with the sufficiency of the evidence to support his conviction, I cannot agree that the jury would have reached a different result if only Boston had been allowed to make an opening statement. Accordingly, I would hold that the assumed error would have been harmless beyond a reasonable doubt.See TEX.R.APP.P. 81(b)(2). I believe the judgment should be affirmed.