concurring and dissenting.
“And how can they believe if they have not heard the message? And how can they hear the message if it is not proclaimed? And how can the message be proclaimed if the messengers are not sent out? As the scripture says, ‘How wonderful is the coming of the messengers who bring good news.’ ”1 Similarly, Exodus records the small cry of a baby boy answered by Pharaoh’s daughter2 which inexorably leads to the freedom of an entire Nation.
Background
Ernest Davis was walking down Brewster Street one night when Houston Police threw a spotlight on him. Because the police said he threw down a clear container, he was arrested for littering, searched, a container seized; with two enhancements, he now serves ten years in the penitentiary for possession of less than 1 gram of cocaine. After the remarkable beginning of this story, appellant was then denied the opportunity of making an opening statement in his trial. Today I first examine the harmful nature of the trial judge’s baseless denial of the rudimentary right and historical common law tradition of the opening statement. Then I will briefly address the police seizure. I concur in the result reached by the majority on the effectiveness of counsel issue al*16though trial counsel was rendered ineffective by the denial of appellant’s right to make an opening statement.
I. Opening Statement
A. Standard of Review
The majority correctly observes the clear error of the trial court in denying the statutory and common law right to make an opening statement. We diverge on the harm analysis. Under our rules of appellate procedure, this harm analysis must begin with a determination of whether the denial of the right to make an opening statement is constitutional error. Tex. R.App.P. 44.2.3 This issue was seemingly foreclosed in Moore v. State, 868 S.W.2d 787, 789 (Tex.Crim.App.1993). There the court held the right to make an opening statement is a statutory right, not a constitutional right4. Accordingly, we are charged to perform harm analysis under Tex.R.App.P. 44.2(b). See Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997). Under this appellate standard, reversal is required only if the defendant’s substantial rights were adversely affected. The question thus becomes whether the right to make an opening statement is a substantial right as applied in this case.
Under Cain, the factors that the court should consider in determining whether error was harmless include (1) source of error; (2) nature of error; (3) whether or to what extent it was emphasized by State; (4) error’s probable collateral implications; (5) how much weight juror would probably place on error; and (6) whether declaring error harmless would encourage the State to repeat it with impunity. Macias v. State, 959 S.W.2d 332, (Tex.App.—Houston [14th Dist.] 1997, pet. ref d).
B. Harm Analysis.
1. Source of Error. The trial court is the source of the error. The State argues waiver because the defense counsel’s objection was not specific enough and failed to preserve for review the content of the statement he desired to make. In order to preserve error, an adverse ruling on an objection must be obtained in the trial court. Tex.R.App.P. 33.1; Chappell v. State, 850 S.W.2d 508, 510 (Tex.Crim.App. 1993); Lewis v. State, 664 S.W.2d 345, 349 (Tex.Crim.App.1984). A formal bill of exception is not required to preserve error when the defense is denied the right to make an opening statement. Crew, 387 S.W.2d at 899. The appellant here obtained an adverse ruling from the trial court and specifically stated his objection, therefore, he preserved error. The nature of the error was made clear to the judge who could have timely corrected the error. Nothing more was required of the defense attorney to preserve error.
2. Nature of Error.
Practicalities
The practicalities of the opening statement are numerous. Eliminating even some of these prerogatives injures every litigant, State or the individual. In the opening statement the advocate completes the limited introductions of voir dire and states the logic of his position.5 Counsel outlines the theme of her case, discusses *17legal concepts and applicable principles such as burden of proof, presumption of innocence, and reasonable doubt.6 Rather than presenting the prosecution or defense in a kaleidoscope fashion, by bits and pieces, the opening statement is the first opportunity to present the whole picture in a logical sequence.7 The logical sequence is described by Johnny Cochran in People v. Simpson as a roadmap.8 Gerry Spence in Silkwood described the opening as the picture of the completed jigsaw puzzle; “the picture on the box is what the puzzle will look like when it is all put together.”9 The issues may be simplified, narrowed, and presents a shortcut to educating jurors.10 The advocate disabuses the jury of false issues raised by her opponent or existing in the conventional wisdom. As a professional communicator, the advocate may not always fire the “magic bullet” insuring victory in this opening salvo, but at least he can take a shot at the minds and hearts of the jurors, and not be muzzled by the court. Minimally the significance of the evidence to be adduced can be discussed11 and credibility issues highlighted. Appellant has clearly been substantially harmed by the denial of these opportunities.
The opening statement represents an indispensable one third of an effective trial lawyer’s opportunity to advocate his chent’s case directly to the jury. Like the three legged stool, removing the center pillar destroys balance and the presentation’s structural integrity.
Discussing the significance of evidence and important issues gives the remainder of the advocate’s case focus, meaning and content. The contextual opening, like a topic sentence, introduces, illuminates and sets the stage. The opening “hooks” the jury, thus to catch their interest and predispose them to counsel’s case.12 This ex-ordium works to make the listener take heed and prepare them for what will follow.13 The right to make an opening statement is thus a “critical part of the trial.”14 The whimsical disallowance of the opening statement abates logic, context and the roadmap until final argument when the case is all but over. Appellant has clearly been substantially harmed by the denial of these opportunities.
Psychological
A study by the University of Chicago School of Law found liability questions were answered consistent with initial impressions of the jurors after opening statements eighty percent (80%) of the time.15 Most attorneys believe up to 80% of jurors make up their minds about a case after opening statements and do not change their minds.16 Psychologists maintain up to 80% or more of jurors irrevocable make up their minds after opening.17 Whether or not the opening statement reaches such *18heights of efficacy, the primacy principle remains. “The first thought, the first image, the first argument, the first word you hear is the one that has the most profound impact.”18 What we hear first colors our thinking, commits us and is heavily outcome determinative .19 Appellant has been clearly and substantially harmed by the denial of the opportunity to speak before jurors make up their minds.
Legalities
At the conclusion of the State’s case appellant’s attorney requested that he be allowed to make a short opening statement prior to putting on evidence in appellant’s case in chief. The trial judge denied appellant’s attorney the right to make an opening statement stating that, “Since it wasn’t made by the state, you can’t make one, I think one follows the other, as I understand the law.” Appellant’s attorney stated that he was entitled to an opening statement. The trial judge responded that the defense is only entitled to an opening statement if the State makes an opening statement. Appellant’s attorney then objected on the record to not being allowed an opening statement in appellant’s case in chief. The trial court overruled the appellant’s attorney’s objection
Historically, the right to make an opening statement has been held to be a valuable right. Caraway v. State, 417 S.W.2d 159, 161 (Tex.Crim.App.1967); Kennedy v. State, 150 Tex.Crim. 215, 200 S.W.2d 400, 407 (1947)(op. on reh’g); and, Price v. State, 167 Tex.Crim. 105, 318 S.W.2d 648 (1958). In Texas, this valuable right is derived both from the common law and the Code of Criminal Procedure, specifically Art. 36.01. Moore v. State, 868 S.W.2d 787, 789 (Tex.Crim.App.1993). The practice of making opening statements is irrefutably grounded in the common law and “followed from time immemorial.” See Dugan v. State 82 Tex.Crim. 422, 199 S.W. 616, 616, 617 (Tex.Crim.App.1917). Article 36.01 sets out the order of proceeding in any criminal action involving a jury and provides that a defendant’s opening statement shall be made after the presentation of the State’s evidence. Id.; Atkinson v. State, 523 S.W.2d 708, 710-11 (Tex.Crim.App.1975). By creating Article 36.01 the legislature makes it evident that the right to make an opening statute is not only a valuable right but also a right dictated by the legislature in mandatory language.
Because historical precedent has established the substantial value of the opening statement and the right is patently mandatory, appellant’s substantial rights were affected. Thus the error cannot be deemed harmless. 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, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). A conviction should not be overturned for such error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). The United States Supreme Court has construed the nearly identical federal harmless error rule as follows:
If, when all is said and done, the [court’s] conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if *19one is left in grave doubt, the conviction cannot stand.
O’Neal v. McAninch, 513 U.S. 432, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (emphasis in original) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Lopez v. State, 990 S.W.2d 770 (Tex.App.—Austin 1999, no pet.); Reeves v. State, 969 S.W.2d 471, 491 (Tex.App.—Waco 1998, pet. refd).
3. Whether or to What Extent Error was Emphasized by the State. Appellant’s attorney did not have the chance to make an opening statement at the hearing. Because of the nature of the error, it was not emphasized by the State in this instance. As noted infra however, the State has successfully urged this self same error upon the trial court in other cases. See McGowen v. State, 944 S.W.2d 481 (Tex.App.—Houston [14th Dist.] 1997). vacated and remanded, 991 S.W.2d 803 (Tex.Crim. App.1998).
4. Error’s Probable Collateral Implications. To rule that the denial of defendant’s right to present an opening statement is not reversible error would effectively repeal the express mandatory language of Art. 36.01 of the Code of Criminal Procedure. “It is the duty of the court to administer the law as it is written, and not to make law ...” Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892). The legislature is constitutionally entitled to expect that the judiciary will faithfully follow the specific text that was adopted. Boykin v. State, 818 S.W.2d 782, 785, (Tex.Crim.App.1991). In divining legislative intent, we look first to the language of the statute. When the meaning is plain, we look no further. State v. Daugherty, 931 S.W.2d 268, 270 (Tex.Crim.App.1996); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App.1996); Boykin, 818 S.W.2d at 785. We focus on the text of the statute and interpret it in a literal manner to discern a fair, objective meaning of the text. State v. Mancuso, 919 S.W.2d 86, 87 (Tex.Crim.App.1996). When a court interprets a statute, it is “obliged to implement the expressed will of our legislature, not the will it keeps to itself.” State v. Johnson, 939 S.W.2d 586, 587 (Tex.Crim.App. 1996) (quoting Garcia v. State, 829 S.W.2d 796, 799 (Tex.Crim.App.1992)). “Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed and it is not for the courts to add to or subtract from such statute.” Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App.1991) (quoting from Ex parte Davis, 412 S.W.2d 46, 52 (Tex.Crim.App.1967) (op. on reh’g)).
Judicial conservatism dictates that the courts should interpret and implement the law, not make laws or repeal laws enacted by the legislative representatives of the people. See Zinger v. State, 932 S.W.2d 511, (Tex.Crim.App.1996). We could rule that in the case before us the denial of the right to make an opening statement amounted to harmless error. In order to make such a judgment, we would first have to believe that the denial of an opening statement would virtually never render the trial unfair, including the denial of the prosecution’s right to open. Second, we would have to overrule considerable and long standing case law. Third, we would have to amend Art. 36.01. And fourth, we would elevate an appellate rule, promoting it to decimate or trump a substantial statutory and common law right.
First, jury trials cannot be expected to function fairly if a judge has discretionary authority to deny counsel for the state of the defense the right to make an opening statement. Second, we should be constrained not accept the suggestion that we abandon a consistent line of judicial interpretation dating back at least back to 1904 holding that denying defense counsel the right to make an opening statement is reversible error. Judges and lawyers alike are familiar with the law on this subject, and there has been no serious argument to our knowledge that it be changed by judicial interpretation. Stare decisis dictates that we adhere to precedent and not disturb a settled principle of *20law. McGlothlin v. State, 896 S.W.2d 183, 188-89 (Tex.Crim.App.1995). Third, it is not within our authority to amend a statute. Article 36.01 of the Code of Criminal Procedure is plain in its meaning. To render harmless a trial court’s violation of Art. 36.01 would be to substantially involve this Court in the legislative process contrary to article II of the Texas Constitution, which requires a separation of powers in government. Fourth, and perhaps most profoundly, no criminal court in this state may abridge, enlarge or modify the substantive rights of a litigant by new appellant rule 44.02. See Lyon v. State 872 S.W.2d 732, 735 (Tex.Crim.App.1994). Here the government unabashedly seeks to diminish the substantive and mandatory statutory right of appellant to make an opening statement.
5. How Much Weight Juror Would Probably Place on the Error. Normally, the ability to perform a meaningful harm analysis under any standard depends upon whether the record provides enough information for the reviewing court to gauge the effect of the error. An opening statement wrongfully denied is obviously not in the record. However, grave doubts abound that the denial of appellant’s ability to make an opening statement had no effect on the outcome of the proceeding. We must remember that counsel has the “right” to speak to the jury on only three occasions: voir dire, opening statement and closing argument. After examining the record as a whole, I cannot say with fair assurance that the error did not influence the jury, or had but a slight effect.
This is more emphatically apparent as applied to our facts. The defendant took the stand and directly contradicted the State’s case. Appellant claims the microscopic amount of cocaine was planted by a police officer who had it in for him. The defense theory was corroborated by two witnesses and the fact appellant was spotlighted for no apparent good reason, while simply walking the streets of Houston. The defense was even corroborated in part by the police testimony he had seen appellant “around,” implying familiarity. This hotly contested case clearly turned on credibility. The defense was stripped of appellant’s right to inform the jury, create the road map, narrow, simplify, and illuminate the jury. Instead of allowing the opening statement, appellant was forced, without any advance warning or introduction, to immediately start testimony diametrically opposed to what the jury just heard from the “man in blue uniform.” It is difficult to imagine a more strained defense, than to be coerced to throw up either the defendant or a defense witness without setting the stage for the direct onslaught of any police person. On the heels of polished police testimony, without segue or explanation, a layman starkly contradicts the police.
6. Whether Declaring Error Harmless Would Encourage the State to Repeat it with Impunity. The decision to deny opening statements was made by the trial court. As such, one could argue it is not amenable to repetition by the State because here the State did not urge the error upon the trial court. However in the case of McGowen, supra, the government invited the trial court into error by erroneously objecting to the defense’s proffered opening statement. The trial court sustained the State’s spurious objection, thus resulting in the same denial of the accused’s right to make an opening statement as in the case sub judice. Further, to hold this error harmless would encourage the government into the growing bastardization of the law by the too familiar argument: “It is harmless error, your Honor.” Of even greater moment declaring the error harmless would encourage and enable the trial court to repeat the error with impunity.
Harm analysis clearly demonstrates that the denial of a timely request to present an opening statement is the denial of a substantial right, and constitutes reversible error. I would reverse and remand the case for a new trial.
*21II The Motion to Suppress
From a distance of ten (10) feet, Officer Dillingham froze appellant with a police spotlight. Appellant instantly stopped his walk, threw his hands in the air, and awaited further police instruction. According to Dillingham, a small vial containing a trace of cocaine was discarded by appellant when Dillingham shown his bright beam upon appellant. Officer Dillingham offered nothing more than some inarticulate hunch as justification for stopping this person. Therefore: 1. There was no reasonable suspicion to detain, based on the totality of the circumstances. See Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997); and 2. A reasonable person would believed he was not free, would yield to a show of authority, and physical force was used to limit his movement. Thus a seizure occurred. See California v. Hodari, 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
The State cites Stewart v. State, 603 S.W.2d 861, 862 (Tex.Crim.App.1980), as authority for the spotlight stop. The contention is without merit. In Stewart, on routine patrol Nacogdoches police observed a van and auto parked at the end of a dead end street near a home construction site. There were no other homes. When the officers approached the darkened van, they shown their light, the occupants got out, and the police smelled marihuana. As the court duly noted: “The police did not stop Stewart. The van was already stopped. Stewart got out of the van without being requested to do so.” Id. So then the State cites Merideth v. State, 603 S.W.2d 872, 873 (Tex.Crim.App.1980). There a 3 a.m. call to police prompted investigation into an area of frequent burglaries. Officer Kocik saw a stopped auto and because he could not see in the window, knocked at the car door. Once again the court noted this is no stop. When Merideth opened his door, the officer smelled marihuana. Then by his flashlight the officer saw a hand rolled butt as well as a smoky haze to complement the marihuana smell. The contrast between our case and the clearly articulated facts in Stewart and Merideth serve to illustrate how far our modern courts are sliding to emasculate constitutional protections. It is difficult to understand why this court will put its stamp of approval on indiscriminate police seizure of citizens walking our Houston streets. To argue a police spotlight in your face from ten feet is not detention, is to say the smell of the barn from ten feet downwind is roses.
I would sustain appellant’s issue on the motion to suppress.
. See Romans 10:14-15
. See Exodus 2: 6
.Rule 44.2 provides:
(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt the error did not contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.
. It is noted the court did not discuss Article I, Section 10 of the Texas Constitution which provides an accused "shall have the right of being heard by himself or counsel, or both.”
. See Tom Riley, The Opening Statement: Winning at the Outset, 10 Am. J. of Trial Advoc. 81-82 (1987).
. I have been privileged to witness great opening statements both as advocate and trial judge. One such opening statement by the famous trial lawyer Lawrence McQuown of New York, so persuasively and powerfully influenced a tough U.S. Marine Corps Courts Martial at Quantico, Va. that a prima facie murder one case was reduced to involuntary manslaughter. (The opening statement was logically intertwined with the closing for maximum effect.)
. See Riley at 82, 87.
. See L. Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, Emory L. J., Winter 1999, 107 n. 21.
.Id. at n. 20.
. See Riley at 83.
. Id. at 85.
. See Perrin at n. 12.
. Id.
. Id. atn. 10.
. See Riley at 82.
. See Perrin at 107; Cf. n. 104 (80% challenged by Hans Zeisel).
. Id. at n. 104.
. Id. at n. 106.
. Id.