concurring.
I concur to dismissing the petition for discretionary review as improvidently granted. I write to respond to Judge Baird’s dissenting opinion.1
The error, which the State concedes, in not permitting appellant to make an opening statement after the prosecution’s opening statement clearly was harmless. The obvious purpose of Article 36.01(b), V.A.C.C.P., is to communicate to the jury the party’s theory of the case in order to aid the jury to evaluate and understand the evidence as it is being presented.
The dissenting opinion neglects to mention that unlike the situation in Arriaga v. State, 804 S.W.2d 271 (Tex.App.—San Antonio 1991, pet. ref'd), the nature of appellant’s defense was apparent from her lawyer’s voir dire and from the cross-examination of the prosecution’s witnesses. The dissenting opinion also neglects to mention that appellant was permitted to make an opening statement after the prosecution rested. A meaningful harm analysis can be and was performed.
The dissenting opinion’s contention that the error in this case “adversely affected appellant’s substantial right to communicate with the jury” is not a harmless error analysis but merely restates the error that occurred in this case. Under this approach, just about any statutory violation would require an automatic reversal. The drafters of Texas Rule of Appellate Procedure 44.1(b)(2) had something else in mind when they drafted the rule. The dissenting opinion’s approach to applying Tex.R.App.Proc. 44.1(b)(2) is an attempt to defeat the very purpose for which the rule was enacted.
With these comments, I concur to dismissing the petition for discretionary review as improvidently granted.
KELLER, and MANSFIELD, JJ., join.
. Were the facts of this case such as Judge Baird would have the reader believe, then there would probably be no cause for his dissent or this concurrence. I write, as I have on other occasions, to illuminate the facts (or the law) in order that the bench and bar will not be misled.