Moore v. State , 1993 Tex. Crim. App. LEXIS 186 ( 1993 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

A jury convicted Appellant of aggravated robbery and assessed his punishment at twenty years imprisonment. The Dallas Court of Appeals reversed Appellant’s conviction. Moore v. State, 829 S.W.2d 390 (Tex.App.—Dallas 1992).

The State’s petition was granted to determine whether the 1987 amendment to art. 36.01 of the Texas Code of Criminal Procedure,¹ which added subsection (b), affords criminal defendants the right to make an opening statement prior to presentation of the State’s case when the State does not make an opening statement. The Court of Appeals, relying on similar interpretations of art. 36.01(b) in Arriaga v. State, 804 S.W.2d 271 (Tex.App.—San Antonio 1991, pet. ref'd), and Farrar v. State, 784 S.W.2d 54 (Tex.App.—Dallas 1989, no pet.), concluded that Art. 36.01(b) provides a defendant such a right. We will reverse the decision of the Dallas Court of Appeals.

Appellant was tried jointly with a co-defendant. As the jury was about to be brought in after Appellant had been arraigned, the court inquired if the State was going to make an opening statement, and the prosecutor answered, “No, your honor.” Appellant’s counsel then requested to make an opening statement prior to the opening of any evidence. The trial court, quoting “Subsection (d) [sic] of 36.01,” refused to allow the defense to make an opening statement until presentation of its own case unless the State first made an opening statement. After a brief discussion about the statute the State presented its evidence without making an opening statement. At the close of the State’s case the court asked if Appellant’s counsel still wished to make an opening statement, and the attorneys for both defendants declined.

Appellant contends that the trial court erred in refusing to allow appellant to make an opening statement prior to the presentation of the State’s evidence where the State waived its option of making an opening statement. The right to make an opening statement is a statutory right and not a constitutional imperative or mandate. Dunn v. State, 819 S.W.2d 510, 524 (Tex.Crim.App.1991); accord, United States v. Salovitz, 701 F.2d 17, 20 (2nd Cir.1983); compare with Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (holding right to make closing argument is constitutional within right to assistance of counsel). Accordingly, in Texas, the right to make an opening statement is derived from the Rules of Criminal Procedure, specifically art. 36.01.² 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. Atkinson v. State, 523 S.W.2d 708, 710-11 (Tex.Crim.App.1975); Crew v. State, 387 S.W.2d 898, 899 (Tex.Crim.App.1965). Denial of a timely request to present an opening statement is a denial of a valuable right, and may constitute error. Caraway v. State, 417 S.W.2d 159, 161 (Tex.Crim.App.1967). However, this right may be waived for failure to make a timely demand to present an opening statement. Dunn, 819 S.W.2d at 524-25; McBride v. State, 110 Tex.Crim. 308, 7 S.W.2d 1091 (1928) (opinion on rehearing) (absent good cause, failure to give opening statement before presenting witness waives right to make statement).

Article 36.01 was amended by the legislature to provide defendants the option, or the ability to make a tactical decision, to determine when to make an opening statement. Farrar, 784 S.W.2d at 56. Prior to the enactment of art. 36.01(b), a trial court could refuse to allow defense counsel to make an opening statement before presentation of the state’s case. Owen v. State, 52 Tex.Crim. 65, 105 S.W. 513 (1907). Now, with the addition of paragraph (b), a defendant has the statutory right to make an opening statement “immediately after the attorney representing the State makes the opening statement for the State.” Tex.Code Crim.Pro. 36.01(b); Dunn, 819 S.W.2d at 524; Arriaga, 804 S.W.2d at 274; Farrar, 784 S.W.2d at 56.

While it is undisputed that a defendant may present an opening statement after the close of State’s evidence pursuant to art. 36.01(a)(5) or immediately after the State presents its opening argument pursuant to art. 36.01(b), the statute is silent as to the whether the defendant may make an opening statement where the State does not present it’s own opening statement. It is upon this silence, and the decisions of the Arriaga and Farrar Courts,³ that Appellant’s argument and the Dallas Court of Appeals’ opinion are premised. Moore, 829 S.W.2d at 392-93; see also Boston v. State, 833 S.W.2d 334 (Tex.App.-Waco 1992, pet. granted) (also relying on Arriaga and Farrar in holding that defendant has right to choose when he wishes to make opening statement regardless of whether State makes opening statement). Such silence should not be construed as granting a right or privilege, since a defendant will be afforded a purely statutory right only where the statute in question actually confers that right.

Appellant contends that the right to make an opening statement prior to the State’s case in chief, regardless of whether the State delivers an opening statement, is derived from reading art. 36.01 as a whole. Appellant argues that a literal reading of the statute is not necessary, and that many of the provisions of art. 36.01, although appearing mandatory have been held to.be merely directory by this Court. Specifically, Appellant refers to this Court’s interpretations of art. 36.01(a)(3) and art. 36.01(a)(6) which state in part:

The State’s attorney shall state to the jury the nature of the accusations and the facts which are expected to be proved by the State in support thereof.

Tex.Code Crim.Pro. art. 36.01(a)(3) (emphasis added); and,

The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant’s counsel.

Tex.Code Crim.Pro. art. 36.01(a)(5) (emphasis added). While the statutory language cited above contains the word “shall,” and would therefore appear to be mandatory, this Court has held these provisions to be directory only. Cannon v. State, 84 Tex.Crim. 479, 208 S.W. 660, 661 (1919) (finding the State is not obligated to present opening statement unless such waiver will prejudice defendant); Norton v. State, 564 S.W.2d 714, 718 (Tex.Crim.App.1978) (holding defendant may not make opening statement where no witnesses or evidence will be presented). The validity of these holdings is not in question in this ease.

This Court is compelled to follow the dictates of the statute where the language of the statute is clear and unambiguous on its face. Boykin v. State, 818 S.W.2d 782 (Tex.Crim.App.1991). Furthermore, we must assume that the legislature was aware of our previous decisions interpreting art. 36.01 when it enacted paragraph (b) of art. 36.01. See Watson v. State, 532 S.W.2d 619, 622 (Tex.Crim.App.1976) (finding inaction by legislature after judicial interpretation of statute amounts to approval of interpretation); and Lockhart v. State, 150 Tex.Crim. 230, 200 S.W.2d 164, 167-68 (1947). As such, the legislators would have been aware that this Court had interpreted art. 36.01 in a manner which allowed the State to waive opening statement. If they were so aware, and desired that defendants be afforded the option of making an opening statement regardless of whether the State chose to open, they could have easily effectuated such intent by phrasing the statute accordingly. The legislature could have easily provided that the defendant’s counsel make an opening statement “immediately before the State’s testimony is offered,” instead of “immediately after the attorney representing the State makes the opening statement for the State.” The legislature did not choose to so provide. Thus, we are compelled to follow the language of the statute as it is written. We therefore conclude art. 36.01(b) of the Texas Code of Criminal Procedure is inapplicable in eases in which the State waives opening statement. In such cases, the defendant may make an opening statement upon the close of the State’s case in chief pursuant to art. 36.01(a). Where the State does proffer an opening statement, the defendant may, at his option, demand oral statement immediately after the State’s opening statement or after presentation of the State’s case in chief.

Unfortunately, this Court does not have an option to rescue the Texas Legislature from the inexorable consequences of its own unambiguous language. As Judge Clinton himself repeatedly emphasizes in dissent, often citing with fervent admiration the opinions of former Presiding Judge Davidson, we are obliged to “enforce[] the plain letter of the statute.” At 793 n. 4 (Clinton, J., dissenting) (internal quotation marks omitted).

The amendment to article 36.01, which we here construe according to its “plain letter,” authorizes the defense to make an opening statement before presentation of the State’s case-in-chief only “after the attorney representing the State makes the opening statement for the State.” In doing so, we do not “conjure” legislative intent at all. At 797 (Clinton, J., dissenting). What the Legislature meant to do is of no especial interest to us. It is what the Legislature did in fact that informs our judgment, at least when it is possible to determine from the statute’s plain language what was actually done. Boykin, 818 S.W.2d 782. Not only might the Legislature have used different language had it wanted to achieve a different result, but it is also dear that the language used in fact is exactly what any rational deliberative body would use to achieve the result we achieve in this case. Thus, appellant was not put to a “Hobson’s choice” at all. Rather, he was offered a chance to juxtapose his version of the facts with that of the State at a time when the juxtaposition might be most effective, but not to interpose his version in isolation from the State’s. This is, in itself, a “valuable right,” and there is nothing to suggest that the Legislature did not intend it to operate in exactly this way. The fact that it might have been even more “valuable” had appellant been given an option to make opening remarks before presentation of the State’s evidence in any event does not authorize this Court to ignore the statute’s “plain letter.”

We find that the Court of Appeals erred in concluding that art. 36.01(b) affords criminal defendants the right to make an opening statement prior to presentation of the State’s case when the State does not make an opening statement. Having sustained the State’s ground for review, we reverse the judgment of the Court of Appeals remand the cause for further consideration not inconsistent with this judgment.

OVERSTREET and MALONEY, JJ„ concur in the result.

1 . Acts 1987, 70th Leg., pp. 2129-2130, Ch. 519, § , eff. September 1, 1987.

2 .As enacted in 1965, Art. 36.01 provided:

A jury being impaneled in any criminal action, the cause shall proceed in the following order:

1. The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment reciting such convictions shall not be read until the hearing on punishment is held as provided in Article 37.07.

2. The special pleas, if any, shall be read by the defendant’s counsel, and if the plea of not guilty is also relied upon, it shall also be stated.

3. The State’s attorney shall state to the juty 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 to be proved in their support shall be stated by defense counsel.

6. The testimony on the part of the defendant shall be offered.

7. In the event of a finding of guilty, the trial shall then proceed as set forth in Article 37.07. The 1987 amendment renumbered this entire provision as 36.01(a), modified the introductoiy sentence to include "except as provided by Subsection (b) of this article,” and added (b), which states:

(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.

All previous Codes of Criminal Procedure contained articles that were substantively identical to Art. 36.01 as enacted in 1965.

3 .Neither Arriaga nor Farrar give much guidance on this issue and both are wholly distinguishable from the case at bar. In Arriaga, the State presented its opening argument and the defense asked to make an opening statement immediately thereafter. The trial court denied the defendant’s request despite his timely demand. Arriaga, 804 S.W.2d at 272. Based upon art. 36.-01(b), the San Antonio Court of Appeals reversed the decision of the trial court. Id. at 273. Arria-ga is distinguishable to the case at bar because in Arriaga, the defendant was denied the opportunity to make his own opening statement "immediately after” the State's opening argument. See also Taylor v. State, 825 S,W.2d 518 (Tex.App.-Houston [1st Dist.] 1991, pet. ref’d) (denial of request to open pursuant to 36.01(b) was harmless error where trial court stopped trial early in testimony of State's first witness to allow defendant to make opening statement).

Similarly, in Farrar, defense counsel requested the opportunity to make an opening statement after the close of the State’s evidence. The trial court, quoting the provisions of 36.01(b), concluded that the amendment to 36.01 precluded the defendant from presenting an opening statement under 36.01(a). Farrar, 784 S.W.2d at 56. This holding is also distinguishable to the instant case in that it involved the denial of the right to make an opening statement after the close of the State’s case in direct contradiction to 36.01(a).