Crew v. State, 37791
| Decision Date | 17 February 1965 |
| Docket Number | No. 37791,37791 |
| Parties | Jessie Lee CREW, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Teague & Carlisle, by Marvin O. Teague, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, Ripley E. Woodard, Jr., and Joe Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is assault to murder, with a prior conviction for an offense of like character alleged for enhancement; the punishment, 25 years confinement in the state penitentiary.
We shall pretermit a discussion of the facts in view of our disposition of this appeal.
At the conclusion of the state's testimony appellant's counsel told the court that he would like to make a short opening statement to the jury, which the court declined, and to which appellant's counsel excepted. Art. 642, Vernon's Ann.C.C.P. provides for the order of trial proceedings in criminal actions. Section 5 of this article is controlling so far as our disposition of this case is concerned. It states 'The nature of the defenses relied upon and the facts expected to be proved in their support shall be stated by defendant's counsel'. This section follows in chronological order section 4, which states: 'The testimony on the part of the State shall be offered'.
This Court held in Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400, 'The privilege of making such statement is a valuable right provided by statute (Art. 642, sub. 5, C.C.P.), and if denied, would constitute error.' In Price v. State, 167 Tex.Cr.R. 105, 318 S.W.2d 648, the trial court refused to permit counsel to make such statement. The state confessed error and said that such ruling called for a reversal. Judge Woodley wrote the opinion of this Court reversing that case. Also, see McBride v. State, 110 Tex.Cr.R. 308, 7 S.W.2d 1091 and Dugan v. State, 82 Tex.Cr.R. 422, 199 S.W. 616. The learned trial judge fell into error in refusing appellant's counsel's request.
It is the state's position that this complained of error is not before us for review as it was not raised by formal bill of exception. The state adopts the view that this request of appellant to make an opening statement must be done by a motion for leave to make the statement. That is one reason for the state's insistence that this matter should be brought forward by a formal bill of exception. The state says that such a motion is not within the scope of Articles 759a and 760e, V.A.C.C.P., which sets out where no formal bill is necessary. While this precise question has been urged before this court by formal bills of exception in the cases that we have examined, we do not agree that it...
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Moore v. State
...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. C......
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...of a valuable right, and constitutes reversible error. See Penry v. State, 903 S.W.2d 715, 760 (Tex.Crim.App.1995); Crew v. State, 387 S.W.2d 898, 899 (Tex.Crim.App.1965); see also Farrar v. State, 784 S.W.2d 54, 56 (Tex.App.--Dallas 1989, no pet.). In 1987 the legislature amended article 3......
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...defense attorney need not object to preserve error when the court denies him the right to make an opening statement. See Crew v. State, 387 S.W.2d 898 (Tex.Cr.App.1965) (no formal bill of exception needed to preserve error when court denied defense right to opening statement). In this case,......
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...right, and the denial of a timely request by the defendant to make an opening statement constitutes reversible error. Crew v. State, Tex.Cr.App., 387 S.W.2d 898; Price v. State, 167 Tex.Cr.R. 105, 318 S.W.2d 648; Kennedy v. State, 150 Tex.Cr.R. 215, 200 S.W.2d 400; 56 Tex.Jur.2d However, a ......