Moore v. State

• Decision Date: 24 November 1993
• Docket Number: No. 819-92,819-92
• Citation: 868 S.W.2d 787
• Parties: Victor B. MOORE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 787

868 S.W.2d 787

Victor B. MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 819-92.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 24, 1993.

Rehearing Denied Jan. 26, 1994.

Gary A. Udashen (on appeal only), Dallas, for appellant.

John Vance, Dist. Atty., and Robert P. Abbott, Colleen Murphy and Julie Jones, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

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)(5) 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 case.

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 cases 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...