Is There a Right to Make An Opening Statement ?
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).