PAUL CHRISTOPHER DANIEL, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed March 17, 1998
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-96-00928-CR
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PAUL CHRISTOPHER DANIEL, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 3-82698-94
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O P I N I O N
Before Justices Wright, Moseley, and Roach
Opinion By Justice Roach
        Paul Christopher Daniel appeals his conviction for driving while intoxicated. The jury found appellant guilty and assessed punishment at two years in jail and a $2000 fine. In a single point of error, he complains the trial court erred in denying his request to make an opening statement immediately following the State's opening statement. We overrule the point of error and affirm the trial court's judgment.
        At the conclusion of voir dire, the trial judge informed counsel that he would adjourn for the day after opening statements and that no testimony would be taken. At that point, defense counsel told the trial judge he was "not prepared to give an opening statement if I don't have to." The following colloquoy then occurred:
[TRIAL COURT]: For your information, the time to give one will come at the opening of your case-in-chief or right before it. So at the conclusion of [the prosecutor's] opening statement, we're going to stop for the day.
 
[DEFENSE COUNSEL]: I better throw together something.
 
[TRIAL COURT]: Have I missed something here?
 
* * * *
[DEFENSE COUNSEL]: I was just not prepared to deliver an opening statement. I figured that would be first thing tomorrow morning, otherwise I would have written me out something.
 
[TRIAL COURT]: Well, with resort to the order of giving statements that the rules provide for, the opening statement of your case-in-chief is when you can give the opening statement. So after [the prosecutor] gives his opening statement, the jury will be released for the day.
 
[DEFENSE COUNSEL]: I could have gone right after that.
 
[TRIAL COURT]: I would have considered that opportunity, but with resort to the rules, I would follow that plan which would necessarily prevent you from going right afterwards. In the past I've permitted the defendant's statement to follow immediately, but with resort to the rules, that request would be denied. In any event, you won't be required to make the statement today --
 
[DEFENSE COUNSEL]: I see.
 
[TRIAL COURT]: -- because of it.
 
[DEFENSE COUNSEL]: I see.
(Emphasis added.) After this discussion, the prospective jurors were brought back into the courtroom, and the jury was impaneled and sworn. The State made its opening statement, and proceedings were then adjourned for the day.
        Contrary to the trial judge's remarks concerning the order of opening statements, a defendant may present an opening statement immediately following the State's opening statement. Tex. Code Crim. Proc. Ann. arts. 36.01(b) (Vernon Supp. 1998). FN:1 Denial of a timely request to present an opening statement is the denial of a valuable right and may constitute error. Moore v. State, 868 S.W.2d 787, 789 (Tex. Crim. App. 1993). This right may be waived, however, for failure to make a timely demand to present an opening statement. Id.
        In this case, defense counsel never actually requested the opportunity to make his opening statement immediately following the State's opening. Rather, he initially stated that he was not prepared to give a statement and then told the trial judge that he "could have" given an opening statement following the State's opening. The trial judge's statement that he "would" deny the request, if made, did not relieve defense counsel of his burden to affirmatively make such a request. Because appellant failed to make a timely request, we conclude error, if any, was waived. We overrule the sole point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOHN R. ROACH
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
960928F.U05
 
FN:1 Specifically, article 36.01 provides:
 
(a) A jury being impaneled in any criminal action, except as provided by Subsection (b) of this article, 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 or information 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 jury 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 expected 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. Rebutting testimony may be offered on the part of each party.
 
8. In the event of a finding of guilty, the trial shall then proceed as set forth in Article 37.07.
 
(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.
        Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon Supp. 1998).