Opinion issued October 2, 2014

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 13
- 00545
- CR

——————————— OLEN WARE II , Appella nt V. THE STATE OF TEXAS , Appell e e
On Appeal from the 208th District Court Harris County, Texas Trial Court Ca se No. 1328054

MEMORANDUM OPINION Appellant Olen Warren II was charged by indictment with capital murder. 3 Appellant pleaded not guilty , and a jury found him guilty of the lesser

- included offense of felony murder

. 4 The jury assessed punishment at 60 years in prison.2 Presenting one issue on appeal , A ppellant asserts that the trial court abused its discretion when it did not permit him to make an opening statement at the punishment stage of trial

. We affirm. Background P eggy Ariza and her son, Edward Hernandez , were involved with the sale o f marijuana out of Ariza’s home

. Appellant, along w ith three other men, went to Ariza’s home with the i ntent of robbing her and Hernandez

. Once at the home , Appellant shot and killed Ariza

. The jury found Appellant guilty of f elony m urder. When the punishment phase of the trial began, the State did not make an opening statement. It re - offered all of the evidence that it had offer ed in the guilt

innocence phase and called seven witnesses to testify

. After the State rested, Appellant requested to make an opening statement before presenting his punishment evidence. The trial court denied Appellant’s request to make an opening statement. Appellant presented two witnesses during the punishment phase: himself and his mother

. The testimony of Appellant’s mother, Cheryl, indicated that Appellant had been a well

- behaved child and a good student while growing up. Cheryl’s testimony also indicated that Appellant was raised in a sta ble home with a3 supportive family. She testified that Appellant had been working and attending college before he committed the offense

. Cheryl stated that she noticed a change in Appellant in 2011. She testified that, at that time, Appellant found out that his girlfriend had aborted a baby of which Appellant was the father. Cheryl stated that this had made Appellant very
angry. At the end of her testimony, Cheryl testified that she and the family would be there to support Appellant when he was releas ed from prison. In his testimony, Appellant admitted to shooting and killing Ariza during the failed robbery . He apologized to complainant’s family and expressed remorse for what he had done. Appellant also admitted that he had frequently smoked marijua na during the time period preceding the commission of the offense. He also admitted that he had participated in a burglary in the months following the complainant’s murder. Appellant testified that he had been in jail since his arrest and that he had n ot gotten into trouble while incarcerated. Appellant also stated that he plans to become certified for different trades while in prison so that he can find a job when released and “live a normal life.” At the close of evidence, the State and Appellant each presented a closing argument to the jury regarding punishment , summing up the evidence presented during the punishment phase. During her closing remarks, Appellant’s counsel4 reminded the jury that Appellant was only 22 years old and asked the jury “t o give [Appellant] a sentence where he will have a meaningful life.” The jury assessed Appellant’s punishment at 60 years in prison. This appeal followed. In his sole issue, Appellant asserts that the trial court erred at the punishment phase by refusin g his request to make an opening statement to the jur y before presenting his punishment evidence

. Opening Statement during Punishment T he right to make an opening statement is a statutory one, not a constitutional imperative or mandate. Moore v. State , 868 S.W.2d 787, 788

– 89 (Tex. Crim. App. 1993)

. Article 36.01 outlines the order of proceedings for the guilt

- innocence portion of trial

. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.01 (Vernon 2007). The statute provides for the making of opening statements by the State and by the defense. See id. To support his position on appeal , Appellant relies specifically on article 36.01(a)(5) , which provides that, after the State has presented its case, a defendant will state “[t] he nature of the defenses relied upo n and the facts expected to be proved in their support . . . .” Id. art. 36.01(a)(5); see also id. art. 36.01(a)(3),(4) (providing for the presentation of the State’s case). Thus, during the guilt

innocence stage, a defendant is entitled to present an op ening statement to the ju ry following the close of the State’s case - in

- chief. See id. art. 36.01(a)(5)

.5 In Penry v. State , 903 S.W.2d 715 , 760 (Tex. Crim. App. 1995) , the Court of Criminal Appeals held that the opening

- statement requirements of article 36 .01 are
not applicable to punishment proceedings. A rticle 37 .07 establishes the procedures for the punishment phase of trial in this case

. See C RIM
. P ROC
. art. 37.07 (Vernon Supp. 201 4 ). That a rticle does not contemplate the presentation of opening
statements. See id. Accordingly, we hold that the trial court did not err in refusing Appellant’s request to make an opening statement before the presentation of his punishment evidence

. See Love v. State , 69 S.W.3d 678, 68 1 (Tex. App.

— Texarkan a 2002, pet. ref ’ d) (holding that trial court did not err in refusing to permit the appellant to make an opening statement during punishment stage of trial)

. Even if we presume that the trial court erred by refusing to allow Appellant to make an opening statement, the error is harmless. The failure to permit Appellant to present an opening statement is statutory error; thus, the proper harm analysis is that fo r reviewing non

- constitutional error under Texas Rule of Appellate Procedure 44.2(b)

. See Aguirre

– Mata v. State , 992 S.W.2d 495, 498 (Tex. Crim. App. 1999) ; Guillory v. State , 397 S.W.3d 864 , 867 (Tex. App.

— Houston [14th Dist.] 2013 , no pet. )

. Non

- consti tutional error requires reversal only if it affects the substantial rights of the accused. See T EX
. R. A PP
. P. 44.2(b) ; Barshaw v. State , 342 S.W.3d 91, 93 (Tex. Crim. App. 2011). A substantial right is affected when the error had a substantial and injur ious effect or influence in6 determining the jury ’ s verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a criminal conviction for non

- constitutional error if, after examining the record as a whole, we have fair assuran ce that the error did not influence the jury, or had but a slight effect on its verdict

. See Barshaw , 342 S.W.3d at 93. The purpose of an opening statement is to co mmunicate to the jury the party’ s theory of the case to aid the jury in evaluating and understanding the evidence to be presented. McGowen v. State , 25 S.W.3d 741, 747 (Tex. App.

— Hous ton [14th Dist.] 2000, pet. ref’ d). A defendant’s opening statement shall state “[t]he nature of the de fenses relied upon and the facts expected to be proved in their support

. ” C RIM
. P ROC
. art. 36.01 (a)(5). “[A] n opening statement is particularly valuable in a case where the defensive theory may strongly conflict with the State ’ s case and may not be easil y understood by the jury without the assistance of a prior outline or explanation of the defense case and where a defendant presents testimony from several witnesses. ” McGowen , 25 S.W.3d at 747

. Here, Appellant presented only his own testimony and that of his mother. Their testimony was straightforward and could have been easily understood by the jury without a prior outline or explanation by the defense. Cf. id. at 748 (finding

error in refusing to permit defendant to make opening statement , during guilt

-7 innocence stage of murder trial , was harmful error because defense presented complex self

- defense theory over two day period, with testimony from nine witnesses). Appellant’s defensive strategy at the punishment phase

– showing that he had good attrib utes, was remorseful , and was willing to take responsibility

— was not complicated. The evidence was straightforward, and the jury did not need an opening statement to understand A ppellant ’ s contentions

. Even had his contentions required further explanatio n, A ppellant provided such explanation in his closing argument. Moreover, the State also did not make an opening statement at the punishment phase; thus, it did not have an advantage in the presentation of its punishment evidence

. On this record, we hav e fair assurance that the trial court’ s alleged error in refusing to allow Appellant to make an opening statement at the punishment phase did not influence the jury, or had but a slight effect on the punishment it assessed

. Thus, we hold that the purported error did not affect Appellant’s substantial rights and, consequently, was harmless error. See T EX
. R. A PP
. P. 44.2(b) ; see also Davis
v. State , 22 S.W.3d 8, 10, 1 3 (Tex. App.

— Houston [14th Dist.] 2000, no pet.) (holdin g error in refusing to permit defendant to make opening statement during guilt

- innocence was harmless error because case was uncomplicated possession of cocaine case that lasted only one day )

. W e overrule Appellant’s sole issue.8 Conclusion We affirm the ju dgment of the trial court.

Laura Carter Higley Justice

Panel consists of Justices Higley , Bland, and Sharp

. Do not publish. T EX
. R. A PP
. P. 47.2(b).