C O N C U R R I N G  O P I N I O N

I agree that appellant's defensive theory was raised during appellant's cross-examination of the complainant and, therefore, concur in the result reached by the majority. I write separately to address the issue regarding opening statements. The majority claims that Perry v. State, 933 S.W.2d 249 (Tex. App.-Corpus Christi 1996, pet. ref'd) did not decide that an opening statement cannot open the door to the admission of extraneous offense evidence and that nothing in Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), indicates that its admissibility analysis is inapplicable if a defensive theory is raised in a defendant's opening statement.

Because an opening statement is not evidence, ⁽¹⁾ it should not open the door to admission of extraneous offenses. ⁽²⁾ Clearly, there are no grounds for admitting rebuttal evidence prior to the introduction of the evidence to be rebutted, much less before the introduction of any evidence at all. See generally, Borjan v. State, 787 S.W.2d 53 (Tex. Crim. App. 1990); Everett v. State, 707 S.W.2d 638 (Tex. Crim. App. 1986). A defendant who sets forth a defensive theory in an opening statement is not bound by that theory. ⁽³⁾ His defensive theory may change in response to testimony in the state's case-in-chief, and then evidence in support of the original theory will not be offered. Juries are prohibited from considering information not admitted into evidence. See Hunt v. State, 603 S.W.2d 865 (Tex. Crim. App. 1980). If the state has been permitted to introduce evidence on the basis of appellant's opening statement, the state has been allowed to "rebut" evidence which is not before the jury and therefore cannot be considered, much less rebutted.

For this reason, I join the Court's judgment, but not its opinion.

Date delivered: November 28, 2001

Publish

1. See e.g. Bigby v. State, 892 S.W.2d 864, 886 (Tex. Crim. App. 1994)("We do not believe the jury could have been mislead into believing that those opening statements were actually evidence."); Lillard v. State, 994 S.W.2d 747, 752 n.7 (Tex. App.-Eastland 1999)("The opening statement is not evidence; therefore, a hearsay objection is not applicable."); Brokenberry v. State, 853 S.W.2d 145, 151 (Tex. App.-Houston [14^th Dist.] 1993)("The opening statement is not evidence, as such."); U.S. v. Mitchell, 166 F.3d 748, 753 (5^th Cir.1999)("The court correctly instructed the jury that the arguments of attorneys were not to be considered as evidence..."); Black's Law Dictionary 1243 (4^th ed. 1968)("Opening Statement of Counsel- Outline of anticipated proof. Its purpose is to advise the jury of facts relied upon and of issues involved, and to give the jury a general picture of the facts and the situations so that jury will be able to understand the evidence.")(citations omitted).

2. The majority cites three cases in support of its proposition that it is within a trial court's discretion to admit extraneous offense evidence to rebut a defensive theory raised in an opening statement. However, all of the cases are at least 15 years old. While they are not "hoary precedent," the lack of recent cases may indicate that the federal courts have retreated from that concept. Also, none of the cited cases are from the Court of Appeals for the Fifth Circuit, making them only persuasive authority. Further, only United States v. Bari, 750 F.2d 1169, 1180 (2^nd Cir. 1984), actually holds that a trial court has the discretion to admit extraneous offense evidence based solely on an opening statement, but it cites no authority for that holding. The fact pattern in United States v. Price, 617 F.2d 455 (7^th Cir. 1979) is very similar to the instant case; defense counsel made reference to a defensive theory in his opening statement, but opened the door to rebuttal evidence through cross-examination. In United States v. Olson, 589 F.2d 351 (8^th Cir. 1978), Olson testified about the defense raised in counsel's opening argument, and the court held simply that the admission of evidence in an improper order (rebuttal before presentation of defense) did not constitute such an abuse of the trial court's discretion that a reversal was warranted. "Under the circumstances of this case, and the nature of the other evidence against Olson, we cannot say that the timing of the admission of this evidence constituted such an abuse of the trial court's discretion that reversal is warranted." Id. at 352 (Emphasis added.)

3. Of course, the state can, and will, emphasize to the jury at closing the inconsistencies between what appellant said at opening and what was presented as evidence.