Opinion
No. 1255-92.
March 16, 1994.
Appeal from 40th Judicial District Court, Ellis County; Gene Knize, Judge.
Steven A. Kelley, Waxahachie, for appellant.
Mary Lou Shipley, Dist. Atty. David Sloan, Asst. Dist. Atty., Waxahachie, Robert Huttash, State's Atty. Carl E.F. Dally, First Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW
A jury convicted Appellant of robbery and assessed his punishment at twenty-five years imprisonment after finding he was a habitual offender. This conviction was reversed. Boston v. State, 833 S.W.2d 334 (Tex.App. — Waco 1992).
The Court of Appeals held that Article 36.01, V.A.C.C.P., allows a defendant to make an opening statement before the State presents its case even if the State does not make an opening statement. However, we have since determined that Art. 36.01 allows a defendant to make an opening statement prior to presentation of the State's case only when the State first makes one. Moore v. State, 868 S.W.2d 787 (Tex.Cr.App. 1993). The State's petitions for discretionary review are therefore summarily granted. The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Appeals for reconsideration in light of the opinion in Moore, supra.