CODE OF CRIMINAL PROCEDURE
CHAPTER 37. THE VERDICT
Art. 37.01. VERDICT. A "verdict" is a written declaration by
a jury of its decision of the issue submitted to it in the case.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.02. VERDICT BY NINE JURORS. In misdemeanor cases in
the district court, where one or more jurors have been discharged
from serving after the cause has been submitted to them, if all the
alternate jurors selected under Article 33.011 of this code have
either been seated or discharged, and there be as many as nine of
the jurors remaining, those remaining may render and return a
verdict; but in such case, the verdict must be signed by each juror
rendering it.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1983, 68th Leg., p. 4594, ch. 775, Sec. 4, eff. Aug.
29, 1983.
Art. 37.03. IN COUNTY COURT. In the county court the verdict
must be concurred in by each juror.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.04. WHEN JURY HAS AGREED. When the jury agrees upon a
verdict, it shall be brought into court by the proper officer; and
if it states that it has agreed, the verdict shall be read aloud by
the judge, the foreman, or the clerk. If in proper form and no juror
dissents therefrom, and neither party requests a poll of the jury,
the verdict shall be entered upon the minutes of the court.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1981,
67th Leg., p. 171, ch. 78, Sec. 1, eff. April 30, 1981.
Art. 37.05. POLLING THE JURY. The State or the defendant
shall have the right to have the jury polled, which is done by
calling separately the name of each juror and asking him if the
verdict is his. If all, when asked, answer in the affirmative, the
verdict shall be entered upon the minutes; but if any juror answer
in the negative, the jury shall retire again to consider its
verdict.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.06. PRESENCE OF DEFENDANT. In felony cases the
defendant must be present when the verdict is read unless his
absence is wilful or voluntary. A verdict in a misdemeanor case may
be received and read in the absence of the defendant.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.07. VERDICT MUST BE GENERAL; SEPARATE HEARING ON
PROPER PUNISHMENT.
Sec. 1. (a) The verdict in every criminal action must be
general. When there are special pleas on which a jury is to find
they must say in their verdict that the allegations in such pleas
are true or untrue.
(b) If the plea is not guilty, they must find that the
defendant is either guilty or not guilty, and, except as provided in
Section 2, they shall assess the punishment in all cases where the
same is not absolutely fixed by law to some particular penalty.
(c) If the charging instrument contains more than one count
or if two or more offenses are consolidated for trial pursuant to
Chapter 3 of the Penal Code, the jury shall be instructed to return
a finding of guilty or not guilty in a separate verdict as to each
count and offense submitted to them.
Sec. 2. (a) In all criminal cases, other than misdemeanor
cases of which the justice court or municipal court has
jurisdiction, which are tried before a jury on a plea of not guilty,
the judge shall, before argument begins, first submit to the jury
the issue of guilt or innocence of the defendant of the offense or
offenses charged, without authorizing the jury to pass upon the
punishment to be imposed. If the jury fails to agree on the issue
of guilt or innocence, the judge shall declare a mistrial and
discharge the jury, and jeopardy does not attach in the case.
(b) Except as provided by Article 37.071 or 37.072, if a
finding of guilty is returned, it shall then be the responsibility
of the judge to assess the punishment applicable to the offense;
provided, however, that (1) in any criminal action where the jury
may recommend community supervision and the defendant filed his
sworn motion for community supervision before the trial began, and
(2) in other cases where the defendant so elects in writing before
the commencement of the voir dire examination of the jury panel, the
punishment shall be assessed by the same jury, except as provided in
Section 3(c) of this article and in Article 44.29. If a finding of
guilty is returned, the defendant may, with the consent of the
attorney for the state, change his election of one who assesses the
punishment.
(c) Punishment shall be assessed on each count on which a
finding of guilty has been returned.
Sec. 3. Evidence of prior criminal record in all criminal
cases after a finding of guilty.
(a)(1) Regardless of the plea and whether the punishment be
assessed by the judge or the jury, evidence may be offered by the
state and the defendant as to any matter the court deems relevant to
sentencing, including but not limited to the prior criminal record
of the defendant, his general reputation, his character, an opinion
regarding his character, the circumstances of the offense for which
he is being tried, and, notwithstanding Rules 404 and 405, Texas
Rules of Evidence, any other evidence of an extraneous crime or bad
act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged
with or finally convicted of the crime or act. A court may consider
as a factor in mitigating punishment the conduct of a defendant
while participating in a program under Chapter 17 as a condition of
release on bail. Additionally, notwithstanding Rule 609(d), Texas
Rules of Evidence, and subject to Subsection (h), evidence may be
offered by the state and the defendant of an adjudication of
delinquency based on a violation by the defendant of a penal law of
the grade of:
(A) a felony; or
(B) a misdemeanor punishable by confinement in jail.
(2) Notwithstanding Subdivision (1), evidence may not be
offered by the state to establish that the race or ethnicity of the
defendant makes it likely that the defendant will engage in future
criminal conduct.
(b) After the introduction of such evidence has been
concluded, and if the jury has the responsibility of assessing the
punishment, the court shall give such additional written
instructions as may be necessary and the order of procedure and the
rules governing the conduct of the trial shall be the same as are
applicable on the issue of guilt or innocence.
(c) If the jury finds the defendant guilty and the matter of
punishment is referred to the jury, the verdict shall not be
complete until a jury verdict has been rendered on both the guilt or
innocence of the defendant and the amount of punishment. In the
event the jury shall fail to agree on the issue of punishment, a
mistrial shall be declared only in the punishment phase of the
trial, the jury shall be discharged, and no jeopardy shall
attach. The court shall impanel another jury as soon as
practicable to determine the issue of punishment.
(d) When the judge assesses the punishment, he may order an
investigative report as contemplated in Section 9 of Article 42.12
of this code and after considering the report, and after the hearing
of the evidence hereinabove provided for, he shall forthwith
announce his decision in open court as to the punishment to be
assessed.
(e) Nothing herein contained shall be construed as affecting
the admissibility of extraneous offenses on the question of guilt
or innocence.
(f) In cases in which the matter of punishment is referred to
a jury, either party may offer into evidence the availability of
community corrections facilities serving the jurisdiction in which
the offense was committed.
(g) On timely request of the defendant, notice of intent to
introduce evidence under this article shall be given in the same
manner required by Rule 404(b), Texas Rules of Evidence. If the
attorney representing the state intends to introduce an extraneous
crime or bad act that has not resulted in a final conviction in a
court of record or a probated or suspended sentence, notice of that
intent is reasonable only if the notice includes the date on which
and the county in which the alleged crime or bad act occurred and
the name of the alleged victim of the crime or bad act. The
requirement under this subsection that the attorney representing
the state give notice applies only if the defendant makes a timely
request to the attorney representing the state for the notice.
(h) Regardless of whether the punishment will be assessed by
the judge or the jury, neither the state nor the defendant may offer
before sentencing evidence that the defendant plans to undergo an
orchiectomy.
(i) Evidence of an adjudication for conduct that is a
violation of a penal law of the grade of misdemeanor punishable by
confinement in jail is admissible only if the conduct upon which the
adjudication is based occurred on or after January 1, 1996.
Sec. 4. (a) In the penalty phase of the trial of a felony
case in which the punishment is to be assessed by the jury rather
than the court, if the offense of which the jury has found the
defendant guilty is listed in Section 3g(a)(1), Article 42.12, of
this code or if the judgment contains an affirmative finding under
Section 3g(a)(2), Article 42.12, of this code, unless the defendant
has been convicted of an offense under Section 21.02, Penal Code, an
offense under Section 22.021, Penal Code, that is punishable under
Subsection (f) of that section, or a capital felony, the court shall
charge the jury in writing as follows:
"Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct
time. Prison authorities may award good conduct time to a prisoner
who exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner
engages in misconduct, prison authorities may also take away all or
part of any good conduct time earned by the prisoner.
"It is also possible that the length of time for which the
defendant will be imprisoned might be reduced by the award of
parole.
"Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served equals one-half of the sentence
imposed or 30 years, whichever is less, without consideration of
any good conduct time he may earn. If the defendant is sentenced to
a term of less than four years, he must serve at least two years
before he is eligible for parole. Eligibility for parole does not
guarantee that parole will be granted.
"It cannot accurately be predicted how the parole law and
good conduct time might be applied to this defendant if he is
sentenced to a term of imprisonment, because the application of
these laws will depend on decisions made by prison and parole
authorities.
"You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant."
(b) In the penalty phase of the trial of a felony case in
which the punishment is to be assessed by the jury rather than the
court, if the offense is punishable as a felony of the first degree,
if a prior conviction has been alleged for enhancement of
punishment as provided by Section 12.42(b), (c)(1) or (2), or (d),
Penal Code, or if the offense is a felony not designated as a
capital felony or a felony of the first, second, or third degree and
the maximum term of imprisonment that may be imposed for the offense
is longer than 60 years, unless the offense of which the jury has
found the defendant guilty is an offense that is punishable under
Section 21.02(h), Penal Code, or is listed in Section 3g(a)(1),
Article 42.12, of this code or the judgment contains an affirmative
finding under Section 3g(a)(2), Article 42.12, of this code, the
court shall charge the jury in writing as follows:
"Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct
time. Prison authorities may award good conduct time to a prisoner
who exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner
engages in misconduct, prison authorities may also take away all or
part of any good conduct time earned by the prisoner.
"It is also possible that the length of time for which the
defendant will be imprisoned might be reduced by the award of
parole.
"Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed or 15 years,
whichever is less. Eligibility for parole does not guarantee that
parole will be granted.
"It cannot accurately be predicted how the parole law and
good conduct time might be applied to this defendant if he is
sentenced to a term of imprisonment, because the application of
these laws will depend on decisions made by prison and parole
authorities.
"You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant."
(c) In the penalty phase of the trial of a felony case in
which the punishment is to be assessed by the jury rather than the
court, if the offense is punishable as a felony of the second or
third degree, if a prior conviction has been alleged for
enhancement as provided by Section 12.42(a), Penal Code, or if the
offense is a felony not designated as a capital felony or a felony
of the first, second, or third degree and the maximum term of
imprisonment that may be imposed for the offense is 60 years or
less, unless the offense of which the jury has found the defendant
guilty is listed in Section 3g(a)(1), Article 42.12, of this code or
the judgment contains an affirmative finding under Section
3g(a)(2), Article 42.12, of this code, the court shall charge the
jury in writing as follows:
"Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct time.
Prison authorities may award good conduct time to a prisoner who
exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner engages
in misconduct, prison authorities may also take away all or part of
any good conduct time earned by the prisoner.
"It is also possible that the length of time for which the
defendant will be imprisoned might be reduced by the award of
parole.
"Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed. Eligibility for
parole does not guarantee that parole will be granted.
"It cannot accurately be predicted how the parole law and
good conduct time might be applied to this defendant if he is
sentenced to a term of imprisonment, because the application of
these laws will depend on decisions made by prison and parole
authorities.
"You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant."
(d) This section does not permit the introduction of evidence
on the operation of parole and good conduct time laws.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1967,
60th Leg., p. 1739, ch. 659, Sec. 22, eff. Aug. 28, 1967; Acts 1973,
63rd Leg., p. 971, ch. 399, Sec. 2(A), eff. Jan. 1, 1974; Acts 1973,
63rd Leg., p. 1126, ch. 426, art. 3, Sec. 2, eff. June 14, 1973.
Sec. 3(d) amended by Acts 1981, 67th Leg., p. 2466, ch. 639, Sec. 1,
eff. Sept. 1, 1981; Sec. 2(b) amended by Acts 1985, 69th Leg., ch.
291, Sec. 1, eff. Sept. 1, 1985; Sec. 3(a) amended by Acts 1985,
69th Leg., ch. 685, Sec. 8(b), eff. Aug. 26, 1985; Sec. 4 added by
Acts 1985, 69th Leg., ch. 576, Sec. 1, eff. Sept. 1, 1985; Sec. 2(b)
amended by Acts 1987, 70th Leg., ch. 179, Sec. 2, eff. Aug. 31,
1987; Sec. 3(a) amended by Acts 1987, 70th Leg., ch. 385, Sec. 19,
eff. Sept. 1, 1987; Acts 1987, 70th Leg., ch. 386, Sec. 1, eff.
Sept. 1, 1987; Sec. 4 amended by Acts 1987, 70th Leg., ch. 66, Sec.
1, eff. May 6, 1987; Acts 1987, 70th Leg., ch. 1101, Sec. 15, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 103, Sec. 1; Sec. 3(a)
amended by Acts 1989, 71st Leg., ch. 785, Sec. 4.04, eff. Sept. 1,
1989; Sec. 3(f) added by Acts 1990, 71st Leg., 6th C.S., ch. 25,
Sec. 30, eff. June 18, 1990; Sec. 3(a) amended by Acts 1993, 73rd
Leg., ch. 900, Sec. 5.05, eff. Sept. 1, 1993; Sec. 3(d) amended by
Acts 1993, 73rd Leg., ch. 900, Sec. 5.01, eff. Sept. 1, 1993; Sec.
3(g) added by Acts 1993, 73rd Leg., ch. 900, Sec. 5.06, eff. Sept.
1, 1993; Sec. 4 amended by Acts 1993, 73rd Leg., ch. 900, Sec. 5.02,
eff. Sept. 1, 1993; Sec. 3(a) amended by Acts 1995, 74th Leg., ch.
262, Sec. 82, eff. Jan. 1, 1996; Sec. 3(a) amended by Acts 1997,
75th Leg., ch. 1086, Sec. 31, eff. Sept. 1, 1997; Sec. 3(h) added by
Acts 1997, 75th Leg., ch. 144, Sec. 2, eff. May 20, 1997; Sec. 3(h)
added by Acts 1997, 75th Leg., ch. 1086, Sec. 31, eff. Sept. 1,
1997; relettered as Sec. 3(i) by Acts 1999, 76th Leg., ch. 62, Sec.
19.01(7), eff. Sept. 1, 1999; Sec. 3(a) amended by Acts 2001, 77th
Leg., ch. 585, Sec. 1, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 660, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 660, Sec. 2, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 728, Sec. 4.003, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.14, eff.
September 1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 3.15, eff.
September 1, 2007.
Art. 37.071. PROCEDURE IN CAPITAL CASE.
Sec. 1. If a defendant is found guilty in a capital felony
case in which the state does not seek the death penalty, the judge
shall sentence the defendant to life imprisonment without parole.
Sec. 2. (a)
(1) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment without
parole. The proceeding shall be conducted in the trial court and,
except as provided by Article 44.29(c) of this code, before the
trial jury as soon as practicable. In the proceeding, evidence may
be presented by the state and the defendant or the defendant's
counsel as to any matter that the court deems relevant to sentence,
including evidence of the defendant's background or character or
the circumstances of the offense that mitigates against the
imposition of the death penalty. This subdivision shall not be
construed to authorize the introduction of any evidence secured in
violation of the Constitution of the United States or of the State
of Texas. The state and the defendant or the defendant's counsel
shall be permitted to present argument for or against sentence of
death. The introduction of evidence of extraneous conduct is
governed by the notice requirements of Section 3(g), Article
37.07. The court, the attorney representing the state, the
defendant, or the defendant's counsel may not inform a juror or a
prospective juror of the effect of a failure of a jury to agree on
issues submitted under Subsection (c) or (e).
(2) Notwithstanding Subdivision (1), evidence may not be
offered by the state to establish that the race or ethnicity of the
defendant makes it likely that the defendant will engage in future
criminal conduct.
(b) On conclusion of the presentation of the evidence, the
court shall submit the following issues to the jury:
(1) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and
(2) in cases in which the jury charge at the guilt or
innocence stage permitted the jury to find the defendant guilty as a
party under Sections 7.01 and 7.02, Penal Code, whether the
defendant actually caused the death of the deceased or did not
actually cause the death of the deceased but intended to kill the
deceased or another or anticipated that a human life would be taken.
(c) The state must prove each issue submitted under
Subsection (b) of this article beyond a reasonable doubt, and the
jury shall return a special verdict of "yes" or "no" on each issue
submitted under Subsection (b) of this Article.
(d) The court shall charge the jury that:
(1) in deliberating on the issues submitted under Subsection
(b) of this article, it shall consider all evidence admitted at the
guilt or innocence stage and the punishment stage, including
evidence of the defendant's background or character or the
circumstances of the offense that militates for or mitigates
against the imposition of the death penalty;
(2) it may not answer any issue submitted under Subsection
(b) of this article "yes" unless it agrees unanimously and it may
not answer any issue "no" unless 10 or more jurors agree; and
(3) members of the jury need not agree on what particular
evidence supports a negative answer to any issue submitted under
Subsection (b) of this article.
(e)(1) The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted under
Subsection (b), it shall answer the following issue:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.
(2) The court shall:
(A) instruct the jury that if the jury answers
that a circumstance or circumstances warrant that a sentence of
life imprisonment without parole rather than a death sentence be
imposed, the court will sentence the defendant to imprisonment in
the institutional division of the Texas Department of Criminal
Justice for life without parole; and
(B) charge the jury that a defendant sentenced to
confinement for life without parole under this article is
ineligible for release from the department on parole.
(f) The court shall charge the jury that in answering the
issue submitted under Subsection (e) of this article, the jury:
(1) shall answer the issue "yes" or "no";
(2) may not answer the issue "no" unless it agrees
unanimously and may not answer the issue "yes" unless 10 or more
jurors agree;
(3) need not agree on what particular evidence supports an
affirmative finding on the issue; and
(4) shall consider mitigating evidence to be evidence that a
juror might regard as reducing the defendant's moral
blameworthiness.
(g) If the jury returns an affirmative finding on each issue
submitted under Subsection (b) and a negative finding on an issue
submitted under Subsection (e)(1), the court shall sentence the
defendant to death. If the jury returns a negative finding on any
issue submitted under Subsection (b) or an affirmative finding on
an issue submitted under Subsection (e)(1) or is unable to answer
any issue submitted under Subsection (b) or (e), the court shall
sentence the defendant to confinement in the institutional division
of the Texas Department of Criminal Justice for life imprisonment
without parole.
(h) The judgment of conviction and sentence of death shall be
subject to automatic review by the Court of Criminal Appeals.
(i) This article applies to the sentencing procedure in a
capital case for an offense that is committed on or after September
1, 1991. For the purposes of this section, an offense is committed
on or after September 1, 1991, if any element of that offense occurs
on or after that date.
Added by Acts 1973, 63rd Leg., p. 1125, ch. 426, art. 3, Sec. 1, eff.
June 14, 1973.
Subsec. (e) amended by Acts 1981, 67th Leg., p. 2673, ch. 725, Sec.
1, eff. Aug. 31, 1981. Amended by Acts 1985, 69th Leg., ch. 44, Sec.
2, eff. Sept. 1, 1985; Acts 1991, 72nd Leg., ch. 652, Sec. 9, eff.
Sept. 1, 1991; Acts 1991, 72nd Leg., ch. 838, Sec. 1, eff. Sept. 1,
1991; Subsec. (i) added by Acts 1993, 73rd Leg., ch. 781, Sec. 1,
eff. Aug. 30, 1993; Sec. 2(e) amended by Acts 1999, 76th Leg., ch.
140, Sec. 1, eff. Sept. 1, 1999; Sec. 2(a) amended by Acts 2001,
77th Leg., ch. 585, Sec. 2, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 399, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 787, Sec. 6, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 787, Sec. 7, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 787, Sec. 8, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 787, Sec. 9, eff. September 1, 2005.
Art. 37.0711. PROCEDURE IN CAPITAL CASE FOR OFFENSE COMMITTED
BEFORE SEPTEMBER 1, 1991.
Sec. 1. This article applies to the sentencing procedure in a
capital case for an offense that is committed before September 1,
1991, whether the sentencing procedure is part of the original
trial of the offense, an award of a new trial for both the guilt or
innocence stage and the punishment stage of the trial, or an award
of a new trial only for the punishment stage of the trial. For the
purposes of this section, an offense is committed before September
1, 1991, if every element of the offense occurs before that date.
Sec. 2. If a defendant is found guilty in a case in which the
state does not seek the death penalty, the judge shall sentence the
defendant to life imprisonment.
Sec. 3. (a)(1) If a defendant is tried for a capital offense
in which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall conduct a
separate sentencing proceeding to determine whether the defendant
shall be sentenced to death or life imprisonment. The proceeding
shall be conducted in the trial court and, except as provided by
Article 44.29(c) of this code, before the trial jury as soon as
practicable. In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence. This subdivision
shall not be construed to authorize the introduction of any
evidence secured in violation of the Constitution of the United
States or of this state. The state and the defendant or the
defendant's counsel shall be permitted to present argument for or
against sentence of death.
(2) Notwithstanding Subdivision (1), evidence may not be
offered by the state to establish that the race or ethnicity of the
defendant makes it likely that the defendant will engage in future
criminal conduct.
(b) On conclusion of the presentation of the evidence, the
court shall submit the following three issues to the jury:
(1) whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or another
would result;
(2) whether there is a probability that the defendant would
commit criminal acts of violence that would constitute a continuing
threat to society; and
(3) if raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in response to
the provocation, if any, by the deceased.
(c) The state must prove each issue submitted under
Subsection (b) of this section beyond a reasonable doubt, and the
jury shall return a special verdict of "yes" or "no" on each issue
submitted.
(d) The court shall charge the jury that:
(1) it may not answer any issue submitted under Subsection
(b) of this section "yes" unless it agrees unanimously; and
(2) it may not answer any issue submitted under Subsection
(b) of this section "no" unless 10 or more jurors agree.
(e) The court shall instruct the jury that if the jury returns
an affirmative finding on each issue submitted under Subsection (b)
of this section, it shall answer the following issue:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
rather than a death sentence be imposed.
(f) The court shall charge the jury that, in answering the
issue submitted under Subsection (e) of this section, the jury:
(1) shall answer the issue "yes" or "no";
(2) may not answer the issue "no" unless it agrees
unanimously and may not answer the issue "yes" unless 10 or more
jurors agree; and
(3) shall consider mitigating evidence that a juror might
regard as reducing the defendant's moral blameworthiness.
(g) If the jury returns an affirmative finding on each issue
submitted under Subsection (b) of this section and a negative
finding on the issue submitted under Subsection (e) of this
section, the court shall sentence the defendant to death. If the
jury returns a negative finding on any issue submitted under
Subsection (b) of this section or an affirmative finding on the
issue submitted under Subsection (e) of this section or is unable to
answer any issue submitted under Subsection (b) or (e) of this
section, the court shall sentence the defendant to confinement in
the institutional division of the Texas Department of Criminal
Justice for life.
(h) If a defendant is convicted of an offense under Section
19.03(a)(7), Penal Code, the court shall submit the issues under
Subsections (b) and (e) of this section only with regard to the
conduct of the defendant in murdering the deceased individual first
named in the indictment.
(i) The court, the attorney for the state, or the attorney for
the defendant may not inform a juror or prospective juror of the
effect of failure of the jury to agree on an issue submitted under
this article.
(j) The Court of Criminal Appeals shall automatically review
a judgment of conviction and sentence of death not later than the
60th day after the date of certification by the sentencing court of
the entire record, unless the Court of Criminal Appeals extends the
time for an additional period not to exceed 30 days for good cause
shown. Automatic review under this subsection has priority over
all other cases before the Court of Criminal Appeals, and the court
shall hear automatic reviews under rules adopted by the court for
that purpose.
Added by Acts 1993, 73rd Leg., ch. 781, Sec. 2, eff. Aug. 30, 1993.
Sec. 3(h) amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.22, eff.
Sept. 1, 1995; Sec. 3(a) amended by Acts 2001, 77th Leg., ch. 585,
Sec. 3, eff. Sept. 1, 2001.
Art. 37.072. PROCEDURE IN REPEAT SEX OFFENDER CAPITAL CASE
Sec. 1. If a defendant is found guilty in a capital felony
case punishable under Section 12.42(c)(3), Penal Code, in which the
state does not seek the death penalty, the judge shall sentence the
defendant to life imprisonment without parole.
Sec. 2. (a)(1) If a defendant is tried for an offense
punishable under Section 12.42(c)(3), Penal Code, in which the
state seeks the death penalty, on a finding that the defendant is
guilty of a capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to death or life imprisonment without parole. The
proceeding shall be conducted in the trial court and, except as
provided by Article 44.29(d) of this code, before the trial jury as
soon as practicable. In the proceeding, evidence may be presented
by the state and the defendant or the defendant's counsel as to any
matter that the court considers relevant to sentence, including
evidence of the defendant's background or character or the
circumstances of the offense that mitigates against the imposition
of the death penalty. This subdivision may not be construed to
authorize the introduction of any evidence secured in violation of
the Constitution of the United States or of the State of Texas. The
state and the defendant or the defendant's counsel shall be
permitted to present argument for or against sentence of
death. The introduction of evidence of extraneous conduct is
governed by the notice requirements of Section 3(g), Article
37.07. The court, the attorney representing the state, the
defendant, or the defendant's counsel may not inform a juror or a
prospective juror of the effect of a failure of a jury to agree on
issues submitted under Subsection (b) or (e).
(2) Notwithstanding Subdivision (1), evidence may not
be offered by the state to establish that the race or ethnicity of
the defendant makes it likely that the defendant will engage in
future criminal conduct.
(b) On conclusion of the presentation of the evidence, the
court shall submit the following issues to the jury:
(1) whether there is a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society; and
(2) in cases in which the jury charge at the guilt or
innocence stage permitted the jury to find the defendant guilty as a
party under Sections 7.01 and 7.02, Penal Code, whether the
defendant actually engaged in the conduct prohibited by Section
22.021, Penal Code, or did not actually engage in the conduct
prohibited by Section 22.021, Penal Code, but intended that the
offense be committed against the victim or another intended victim.
(c) The state must prove beyond a reasonable doubt each
issue submitted under Subsection (b) of this section, and the jury
shall return a special verdict of "yes" or "no" on each issue
submitted under Subsection (b) of this section.
(d) The court shall charge the jury that:
(1) in deliberating on the issues submitted under
Subsection (b) of this section, it shall consider all evidence
admitted at the guilt or innocence stage and the punishment stage,
including evidence of the defendant's background or character or
the circumstances of the offense that militates for or mitigates
against the imposition of the death penalty;
(2) it may not answer any issue submitted under
Subsection (b) of this section "yes" unless it agrees unanimously
and it may not answer any issue "no" unless 10 or more jurors agree;
and
(3) members of the jury need not agree on what
particular evidence supports a negative answer to any issue
submitted under Subsection (b) of this section.
(e)(1) The court shall instruct the jury that if the jury
returns an affirmative finding to each issue submitted under
Subsection (b), it shall answer the following issue:
Whether, taking into consideration all of the evidence,
including the circumstances of the offense, the defendant's
character and background, and the personal moral culpability of the
defendant, there is a sufficient mitigating circumstance or
circumstances to warrant that a sentence of life imprisonment
without parole rather than a death sentence be imposed.
(2) The court shall:
(A) instruct the jury that if the jury answers
that a circumstance or circumstances warrant that a sentence of
life imprisonment without parole rather than a death sentence be
imposed, the court will sentence the defendant to imprisonment in
the Texas Department of Criminal Justice for life without parole;
and
(B) charge the jury that a defendant sentenced to
confinement for life without parole under this article is
ineligible for release from the department on parole.
(f) The court shall charge the jury that in answering the
issue submitted under Subsection (e) of this section, the jury:
(1) shall answer the issue "yes" or "no";
(2) may not answer the issue "no" unless it agrees
unanimously and may not answer the issue "yes" unless 10 or more
jurors agree;
(3) need not agree on what particular evidence
supports an affirmative finding on the issue; and
(4) shall consider mitigating evidence to be evidence
that a juror might regard as reducing the defendant's moral
blameworthiness.
(g) If the jury returns an affirmative finding on each issue
submitted under Subsection (b) and a negative finding on an issue
submitted under Subsection (e)(1), the court shall sentence the
defendant to death. If the jury returns a negative finding on any
issue submitted under Subsection (b) or an affirmative finding on
an issue submitted under Subsection (e)(1) or is unable to answer
any issue submitted under Subsection (b) or (e), the court shall
sentence the defendant to imprisonment in the Texas Department of
Criminal Justice for life without parole.
(h) The judgment of conviction and sentence of death shall
be subject to automatic review by the Court of Criminal Appeals.
Added by Acts 2007, 80th Leg., R.S., Ch. 593, Sec. 1.04, eff.
September 1, 2007.
Art. 37.073. REPAYMENT OF REWARDS. (a) After a defendant has
been convicted of a felony offense, the judge may order a defendant
to repay all or part of a reward paid by a crime stoppers
organization.
(b) In determining whether the defendant must repay the
reward or part of the reward, the court shall consider:
(1) the ability of the defendant to make the payment and the
financial hardship on the defendant to make the required payment;
and
(2) the importance of the information to the prosecution of
the defendant as provided by the arresting officer or the attorney
for the state with due regard for the confidentiality of the crime
stoppers organization records.
(c) In this article, "crime stoppers organization" means a
crime stoppers organization, as defined by Subdivision (2), Section
414.001, Government Code, that is approved by the Crime Stoppers
Advisory Council to receive payments of rewards under this article
and Article 42.152 of this code.
Added by Acts 1989, 71st Leg., ch. 611, Sec. 1, eff. Sept. 1, 1989.
Renumbered from art. 37.072 by Acts 1991, 72nd Leg., ch. 16, Sec.
19.01(5), eff. Aug. 26, 1991. Amended by Acts 1997, 75th Leg., ch.
700, Sec. 10, eff. Sept. 1, 1997.
Art. 37.08. CONVICTION OF LESSER INCLUDED OFFENSE. In a
prosecution for an offense with lesser included offenses, the jury
may find the defendant not guilty of the greater offense, but guilty
of any lesser included offense.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 972, ch. 399, Sec. 2(A), eff. Jan. 1, 1974.
Art. 37.09. LESSER INCLUDED OFFENSE. An offense is a lesser
included offense if:
(1) it is established by proof of the same or less than all
the facts required to establish the commission of the offense
charged;
(2) it differs from the offense charged only in the respect
that a less serious injury or risk of injury to the same person,
property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect
that a less culpable mental state suffices to establish its
commission; or
(4) it consists of an attempt to commit the offense charged or
an otherwise included offense.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1973,
63rd Leg., p. 972, ch. 399, Sec. 2(A), eff. Jan. 1, 1974.
Art. 37.10. INFORMAL VERDICT. (a) If the verdict of the jury
is informal, its attention shall be called to it, and with its
consent the verdict may, under the direction of the court, be
reduced to the proper form. If the jury refuses to have the verdict
altered, it shall again retire to its room to deliberate, unless it
manifestly appear that the verdict is intended as an acquittal; and
in that case, the judgment shall be rendered accordingly,
discharging the defendant.
(b) If the jury assesses punishment in a case and in the
verdict assesses both punishment that is authorized by law for the
offense and punishment that is not authorized by law for the
offense, the court shall reform the verdict to show the punishment
authorized by law and to omit the punishment not authorized by law.
If the trial court is required to reform a verdict under this
subsection and fails to do so, the appellate court shall reform the
verdict as provided by this subsection.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1985, 69th Leg., ch. 442, Sec. 1, eff. June 11,
1985.
Art. 37.11. DEFENDANTS TRIED JOINTLY. Where several
defendants are tried together, the jury may convict each defendant
it finds guilty and acquit others. If it agrees to a verdict as to
one or more, it may find a verdict in accordance with such
agreement, and if it cannot agree as to others, a mistrial may be
entered as to them.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.12. JUDGMENT ON VERDICT. On each verdict of
acquittal or conviction, the proper judgment shall be entered
immediately. If acquitted, the defendant shall be at once
discharged from all further liability upon the charge for which he
was tried; provided that, in misdemeanor cases where there is
returned a verdict, or a plea of guilty is entered and the
punishment assessed is by fine only, the court may, on written
request of the defendant and for good cause shown, defer judgment
until some other day fixed by order of the court; but in no event
shall the judgment be deferred for a longer period of time than six
months. On expiration of the time fixed by the order of the court,
the court or judge thereof, shall enter judgment on the verdict or
plea and the same shall be executed as provided by Chapter 43 of
this Code. Provided further, that the court or judge thereof, in
the exercise of sound discretion may permit the defendant where
judgment is deferred, to remain at large on his personal bond, or
may require him to enter into bail bond in a sum at least double the
amount of the assessed fine and costs, conditioned that the
defendant and sureties, jointly and severally, will pay such fine
and costs unless the defendant personally appears on the day, set in
the order and discharges the judgment in the manner provided by
Chapter 43 of this Code; and for the enforcement of any judgment
entered, all writs, processes and remedies of this Code are made
applicable so far as necessary to carry out the provisions of this
Article.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.13. IF JURY BELIEVES ACCUSED INSANE. When a jury has
been impaneled to assess the punishment upon a plea of guilty, it
shall say in its verdict what the punishment is which it assesses;
but if it is of the opinion that a person pleading guilty is insane,
it shall so report to the court, and an issue as to that fact shall
be tried before another jury; and if, upon such trial, it be found
that the defendant is insane, such proceedings shall be had as
directed in cases where a defendant becomes insane after
conviction.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Art. 37.14. ACQUITTAL OF HIGHER OFFENSE AS JEOPARDY. If a
defendant, prosecuted for an offense which includes within it
lesser offenses, be convicted of an offense lower than that for
which he is indicted, and a new trial be granted him, or the
judgment be arrested for any cause other than the want of
jurisdiction, the verdict upon the first trial shall be considered
an acquittal of the higher offense; but he may, upon a second
trial, be convicted of the same offense of which he was before
convicted, or any other inferior thereto.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.