Texas Code of Criminal Procedure - Article 37.07. Verdict Must Be General; Separate Hearing On Proper Punishment
Legal Research Home >
Texas Lawyer > Code of Criminal Procedure > Texas Code of Criminal Procedure - Article 37.07. Verdict Must Be General; Separate Hearing On Proper Punishment
Art. 37.07. [693] [770] [750] 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 in Article 37.071, 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 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), 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 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; Sec. 2(a) amended by Acts
2005, 79th Leg., ch. 660, Sec. 1, eff. Sept. 1, 2005; Sec. 2(b)
amended by Acts 2005, 79th Leg., ch. 660, Sec. 1 eff. Sept. 1, 2005;
Sec. 3(c) amended by Acts 2005, 79th Leg., ch. 660, Sec. 2, eff.
Sept. 1, 2005; Sec. 3(g) amended by Acts 2005, 79th Leg., ch. 728,
Sec. 4.003, eff. Sept. 1, 2005.
Article: 36.33 37.01 37.02 37.03 37.04 37.05 37.06 37.07 37.071 37.0711 37.073 37.08 37.09 37.10 37.11
Last modified: August 11, 2007
|
