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Texas Code of Criminal Procedure - Article 37.071. Procedure In Capital Case

Legal Research Home > Texas Laws > Code of Criminal Procedure > Texas Code of Criminal Procedure - Article 37.071. Procedure In Capital Case

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;  Sec. 1 amended by 
Acts 2005, 79th Leg., ch. 787, Sec. 6, eff. Sept. 1, 2005;  Sec. 
2(a)(1) amended by Acts 2005, 79th Leg., ch. 399, Sec. 1, eff. Sept. 
1, 2005;  Sec. 2(a)(1) amended by Acts 2005, 79th Leg., ch. 787, 
Sec. 7, eff. Sept. 1, 2005;  Sec. 2(e) amended by Acts 2005, 79th 
Leg., ch. 787, Sec. 8, eff. Sept. 1, 2005;  Sec. 2(g) amended by Acts 
2005, 79th Leg., ch. 787, Sec. 9, eff. Sept. 1, 2005.

Last modified: August 11, 2007