Texas Code of Criminal Procedure - Article 37.0711. Procedure In Capital Case For Offense Committed Before September 1, 1991
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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.
Article: 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 37.12 37.13
Last modified: August 11, 2007
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