CHAPTER 36. THE TRIAL BEFORE THE JURY - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 36. THE TRIAL BEFORE THE JURY

Art. 36.01. ORDER OF PROCEEDING IN TRIAL. (a) A jury being

impaneled in any criminal action, except as provided by

Subsection (b) of this article, the cause shall proceed in the

following order:

1. The indictment or information shall be read to the jury by the

attorney prosecuting. When prior convictions are alleged for

purposes of enhancement only and are not jurisdictional, that

portion of the indictment or information reciting such

convictions shall not be read until the hearing on punishment is

held as provided in Article 37.07.

2. The special pleas, if any, shall be read by the defendant's

counsel, and if the plea of not guilty is also relied upon, it

shall also be stated.

3. The State's attorney shall state to the jury the nature of the

accusation and the facts which are expected to be proved by the

State in support thereof.

4. The testimony on the part of the State shall be offered.

5. The nature of the defenses relied upon and the facts expected

to be proved in their support shall be stated by defendant's

counsel.

6. The testimony on the part of the defendant shall be offered.

7. Rebutting testimony may be offered on the part of each party.

8. In the event of a finding of guilty, the trial shall then

proceed as set forth in Article 37.07.

(b) The defendant's counsel may make the opening statement for

the defendant immediately after the attorney representing the

State makes the opening statement for the State. After the

defendant's attorney concludes the defendant's opening statement,

the State's testimony shall be offered. At the conclusion of the

presentation of the State's testimony, the defendant's testimony

shall be offered, and the order of proceedings shall continue in

the manner described by Subsection (a) of this article.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Amended by Acts 1987, 70th Leg., ch. 519, Sec. 1, eff. Sept. 1,

1987.

Art. 36.02. TESTIMONY AT ANY TIME. The court shall allow

testimony to be introduced at any time before the argument of a

cause is concluded, if it appears that it is necessary to a due

administration of justice.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.03. INVOCATION OF RULE. (a) Notwithstanding Rule 614,

Texas Rules of Evidence, a court at the request of a party may

order the exclusion of a witness who for the purposes of the

prosecution is a victim, close relative of a deceased victim, or

guardian of a victim only if the witness is to testify and the

court determines that the testimony of the witness would be

materially affected if the witness hears other testimony at the

trial.

(b) On the objection of the opposing party, the court may require

the party requesting exclusion of a witness under Subsection (a)

to make an offer of proof to justify the exclusion.

(c) Subsection (a) does not limit the authority of the court on

its own motion to exclude a witness or other person to maintain

decorum in the courtroom.

(d) In this article:

(1) "Close relative of a deceased victim" and "guardian of a

victim" have the meanings assigned by Article 56.01.

(2) "Victim" means a victim of any criminal offense.

(e) At the commencement of a trial, the court shall admonish each

witness who is to testify as to those persons whom the court

determines the witness may talk to about the case before the

trial ends and those persons whom the witness may not talk to

about the case. The court may punish as contempt a witness who

violates the admonishment provided by the court.

Added by Acts 2001, 77th Leg., ch. 1034, Sec. 1, eff. Sept. 1,

2001.

Art. 36.05. NOT TO HEAR TESTIMONY. Witnesses under rule shall be

attended by an officer, and all their reasonable wants provided

for, unless the court, in its discretion, directs that they be

allowed to go at large; but in no case where the witnesses are

under rule shall they be allowed to hear any testimony in the

case.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.06. INSTRUCTED BY THE COURT. Witnesses, when placed

under rule, shall be instructed by the court that they are not to

converse with each other or with any other person about the case,

except by permission of the court, and that they are not to read

any report of or comment upon the testimony in the case while

under rule. The officer who attends the witnesses shall report to

the court at once any violation of its instructions, and the

party violating the same shall be punished for contempt of court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.07. ORDER OF ARGUMENT. The order of argument may be

regulated by the presiding judge; but the State's counsel shall

have the right to make the concluding address to the jury.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.08. NUMBER OF ARGUMENTS. The court shall never restrict

the argument in felony cases to a number of addresses less than

two on each side.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.09. SEVERANCE ON SEPARATE INDICTMENTS. Two or more

defendants who are jointly or separately indicted or complained

against for the same offense or any offense growing out of the

same transaction may be, in the discretion of the court, tried

jointly or separately as to one or more defendants; provided that

in any event either defendant may testify for the other or on

behalf of the state; and provided further, that in cases in

which, upon timely motion to sever, and evidence introduced

thereon, it is made known to the court that there is a previous

admissible conviction against one defendant or that a joint trial

would be prejudicial to any defendant, the court shall order a

severance as to the defendant whose joint trial would prejudice

the other defendant or defendants.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1967, 60th Leg., p. 1739, ch. 659, Sec. 21, eff. Aug. 28, 1967.

Art. 36.10. ORDER OF TRIAL. If a severance is granted, the

defendants may agree upon the order in which they are to be

tried, but if they fail to agree, the court shall direct the

order of the trial.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.11. DISCHARGE BEFORE VERDICT. If it appears during a

trial that the court has no jurisdiction of the offense, or that

the facts charged in the indictment do not constitute an offense,

the jury shall be discharged. The accused shall also be

discharged, but such discharge shall be no bar in any case to a

prosecution before the proper court for any offense unless

termination of the former prosecution was improper.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1973, 63rd Leg., p. 971, ch. 399, Sec. 2(A), eff. Jan. 1, 1974.

Art. 36.12. COURT MAY COMMIT. If the want of jurisdiction arises

from the fact that the defendant is not liable to prosecution in

the county where the indictment was presented, the court may in

felony cases order the accused into custody for a reasonable

length of time to await a warrant for his arrest from the proper

county; or if the offense be bailable, may require him to enter

into recognizance to answer before the proper court; in which

case a certified copy of the recognizance shall be sent forthwith

to the clerk of the proper court, to be enforced by that court in

case of forfeiture.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.13. JURY IS JUDGE OF FACTS. Unless otherwise provided in

this Code, the jury is the exclusive judge of the facts, but it

is bound to receive the law from the court and be governed

thereby.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.14. CHARGE OF COURT. Subject to the provisions of

Article 36.07 in each felony case and in each misdemeanor case

tried in a court of record, the judge shall, before the argument

begins, deliver to the jury, except in pleas of guilty, where a

jury has been waived, a written charge distinctly setting forth

the law applicable to the case; not expressing any opinion as to

the weight of the evidence, not summing up the testimony,

discussing the facts or using any argument in his charge

calculated to arouse the sympathy or excite the passions of the

jury. Before said charge is read to the jury, the defendant or

his counsel shall have a reasonable time to examine the same and

he shall present his objections thereto in writing, distinctly

specifying each ground of objection. Said objections may embody

errors claimed to have been committed in the charge, as well as

errors claimed to have been committed by omissions therefrom or

in failing to charge upon issues arising from the facts, and in

no event shall it be necessary for the defendant or his counsel

to present special requested charges to preserve or maintain any

error assigned to the charge, as herein provided. The requirement

that the objections to the court's charge be in writing will be

complied with if the objections are dictated to the court

reporter in the presence of the court and the state's counsel,

before the reading of the court's charge to the jury. Compliance

with the provisions of this Article is all that is necessary to

preserve, for review, the exceptions and objections presented to

the charge and any amendment or modification thereof. In no event

shall it be necessary for the defendant to except to the action

of the court in over-ruling defendant's exceptions or objections

to the charge.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1975, 64th Leg., p. 617, ch. 253, Sec. 1, eff. Sept. 1, 1975.

Amended by Acts 1981, 67th Leg., p. 2244, ch. 537, Sec. 1, eff.

June 12, 1981.

Art. 36.15. REQUESTED SPECIAL CHARGES. Before the court reads

his charge to the jury, counsel on both sides shall have a

reasonable time to present written instructions and ask that they

be given to the jury. The requirement that the instructions be in

writing is complied with if the instructions are dictated to the

court reporter in the presence of the court and the state's

counsel, before the reading of the court's charge to the jury.

The court shall give or refuse these charges. The defendant may,

by a special requested instruction, call the trial court's

attention to error in the charge, as well as omissions therefrom,

and no other exception or objection to the court's charge shall

be necessary to preserve any error reflected by any special

requested instruction which the trial court refuses.

Any special requested charge which is granted shall be

incorporated in the main charge and shall be treated as a part

thereof, and the jury shall not be advised that it is a special

requested charge of either party. The judge shall read to the

jury only such special charges as he gives.

When the defendant has leveled objections to the charge or has

requested instructions or both, and the court thereafter modifies

his charge and rewrites the same and in so doing does not respond

to objections or requested charges, or any of them, then the

objections or requested charges shall not be deemed to have been

waived by the party making or requesting the same, but shall be

deemed to continue to have been urged by the party making or

requesting the same unless the contrary is shown by the record;

no exception by the defendant to the action of the court shall be

necessary or required in order to preserve for review the error

claimed in the charge.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts

1979, 36th Leg., p. 1109, ch. 525, Sec. 1, eff. Sept. 1, 1979.

Amended by Acts 1981, 67th Leg., p. 2245, ch. 537, Sec. 1, eff.

June 12, 1981.

Art. 36.16. FINAL CHARGE. After the judge shall have received

the objections to his main charge, together with any special

charges offered, he may make such changes in his main charge as

he may deem proper, and the defendant or his counsel shall have

the opportunity to present their objections thereto and in the

same manner as is provided in Article 36.15, and thereupon the

judge shall read his charge to the jury as finally written,

together with any special charges given, and no further exception

or objection shall be required of the defendant in order to

preserve any objections or exceptions theretofore made. After the

argument begins no further charge shall be given to the jury

unless required by the improper argument of counsel or the

request of the jury, or unless the judge shall, in his

discretion, permit the introduction of other testimony, and in

the event of such further charge, the defendant or his counsel

shall have the right to present objections in the same manner as

is prescribed in Article 36.15. The failure of the court to give

the defendant or his counsel a reasonable time to examine the

charge and specify the ground of objection shall be subject to

review either in the trial court or in the appellate court.

Acts 1965, 56th Leg., vol. 2, p. 317, ch. 722.

Art. 36.17. CHARGE CERTIFIED BY JUDGE. The general charge given

by the court and all special charges given or refused shall be

certified by the judge and filed among the papers in the cause.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.18. JURY MAY TAKE CHARGE. The jury may take to their

jury room the charges given by the court after the same have been

filed. They shall not be permitted to take with them any charge

or part thereof which the court has refused to give.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.19. REVIEW OF CHARGE ON APPEAL. Whenever it appears by

the record in any criminal action upon appeal that any

requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has

been disregarded, the judgment shall not be reversed unless the

error appearing from the record was calculated to injure the

rights of defendant, or unless it appears from the record that

the defendant has not had a fair and impartial trial. All

objections to the charge and to the refusal of special charges

shall be made at the time of the trial.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.21. TO PROVIDE JURY ROOM. The sheriff shall provide a

suitable room for the deliberation of the jury and supply them

with such necessary food and lodging as he can obtain. No

intoxicating liquor shall be furnished them. In all cases wherein

a jury consists partly of male jurors and partly of female

jurors, the sheriff shall provide facilities for the female

jurors separate and apart from the facilities provided for the

male jurors.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.215. RECORDING OF JURY DELIBERATIONS. A person may not

use any device to produce or make an audio, visual, or

audio-visual broadcast, recording, or photograph of a jury while

the jury is deliberating.

Added by Acts 2003, 78th Leg., ch. 54, Sec. 1, eff. Sept. 1,

2003.

Art. 36.22. CONVERSING WITH JURY. No person shall be permitted

to be with a jury while it is deliberating. No person shall be

permitted to converse with a juror about the case on trial except

in the presence and by the permission of the court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.23. VIOLATION OF PRECEDING ARTICLE. Any juror or other

person violating the preceding Article shall be punished for

contempt of court by confinement in jail not to exceed three days

or by fine not to exceed one hundred dollars, or by both such

fine and imprisonment.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.24. OFFICER SHALL ATTEND JURY. The sheriff of the county

shall furnish the court with a bailiff during the trial of any

case to attend the wants of the jury and to act under the

direction of the court. If the person furnished by the sheriff is

to be called as a witness in the case he may not serve as

bailiff.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.25. WRITTEN EVIDENCE. There shall be furnished to the

jury upon its request any exhibits admitted as evidence in the

case.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.26. FOREMAN OF JURY. Each jury shall appoint one of its

members foreman.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.27. JURY MAY COMMUNICATE WITH COURT. When the jury

wishes to communicate with the court, it shall so notify the

sheriff, who shall inform the court thereof. Any communication

relative to the cause must be written, prepared by the foreman

and shall be submitted to the court through the bailiff. The

court shall answer any such communication in writing, and before

giving such answer to the jury shall use reasonable diligence to

secure the presence of the defendant and his counsel, and shall

first submit the question and also submit his answer to the same

to the defendant or his counsel or objections and exceptions, in

the same manner as any other written instructions are submitted

to such counsel, before the court gives such answer to the jury,

but if he is unable to secure the presence of the defendant and

his counsel, then he shall proceed to answer the same as he deems

proper. The written instruction or answer to the communication

shall be read in open court unless expressly waived by the

defendant.

All such proceedings in felony cases shall be a part of the

record and recorded by the court reporter.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.28. JURY MAY HAVE WITNESS RE-EXAMINED OR TESTIMONY READ.

In the trial of a criminal case in a court of record, if the jury

disagree as to the statement of any witness they may, upon

applying to the court, have read to them from the court

reporter's notes that part of such witness testimony or the

particular point in dispute, and no other; but if there be no

such reporter, or if his notes cannot be read to the jury, the

court may cause such witness to be again brought upon the stand

and the judge shall direct him to repeat his testimony as to the

point in dispute, and no other, as nearly as he can in the

language used on the trial.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.29. IF A JUROR DIES OR BECOMES DISABLED. (a) Not less

than twelve jurors can render and return a verdict in a felony

case. It must be concurred in by each juror and signed by the

foreman. Except as provided in Subsection (b), however, after the

trial of any felony case begins and a juror dies or, as

determined by the judge, becomes disabled from sitting at any

time before the charge of the court is read to the jury, the

remainder of the jury shall have the power to render the verdict;

but when the verdict shall be rendered by less than the whole

number, it shall be signed by every member of the jury concurring

in it.

(b) If alternate jurors have been selected in a capital case in

which the state seeks the death penalty and a juror dies or

becomes disabled from sitting at any time before the charge of

the court is read to the jury, the alternate juror whose name was

called first under Article 35.26 of this code shall replace the

dead or disabled juror. Likewise, if another juror dies or

becomes disabled from sitting before the charge of the court is

read to the jury, the other alternate juror shall replace the

second juror to die or become disabled.

(c) After the charge of the court is read to the jury, if a

juror becomes so sick as to prevent the continuance of the

juror's duty and an alternate juror is not available, or if any

accident of circumstance occurs to prevent the jury from being

kept together under circumstances under which the law or the

instructions of the court requires that the jury be kept

together, the jury shall be discharged, except that on agreement

on the record by the defendant, the defendant's counsel, and the

attorney representing the state 11 members of a jury may render a

verdict and, if punishment is to be assessed by the jury, assess

punishment. If a verdict is rendered by less than the whole

number of the jury, each member of the jury shall sign the

verdict.

(d) After the jury has rendered a verdict on the guilt or

innocence of the defendant and, if applicable, the amount of

punishment, the court shall discharge an alternate juror who has

not replaced a juror.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Amended by Acts 1981, 67th Leg., p. 2264, ch. 545, Sec. 2, eff.

June 12, 1981; Subsec. (b) amended by Acts 1991, 72nd Leg., ch.

652, Sec. 8, eff. Sept. 1, 1991; Subsec. (c) amended by Acts

1997, 75th Leg., ch. 866, Sec. 1, eff. Sept. 1, 1997; Art.

heading amended by Acts 2001, 77th Leg., ch. 1000, Sec. 1, eff.

Sept. 1, 2001; Subsec. (a) amended by Acts 2001, 77th Leg., ch.

1000, Sec. 2, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

846, Sec. 2, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

627, Sec. 1, eff. September 1, 2009.

Art. 36.30. DISCHARGING JURY IN MISDEMEANOR. If nine of the jury

can be kept together in a misdemeanor case in the district court,

they shall not be discharged. If more than three of the twelve

are discharged, the entire jury shall be discharged.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.31. DISAGREEMENT OF JURY. After the cause is submitted

to the jury, it may be discharged when it cannot agree and both

parties consent to its discharge; or the court may in its

discretion discharge it where it has been kept together for such

time as to render it altogether improbable that it can agree.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.32. RECEIPT OF VERDICT AND FINAL ADJOURNMENT. During the

trial of any case, the term shall be deemed to have been extended

until such time as the jury has rendered its verdict or been

discharged according to law.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

Art. 36.33. DISCHARGE WITHOUT VERDICT. When a jury has been

discharged, as provided in the four preceding Articles, without

having rendered a verdict, the cause may be again tried at the

same or another term.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.