CHAPTER 37. THE VERDICT - Texas Statutes

CODE OF CRIMINAL PROCEDURE

TITLE 1. 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 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

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.

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

87, Sec. 25.015, eff. September 1, 2009.

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

87, Sec. 25.016, eff. September 1, 2009.

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) and a negative finding on the

issue submitted under Subsection (e), 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 the issue submitted under Subsection (e) or is unable

to answer any issue submitted under Subsection (b) or (e), the

court shall sentence the defendant to confinement in 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.

Amended by:

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

87, Sec. 25.017, eff. September 1, 2009.

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 Texas Crime

Stoppers Council to receive payments of rewards under this

article and Article 42.152.

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.

Amended by:

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

168, Sec. 4, eff. May 27, 2009.

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.