Tex.
Code of Crim. Proc. Article 37.06
Presence of Defendant
(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 (Punishments) 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.(b)
Except as provided by Article 37.071 (Procedure in Capital Case) or 37.072 (Procedure in Repeat Sex Offender Capital Case), 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 (Effect of Reversal). 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.(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 (Bail) 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.(3)
Regardless of the plea and whether the punishment is assessed by the judge or the jury, during the punishment phase of the trial of an offense under Section 35A.02 (Health Care Fraud), Penal Code, subject to the applicable rules of evidence, the state and the defendant may offer evidence not offered during the guilt or innocence phase of the trial concerning the total pecuniary loss to the affected health care program caused by the defendant’s conduct or, if applicable, the scheme or continuing course of conduct of which the defendant’s conduct is part. Evidence may be offered in summary form concerning the total pecuniary loss to the affected health care program. Testimony regarding the total pecuniary loss to the affected health care program is subject to cross-examination. Evidence offered under this subdivision may be considered by the judge or jury in ordering or recommending the amount of any restitution to be made to the affected health care program or the appropriate punishment for the defendant.(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, the judge may order a presentence report as contemplated in Subchapter F (Definitions), Chapter 42A (Community Supervision), and after considering the report, and after the hearing of the evidence hereinabove provided for, the judge shall forthwith announce the judge’s 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.(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 (Penalties for Repeat and Habitual Felony Offenders on Trial for First, Second, or Third Degree Felony)(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 (Continuous Sexual Abuse of Young Child or Disabled Individual)(h), Penal Code, or is listed in Article 42A.054 (Limitation on Judge-ordered Community Supervision)(a) or the judgment contains an affirmative finding under Article 42A.054 (Limitation on Judge-ordered Community Supervision)(c) or (d), the court shall charge the jury in writing as follows:(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 (Penalties for Repeat and Habitual Felony Offenders on Trial for First, Second, or Third Degree Felony)(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 Article 42A.054 (Limitation on Judge-ordered Community Supervision)(a) or the judgment contains an affirmative finding under Article 42A.054 (Limitation on Judge-ordered Community Supervision)(c) or (d), the court shall charge the jury in writing as follows:(d)
This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.
Source:
Article 37.06 — Presence of Defendant, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.37.htm#37.06 (accessed Apr. 20, 2024).
