| The Houston, Texas, criminal defense law firm of Attorney Andy Nolen, represents people who have been accused of a state crime in Texas, including in communities such as League City, Angleton, Pearland, Alvin, Clear Lake, Sugar Land, The Woodlands, Baytown, Pasadena, Memorial, Spring Branch, River Oaks, West University, and Bellaire. Counties that this firm serves include: Galveston County • Fort Bend County • Montgomery County • Brazoria County • Harris County. Cases handled include: Domestic Violence, Theft, Shoplifting, Drunk Driving, Evading Arrest |
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| HOUSTON CRIMINAL LAWYER OVER 15 YEARS CRIMINAL LAW EXPERIENCE LICENSED IN BOTH STATE AND FEDERAL COURT |
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| 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 |
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