Houston Criminal Lawyer, Texas Code of Criminal Procedure, 37.2

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
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Hundreds of Cases Dismissed

HOUSTON CRIMINAL LAWYER
OVER 15 YEARS CRIMINAL LAW EXPERIENCE
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CODE OF CRIMINAL PROCEDURE
CHAPTER 37. THE VERDICT

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 institutional division of 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 institutional division of 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.
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