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CODE OF CRIMINAL PROCEDURE CHAPTER 36.
THE TRIAL BEFORE THE JURY
Art. 36.01. [642] [717] [697] 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. [643] [718] [698] 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. [646] [722] [702] 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. [647] [723] [703] 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. [648] [724] [704] 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. [649] [725] [705] 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. [650] [726] [706] 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. [652] [728] [708] 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. [655] [731-733] 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. [656] [732] [712] 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. [657] [734] 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. [658] [735-736] 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. [659] [737] [717] 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. [660] 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. [661] [738] [718] 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. [665] [742] [722] 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. [666] [743] [723] 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. [670] [747] [727] 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. [671] [748] [728] 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. [672] [749] [729] 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. [673] [750] [730] 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. [674] [751] [731] 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. [675] [752] [732] 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. [676] [753] [733] 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. [678] [755] [735] 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 any one of
them becomes so sick as to prevent the continuance of his duty, or
any accident of circumstance occurs to prevent their being kept
together under circumstances under which the law or the
instructions of the court requires that they 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 charge of the court is read to the jury, 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.
Art. 36.30. [681] [758] [738] 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. [682] [759] [739] 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. [683] [760] [740] 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. [684] [761] [741] 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.
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