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H.B. No. 3265
AN ACT
relating to the declaration of a mistrial in the punishment phase of
a criminal proceeding.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 2(a) and (b), Article 37.07, Code of
Criminal Procedure, are amended to read as follows:
(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 in Article 37.071, 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 [probation] and the defendant
filed his sworn motion for community supervision [probation] 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.
SECTION 2. Section 3(c), Article 37.07, Code of Criminal
Procedure, is amended to read as follows:
(c) If the jury finds the defendant guilty and [In cases
where] the matter of punishment is referred to the jury, the verdict
shall not be complete until a [the] jury [has rendered a] verdict
has been rendered on both [on] the guilt or innocence of the
defendant and the amount of punishment[, where the jury finds the
defendant guilty]. 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.
SECTION 3. (a) The change in law made by this Act applies
only to a trial in which the jury renders a guilty verdict on or
after the effective date of this Act.
(b) A trial in which the jury renders a guilty verdict
before the effective date of this Act is covered by the law in
effect when the guilty verdict was rendered, and the former law is
continued in effect for that purpose.
SECTION 4. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 3265 was passed by the House on April
22, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 3265 was passed by the Senate on May
20, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor