Chapter 36: Order of Proceeding in Trial
Article 36.01: Order of Proceedings in Trial
Initial Steps: Upon impaneling a jury in a criminal action, the proceedings follow a specific order:
The prosecuting attorney reads the indictment or information to the jury.
Enhancements through prior convictions are not read until the punishment hearing as per Article 37.07.
The defendant's counsel reads any special pleas and affirms the plea of not guilty if applicable.
The State’s attorney outlines the accusation and supporting facts.
The State presents its testimony.
The defendant’s counsel states the nature of defenses and supporting facts.
The defendant presents their testimony.
Rebuttal testimony from both parties may be introduced.
If a guilty verdict is rendered, the trial continues according to Article 37.07.
Alternative Opening Statement: The defendant’s counsel may opt to make the opening statement immediately following the State's opening statement.
Article 36.02: Testimony at Any Time
The court is permitted to allow testimony to be introduced at any time prior to the conclusion of the argument if deemed necessary for justice.
Article 36.03: Invocation of Rule
Exclusion of Witness: A court may order the exclusion of relevant witnesses (victims or their relatives) to ensure their testimony is not materially influenced by other testimonies.
Requires offer of proof if objected by opposing party.
Witness admonishment regarding proper conduct before trial commences.
Article 36.05: Not to Hear Testimony
Witnesses under the court rule must be attended by an officer and must not hear any testimony during the trial.
Article 36.06: Instructed by the Court
Witnesses under the rule are instructed against discussing the case or reading reports of testimony unless permitted by the court.
Violations will lead to contempt charge.
Article 36.07: Order of Argument
The presiding judge regulates the argument order; State’s counsel has the right to make the concluding address.
Article 36.08: Number of Arguments
In felony cases, each side is entitled to at least two addresses.
Article 36.09: Severance on Separate Indictments
The court may try defendants jointly or separately for the same offense.
Defendants can testify for each other or the State but if a joint trial is prejudicial, the court must order severance.
Article 36.10: Order of Trial
If severance is granted, defendants agree on the trial order; otherwise, the court directs it.
Article 36.11: Discharge Before Verdict
Jury discharges if the court lacks jurisdiction or the facts do not constitute an offense.
Discharge does not prevent prosecution in the proper court if the first was improper.
Article 36.12: Court May Commit
The court may order the accused into custody or require recognizance while waiting for proper jurisdiction.
Article 36.13: Jury as Judge of Facts
The jury serves as the sole judge of facts, guided by the law presented by the court.
Article 36.14: Charge of Court
Before arguments, the judge provides a written charge to the jury outlining applicable law, ensuring no opinion on evidence is expressed.
Defendants must be given reasonable time to review and contest charges in writing.
Article 36.15: Requested Special Charges
Counsel presents written instructions before the judge’s final charge to the jury. Errors in the charge can be preserved through special requested instructions.
Article 36.16: Final Charge
After considering objections and special charges, the judge reads the finalized charge. Further objections can only be made in response to counsel's arguments or jury requests.
Article 36.17: Charge Certified by Judge
The judge certifies and files all charges given or refused in the trial documentation.
Article 36.18: Jury May Take Charge
Jurors can bring the court's charge to the deliberation room but not any refused charges.
Article 36.19: Review of Charge on Appeal
Errors in the charge are grounds for appeal only if they injure the defendant's rights or result in an unfair trial.
Article 36.21: To Provide Jury Room
The sheriff provides a jury deliberation room and supplies but no intoxicating liquor; separate facilities for male and female jurors.
Article 36.215: Recording of Jury Deliberations
No audio or visual recording of jury deliberations is allowed.
Article 36.22: Conversing with Jury
Individuals cannot converse with deliberating jurors without the court’s permission.
Article 36.23: Violation of Preceding Article
Violations lead to contempt charges and potential fines or jail time.
Article 36.24: Officer Shall Attend Jury
The sheriff provides a bailiff to attend the jury's needs during trials; witness bailiffs must not testify.
Article 36.25: Written Evidence
Jurors may request and receive evidence exhibits admitted in the case.
Article 36.26: Foreman of Jury
Each jury elects a foreman from among its members.
Article 36.27: Jury May Communicate with Court
Jurors communicate with the court through formal written requests managed by the sheriff, requiring the defendant’s or their counsel’s presence for responses when possible.
Article 36.28: Jury May Have Witness Re-Examined or Testimony Read
Jurors may have disputed witness statements read from court reporter's notes or bring the witness back for clarity on specific points.
Article 36.29: If a Juror Dies or Becomes Disabled
A minimum of twelve jurors must concur on a felony verdict. If a juror dies or becomes disabled pre-charge, the remaining jurors can continue to decide.
Alternate jurors replace disabled ones in capital cases.
Article 36.30: Discharging Jury in Misdemeanor
In misdemeanor cases, if nine jurors can remain together, they should not be discharged unless excessive jurors are missing.
Article 36.31: Disagreement of Jury
A jury may be discharged by mutual consent or at the court's discretion if prolonged disagreement seems hopeless.
Article 36.32: Receipt of Verdict and Final Adjournment
The trial term extends until the jury renders a verdict or is legally discharged.
Article 36.33: Discharge Without Verdict
If a jury discharges without a verdict, the case may be retried at the same or subsequent court term.