The Texas Constitution guarantees the accused in all criminal prosecutions the right to a trial by jury. The defendant may waive trial by jury and proceed with trial to the court (judge) with the consent and approval of the judge and the prosecutor in any criminal prosecution except a capital felony in which the prosecutor notifies the court and the defendant that the state will seek the death penalty.

A criminal trial before a jury (sometimes called a “petit jury”) proceeds as follows:

• The jury is impaneled following voir dire examination and any challenges for cause or peremptory challenges.
• The information or indictment is read to the jury.
• The defendant enters his/her plea.
• Opening statements may be made by each side.
• The testimony on the part of the state is offered.
• The testimony on the part of the defense is offered.
• Rebutting testimony may be offered by each side.
• The court’s written charge setting forth the law applicable in the case is read to the jury.
• Closing Argument – Attorneys for each side argue their case to the jury.
• The jury deliberates. If the jury finds that the state proved beyond a reasonable doubt that the defendant committed the offense charged (or a lesser included offense), the trial proceeds to the punishment phase. A not guilty verdict ends the trial and discharges the defendant. If the jury is unable to agree to a unanimous verdict, a mistrial or “hung jury” occurs and the jury is discharged. The case may be retried at a later date.
• The judge assesses punishment unless the defendant requests the jury to assess punishment or the state seeks the death penalty in a capital felony. The judge may be required to direct a supervision (probation) officer to prepare a presentence investigation report. Testimony concerning the circumstances of the offense may be considered by the judge or jury in determining the punishment to be assessed. Victim impact evidence (e.g., degree of physical or emotional injury to the victim) may be admissible as a circum-stance of the offense if the evidence has some bearing on the defendant’s personal responsibility and moral guilt. Evidence is also admissible concerning the defendant’s prior criminal record, his/her general reputation and character, and any other evidence of an extraneous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant.

• After the introduction of evidence relevant to punishment has been concluded, if the jury has the responsibility of assessing the punishment, the judge will give additional instructions as may be necessary and the order of procedure is the same as on the issue of guilt or innocence. If the jury fails to agree to a unanimous verdict on punishment, the verdict is not complete and a mistrial is declared and the jury discharged. The punishment phase of the case may be retried at a later date.
• Prior to the imposition of sentence by the court, if the court has received a victim impact statement it must consider the information provided in the statement. Before sentencing the defendant, the court is required to permit the defendant or his/her counsel a reasonable time to read the statement, comment on the statement, and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement.

A court may order witnesses excluded from the courtroom under “the rule” so that they cannot hear the testimony of other witnesses. Witnesses may not converse with each other or with any other person about the case, except the lawyers involved in the case. Witnesses cannot read, watch or listen to any report of or comment upon the testimony in the case while the trial is being conducted. This rule does not authorize exclusion of the victim, unless the victim is to testify and the court determines that the victim’s testimony would be materially affected if the victim hears other testimony at the trial.