78R2944 KCR-F

By:  Staples                                                      S.B. No. 432



A BILL TO BE ENTITLED

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.   Section 2(b), Article 37.07, Code of Criminal 
Procedure, is amended to read as follows:
	(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, Article 37.07, Code of Criminal 
Procedure, is amended by amending Subsection (c) and adding 
Subsection (c-1) 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].  Except as provided by Subsection (c-1), if [In 
the event] the jury fails [shall fail] to agree on the matter of 
guilt or innocence or the matter of punishment, a mistrial shall be 
declared, the jury shall be discharged, and no jeopardy shall 
attach.
	(c-1)  If the jury fails to agree on the matter of 
punishment, the court shall begin a new trial as if a finding of 
guilt had been returned and proceed to the punishment stage of the 
trial under Section 2(b) of this article.  If the defendant elects, 
the court shall impanel another jury in the court's customary 
manner as soon as practicable to determine the matter of 
punishment.  The court shall allow the state and the defendant to 
introduce evidence illustrating the circumstances surrounding the 
offense and other evidence as allowed by this section.
	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, 2003.