79R2214 KCR-D
By: Dutton H.B. No. 408
A BILL TO BE ENTITLED
AN ACT
relating to jury selection in capital cases.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 2(a)(1), Article 37.071, Code of
Criminal Procedure, is amended to read as follows:
(a)(1) If a defendant is tried for a capital offense in which
the state seeks the death penalty, on a finding that the defendant
is guilty of a capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to death or life imprisonment. The proceeding shall be
conducted as soon as practicable in the trial court and, except as
provided by Article 44.29(c) [of this code], before a separate [the
trial] jury impaneled by the trial court under Section 3 [as soon as
practicable]. In the proceeding, evidence may be presented by the
state and the defendant or the defendant's counsel as to any matter
that the court deems relevant to sentence, including evidence of
the defendant's background or character or the circumstances of the
offense that mitigates against the imposition of the death penalty.
This subdivision shall not be construed to authorize the
introduction of any evidence secured in violation of the
Constitution of the United States or of the State of Texas. The
state and the defendant or the defendant's counsel shall be
permitted to present argument for or against sentence of death. The
court, the attorney representing the state, the defendant, or the
defendant's counsel may not inform a juror or a prospective juror of
the effect of a failure of a jury to agree on issues submitted under
Subsection (c) or (e) [of this article].
SECTION 2. Section 2(d), Article 37.071, Code of Criminal
Procedure, is amended to read as follows:
(d) The court shall charge the jury that:
(1) in deliberating on the issues submitted under
Subsection (b) [of this article], the jury [it] shall consider all
evidence admitted at [the guilt or innocence stage and] the
punishment stage, including evidence of the defendant's background
or character or the circumstances of the offense that militates for
or mitigates against the imposition of the death penalty;
(2) the jury [it] may not answer any issue submitted
under Subsection (b) [of this article] "yes" unless the jury [it]
agrees unanimously and the jury [it] may not answer any issue "no"
unless 10 or more jurors agree; and
(3) members of the jury need not agree on what
particular evidence supports a negative answer to any issue
submitted under Subsection (b) [of this article].
SECTION 3. Article 37.071, Code of Criminal Procedure, is
amended by adding Section 3 to read as follows:
Sec. 3. (a) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall:
(1) discharge the jury that returned the finding of
guilt; and
(2) impanel a separate jury for the punishment stage
of the trial.
(b) The court shall impanel the jury for the punishment
stage of the trial in the same manner that the court impaneled the
jury for the guilt or innocence stage.
(c) The court shall exclude from the jury impaneled for the
punishment stage any person who served on the jury for the guilt or
innocence stage.
SECTION 4. Section 3(a)(1), Article 37.0711, Code of
Criminal Procedure, is amended to read as follows:
(a)(1) If a defendant is tried for a capital offense in which
the state seeks the death penalty, on a finding that the defendant
is guilty of a capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the defendant shall be
sentenced to death or life imprisonment. The proceeding shall be
conducted as soon as practicable in the trial court and, except as
provided by Article 44.29(c) [of this code], before a separate [the
trial] jury impaneled by the trial court under Section 4 [as soon as
practicable]. In the proceeding, evidence may be presented as to
any matter that the court deems relevant to sentence. This
subdivision shall not be construed to authorize the introduction of
any evidence secured in violation of the Constitution of the United
States or of this state. The state and the defendant or the
defendant's counsel shall be permitted to present argument for or
against sentence of death.
SECTION 5. Article 37.0711, Code of Criminal Procedure, is
amended by adding Section 4 to read as follows:
Sec. 4. (a) If a defendant is tried for a capital offense in
which the state seeks the death penalty, on a finding that the
defendant is guilty of a capital offense, the court shall:
(1) discharge the jury that returned the finding of
guilt; and
(2) impanel a separate jury for the punishment stage
of the trial.
(b) The court shall impanel the jury for the punishment
stage of the trial in the same manner that the court impaneled the
jury for the guilt or innocence stage.
(c) The court shall exclude from the jury impaneled for the
punishment stage any person who served on the jury for the guilt or
innocence stage.
SECTION 6. Article 44.29(c), Code of Criminal Procedure, is
amended to read as follows:
(c) If any court sets aside or invalidates the sentence of a
defendant convicted of an offense under Section 19.03, Penal Code,
and sentenced to death on the basis of any error affecting
punishment only, the court shall not set the conviction aside but
rather shall commence a new punishment hearing under Article 37.071
or Article 37.0711 [of this code], as appropriate[, as if a finding
of guilt had been returned]. The court shall empanel a jury for the
sentencing stage of the trial in the same manner as a jury is to be
empaneled by the court in the punishment stage of other trials
before the court for offenses under Section 19.03, Penal Code. At
the new punishment hearing, the court shall permit both the state
and the defendant to introduce evidence as permitted by Article
37.071 or Article 37.0711 [of this code].
SECTION 7. The changes in law made by this Act apply only to
an offense committed on or after the effective date of this Act. An
offense committed before the effective date of this Act is covered
by the law in effect at the time the offense was committed, and the
former law is continued in effect for that purpose. For purposes of
this section, an offense was committed before the effective date of
this Act if any element of the offense was committed before that
date.
SECTION 8. This Act takes effect September 1, 2005.