By:  Straus, Pena (Senate Sponsor - Wentworth)                    H.B. No. 3265
	(In the Senate - Received from the House April 25, 2005; 
April 26, 2005, read first time and referred to Committee on 
Jurisprudence; May 13, 2005, reported favorably by the following 
vote:  Yeas 4, Nays 0; May 13, 2005, sent to printer.)

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. 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.
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