02 a criminal scripts 2017 3 - Easy Law · PDF filecriminal scripts script for giving art. 15.17 magistrate’s warnings ..... 2 script for arraignment without counsel

Criminal Scripts

GIVING ART. 15.17 MAGISTRATE’S WARNINGS. . . . . . . . . . . . . . . . 2

SCRIPT FOR ARRAIGNMENT WITHOUT COUNSEL . . . . . . . . . . . . 7

PLEA OF GUILTY WITHOUT COUNSEL . . . . . . . . . . . . . . . . . . . . . . 11

SCRIPT FOR COMMUNITY SUPERVISION . . . . . . . . . . . . . . . . . . . . 15

SCRIPT FOR DEFERRED ADJUDICATION . . . . . . . . . . . . . . . . . . . . 16

SCRIPT FOR STRAIGHT FINE AND JAIL TIME . . . . . . . . . . . . . . . . 19

SCRIPT FOR PLEA OF NOT GUILTY . . . . . . . . . . . . . . . . . . . . . . . . . 20

PLEA OF GUILTY TO THE COURT WITH COUNSEL . . . . . . . . . . 22

ORDER OF A JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINAL JURY

PANEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

INSTRUCTING THE CRIMINAL JURY PANEL . . . . . . . . . . . . . . . . . 40

SCRIPT FOR PUNISHMENT PHASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 67

published 3/19/18 with revisions through the 85th Legislature 2017

Criminal Scripts - i

Criminal Scripts - Table of Contents

SPECIAL CHARGES WHILE JURY IS DELIBERATING. . . . . . . . . . 73

INSTRUCTED VERDICT SCRIPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

HEARING ON MOTION TO REVOKE COMMUNITY

SUPERVISION PRE-HEARING MATTERS . . . . . . . . . . . . . . . . . . . . . 78

ORDER OF HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

SCRIPT FOR HEARING ON MOTION TO REVOKE COMMUNITY

SUPERVISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85


Criminal Scripts - ii

Criminal Scripts - Table of Contents

GIVING ART. 15.17 MAGISTRATE’S WARNINGS

Updated: 03/19/2018

1. Introduction

“I am County Judge . I am here to give you the warningsrequired by Article 15.17 of the Texas Code of CriminalProcedure:

• to inform you of the allegations made against you;

• to inform you of the range of punishment for thealleged offense; and

• to set bail for you.”

“This is not an arraignment, and I cannot hear your pleaor hear any testimony regarding the alleged offense. That will take place when you are arraigned.”

2. Alleged offense and range of punishment

“Are you (defendant’s name)? Is that your true andcorrect name (defendant’s name)?”


Criminal Scripts - 2

GIVING ART. 15.17 MAGISTRATE’S WARNINGS

“You are alleged to have committed the offense of . Therange of punishment for the offense of is a fine of $ to $ ,and confinement in jail for , or both a fine and jail time.”

“Do you understand the allegation against you and thefull range of punishment for this offense?”

3. Rights

“You have the following rights:

• If you are a foreign national, you have the rightunder the Vienna Convention to contact yournational consulate and the right to consult withthem concerning legal representation in this case.

• to remain silent and not make any statements, andany statement made by you may be used againstyou;

• to hire a lawyer to represent you;

• to have a lawyer appointed to represent you, if youare indigent and cannot afford a lawyer;



GIVING ART. 15.17 MAGISTRATE’S WARNINGS2. Alleged offense and range of punishment

• to have your lawyer present during any interviewwith peace officers or lawyers representing thestate;

• to have an examining trial;

• and to terminate any interview with peace officersor lawyers representing the state at any time.

“Do you understand these rights?”

“Do you have any questions about any of these rights?”

“If you understand, please sign this documentacknowledging that I have explained your rights to youand that you understand your rights. This is not a plea ofguilty or not guilty, but merely an acknowledgment that I have read these rights to you in your presence.”

“Are you requesting a court appointed attorney?”

If yes, refer to your county plan as filed with the indigentdefense task force.

4. Setting the amount of bail

“I need to ask you some questions so that I can set bail.”



GIVING ART. 15.17 MAGISTRATE’S WARNINGS3. Rights

“Where do you live?”

“How long have you lived there?”

“Do you have family in County?”

“How long have you worked there?”

“Have you been arrested before?”

If yes:

“Where, in what court, and for what offense?”

“What was your bail?”

“Did you ever fail to appear in court as promised?”

Note: as any other questions that will help you set the amount

of bail.

5. The bond

“Your bail is set at $_______. You must appear on_______(date) at a.m./p.m. or instanter (when notifiedby the court). If you do not appear at that time in court,



GIVING ART. 15.17 MAGISTRATE’S WARNINGS4. Setting the amount of bail

your bond or cash deposit will be forfeited and a warrantissued for your arrest.”

6. Closing

“I will see you in court on (date) at _____ a.m./p.m.”,

or

“You will be notified by first class mail of your date toappear in court.”



GIVING ART. 15.17 MAGISTRATE’S WARNINGS5. The bond

SCRIPT FOR ARRAIGNMENT WITHOUT

COUNSEL

Call the case.

“The court calls the case of The State of Texas versus______ (defendant’s name), case no. ______.”

“Are you (defendant’s name)? Is that your true andcorrect name?”

“In case no. ________, you have been charged with theoffense of ________.”

“Your file indicates that you have been warned of yourrights by a magistrate at the time of your arrest. Did youunderstand all of the warning given to you at that time?Do you wish to have your rights explained to you at thistime?”

If the answer is “no” proceed with the following script.

If “yes” read the warning again from the magistrate’s warningscript.



SCRIPT FOR ARRAIGNMENT WITHOUT COUNSEL6. Closing

“Your file indicates that you have waived your right tohave an attorney present with you today, and you havewaived your right to court-appointed counsel. Before Iapprove this waiver, I want to make sure that youunderstand the dangers and disadvantages of selfrepresentation. (If the defendant has not appeared beforeyou previously for this admonishment, explain in yourown words the dangers and disadvantages of selfrepresentation.) Understanding this, do you still want toproceed without counsel?”

If the answer is “yes,” announce that you have approved thewaiver of counsel and proceed with the following script. If“no,” ask the defendant if he would like an opportunity toretain counsel or if the defendant believes he is indigent,proceed to n indigence hearing per the indigent defense planadopted for your county.

“It is your right to have the information setting forth thecharge against you read aloud in open court.”

“Will the prosecutor please read the information (orindictment)?”

“Thank you.”

“This courtroom proceeding is your arraignment. Thepurpose of today’s proceeding is to ensure that you are




the person charged in the information (or indictment), toinform you of the range of punishment for the offense forwhich you are charged, and to take your plea.”

“Are you ______ , the person named in the information?”

“You are charged with the crime of _________. This is aClass (A or B) misdemeanor. The range of punishmentfor this offense is a fine not to exceed $______ andconfinement in the county jail for a term not to exceeddays (or months) or both such fine and confinement.”

For any DWI offense, include a warning that the punishmentshall be not less than 72 hours nor more than the maximumfor the grade of offense charged.

“Do you understand the allegation against you and thefull range of punishment for this offense? “

“How do you plead, guilty or not guilty?”

“If you do not know how you want to plead, the Courtwill enter a plea of NOT GUILTY for you.”

If the defendant doesn’t understand, explain in more detail.

If the plea is not guilty go to pg. 20.




If the plea is guilty with counsel, go to pg. 22.

If the plea is guilty without counsel, continue:




PLEA OF GUILTY WITHOUT COUNSEL

Read the rights and consequences.

“I will read your rights and the consequences of a plea ofguilty or nolo contendere.”

“You have:

• the right to be tried before a jury;

• the right to be represented by a lawyer;

• the right to be represented by an appointed lawyerif you are indigent and cannot afford to hire alawyer;

• the right to proceed pro se that is , without theassistance of a lawyer;

• the right to compel witnesses to testify on yourbehalf;

• the right to cross-examine your accusers;

• the right to remain silent



PLEA OF GUILTY WITHOUT COUNSEL6. Closing

• the right to have ten days after the appointment ofan attorney before entering a plea of going to trial,and with a written jury waiver, the court will assesspunishment either upon or without evidence, at the court’s discretion.”

“If you are not a citizen of the United States, a plea ofguilty or nolo contendere may result in deportation,exclusion from admission to the United States, or denialof naturalization under federal law.”

“If you are convicted of a misdemeanor involving familyviolence, it will be unlawful for you to possess or transfera firearm or ammunition. If you have any questions about whether or not this plea will make it illegal for you topossess or purchase a firearm, you should consult anattorney.”

“If you are on probation or parole, a plea of guilty or nolo contendere may result in revocation of probation orparole and result in confinement.”

“Is there a plea bargain agreement between the state andthe defendant?”

If yes, proceed. If no, go to plea of not guilty, pg. 20.




“If there is a plea bargain agreement, therecommendation of the prosecuting attorney as topunishment is not binding on the court. I will inform you whether I will follow or reject the agreement, and thatshould I reject the agreement, you will have theopportunity to withdraw your plea of guilty or nolocontendere.”

“If there is a plea bargain agreement, and thepunishment assessed by the court does not exceed thepunishment recommended by the prosecutor and agreedto by you, then you must obtain the court’s permissionbefore bringing an appeal on any matter in the case,except for those matters raised by written motions priorto trial.”

“If the offense charged involves the manufacture,possession, transportation, or use of an alcoholicbeverage, or the manufacture, delivery, possession,transportation, or use of a controlled substance,dangerous drug, or simulated controlled substance, and:

If you were under 21 years of age at the time of thecommission of the crime, then your Texas driver’s license or privilege to obtain a license in Texas mayautomatically be suspended.”




“Do you understand what I just explained to you?”

If no, go back to that portion of the warning which is unclearto the defendant.

“Mr./Ms. Prosecutor, please present the terms of the plea bargain to the court.”

“Mr./Ms. (defendant), have the terms of the agreementbeen correctly stated.”

“Mr./Ms. , how do you plead to the charge of ?”

“I will accept your plea of at this time.”

Proceed to sentencing according to the plea bargain agreement as follows:

If the plea bargain calls for community supervision go to script on pg. 15.

If the plea bargain calls for deferred adjudication, go to thescript on pg. 16.

If the plea bargain calls for straight time and fine, go the scripton pg. 19.




SCRIPT FOR COMMUNITY SUPERVISION

Assign the punishment:

“I find you guilty and I assess your punishment atconfinement in the County Jail for a period of days, and a fine in the amount of $_______ .”

“However, I suspend $__________ of the fine and days of the jail time and place you on community supervisionunder the direction and control of this court and theCommunity Supervision and Corrections Department fora term of days ( months), under the followingconditions:”

“If you successfully complete community supervision,you may be entitled to have your conviction set aside.”

At this point, the court shall advise the defendant of the termsand conditions of community supervision.

Note: the court may suspend any portion of the fine imposedand any or all of the jail time imposed. The court may waive all or any part of the community supervision fees.



SCRIPT FOR COMMUNITY SUPERVISION6. Closing

SCRIPT FOR DEFERRED ADJUDICATION

Ask the prosecutor to state the terms of the plea bargainagreement.

“Mr./Ms. (prosecutor), would you state the terms of theplea bargain for the court?”

Here prosecutor sets out plea agreement.

“Mr./Ms. (defendant), is this your understanding of theagreement that would be presented to the court?”

Defendant will answer in the affirmative.

“Mr./Ms. , do you have the ability to pay all of the finesand court costs?

If a defendant does not answer affirmatively, see Code ofCriminal Procedure Art. 42.15(a-1) for the judge’s options inworking out a payment plan or waiving fines and costs.

“Mr./Ms. (defendant), how do you plead?”

Defendant will plead guilty.



SCRIPT FOR DEFERRED ADJUDICATION6. Closing

“Mr./Ms. (defendant), I will receive your plea and findthat there is sufficient evidence to find you guilty in thiscase, but will defer any finding of guilt for a period ofmonths. During that time you will be placed oncommunity supervision and will comply with the termsand conditions of that supervision as will be outlined toyou today. Should you, for any reason, fail to comply with the terms and conditions of community supervision, Ireserve the right to conduct a hearing upon such issueand if warranted, proceed to a final finding of guilt in this matter assessing punishment within the range allowed by law for this offense.

Do you understand?

Further, if you successfully complete the term ofcommunity supervision, I may, if the facts justify it,return to this matter and in open court dismiss thecharges now pending, in which case you will have nopermanent record of a conviction in this case. If youcomplete probate successfully, you may have the right topetition for an order of nondisclosure under Section411.81 of the Government Code. I advise you to consultwith your attorney to determine your eligibility.

Do you understand?”




Note: Deferred adjudication is not available in DWI or DUIcases.




SCRIPT FOR STRAIGHT FINE AND JAIL TIME

“I find you guilty and I assess your punishment asconfinement in the County Jail for a period of days, and a fine in the amount of $ , plus court costs, and restitutionto (victim’s name) in the amount of $ on or before .”

“Do you have the financial means to pay this fine andcourt costs?”

If defendant does have financial means to pay the fine andcourt costs, proceed.

If defendant does not have financial means to pay the fine and court costs, ask if they will be able to pay it in 30 days. Ifdefendant cannot pay the fine and court costs in 30 days,consider a payment plan, community service, waiving the fineand costs, or any combination of these options.

If restitution is involved, the exact amount must be ordered atsentencing.



SCRIPT FOR STRAIGHT FINE AND JAIL TIME6. Closing

SCRIPT FOR PLEA OF NOT GUILTY

Ask for pleading.

“Mr./Ms. , how do you plead to the charge of ? I willaccept your plea of Not Guilty and enter it upon thedocket of the Court.”

Note: If the defendant is unsure about the plea to be entered,the Court shall announce that it will enter a plea of not guiltyfor the defendant, and that the defendant may change that plea at any time.

“The court finds that the bond previously set in thismatter is sufficient to ensure your appearance before thiscourt and the bond is continued and shall be returnableinstanter. You are hereby ordered to appear and be readyfor trial on the _____ day of ______, 20__ .”

Note: If the defendant is already free on bond, you maycontinue, or reset bond and conditions of the bond.

If the court changes or reset the bond, instruct the defendantas follows:

“The court finds that the bond previously set in thismatter is insufficient to ensure your appearance in court.



SCRIPT FOR PLEA OF NOT GUILTY6. Closing

The court sets bond in the amount of $______ , to bereturned to the court instanter.”

“Instanter means that you must appear in this courtwhen notified, and the court’s duty to notify you is tosend a first class letter to you at the address listed on your bond.”

Note: Here set other terms or conditions of the bond asneeded. If you amend the terms of the bond by adding ignition interlock, requiring the defendant not to contact the victim,etc., you should have the defendant acknowledge on therecord, or in writing, that he/she understands theseconditions.



SCRIPT FOR PLEA OF NOT GUILTY6. Closing

PLEA OF GUILTY TO THE COURT WITH

COUNSEL

Ask the defendant if he has read and understands the plea.

“Have you read, or had read to you, and do youunderstand the Plea of Guilty’ form before me that bearsyour signature?”

“Do you understand everything on it?” “Is this yoursignature?”

“Are you entering this plea freely and of your own will?”

“Counsel, have you explained everything in thisdocument to your client?”

“Does your client understand the contents of the pleabargain agreement?”

“Counsel, has your client been able to assist you inpreparing for today’s proceeding?

“Counsel, is it your opinion that at all times during which you have represented the defendant in this matter thatthe defendant has appeared to be competent?”



PLEA OF GUILTY TO THE COURT WITH COUNSEL6. Closing

“I understand there is a plea bargain agreement in thiscase. If for any reason I choose not to accept theagreement, any plea that you enter may be withdrawnand a plea of not guilty to the charges entered. Do youunderstand?”

“Mr./Ms. Prosecutor, please state the plea bargainagreement to the court.”

“Counsel, have the terms of the agreement been correctly stated?”

“Mr./Ms. , are these the terms that you understoodwould be presented to the court?”

“Mr./Ms. , do you have the ability to pay all of the finesand court costs?”

If a defendant does not answer affirmatively, see Code ofCriminal Procedure Art. 42.15(a-1) for the judge’s options inworking out a payment plan or waiving fines and costs.

Note: Insure that the proper waivers have been signed andsubmitted to the court.

If the plea bargain agreement provides for communitysupervision proceed to the script on pg. 15.




If the plea bargain agreement provides for deferredadjudication go to the script on pg. 16.

If the plea bargain provides for straight time and a fine go topg. 19.

“Mr./Ms. ________, how do you plead to the charge of_________?”

“I will accept your plea of at this time.




ORDER OF A JURY TRIAL

A jury trial in a criminal case proceeds in the following order:

1 Qualify and swear the central jury panel, if a central jurypanel system is used

2 Swear the jury panel

3 Qualify the jury panel

4 Shuffle the jury list, if requested (may occur before or afterqualifying the jury panel)

5 Determine whether the defendant has filed an election ofpunishment to be set by the judge or the jury (if not filedbefore voir dire, the judge sets punishment)

6 Determine whether the defendant has filed an applicationfor community supervision (it must be filed before voir direbegins)

7 Conduct voir dire and select jury

8 Hold hearing on discriminatory use of peremptorychallenges if requested (can be held any time between makingof peremptory strikes and swearing in of jury members)



ORDER OF A JURY TRIAL6. Closing

9 Seat jury and administer the oath

10 State’s attorney arraigns defendant outside jury’s presence,unless defendant previously has been arraigned

11 State’s attorney presents indictment or information to thejury

12 Defense counsel enters plea(s) for the defendant

13 State’s attorney makes opening statement, if desired

14 Defense counsel makes opening statement (opening may be made now, reserved until the close of the state’s case, orwaived completely)

15 Administer oath and instructions to witnesses

16 Consider motion to invoke the “rule” of sequestration ofwitnesses, if requested

17 Hear state’s evidence through direct and cross-examination

18 State rests

19 Consider motion for instructed verdict by defendant (up tothe time defense counsel begins to present evidence)




20 Defense counsel makes opening statement (unlesspreviously delivered or waived)

21 Hear defendant’s evidence through direct andcross-examination

22 Defendant rests

23 State presents rebuttal testimony, if any

24 Defendant presents rebuttal testimony, if any

25 State closes

26 Defendant closes

27 Consider any additional motions, if any

28 Prepare jury charge for review by state and defendant

29 Receive and rule on special requested charges andobjections to the court’s charge (outside of the jury’s presence)

30 Complete final jury charge and present to the jury

31 State makes closing argument

32 Defendant makes closing argument




33 State makes rebuttal closing argument (state has the right to make the concluding argument)

34 Read supplemental jury instructions

35 Recess jury to the jury room to deliberate on the verdict

36 Jury returns verdict or transmits deadlocked status to court

37 Court issues “dynamite charge” if jury is deadlocked; ifdeadlock continues, declare mistrial and dismiss jury

38 Receive jury verdict in open court, and, if it is in properform, accept verdict

39 If verdict is “Not Guilty,” read final instructions to jury and release the jury

40 If verdict is “Guilty” and defendant elected to have jurydecide punishment, state reads any punishment enhancementallegation contained in the information, if any, to the jury anddefendant offers plea of “True” or “Not True”. If there is noenhancement allegation in the information, proceed to hearevidence on punishment.

41 State and defendant present any new evidence relevant topunishment

42 Both state and defendant close




43 Prepare punishment charge for review by state anddefendant

44 Receive and rule on objections to the punishment charge(outside of the jury’s presence)

45 Read punishment charge to jury

46 State and defense counsel argue

47 Jury deliberates and returns verdict on punishment

48 Jury dismissed

49 Execution of judgment




SCRIPT FOR A JURY TRIAL QUALIFYING THE

CRIMINAL JURY PANEL

[The following is used to qualify the jury panel. In countiesusing a central jury panel system, the following also is used toqualify the central jury panel.]

I. INTRODUCTION

“Welcome to the County Court. I am Judge __________ .I hope your jury service will be an interesting andeducational experience. The right to trial by jury is one of our oldest and most important freedoms. Yourwillingness to serve on a jury preserves that freedom.”

“You are subject to jury service for (choose one: days orweeks).”

“I will explain the steps for selecting a jury.”

• “Step 1 is calling the roll by the clerk.”

• “Step 2 is administering an oath to the jury panel.”

• “Step 3 is explaining the qualifications to serve as a juror in a criminal case.”



SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINALJURY PANEL

6. Closing

• “Step 4 is listing the exemptions from jury service.”

“After these steps are completed, I will call a short recessfor the clerk to compile a list of qualified jurors. Duringthe recess, those jurors who have not completed thequestionnaire may do so.”

“Will the jury panel please stand and move to the back ofthe courtroom?”

“When the clerk calls your name, please answer here’ orpresent’, then come forward and be seated as directed bythe bailiff.”

After roll is called and the panel is reseated.

“You are now seated in the order in which your nameswere drawn from the jury wheel.”

II. ADMINISTERING THE OATH TO THE PANEL

[Administer the following oath to the entire jury panel.]

“You, and each of you, solemnly swear that you willmake true answers to such questions as may bepropounded to you by the court, or under its directions,touching your service and qualifications as a juror, sohelp you God.”



SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINAL JURY PANELI. INTRODUCTION

[Answer: “I will” or “I do.”]

III. DETERMINE JUROR QUALIFICATIONS

[Determine the qualifications of the jurors by stating thefollowing:]

“To serve on this jury, you must meet the followingqualifications:”

• “You must be at least 18 years old.”

• “You must be a resident of the state and a citizenof this county and you must be qualified under thestate constitution and laws to vote in this county,but you need not actually be registered to vote.”

• “You must be of sound mind and good moralcharacter.”

• “You must be able to read and write.”

• “You must not have served as a juror for six daysduring the preceding six months in the districtcourt, or during the preceding three months in thecounty court.”




II. ADMINISTERING THE OATH TO THE PANEL

• “You must not have been convicted ofmisdemeanor theft or of any felony.”

• “You must not be under indictment or other legalaccusation for misdemeanor theft or any felony.”

• “Is there any member of the jury panel who doesnot meet those qualifications? If so, please comeforward to the bench.”

IV. EXEMPTION FROM JURY SERVICE

Determine whether anyone wants to claim an exemption.

Explain that is it optional.

(italicized text below applies only to counties with populationof more than 200,000)

“A person qualified to serve as a petit juror may establishan exemption from jury service if the person:

“(1) is over 70 years of age;

“(2) has legal custody of a child younger than 12 years ofage and the person’s service on the jury requires leavingthe child without adequate supervision;



SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINAL JURY PANELIII. DETERMINE JUROR QUALIFICATIONS

“(3) is a student of a public or private secondary school;

“(4) is a person enrolled and in actual attendance of aninstitution of higher learning;

“(5) is an officer or an employee of the senate, the houseof representatives, or any department, commission,board, office, or other agency in the legislative branch ofstate government;

“(6) is summoned for service in a county with apopulation of at least 200,000, unless that county uses ajury plan under Government Code Section 62.011 and theperiod authorized under Section 62.011(b)(5) exceeds twoyears, and the person has served as a petit juror in thecounty during the twenty-four-month period precedingthe date the person is to appear for jury service;

“(7) is the primary caretaker of a person who is unable tocare for himself or herself;

“(8) except as provided by Subsection (b), is summonedfor service in a county with a population of at least250,000 and the person has served as a petit juror in thecounty during the three-year period preceding the datethe person is to appear for jury service; or




IV. EXEMPTION FROM JURY SERVICE

“(9) is a member of the United States military forcesserving on active duty and deployed to a location awayfrom the person’s home station and out of the person’scounty of residence.

“(10) Subsection (a)(8) does not apply if the jury wheel inthe county has been reconstituted after the date theperson served as a petit juror.

“Just because you are eligible for an exemption does notmean that you cannot serve. You may waive yourexemption and choose to serve, the decision is yours.

“Is there anyone who wishes to claim their exemption?

“If you want to talk about an exemption please comeforward one at a time.”

After finishing with exemptions:

“Do any of you have excuses as to why you cannot serve,such as medical or business emergencies? If so pleasecome forward one at a time.”



SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINAL JURY PANELIV. EXEMPTION FROM JURY SERVICE

V. HARDSHIP EXEMPTIONS

The court may excuse jurors who are neither disqualified norexempt under the following statutes:

A. Judicial Excuse of Jurors {Tex. Govt. Code Sec. 62.110}

Except as provided by Sec. 62.110, a court may hear anyreasonable sworn excuse of a prospective juror and releasehim from jury service entirely or until another day of the term.

Pursuant to a plan approved by the commissioners court ofthe county in the same manner as a plan is approved for juryselection under Texas Government Code Sec. 62.011, thecourt’s designee may hear any reasonable excuse of aprospective juror and discharge the juror or release him fromjury service until a specified day of the term.

The court or the court’s designee may not excuse aprospective juror for an economic reason unless each party ofrecord is present and approves the release of the juror for thatreason.

B. Excuses {Tex. Code Crim. Proc. Art. 35.03}

Except for disqualifications, exemptions, or observance ofreligious holy days, the court must then hear other excusesoffered for not serving as a juror, and if the court decides the





excuse is sufficient, the court shall discharge the juror orpostpone the juror’s service to a date specified by the court.

Under a plan approved by the commissioners court underTexas Government Code Sec. 62.011, in a case other than acapital felony case, the court’s designee may hear anddetermine an excuse offered for not serving as a juror, and ifthe court’s designee deems the excuse sufficient, he maypostpone the juror’s service to a date specified by the court’sdesignee.

A court or court’s designee may discharge a juror or postponethe juror’s service on the basis of the juror’s observation of areligious holy day or religious beliefs only if the juror providesan affidavit as required by {Tex. Code Crim. Proc. Art.29.012(c)}.

C. Religious Holy Day {Tex. Code Crim. Proc. Art. 29.012}

For purposes of jury selection:

a. “Religious organization” means an organization that meets the standards for qualification as a religious organizationunder Texas Tax Code Sec. 11.20.

b. “Religious holy day” means a day on which the tenets of a religious organization prohibit its members fromparticipating in secular activities, such as court proceedings.



SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINAL JURY PANELV. HARDSHIP EXEMPTIONS

If a juror in a criminal action is required to appear at a courtproceeding on a religious holy day that the juror observes, thecourt or the court’s designee shall recess the criminal actionuntil the next day the court is in session after the conclusion of the holy day.

A juror seeking a recess must file with the court before thefinal selection of the jury an affidavit stating:

a. the grounds for the recess; and

b. that the juror holds religious beliefs that prohibit himfrom taking part in a court proceeding on the day for whichthe recess is sought.

An affidavit filed by a juror about a religious observance doesnot need to be corroborated.

D. Excuse of a Juror for Religious Holy Day {Tex. Govt. CodeSec. 62.112}

If a prospective juror is required to appear at a courtproceeding on a religious holy day observed by the prospective juror, the court or the court’s designee must release theprospective juror from jury service entirely or until anotherday of the term. If the court determines that a term of a courtproceeding may extend to cover a day on which a religiousholy day is observed by the prospective juror, the court or the





court’s designee must release the prospective juror from juryservice entirely or until another day of the term.

A prospective juror who seeks to be released from jury servicemay be required to file with the court an affidavit stating:

a. the grounds for release; and

b. that the juror holds religious beliefs that prohibit himfrom taking part in a court proceeding on the day for whichthe release from jury duty is sought.

VI. RECESS

After excusing all who will not be on the panel, excuse the jury for a short recess, if the clerk needs to recompile the jury lists.

“Ladies and gentlemen, I am going to give you a shortrecess to allow the clerk to compile the jury lists. Whenyou return, we will begin the first case.”



SCRIPT FOR A JURY TRIAL QUALIFYING THE CRIMINAL JURY PANELD. Excuse of a Juror for Religious Holy Day {Tex. Govt. Code Sec. 62.112}

INSTRUCTING THE CRIMINAL JURY PANEL

Give the following instructions when the jury panel returns tothe courtroom. The panel is brought to the courtroom andseated in order. At this point or immediately after the judge’sremarks, either the state or defense counsel may request ashuffle of the jury panel.

If the shuffle is requested, the court must grant a properrequest. Only the first request for a shuffle will be granted.

The clerk calls and seats jurors in order.

“Before we begin, turn off all cell phones and otherelectronic devices. While you are in the courtroom andwhile you are deliberating, do not communicate withanyone through any electronic device. (For example, donot communicate by phone, text message, emailmessage, chat room, blog, or social networking websitessuch as Facebook, Twitter, or Snapchat.) (I will give youa number where others may contact you in case of anemergency.) Do not post information about the case onthe Internet before these court proceedings end and youare released from jury duty. Do not record or photographany part of these court proceedings, because it isprohibited by law.”



INSTRUCTING THE CRIMINAL JURY PANELVI. RECESS

“The case that is now on trial is the State of Texas v.__________. This is a criminal action that will be triedbefore a jury. Your duty as jurors will be to decide thedisputed facts. It is the duty of the judge to see that thecase is tried in accordance with the rules of law. In thiscase, as in all cases, the actions of the judge, parties,witnesses, attorneys, and jurors must be according to law. Texas law permits proof of any violation of the rules ofproper jury conduct. By this, I mean that jurors andothers may be called upon to testify in open court aboutacts of jury misconduct. You must carefully follow allinstructions that I give you now as well as others you willreceive during this trial. If you do not obey theinstructions I am about to give you, it may becomenecessary for another jury to re-try this case with all of the attendant waste of your time here and the expense of thelitigants and the taxpayers of this county for another trial. These instructions are:”

• “Do not mingle with or talk to the lawyers,witnesses, parties, or any other person who mightbe connected with or interested in this case, except for casual greetings. They must follow these sameinstructions too, so you should not be offendedwhen they follow the instructions.”




• “Do not accept from, or give to, any of thosepersons any favors, however slight, such as rides,food, or refreshments.”

• “Do not discuss this case with anyone, even yourspouse or friend, either in person or by any othermeans (including by phone, text message, emailmessage, chat room, blog, or social networkingsites such as Facebook, Twitter or Snapchat). Donot allow anyone to discuss the case with you or inyour hearing. If anyone tries to discuss the casewith you or in your hearing, tell me immediately.We do not want you to be influenced by somethingother than the evidence admitted in court.”

• “The parties through their attorneys have the rightto direct questions to each of you concerning yourqualifications, background, experiences, andattitudes. In questioning you, they are notmeddling in your personal affairs, but are trying toselect fair and impartial jurors who are free fromany bias or prejudice in this particular case.”

• “Do not conceal information or give answers thatare not true. Listen to the questions and give fulland complete answers.”




• “If the attorneys ask questions directed to you as agroup that require an answer on your partindividually, hold up your hand until you haveanswered the question.”

Consider stating and describing how a juror might be called up to bench to discuss information with judge and attorneysprivately, or how a juror himself or herself may ask to do this.

Consider stating and describing how some members of thejury panel may be excused during the course of questioning.This should not alarm or concern remaining members of thepanel.

“Do you understand these instructions? If not, please letme know now.”

At this point, give any special instructions that are appropriatefor the case or the circumstances. Then, conclude with thefollowing instruction:

“We shall try the case as quickly as possible consistentwith justice, which requires a careful and correct trial. Ifselected on the jury you will be permitted to separate atrecesses and for meals, and at night, unless I instruct you differently.”




“The attorneys will now proceed with voir dire. Mr.Prosecutor, you may begin.”

Voir dire is conducted.

If you take a recess after the attorneys have completed the voir dire examination, give the following instructions:

“The court will take a brief recess for the attorneys tomake their peremptory challenges. During this recess,you are still under the instructions that I have previouslygiven you. You are not to discuss the case with anyone.You are not to remain within the hearing of anyonediscussing the case. You are not to discuss the caseamong yourselves. Please carefully obey the instructions.We will be in recess for minutes. At the end of the recess,please return to (location in the court building). We willrecess at this time.”

It is from the time that the strikes are submitted until the juryis sworn in that either the state or the defendant may challenge the discriminatory use of peremptory strikes. If this occurs, the court must hold a hearing on the allegation (i.e., a Batsonhearing)

Give the following instructions to the jury panel after strikeshave been made:




“Ladies and gentlemen of the jury panel, I appreciateyour patience and cooperation today. The clerk will readthe names of those who will serve on this jury. As yourname is called, please come forward and take your seat in the jury box.”

Clerk calls names of jurors.

“Mr./Ms. Clerk, please call the names.”

“The members of the jury will please stand, raise yourright hands, and be sworn.”

“Do you and each of you solemnly swear or affirm that inthe case of the State of Texas versus (defendant), you will render a true verdict according to the law and evidence?”

Answer: “I do”

“You may be seated.”

“The remaining members of the jury panel in this caseare now excused.”

Give such other instructions to the panel as may beappropriate regarding release or further service.




This is the last opportunity to challenge the discriminatory useof peremptory strikes.

After the panel members leave the courtroom, give thefollowing instruction to the jury: (You must provide a copy ofthe instructions to each juror to keep for the duration of thetrial.)

“Ladies and gentlemen:”

“By the oath that you take as jurors, you become officialsof this court and active participants in the publicadministration of justice.”

“It is your duty to listen to and consider the evidence and to determine fact issues later submitted to you, but I, asjudge, will decide matters of the law. You will nowreceive written instructions that you will observe duringthis trial, together with such other instructions as I maygive, or have given to you.”

Hand to each juror a copy of the written instructions set outbelow.

“As you examine the instruction that have just beenhanded to you, we will go over them briefly together. The first three instructions have previously been stated, andyou will continue to observe them throughout this trial.




These and the other instructions just handed to you areas follows:”

Read the written instructions to the jury.

[Written Instructions]

“You have each received a set of written instructions. Iam going to read them with you now. Some of them youhave heard before and some are new.”

“1. Turn off all phones and other electronic devices.While you are in the courtroom and while you aredeliberating, do not communicate with anyone throughany electronic device. (For example, do not communicate by phone, text message, email message, chat room, blog,or social networking websites such as Facebook, Twitter, or Snapchat.) (I will give you a number where others may contact you in case of an emergency.) Do not postinformation about the case on the Internet before thesecourt proceedings end and you are released from juryduty. Do not record or photograph any part of these court proceedings, because it is prohibited by law.”

“2. To avoid looking like you are friendly with one side of the case, do not mingle or talk with the lawyers,witnesses, parties, or anyone else involved in the case.You may exchange casual greetings like hello and good




morning. Other than that, do not talk with them at all.They have to follow these instructions too, so you shouldnot be offended when they follow the instructions.”

“3. Do not accept any favors from the lawyers, witnesses,parties, or anyone else involved in the case, and do not do any favors for them. This includes favors such as givingrides and food.”

“4. Do not discuss this case with anyone, even yourspouse or a friend, either in person or by any other means (including by phone, text message, email message, chatroom, blog, or social networking websites such asFacebook, Twitter, or Snapchat). Do not allow anyone todiscuss the case with you or in your hearing. If anyonetries to discuss the case with you or in your hearing, tellme immediately. We do not want you to be influenced bysomething other than the evidence admitted in court.”

“5. Do not discuss this case with anyone during the trial,not even with the other jurors, until the end of the trial.You should not discuss the case with your fellow jurorsuntil the end of the trial so that you do not form opinionsabout the case before you have heard everything. Afteryou have heard all the evidence, received all of myinstructions, and heard all of the lawyers’ arguments, youwill then go to the jury room and reach a verdict.”




“6. Do not investigate this case on your own. Forexample, do not:

• try to get information about the case, lawyers,witnesses, or issues from outside this courtroom;

• go to places mentioned in the case to inspect theplaces;

• inspect items mentioned in this case unless theyare presented as evidence in court;

• look anything up in a law book, dictionary, orpublic record to try and learn more about the case;

• look anything up on the Internet to try and learnmore about the case; or

• let anyone else do any of these things for you.

This rule is very important because we want a trial based onlyon evidence admitted in open court. Your conclusions aboutthis case must be based only on what you see and hear in thiscourtroom because the law does not permit you to base yourconclusions on information that has not been presented to you in open court. All the information must be presented in opencourt so the parties and their lawyers can test it and object toit. Information from other sources, like the Internet, will not




go through this important process in the courtroom. Inaddition, information from other sources could be completelyunreliable. As a result, if you investigate this case on your own, you could compromise the fairness to all parties in this caseand jeopardize the results of this trial.”

“7. Do not tell other jurors about your own experiences or other people’s experiences. For example, you may havespecial knowledge or something in the case, such asbusiness, technical, or professional information. You may even have expert knowledge or opinions, or you mayknow what happened in this case or another similar case.Do not tell the other jurors about it. Telling other jurorsabout it is wrong because it means the jury will beconsidering things that were not admitted into court.”

“8. During the trial, if taking notes will help focus yourattention on the evidence, you may take notes. Do notuse any personal electronic devices to take notes. Iftaking notes will distract your attention from theevidence, you should not take notes. Your notes are foryour own personal use. They are not evidence. Do notshow or read your notes to anyone, including otherjurors.

You must leave your notes in the jury room or with the bailiff.The bailiff is instructed not to read your notes and to give your notes to me promptly after collecting them from you. I will




make sure your notes are kept in a safe, secure location andnot disclosed to anyone.”

Optional if you allow jurors to take their notes intodeliberations: [“You may take your notes back into the juryroom and consult them during deliberations. Keep in mindthat your notes are not evidence. When you deliberate, each of you should rely on your independent recollection of theevidence and not be influenced by the fact that another jurorhas or has not taken notes. After you complete yourdeliberations, the bailiff will collect your notes.”]

”When you are released from jury duty, the bailiff willpromptly destroy your notes so that nobody else can readwhat you wrote.”

“The case will proceed as follows:

• The attorney for the state will read the information(or indictment) to the jury and the defendant willenter a plea.

• The state will then have an opportunity to make anopening statement outlining the state’s caseagainst the defendant. The opening statement isnot evidence but is merely to aid you in obtaining a general understanding of the nature of the case and




the significance of the evidence perceived by thestate.

• The attorney for the defendant will then be givenan opportunity to make an opening statement, if he or she so desires. He or she may waive thatstatement or reserve that statement until the statehas rested its case.

• The state will then be given an opportunity tointroduce its evidence.

• After the state has rested, the court will allow theattorney for the defendant an opportunity tointroduce evidence.

• Rebuttal evidence may then be introduced.

• At the close of all the evidence, the court will readto you the charge of the court, which by your oathas jurors you must follow.

• The court will then allow the attorney for the stateand the attorney for the defendant an opportunityto make closing arguments.




• You will then retire to the jury room, select yourpresiding juror, and begin your deliberations in this cause.”

“The evidence you may consider shall consist of thetestimony of witnesses and of exhibits offered andadmitted into evidence. The term witness’ means anyonewho testifies in person or by deposition. The admissionof evidence in court is governed by specific rules of law.

From time to time it may be the duty of an attorney tomake an objection to certain offered evidence and it willbe my duty as judge to rule on that objection. You mustnot concern yourself with the objections or the court’sreasons for these rulings. These are purely matters of law.

You must not consider any evidence to which I sustainan objection, which I order stricken from the record, orwhich I order you to disregard.

No statement, ruling, or remark that I make during theentire time this case is on trial is intended in any way toindicate my opinion of the facts. The court has no rightto indicate an opinion as to the facts. You are to decidethe facts in the case. In this determination, you alonemust determine the believability of the evidence and itsweight and value.




Until this case has been submitted to you for your juryroom deliberations, you must not discuss this case withanyone or remain within the hearing of anyonediscussing this case. You should not read any newspaperarticles, listen to any radio broadcast, or view anytelevision program or online website that discusses thiscase. After you have heard all of the evidence in thiscause, the court’s charge, and closing arguments ofcounsel and you have retired to the jury room to consideryour verdict, you may discuss the case among yourselves.

Until then, you are not to even discuss the case amongyourselves.

You are to keep an open mind, and you must not decideany issue in this case until the case has been formallysubmitted to you for your deliberations.

If anyone attempts to discuss the case with you, you areto report it immediately to the court.”

Instructions to jury before recess or adjournment:

“You are instructed that it is your duty not to converseamong yourselves or with anyone else on any subjectconnected with the trial or to form or express any opinion thereon until the cause is finally submitted to you.”




The guilt/innocence phase of the trial proceeds:

“At this time the prosecutor shall read the information (or indictment) unless waived by the defendant.”

After the information or indictment has been read:

“To the information (or indictment), how does thedefendant plead?”

Defense counsel offers a plea.

“Will both parties please call their witnesses into thecourtroom at this time so that they may all be swornunder oath at one time?”

“Witnesses, please raise your right hands to be swornunder oath in this cause.

Do each of you solemnly swear or affirm that thetestimony you will give in the cause now on trial beforethe court will be the truth, the whole truth and nothingbut the truth?”

“Does either side wish to invoke the rule?”

If the rule of sequestration has been invoked, explain thefollowing to the witnesses:




“The rule of sequestration of witnesses has been invoked. Therefore, all witnesses, except those exempt from therule, must leave the courtroom and are not to discuss thecase with anyone except the attorneys and are not toallow anyone else to discuss it with them or read or listento any report of the case, until they are released from therule. If you violate this instruction, you may be precluded from testifying in this matter, and you may also besubject to contempt of court.”

Continue with the trial:

“You may be seated. We will proceed with the openingstatement on behalf of the state.”

Opening statement by the state:

“Will the defense make an opening statement?”

Opening statements by the defense, unless reserved or waived. The defense has the right to reserve its opening statement until just before defense evidence is presented.

“The state will call its first witness.”

The state introduces its evidence and calls its witnesses and the defendant cross-examines the witnesses.




When the state has rested, the defendant may move for aninstructed verdict. See script on pg. 75. In that case the courtshould rule on the defendant’s motion before proceeding. Ifno such motion is made or if the court denies the defendant’smotion, proceed as follows:

If the defendant has not already given an opening statement,ask:

“Will the defense make an opening statement now?”

Defendant gives opening statement.

“You may call your first witness.”

Defendant may introduce evidence, if it elects to do so.

When the defendant has rested, further evidence may be heard as follows:

(Rebuttal evidence on behalf of the state.)

(Rebuttal evidence on behalf of the defendant.)

“Have both the state and the defense rested and closedthe evidence in this cause?”

Give the following instructions to the jury after both sidesclose:




“Ladies and gentlemen of the jury, all of the evidence is now before you. However, you have not yet heard thecharge of the court or the closing arguments of counsel. We are going to take a recess to allow me to prepare the charge and to give counsel an opportunity to reviewthat charge before it is read to you. Please rememberthe jury instructions, and follow them carefully. You are not to discuss the case with anyone, you are not toremain within the hearing of anyone discussing thecase. You are not to discuss the case amongyourselves.”

“We will recess until o’clock. Please return to the juryroom then.”

After the jury charge is prepared, the court should proceed asfollows, outside of the presence of the jury.

“The court has prepared the charge of the court andsubmitted it to both counsel. Let the record reflect thatthe attorneys for the parties are present in the courtroomat this time. The jury is not present in the courtroom.”

“The court will entertain objections to the charge onbehalf of the state.”

Sustain or overrule any objections.




“On behalf of the defendant?”

Sustain or overrule any objections.

“We will now proceed with the trial. Bailiff, please bringthe jury back into the courtroom.”

Read the jury charge to the jury, as follows:

“On the record, in cause number _________ , the Stateof Texas v. , let the record reflect the attorney for thestate and the attorney for the defendant are present inthe courtroom. All members of the jury are present andseated in the courtroom.”

“I will read the charge of the court. Please listen verycarefully. The original will be placed on the table in thejury room when you retire to begin your deliberationsupon the verdict in this case.”

Read the charge of the court to the jury. Each charge mustinclude the following, which is also given to the jury as writteninstructions.

“Ladies and Gentlemen of the Jury:

This case is submitted to you on a written form ofverdict. The verdict must be decided by you from the




evidence presented in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters of law, you must begoverned by the instructions in this charge. Indischarging your responsibility on this jury, you willobserve all the instructions that have previously beengiven you. I shall now give you additional instructionsthat you should carefully and strictly follow during yourdeliberations.

Do not let bias, prejudice, or sympathy play any part inyour deliberations.

In arriving at your verdict, consider only evidenceintroduced here under oath and such exhibits, if any, ashave been introduced for your consideration under therulings of the Court, that is, what you have seen andheard in this courtroom, together with the law as givenyou by the court. In your deliberations, you will notconsider or discuss anything that is not represented bythe evidence in this case.

During your deliberations, you must not communicatewith or provide any information to anyone by any meansabout this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone,iPhone, Blackberry or computer; the internet, any




internet service, or any text or instant messaging service;or any internet chat room, blog, or website such asFacebook, Snapchat, LinkedIn, YouTube or Twitter, tocommunicate to anyone any information about this caseor to conduct any research about this case until I acceptyour verdict.

You will not decide your verdict by lot or by drawingstraws, or by any other method of chance.

You must render your verdict upon the vote of all sixmembers of the jury. All six of you must agree on theverdict. You will not, therefore, enter into an agreementto be bound by a majority or any other vote of less thansix jurors. If the verdict is reached by unanimousagreement, the presiding juror shall sign the verdict forthe entire jury.

These instructions are given you because your conduct is subject to review the same as that of the witnesses,parties, attorneys and the judge. If it should be found that you have disregarded any of these instructions, it will bejury misconduct and it may require another trial byanother jury; then all of our time will have been wasted.

The presiding juror or any other who observes a violationof the court’s instructions shall immediately warn the




other one who is violating the same and caution the jurornot to do so again.”

(Read prepared charge to the jury.)

“After you retire to the jury room, you will select yourown presiding juror. The first thing the presiding jurorwill do is have this complete charge read aloud and thenyou will deliberate upon your verdict.”

“We will now proceed with closing arguments in thiscase.”

“The State may proceed with its closing argument.”

“Mr./Ms. (defense counsel), you may proceed with yourclosing argument.”

(Closing argument presented by defendant).

“Does the State have any rebuttal?”

(Rebuttal argument by the state).

“Ladies and gentlemen of the jury, all of the evidence,the charge of the court, and the closing argument ofcounsel are before you. I am going to hand the bailiff thecharge of the court applicable to the law in this case




along with the verdict form. The bailiff will lay this on the table in the jury room.

Once all members of the jury are present in the juryroom, the case is formally submitted to you and you maybegin your deliberations.

Please accompany the bailiff to the jury room.”

Once the jury has left the courtroom, ask the parties:

“Anything additional on behalf of the state or thedefendant at this time?”

“We will recess until the jury has reached a verdict.”

When the jury has reached a verdict, say the following:

“On the record in cause no. _______ , the State of Texasv. ________ . Let the record reflect that the attorney forthe state and the attorney for the defendant are present in the courtroom. I have received a message that the juryhas reached a verdict. Will the bailiff please bring the jury into the courtroom?”

Bailiff brings the jury into the courtroom.




“In this cause, let the record reflect that the attorney forthe state and the attorney for the defendant, and allmembers of the jury, are present and seated in thecourtroom. Who is the presiding juror?”

“Have you reached a verdict in this cause?”

Presiding juror responds.

“Would you please hand the verdict form to the bailiff?”

Review the verdict form to make sure that it is signedappropriately and that there is no irregularity with the verdict.

Read the verdict aloud or ask the clerk to do so.

“Mr./Ms. Presiding Juror, is this verdict the unanimousverdict of all members of the jury?”

If the presiding juror does not indicate that the verdict isunanimous, the court shall return the jury to the jury room tocontinue its deliberations. If the presiding juror responds thatthe verdict is unanimous, the court will proceed.

If a jury poll is requested, the court shall proceed as follows.

“The court will now poll the jury as requested. A jury poll is accomplished by calling separately the names of each




of the jurors and asking him or her if the verdict is his orher individual verdict. We will proceed with the poll ofthe jury.”

“Juror No. 1, the court has received a verdict, which thecourt has read aloud.”

“Is this your individual verdict?”

Continue for each of the jurors in the case.

“The court finds that the verdict is the unanimous verdict of all members of the jury. The court does accept andreceive the verdict and orders it entered upon the minutes of this court.”

Excuse and discharge the jury if the jury has returned a verdict of not guilty or if the jury has returned a verdict of guilty andthe court is to assess punishment.

“Ladies and gentlemen of the jury, your duty as jurors isnow complete. At the beginning of the trial, the courtplaced each of you under a number of instructions. Thecourt releases you from all of the instructions that thecourt has given you. Here is your final instruction: thecourt has previously instructed you that you shouldobserve strict secrecy during the trial and during yourdeliberations, and that you should not discuss this case




with anyone except other jurors during your deliberation.I am now about to discharge you. After your discharge,you will be released from your secrecy.

You will then be free to discuss the case and yourdeliberations with anyone. However, you are also free todecline to discuss the case and your deliberations if youwish. Ladies and gentlemen, thank you for your service,you are free to go.”

If guilty and jury is to assess punishment, proceed withpunishment phase on pg. 65.




SCRIPT FOR PUNISHMENT PHASE

Address the court.

“Ladies and gentlemen, we will recess and prepare forthe punishment phase of the trial. Do not discuss thiscase with anyone or permit anyone to discuss it with you.You are still bound by the instructions I gave at the startof this trial.”

Bring the jury back and proceed as follows:

“Is the State ready to proceed on the matter ofpunishment?”

(YES)

“Is the Defense ready to proceed on the matter ofpunishment?”

(YES)

“Mr./Ms. Prosecutor, you may call your first witness.”

State presents evidence on punishment, including crossexamination by the Defense.



SCRIPT FOR PUNISHMENT PHASEVI. RECESS

“Does the State rest?”

(YES)

“Mr./Ms. (defense attorney) you may call your firstwitness.”

Defense presents evidence including cross by the State.

“Do both sides rest and close?”

(YES)

“Members of the Jury, we will recess while the Courtprepares the charge on the punishment phase of this trial. During this recess you will be bound by all theinstructions given you earlier bearing on your contactwith any person regarding your service as a juror.

Return the jury to the courtroom.

“Ladies and gentlemen, I will read the charge of thecourt as to the Assessment of Punishment in this case.”

Read the prepared charge to the jury.




“Counsel, each of you will be allowing minutes toaddress the jury on the matter of punishment. Mr./Ms.Prosecutor, how will you proceed?”

The state announces that it will use all minutes in opening or it may reserve some time to use after argument by the defense.

“Mr./Ms. Prosecutor, you may proceed.”

After State’s argument, the Defense will proceed.

“Mr./Ms. Defense Attorney, you may proceed.”

If the state has elected to split time and close, allow theprosecutor to conclude argument.

“Ladies and gentlemen, you will retire to consider yourverdict on punishment. The presiding juror selected byyou will continue to preside over your deliberations.Once you have reached a verdict, please notify theBailiff.”

After the verdict is reached, proceed as follows:

“On the record in cause no. ______ , the State of Texas v. _________ . Let the record reflect that the attorney for the state and the attorney for the defendant are present in the courtroom. I have received a message that the jury has




reached a verdict. Will the bailiff please bring the juryinto the courtroom?”

Bailiff brings the jury into the courtroom.

“In this cause, let the record reflect that the attorney forthe state and the attorney for the defendant, and allmembers of the jury, are present and seated in thecourtroom. Who is the presiding juror?”

Presiding juror responds.

“Would you please hand the verdict form to the bailiff?”

Review the verdict form to make sure that it is signedappropriately and that there is no irregularity with the verdict.

Read the verdict aloud or as the clerk to do so.

“Mr./Ms. Presiding Juror, is this verdict the unanimousverdict of all members of the jury?”

If the presiding juror does not indicate that the verdict isunanimous, the court shall return the jury to the jury room tocontinue its deliberations. If the presiding juror responds thatthe verdict is unanimous, the court will proceed.

If a jury poll is requested, the court shall proceed as follows:




“The court will now poll the jury as requested. A jury poll is accomplished by calling separately the names of eachof the jurors and asking him or her if the verdict is his orher individual verdict. We will proceed at this time withthe poll of the jury.”

“Juror No. 1, the court has received a verdict, which thecourt has read aloud.”

“Is this your individual verdict?”

Continue for each of the jurors in the case.

“The court finds that the verdict is the unanimous verdict of all members of the jury. The court does accept andreceive the verdict and orders it entered upon the minutes of this court.”

“Ladies and gentlemen of the jury, your duty as jurors isnow complete. At the beginning of the trial, the courtplaced each of you under a number of instructions. Thecourt releases you from all of the instructions that thecourt has given you. Here is your final instruction: thecourt has previously instructed you that you shouldobserve strict secrecy during the trial and during yourdeliberations, and that you should not discuss this casewith anyone except other jurors during your deliberation.




I am now about to discharge you. After your discharge,you will be released from your secrecy.

You will then be free to discuss the case and yourdeliberations with anyone. However, you are also free todecline to discuss the case and your deliberations if youwish.”

“Thank you for your service. You are free to go.”




SPECIAL CHARGES WHILE JURY IS

DELIBERATING

The following charges are suggested for special problems thatmay arise during jury deliberation. Note: ALWAYS put thespecial charge in writing and give the attorneys an opportunityto read it and object to it. Then deliver it to the jury in opencourt, or, by stipulation of all parties, allow the bailiff to handit to the presiding juror at the door of the jury room.

I. Answer to jury questions {Tex. Code Crim. Proc. art. 36.27}

Read the written communication.

“Ladies and gentlemen of the jury, I have your writtencommunication, which reads as follows:

Read the question or questions asked.

“In answer to your question, you are instructed asfollows:

If the question can be properly answered without commenting on the weight of the evidence, set out the law and apply thelaw to the facts as in the original charge.

If the question cannot be properly answered, state:



SPECIAL CHARGES WHILE JURY IS DELIBERATINGVI. RECESS

“The court under the law is not permitted to answer thequestion that you have presented. Please refer to andfollow the charge of the court.”

“Please consider these instructions along with thosealready given you and continue your deliberations.”

II. Reading Back Testimony {Tex. Code Crim. Proc. art. 36.28}

“Members of the jury:”

“With reference to your request for the reading oftestimony, you are instructed that the law does not permit a general rereading of the testimony of any witness. Youare instructed that if the jurors disagree as to thestatement of any witness, they may, upon applying to thecourt, have read to them from the court reporter’s notesthat part of the witness’s testimony on the particularpoint in dispute and no other. Therefore, if you havedisagreed upon any point in the testimony, and you willso state to the court in writing, and point out in writingthe point upon which you have disagreed, then the courtwill have the court reporter read back to you only thetestimony on the point in dispute. The court reporter willneed sufficient time to examine the notes to locate all ofthe testimony on the point concerning your inquiry;



SPECIAL CHARGES WHILE JURY IS DELIBERATINGI. Answer to jury questions {Tex. Code Crim. Proc. art. 36.27}

therefore, the court will request that you be patient andallow sufficient time for this to be done.”

III. Dynamite Charge

“If you can resolve this case by your verdict, you shoulddo so. I don’t mean to say that any individual jurorshould yield his or her conscience and positiveconviction. But I do mean that when you are in the juryroom, you should discuss this matter among yourselvescarefully and listen to each other. Try, if you can, to reach a conclusion on the issue. It is your duty as jurors to keep your minds open to every reasonable argument. A jurorshould not have any pride of opinion, and should avoidhastily forming or expressing an opinion. A juror shouldnot, however, surrender any conscientious views foundedupon the evidence unless convinced by fellow jurors. Iam satisfied that you have not deliberated sufficiently. Ingood conscience, at this moment I cannot accept anyreport that you are unable to arrive at an agreement.Accordingly, I return you to your deliberation.”



SPECIAL CHARGES WHILE JURY IS DELIBERATINGII. Reading Back Testimony {Tex. Code Crim. Proc. art. 36.28}

INSTRUCTED VERDICT SCRIPT

If at any time you grant an instructed verdict, the followinginstruction, which is optional, may help the jury understandwhat has happened.

“Ladies and gentlemen of the jury, after you left thecourtroom a few minutes ago, I had to resolve variouslegal questions presented by the attorneys. After a verycareful review of the evidence that has been presentedand the law that applied to that evidence, I concludedthat the state failed to prove everything that must beproved in this kind of case. Therefore, I am required bylaw to direct entry of judgment in favor of the defendantand I have done so. That means that your service as ajuror in this case is over.”

“Although you are probably glad you can go home, youare also wondering why you had to sit there and listen toall of that evidence if you were not going to decide thecase. The truth is that your presence here resolved thecase. The state charged the defendant with a crime andwas entitled to present evidence in support of thatcharge. Until you were sworn in and sat down in the jurybox, that evidence could not be presented, and I couldnot know whether the evidence was sufficient to presentquestions for you to resolve. Thus your role has been just



INSTRUCTED VERDICT SCRIPTIII. Dynamite Charge

as important as mine or that of the other participants inthe trial. Together, we have given the parties their right to a trial and resolved the case. Please accept my personalthanks for your help. Now, let me give you a final set ofinstructions.”

“Ladies and gentlemen of the jury, your duty as jurors isnow complete. At the beginning of the trial, the courtplaced each of you under a number of instructions. Thecourt releases you from all of the instructions that thecourt has given you. Here is your final instruction: thecourt has previously instructed you that you shouldobserve strict secrecy during the trial and during yourdeliberations, and that you should not discuss this casewith anyone except other jurors during your deliberation.I am now about to discharge you. After your discharge,you will be released from your secrecy.

You will then be free to discuss the case and yourdeliberations with anyone. However, you are also free todecline to discuss the case and your deliberations if youwish.”

“Thank you for your service. You are free to go.”



INSTRUCTED VERDICT SCRIPTIII. Dynamite Charge

HEARING ON MOTION TO REVOKE

COMMUNITY SUPERVISION PRE-HEARING

MATTERS

The following are matters that the court should considerbefore the court conducts a hearing on the prosecution’smotion to revoke a defendant’s community supervision.

Jurisdiction to revoke or modify community supervision liesonly with the court that granted the community supervision or the court to which supervision was transferred with theconsent of the granting court. {Tex. Code Crim. Proc. Art.42A.051}

At any time during the period of community supervision, thecourt, in its discretion or on the motion of the prosecutor, may issue a written or oral order for the arrest of the defendantserving community supervision imposed by the court forviolation of any of the conditions of the communitysupervision. {Tex. Code Crim. Proc. Art. 42A.751}

The motion to revoke community supervision must be filedbefore the end of the supervisory period; the hearing of themotion, however, may take place after the supervisory periodhas ended.



HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISIONPRE-HEARING MATTERS


After the defendant has been arrested, he may be detained inthe county jail or other appropriate place of confinement untilhe can be taken before the judge. Upon arrest, the arrestingofficer must report the arrest and detention to the judge. {Tex. Code Crim. Proc. Art. 42A.751}

After arrest, the arresting officer or person with custody of the defendant must take the defendant before the judge whoordered the arrest without unnecessary delay, but not laterthan 48 hours after arrest. {Tex. Code Crim. Proc. Art.42A.751(c)} The judge must conduct an arraignment pursuantto Article 15.17. Bail is within the discretion of the court. TheTexas Court of Criminal Appeals has held that there is no right to bail pending a revocation hearing. If the defendant is notreleased on bail, a revocation hearing must be held withintwenty days of the defendant’s written request for a hearing, or the court must release the defendant.

A different rule governs defendants who have been arrestedfor violating a condition of deferred adjudication communitysupervision. Such a defendant is still awaiting trial. Because the Texas Constitution grants the right to bail to those defendantsawaiting trial, a defendant who has been arrested for violatinga condition of deferred adjudication community supervisionhas a right to bail because he or she has not been convicted ofany offense. In such a case, therefore, the court must set bail.

The defendant must receive written notice of the grounds forrevocation.



HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISION PRE-HEARING MATTERSIII. Dynamite Charge

A defendant has a right to counsel at a revocation hearing.{Tex. Code Crim. Proc. Art. 42A.751(k)} Prior to the hearing,therefore, the court should inquire into the defendant’s desireto be represented by counsel and allow time to hire or toappoint counsel if the defendant is indigent. If the courtappoints counsel because the defendant is indigent, there is no requirement that the appointed counsel be given ten days toprepare for the revocation hearing.

In its motion to revoke, the prosecution must set forth thealleged violations of the community supervision. Theprosecution may amend its motion in a misdemeanor case atany time prior to the revocation hearing. The prosecution maynot amend its motion after the commencement of takingevidence at the hearing.

The defendant may waive the revocation hearing if thedefendant: is imprisoned in a penal institution; in writing,before a court of record in the jurisdiction in which the penalinstitution is located, waives the right to a hearing and tocounsel; and affirms that he or she has nothing to say as towhy sentence should not be pronounced against him or her,and requests that the judge revoke community supervision and pronounce sentence. {Tex. Code Crim. Proc. Art. 42A.751(b)}



HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISIONPRE-HEARING MATTERS


ORDER OF HEARING

1. The court calls the case and notes that court is in session toconsider the prosecution’s motion to revoke the defendant’scommunity supervision as a result of the defendant’s allegedviolation of the terms of that community supervision.

2. The court determines that the defendant is present withretained or appointed counsel, or that the defendant isappearing pro se (without counsel).

3. The court asks the prosecutor to read the motion to revoke.

4. The court requests the defendant to enter a plea of “true” or “not true.” (Note: a plea of “true” is sufficient to permitrevocation and sentencing without the presentation ofevidence).

5. The court hears the prosecution’s evidence. The prosecution must prove by a preponderance of the evidence that:

a. judgment was entered against the defendant grantingcommunity supervision (or the court can take judicial noticeof judgment);

b. the defendant received a copy of the terms and conditions of the community supervisor;



ORDER OF HEARINGIII. Dynamite Charge

c. the defendant in court is the same defendant who wasplaced on community supervision (or the court can takejudicial notice of the defendant’s identity); and

d. the defendant violated the specific conditions of thecommunity supervision as presented in the written motion.

6. The court hears the defendant’s evidence. If the prosecution alleges only that the defendant violated the conditions ofcommunity supervision by failing to pay compensation paid to appointed counsel, community supervision fees, or courtcosts, the state must prove by a preponderance of the evidence that the defendant was able to pay but did not pay as ordered.{Tex. Code Crim. Proc. Art. 42A.751} The court may alsoorder the probation department to obtain financialinformation from the defendant that can help answerquestions about the defendant’s ability to pay costs and fees.

7. After hearing the evidence, the court renders its decision.After determining that the defendant violated a condition ofcommunity supervision, the court may enter an ordercontinuing, modifying, or revoking the communitysupervision. {Tex. Code Crim. Proc. Art. 42A.752-.755}

a. Continuation of Supervision - The court may continue aperiod of community supervision as deemed necessary, butin no case may the period of community supervision in amisdemeanor case exceed three years. If the prosecutionfiled the motion before the period of supervision ends, the




court may continue the period of supervision at any timebefore the first anniversary of the date on which the periodof supervision ends. {Tex. Code Crim. Proc. art. 42A.753}

b. Modification of Supervision - The court may modify thecommunity supervision by imposing any other conditionsthe court determines are appropriate, including: therequirement of community service or an increase in thenumber of community service hours previously required, but not to exceed double the number of hours permitted by Art. 42A.304; or an increase in the fine, but not to exceed themaximum fine for the offense for which the defendant wassentenced. The court may modify community supervision asoften as the judge determines is necessary, but in no casemay the period of community supervision in a misdemeanorcase exceed three years. If the prosecution filed the motionbefore the period of supervision ends, the court may modifyat any time before the first anniversary of the date on whichthe period of supervision ends.

c. Revocation of Supervision - The court may revokecommunity supervision and impose the original sentence. Inthe alternative, the court may revoke community supervision and reduce the term of confinement originally assessed toany term of confinement not less than the minimumprescribed for the offense for which the defendant wasconvicted, if the court determines that the reduction is in the best interests of society and the defendant. The court must




enter the amount of restitution or reparation owed by thedefendant on the date of revocation in the judgment.

d. Special Note for Hearings on a Motion to RevokeDeferred Adjudication Community Supervision

If the prosecution has moved to revoke deferredadjudication community supervision, the court must alter the above procedures. After a hearing limited to thedetermination by the court of whether it proceeds with anadjudication of guilt on the original charge, all proceedings,including assessment of punishment, pronouncement ofsentence, granting of community supervision, anddefendant’s appeal, continue as if the adjudication of guilthad not been deferred. Generally, this means that the courtwill: enter a finding of guilt; conduct a full-blownpunishment hearing if requested by the defendant; assesspunishment within the range for the offense; and impose“regular” community supervision or impose sentence.

8. The court concludes the hearing.

9. If requested by the defendant, the court must file findings of face.




SCRIPT FOR HEARING ON MOTION TO

REVOKE COMMUNITY SUPERVISION

Call the case.

“The Court calls cause no. ______, State of Texas v.________. We are here this morning to hear a motion torevoke community supervision granted by order of thiscourt on day of _____, 20___ , after a plea of guiltyentered by the Respondent.”

“Is the Respondent represented by counsel?”

If no, ask defendant:

“Do you want to waive representation by counsel andproceed without an attorney?”

If yes, use the same admonishment (including explainingdangers and disadvantages of self representation) and the same written waiver of attorney form used for criminal pleas.

If no, proceed with appointment of counsel.

Art. 42A.751(k) of the Code of Criminal Procedure providesfor the right to counsel in any revocation proceeding.



SCRIPT FOR HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISIONIII. Dynamite Charge

Although the Fair Defense Act is silent on this issue, it isrecommended that the court proceed with the appointment ofcounsel following the procedure set forth in the county’sstanding order for indigent defense.

Once the issue of the defendant’s right to counsel has beenestablished continue:

“Has the Respondent been served with a copy of themotion?”

“Is the State ready to proceed on the motion to revoke?”

(YES)

“Is the Respondent ready to proceed on the motion torevoke?”

(Yes, from Counsel)

“The Prosecutor will now read the motion.”

At this point, defense counsel will probably waive the reading,but you should give an opportunity anyway.

“Mr./Ms. , the petition to revoke which has been filed inthis court alleges that you have violated the terms and



SCRIPT FOR HEARING ON MOTION TO REVOKE COMMUNITYSUPERVISION


conditions of your community supervision in severalways. I will read each allegation in the petition and askyou to answer each by saying either “true” or “not true.”Since this is not a criminal proceeding, you will not plead guilty to the allegations. Do you understand what I havesaid?”

(YES)

Then the court reads each individual allegation contained inthe state’s petition and receives a plea to each. If theRespondent pleads true to all allegations, inquire about a pleabargain. If no bargain is reached, proceed with sentencing asappropriate. If the Respondent pleads not true to anyallegation, proceed with the hearing.

“Mr./Ms. has entered a plea of not true to allegationsnumbered , and in the Petition to Revoke.”

“Are there witnesses that need to be sworn? If so,Counselors have all your witnesses stand and I willadminister the oath.”

“Do each of you solemnly swear or affirm that thetestimony you will give in the cause now on trial beforethe court will be the truth, the whole truth and nothingbut the truth?”




If the rule of sequestration has been invoked, explain thefollowing to the witnesses:

“The rule of sequestration of witnesses has been invoked. Therefore, all witnesses, except those exempt from therule, must leave the courtroom and are not to discuss thecase with anyone except the attorneys and are not toallow anyone else to discuss it with them or read or listento any report of the case, until they are released from therule. If you violate this instruction, you may be precluded from testifying in this matter, and you may also besubject to contempt of court.”

“Is the State ready to call its first witness?”

The State then calls witness to prove the allegations in thepetition.

“Respondent may call its first witness.”

Witness for Respondent will testify.

“Any rebuttal testimony from the State?”

If so, allow rebuttal and follow procedure until both sides restand close.





“I will allow _____ minutes a side for closing arguments(or such time as may be appropriate).”

“Mr./Ms. Prosecutor, present the state’s closingargument.”

There follows closing arguments for the State.

“Counsel for Respondent, proceed with your closingargument.”

After hearing the closing arguments and all witnesses, you areready to make a ruling. Announce your ruling firmly andconcisely and in conformity with the original order entered inthe criminal case. Set forth specific findings of fact thatsupport your judgment.

“Having considered the plea of the Respondent, theevidence presented at this hearing, and arguments ofcounsel, I find that the Respondent violated the termsand conditions of his/her community supervision asalleged in paragraphs of the State’s petition, revokeRespondent’s probation, and assess punishment asfollows:”

“That the terms and conditions of probation be modifiedas follows:




or

“The Respondent shall serve days in the County Jail, andpay a fine of $ and all court costs associated with theoriginal trial of this matter as well as any cost incurred intoday’s hearing.”

“Bailiff, you may take the Respondent into custody anddeliver him/her to the Sheriff for this sentence to becarried out.”

“Anything further from the State?”

(NO)

“From Respondent?”

(NO)

“Then Court is adjourned.”





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