Law & the Media in Texas — Criminal Trial

The Criminal Process

The Trial

The trial begins with the selection of the jury. The judge may excuse a prospective juror for cause upon the appeal of either the defense or the prosecution. In addition, each side is allowed peremptory challenges.

Jury selection can be important for reporters. Usually the lawyers give important details of the case during the questioning of prospective jurors. The process of questioning individual prospective jurors is called voir dire.

After the jury is seated the defendant is arraigned.

Then come the opening statements. The prosecution goes first, then the defense. The prosecution may choose to continue with its case in full before the defense makes its opening statement. This is perfectly legal.

Witnesses are called by the prosecution first. The defense may cross-examine. Then witnesses are called by the defense and prosecution may cross-examine. Then, rebuttal testimony may be presented by the prosecution and then by the defense.

Either side may invoke the rule, requiring the witnesses to remain outside the courtroom until they are called.

Reporters may write about anything that happens in court, including information ordered stricken from the record and including what is said when the jury is not present—as long as the context is properly explained.

In all trials that last longer than one day reporters should remember that jurors may hear or see information in the news media. During such periods care should be taken in using material outside the record.

The court proceedings are privileged as long as the accounts are “fair, true and impartial.”

When the testimony is concluded, the judge prepares a charge to the jury that explains the alternatives. Then the lawyers make closing arguments. The state opens the argument, the defense makes its argument and then the state has the last word, the closing. The times are set by the court in advance.

The jury retires to deliberate and returns a verdict of guilty or not guilty, selecting from among the alternatives in the charge. Many news organizations report not guilty verdicts as innocent or as acquittals to avoid the possibility of the “not” being dropped. If a decision of guilty is returned, punishment must then be assessed.

The judge or jury may set punishment, at the option of the defendant. This procedure is in use only in Texas and four other states.

Criminal trials in Texas are bifurcated. That is, the guilt/innocence phase is separate from the sentencing phase. Sometimes the sentencing is done immediately after the trial. But often the judge will order a pre-sentence report. This is usually done by the probation department of the county. When that happens, the defendant will be brought back for sentencing.

Defendants may remain on bond during appeals.


The defense may appeal any adverse ruling from the court, including pretrial motions and hearings, rulings on evidence, witnesses, jurors and jury instructions at trial and sentencing issues. Other reasons for appeal: jury or prosecutorial misconduct .

And an appeal may be based on new evidence discovered after the trial is concluded.

However, the appeals will be denied unless the defendant can show that the errors are material; that is, that the errors actually made a difference in a determination that a person is guilty or not, or was deserving of the sentence handed down.

The appeal process begins when the judge is asked to grant the defendant a new trial. This gives the judge the opportunity to correct his or her errors by agreeing to a new trial. If the judge denies the request, the case proceeds to an appellate court.

The state may not appeal a not guilty verdict. However, since the late 1980s Article 44.01 of the Texas Code of Criminal Procedure gives the state the right to appeal adverse rulings on pretrial motions (motions to suppress, quash, etc.).

The county must pay the bill for transcribing testimony in an appeal by an indigent.


The judge carries out the assessment of punishment with a formal commitment or sentence.

In felony cases the defendant is not committed to the state penal system until appeals have been exhausted. Time served in the county jail during appeal may, at the discretion of the judge, count toward the time the defendant is obligated to serve.

Felony sentences in Texas are indeterminate, which means that the sentence is for a minimum number of years (the minimum prescribed for the offense in the Penal Code) and a maximum number of years (the term assessed by the jury.)

Concurrent sentences are sentences for more than one offense in which the term of each is to be served at the same time, rather than successively. Cumulative sentences are separate sentences to be served successively (each additional to the others). They may be imposed against a defendant convicted upon an indictment containing several counts, each charging a different offense, or upon conviction of more than one indictment.

Probation of sentences is available in both felony and misdemeanor cases. A state-wide system has been established by the legislature to supervise persons on probation.

Pardons and Paroles

Requests for pardons or commutation of sentences go to the Board of Pardons and Paroles. The board makes recommendations to the governor.

The Code of Criminal Procedure provides that any person convicted of a felony is eligible for parole when he or she has served one-fourth of their sentence. Texas law defines a life sentence as 60 years. Texas law provides that no matter what sentence a prisoner is given, he or she is eligible for parole after 15 years (or one-fourth of 60). All sentences greater than 99 years or life are considered the same as life -- i.e., 60 years.

Many inmates at the Texas Department of Corrections receive extra credit for time served. A classification system set up by law provides the department a procedure in determining extra, or “good time” credit.

A Class I prisoner gets 20 extra days of good time for each 30 days served. All prisoners enter the system as Class I prisoners. Class II prisoners get 10 extra days of good time for each 30 days service. If a prisoner becomes a state-approved trustee he or she receives two days credit for each day served.

Life and 99 years are equivalent and the maximum except for death sentences. Sentences of 1,000 or 5,000 years may make the district attorney look good and may make the Board of Pardons and Paroles cautious. Technically they don’t mean more than life or 99 years.

The Death Penalty

The U.S. Supreme Court ruled in 1972 that the death penalty was illegal as generally administered in the United States. States were left free to write new laws that would not be ambiguous.

Texas law was rewritten to provide for capital felony, defined as a murder that occurs during robbery, rape or jailbreak or murder of a police officer or prison guard while on duty. The statute also provides that a jury must find that the defendant acted deliberately, that he or she was not defending himself or herself and that he or she was likely to commit future crimes if not restrained.

The U.S. Supreme Court upheld the Texas law in 1976.

The U.S. Supreme Court ruled in a Texas case in 1980 that a juror cannot be excused from serving on a capital case only because he or she says the deliberations would be affected by the possible imposition of the death sentence.


Rules governing these issues may be found in the Texas Code of Criminal Procedure – a must have document for reporters covering trials in Texas.