Scripts For Various Court Proceedings -- TEXAS

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SCRIPT FOR GIVING ART. 15.17 MAGISTRATE'S WARNINGS

1. Introduction

"My name is ____________________. I am the judge of the ___________ County Court. I am here to give you the warnings required by Article 15.17 of the Texas Code of Criminal Procedure:

* to inform you of the allegations made against you,

* to inform you of the range of punishment for the crime with which you have been charged, AND

* to set bail for you."

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

2. Offense charged and range of punishment

"Are you ________ [defendant's name]? Is that your true and correct name _________
[defendant's name]?"

"You are alleged to have committed the offense of _________. The range 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 the full range of punishment for this offense?"

3. Rights

"You have the following rights:

* If you are a foreign national, you have the right under the Vienna Convention to contact your national consulate and the right to consult with them concerning legal representation in this case.

* to remain silent and not make any statements, and any statement made by you may be used against you;

* to hire a lawyer to represent you;

* to have a lawyer appointed to represent you, if you are indigent and cannot afford a lawyer;

* to have your lawyer present during any interview with peace officers or lawyers representing the state;

* and to terminate any interview with peace officers or 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 document acknowledging that I have explained your rights to you and that you understand your rights. This is not a plea of guilty or not guilty, but merely an acknowledgment that I have read these rights to you in your presence."

"Do you want an appointed attorney?"

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

4. Setting the amount of bail

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

"Where do you live?"

"How long have you lived there?"

"Do you have family in _________ County?"

"Where do you work?"

"How long have you worked there?"

"Have you ever 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: ask any other questions that will help you set the amount of bail.

5. The bond

"Your bail is set at $_______ . You will need a personal bond or bail bond or a cash deposit in lieu of the bail bond. Your bond is returnable on _________ (date) at ___________ a.m./p.m. If you do not appear at that time in court, your bond or cash deposit will be forfeited and a warrant issued for your arrest."

6. Closing

"I will see you in court on _______ [date] at _______ a.m./p.m."


SCRIPT FOR ARRAIGNMENT

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 and correct name?"

"In case no. ________, you have been charged with the offense of _______________."

"Your file indicates that you have been warned of your rights by a magistrate at the time of your arrest. Did you understand all of the warnings given to you at that time? Do you wish to have your rights explained to you at this time?"

If the answer is "no" proceed with the following script. If, yes, read the warnings again from the magistrate's warning script above.

"Your file indicates that you waived your right to have an attorney present with you today. Do you still want to proceed without counsel present?"

If the answer is "yes" proceed with the following script. If "no", ask the defendant if he would like an opportunity to retain counsel or if the defendant believes he is indigent, proceed to an indigency hearing per the indigent defense plan adopted for your county.

"It is your right to have the information setting forth the charge against you read aloud in open court."

"Will the prosecutor please read the information (or indictment)."

"Thank you."

"This courtroom proceeding is your arraignment. The purpose of today's proceeding is to ensure that you are the person charged in the information (or indictment), to inform you of the range of punishment for the offense for which 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 a Class ____ (A or B) misdemeanor. The range of punishment for this offense is a fine not to exceed $_________ and confinement in the county jail for a term not to exceed _______ days [or months] or both such fine and confinement. (For any DWI offense, include a warning that the punishment shall be not less than 72 hours nor more than the maximum for the grade of offense charged.)"

"Do you understand the allegation against you and the full range of punishment for this offense?"

"How do you plead, guilty or not guilty?"

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

If the plea is not guilty go to pg. .

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

If the plea is guilty without counsel, continue:


PLEA OF GUILTY WITHOUT COUNSEL

Read the rights and consequences

"I will read the rights that you have and the consequences of a plea of guilty 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 lawyer if you are indigent and cannot afford to hire a lawyer;

* the right to proceed pro se that is, without the assistance of a lawyer;

* the right to compel witnesses to testify on your behalf;

* the right to cross-examine your accusers;

* the right to remain silent;

* the right to have ten days after the appointment of an attorney before entering a plea or going to trial; and that with a written jury waiver, the court will assess punishment either upon or without evidence, at the court's discretion."

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

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

"Is there a plea bargain agreement between the state and the defendant?"

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

"If there is a plea bargain agreement, the recommendation of the prosecuting attorney as to punishment is not binding on the court. I will inform you whether I will follow or reject the agreement, and that should I reject the agreement, you will have the opportunity to withdraw your plea of guilty or nolo contendere."

"If there is a plea bargain agreement, and the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by you, then you must obtain the court's permission before bringing an appeal on any matter in the case, except for those matters raised by written motions prior to trial."

"If the offense charged involves the manufacture, possession, transportation, or use of an alcoholic beverage, 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 the commission of the crime, then your Texas driver's license or privilege to obtain a license in Texas automatically will be suspended for one year; or

"If you were over 21 years of age, then your Texas driver's license or privilege to obtain a license in Texas automatically will be suspended for six months; and in either case, suspension will continue in effect until such time as you attend and successfully complete a drug or alcohol education program as prescribed by law."

"Do you understand what I just explained to you?"

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

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

"Mr. _______________ [Defendant], have the terms of the agreement been correctly stated?"

"Mr./Ms. _________, are these the terms that you understood would be presented to the court?"

"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 FOR COMMUNITY SUPERVISION - below.

If the plea bargain calls for deferred adjudication, go to SCRIPT FOR DEFERred ADJUDICATION - below.

If the plea bargain calls for straight time and fine, go SCRIPT FOR STRAIGHT FINE AND JAIL TIME - below.


SCRIPT FOR COMMUNITY SUPERVISION

Assign the punishment

"I find you guilty and I assess your punishment at confinement 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 supervision under the direction and control of this court and the ________ Community Supervision and Corrections Department for a term of _____ days, under the following conditions:"

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

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


SCRIPT FOR DEFERred ADJUDICATION

Ask the prosecutor to state the terms of the plea bargain agreement

"Mr. _____________ [Prosecutor], would you state the terms of the plea bargain agreement for the court?"

Here prosecutor sets out plea agreement.

"Mr. ____________ [Defendant], is this your understanding of the agreement that would be presented to the court?"

Defendant will answer in the affirmative

"Mr. ____________ [Defendant], how do you plead?"

Defendant will plead guilty.

"Mr. ____________ [Defendant], I will make a note of your plea on the docket, but will defer any finding of guilt for a period of _____________ months. During that time you will be placed on community supervision and will comply with the terms and conditions of that supervision as will be outlined to you today. Should you, for any reason, fail to comply with the terms and conditions of community supervision, I reserve the right to conduct a hearing upon such issue and 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 of community supervision, I may, if the facts justify it, return to this matter and in open court dismiss the charges now pending, in which case you will have no permanent record of a conviction in this case. Do you understand?"

NOTE: Deferred adjudication is not an available remedy in DWI or DUI cases.


SCRIPT FOR STRAIGHT FINE AND JAIL TIME

"I find you guilty and I assess your punishment at confinement in the __________ County Jail for a period of ____ days, and a fine in the amount of $_________."


SCRIPT FOR PLEA OF NOT GUILTY

Ask for pleading

"Mr./Ms. ________________, how do you plead to the charge of _______________? I will accept your plea of Not Guilty and enter it upon the docket 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 guilty for the defendant, and that the defendant may change that plea at any time.

"The court finds that the bond previously set in this matter is sufficient to ensure your appearance before this court and the bond is continued and shall be returnable instanter. You are hereby ordered to appear and be ready for trial on the ____ day of _______________, 200__."

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

If the court changes or resets the bond, instruct the defendant as follows:

"The court finds that the bond previously set in this matter is insufficient to ensure your appearance in court. The court sets bond in the amount of $_______, to be returned to the court instanter."

"Instanter means that you must appear in this court when notified and the court's duty to notify you is to send a first class letter to you at the address listed on your bond."

Note: Here set other terms or conditions of the bond as needed.


PLEA OF GUILTY TO THE COURT WITH COUNSEL

Ask the defendant if they have read and understand the plea.

"Have you read, or had read to you, and do you understand the 'Plea of Guilty' form before me that bears your signature?"

"Do you understand everything on it?"

"Is this your signature?"

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

"Counsel, have you explained everything in this document to your client?"

"Does your client understand the contents of the plea bargain agreement?"

"Counsel, in your opinion, is your client competent?"

"Counsel, does your client have a rational and factual understanding of the proceedings?"

"Counsel, does your client understand the nature of the charges against him or her?"

"Counsel, have you discussed this case with your client?"

"Counsel, has your client been able to assist you in preparing for today's proceeding?"

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

"I understand there is a plea bargain agreement in this case. If for any reason I choose not to accept the agreement, any plea that you enter may be withdrawn and a plea of not guilty to the charges entered. Do you understand?"

"Mr./Ms. Prosecutor, please state the plea bargain agreement to the court."

"Counsel, have the terms of the agreement been correctly stated?"

"Mr./Ms. _________, are these the terms that you understood would be presented to the court?"

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

If the plea bargain agreement provides for community supervision proceed to SCRIPT FOR COMMUNITY SUPERVISION - above.

If the plea bargain agreement provides for deferred adjudication go to SCRIPT FOR DEFERred ADJUDICATION - above.

If the plea bargain provides for straight time and a fine go to SCRIPT FOR STRAIGHT FINE AND JAIL TIME - above.

"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 jury panel system is used
  2. Swear the jury panel
  3. Qualify the jury panel
  4. Shuffle the jury list, if requested (may occur before or after qualifying the jury panel)
  5. Determine whether the defendant has filed his or her election of punishment to be set by the judge or the jury (if not filed before voir dire, the judge sets punishment)
  6. Determine whether the defendant has filed an application for community supervision (it must be filed before voir dire begins)
  7. Conduct voir dire and select jury
  8. Hold hearing on discriminatory use of peremptory challenges if requested (can be held any time between making of peremptory strikes and swearing in of jury members)
  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 the jury
  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, or waived completely)
  15. Administer oath and instructions to witnesses
  16. Consider motion to invoke the "rule" of sequestration of witnesses, if requested
  17. Hear state's evidence through direct and cross-examination
  18. State rests
  19. Consider motion for instructed verdict by defendant (up to the time defense counsel begins to present evidence)
  20. Defense counsel makes opening statement (unless previously delivered or waived)
  21. Hear defendant's evidence through direct and cross-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 and objections 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; if deadlock continues, declare mistrial and dismiss jury
  38. Receive jury verdict in open court, and, if it is in proper form, 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 jury decide punishment, state reads any punishment information to the jury and defendant offers plea of "True" or "Not True"
  41. State and defendant present any new evidence relevant to punishment
  42. Both state and defendant close
  43. Prepare punishment charge for review by state and defendant
  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 counties using a central jury panel system, the following also is used to qualify the central jury panel.]

I. INTRODUCTION

"Good morning ladies and gentlemen of the jury panel:"

"Welcome to the _________ County Court. My name is __________ and I am the judge of this court. I hope your jury service will be an interesting and educational experience. The right to trial by jury is one of our oldest and most important freedoms. Your willingness to serve on a jury preserves that freedom."

"You are subject to jury service for ___________ [choose one: days or weeks]."

"At this time, I would like to explain the steps that we will follow in the selection of the jury."

"The first step is the calling of the roll by the clerk."

"The second step is the administering of an oath to you (by judge or clerk)."

"As the third step, I will state the qualifications that you must have to serve as a juror in a criminal case."

"As the fourth step, I will list the exemptions established by the legislature for exemption from jury service."

"After the first four steps are completed, I will declare a short recess to enable the clerk to compile the list of jurors who are qualified to serve."

"During the recess those jurors who have not completed the questionnaire may do so."

"The clerk will now call the roll. Please answer 'here' or 'present' loud enough for the clerk to hear you."

II. ADMINISTERING THE OATH TO THE PANEL

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

"Do you solemnly swear or affirm that you will make true answers to all questions asked you by the court, or under its direction, regarding your service and qualifications as a juror."

[Answer: "I will" or "I do."]

III. DETERMINE JUROR QUALIFICATIONS

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

"To serve on this jury, you must meet the following qualifications:"

"You must be at least 18 years old."

"You must be a citizen of this state and this county and you must be qualified under the state 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 moral character."

"You must be able to read and write."

"You must not have served as a juror for six days during the preceding six months in the district court, or during the preceding three months in the county court."

"You must not have been convicted of misdemeanor theft or of any felony."

"You must not be under indictment or other legal accusation for misdemeanor theft or any felony."

"Is there any member of the jury panel who does not meet those qualifications? If so, please come forward to the bench."

IV. EXEMPTIONS

Determine whether anyone wants to claim an exemption. Explain that it is optional.

"The following persons are entitled to claim an exemption from jury service. You are not disqualified, but you are entitled to claim an exemption. You may waive your exemption and chose to serve, the decision is yours."

"All persons over 70 years of age."

"All persons who have legal custody of a child or children under the age of 10 years, if jury service by you would necessitate leaving the child or children without adequate supervision."

"All students of public or private secondary schools."

"All persons who are enrolled and in actual attendance at an institution of higher education."

"All persons who are officers or employees of the senate, the house of representatives, or any department, commission, board, office or other agency in the legislative branch of state government."

"All persons summoned for service as a petit juror in this county during the 24-month period preceding the date of this appearance for jury service [unless the county population is at least 200,000, the county is using a jury plan allowed under Texas Government Code Sec. 62.011 and the period authorized under Section 62.011(b)(6) exceeds two years)]; and"

"Any person who is the primary caretaker of a person who is an invalid unable to care for himself or herself."

"Notice that there is no exemption that permits you to be excused because you are too poor, too sick, too busy, are in business for yourself, or are uninterested. Jury service is one of the few obligations that requires each citizen to sacrifice his or her time."

"If you want to talk about an exemption, please come forward at this time."

V. HARDSHIP EXEMPTIONS

The court may excuse jurors who are neither disqualified nor exempt under the following statutes:

Note: do not tell the panel about this statute. Use it only in true hardship situations.

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

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

Pursuant to a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Texas Government Code Sec. 62.011, the court's designee may hear any reasonable excuse of a prospective juror and discharge the juror or release him from jury service until a specified day of the term.

The court or the court's designee may not excuse a prospective juror for an economic reason unless each party of record is present and approves the release of the juror for that reason.

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

Except for disqualifications, exemptions, or observance of religious holy days, the court must then hear other excuses offered for not serving as a juror, and if the court decides the excuse is sufficient, the court shall discharge the juror or postpone the juror's service to a date specified by the court.

Under a plan approved by the commissioners court under Texas Government Code Sec. 62.011, in a case other than a capital felony case, the court's designee may hear and determine an excuse offered for not serving as a juror, and if the court's designee deems the excuse sufficient, he may postpone the juror's service to a date specified by the court's designee.

A court or a court's designee may discharge a juror or postpone the juror's service on the basis of the juror's observation of a religious holy day or religious beliefs only if the juror provides an 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 organization under Texas Tax Code Sec. 11.20.

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

If a juror in a criminal action is required to appear at a court proceeding on a religious holy day that the juror observes, the court or the court's designee shall recess the criminal action until 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 the final selection of the jury an affidavit stating:

a. the grounds for the recess; and

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

An affidavit filed by a juror about a religious observance does not need to be corroborated.

D. Excuse of Juror for Religious Holy Day {Tex. Govt Code Sec. 62.112}

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

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

a. the grounds for the release; and

b. that the juror holds religious beliefs that prohibit him from taking part in a court proceeding on the day for which the 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 short recess to allow the clerk to compile the jury lists. When you return, we will begin the first case."


INSTRUCTING THE CRIMINAL JURY PANEL

Give the following instructions when the jury panel returns to the courtroom. The panel is brought to the courtroom and seated in order. At this point or immediately after the judge's remarks, either the state or defense counsel may request a shuffle of the jury panel. If the shuffle is requested, the court must grant a proper request.

The clerk calls and seats jurors in order.

"Ladies and gentlemen of the jury panel:"

"The case that is now on trial is the State of Texas v. _________ . This is a criminal action that will be tried before a jury. Your duty as jurors will be to decide the disputed facts. It is the duty of the judge to see that the case is tried in accordance with the rules of law. In this case, 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 of proper jury conduct. By this, I mean that jurors and others may be called upon to testify in open court about acts of jury misconduct. You must carefully follow all instructions that I give you now as well as others you wil receive during this trial. If you do not obey the instructions I am about to give you, it may become necessary for another jury to re-try this case with all of the attendant waste of your time here and the expense of the litigants 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 might be connected with or interested in this case, except for casual greetings. They must follow these same instructions and you will understand it when they do."

"Do not accept from, or give to, any of those persons any favors, however slight, such as rides, food, or refreshments."

"Do not discuss anything about this case, or even mention it to anyone whomsoever, including your wife or husband, or permit anyone to mention it in your hearing until you are discharged as jurors or excused from this case. If anyone attempts to discuss the case, report it to me at once."

"The parties through their attorneys have the right to direct questions to each of you concerning your qualifications, background, experiences, and attitudes. In questioning you, they are not meddling in your personal affairs, but are trying to select fair and impartial jurors who are free from any bias or prejudice in this particular case."

"Do not conceal information or give answers which are not true. Listen to the questions and give full and complete answers."

"If the attorneys ask questions directed to you as a group which require an answer on your part individually, hold up your hand until you have answered the question."

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

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

"Do you understand these instructions? If not, please let me know now."

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

"We shall try the case as fast as possible consistent with justice, which requires a careful and correct trial. If selected on the jury you will be permitted to separate at recesses 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 to make their peremptory challenges. During this recess, you are still under the instructions that I have previously given you. You are not to discuss the case with anyone. You are not to remain within the hearing of anyone discussing the case. You are not to discuss the case among yourselves. Please carefully obey the instructions. We will be in recess for a ________ minutes. At the end of the recess, please return to _____________ [location in the court building]. We will recess at this time."

It is from the time that the strikes are submitted until the jury is 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 Batson hearing).

Give the following instructions to the jury panel after strikes have been made:

"Ladies and gentlemen of the jury panel, I appreciate your patience and cooperation today. The clerk will read the names of those who will serve on this jury. As your name 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 your right hands, and be sworn:"

"Do you and each of you solemnly swear or affirm that in the 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 case are now excused."

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

This is the last opportunity to challenge the discriminatory use of peremptory strikes.

After the panel members leave the courtroom, give the following instruction to the jury:

"Ladies and gentlemen:"

"By the oath that you take as jurors, you become officials of this court and active participants in the public administration of justice. I now give you further instructions that you must obey throughout this trial."

"It is your duty to listen to and consider the evidence and to determine fact issues later submitted to you, but I, as judge, will decide matters of the law. You will now receive written instructions that you will observe during this trial, together with such other instructions as I may give, or have given to you."

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

"As you examine the instructions that have just been handed to you, we will go over them briefly together. The first three instructions have previously been stated, and you will continue to observe them throughout this trial. These and the other instructions just handed to you are as follows:"

Read the written instructions to the jury.

[Written Instructions]

"Do not mingle with nor talk to the lawyers, witnesses, parties, or any other person who might be connected with or interested in this case, except for casual greetings. They must follow these same instructions and you will understand it when they do."

"Do not accept from, nor give to, any of those persons any favors however slight, such as rides, food, or refreshments."

"Do not discuss anything about this case, or even mention it to anyone whomsoever, including your spouse, nor permit anyone to mention it in your hearing until you are discharged as jurors or excused from this case. If anyone attempts to discuss the case, report it to me at once."

"Do not even discuss this case among yourselves until after you have heard all of the evidence, the court's charge, the attorneys' arguments, and until I have sent you to the jury room to consider your verdict."

"Do not make any investigations about the facts of this case. Occasionally, we have a juror who privately seeks out information about a case on trial. This is improper. All evidence must be presented in open court so that each side may question the witnesses and make proper objection. This avoids a trial based upon secret evidence. These rules apply to jurors the same as they apply to the parties and to me. If you know of or learn anything about this case, except from the evidence admitted during the course of this trial, you should tell me about it at once. You have just taken an oath that you will render a verdict on the evidence submitted to you under my rulings."

"Do not make personal inspections, observations, investigations, or experiments nor personally view premises, things, or articles not produced in court. Do not let anyone else do any of these things for you."

"Do not tell other jurors your own personal experiences nor those of other persons, nor relate any special information. A juror may have special knowledge of matters such as business, technical or professional matters or he may know what happened in this or some other lawsuit. To tell the other jurors any of this information is a violation of these instructions."

"Do not seek information contained in law books, dictionaries, public or private records or elsewhere, which is not admitted in evidence."

"At the conclusion of all the evidence, I will submit to you a written charge. Since you will need to consider all of the evidence admitted, it is important that you pay close attention to the evidence as it is presented."

"Texas law permits proof of any violation of the rules of proper jury conduct. By this, I mean that jurors and others may be called upon to testify in open court about acts of jury misconduct. I instruct you, therefore, to follow carefully all instructions I have given you, as well as others you later receive while this case is on trial.

"You may keep these instructions and review them as the case proceeds. A violation of these instructions should be reported to me."

"The case will proceed as follows:"

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

"The state will then have an opportunity to make an opening statement outlining the state's case against the defendant. The opening statement is not evidence but is merely to aid you in obtaining a general understanding of the nature of the case and the significance of the evidence as perceived by the state."

"The attorney for the defendant will then be given an opportunity to make an opening statement, if he or she so desires. He or she may waive that statement or reserve that statement until the state has rested its case."

"The state will then be given an opportunity to introduce its evidence."

"After the state has rested, the court will allow the attorney for the defendant an opportunity to introduce evidence."

"Rebuttal evidence may then be introduced."

"At the close of all of the evidence, the court will read to you the charge of the court, which by your oath as jurors you must follow."

"The court will then allow the attorney for the state and the attorney for the defendant an opportunity to make closing arguments."

"You will then retire to the jury room, select your presiding juror, and begin your deliberations in this cause."

"The evidence you may consider shall consist of the testimony of witnesses and of exhibits offered and admitted into evidence. The term 'witness' means anyone who testifies in person or by deposition. The admission of evidence in court is governed by specific rules of law. From time to time it may be the duty of an attorney to make an objection to certain offered evidence and it will be my duty as judge to rule on that objection. You must not concern yourself with the objections or the court's reasons for these rulings. These are purely matters of law. You must not consider any evidence to which I sustain an objection, which I order stricken from the record, or which I order you to disregard."

"No statement, ruling, or remark that I make during the entire time this case is on trial is intended in any way to indicate my opinion of the facts. The court has no right to indicate an opinion as to the facts. You are to decide the facts in the case. In this determination, you alone must determine the believability of the evidence and its weight and value."

"Until this case has been submitted to you for your jury room deliberations, you must not discuss this case with anyone or remain within the hearing of anyone discussing this case. You should not read any newspaper articles, listen to any radio broadcast, or view any television program which discusses this case. After you have heard all of the evidence in this cause, the court's charge, and closing arguments of counsel and you have retired to the jury room to consider your verdict, you may discuss the case among yourselves. Until then, you are not to even discuss the case among yourselves."

"You are to keep an open mind, and you must not decide any issue in this case until the case has been formally submitted to you for your deliberations."

"If anyone attempts to discuss the case with you, you are to report it immediately to the court."

Instructions to jury before recess or adjournment:

"You are instructed that it is your duty not to converse among yourselves or with anyone else on any subject connected 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 the defendant plead?"

Defense counsel offers a plea.

"Will both parties please call their witnesses into the courtroom at this time so that they may all be sworn under oath at one time?"

"Witnesses, please raise your right hands to be sworn under oath in this cause."

"Do each of you solemnly swear or affirm that the testimony you will give in the cause now on trial before the court will be the truth, the whole truth and nothing but the truth?"

"Does either side wish to invoke the rule?"

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

"The rule of sequestration of witnesses has been invoked. Therefore, all witnesses, except those exempt from the rule, must leave the courtroom and are not to discuss the case with anyone except the attorneys and are not to allow anyone else to discuss it with them or read or listen to any report of the case, until they are released from the rule."

Continue with the trial:

"You may be seated. We will proceed with the opening statement on behalf of the state."

Opening statement by the state.

"Will the defense make an opening statement?"

Opening statement by the defense, unless reserved or waived.

"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 an instructed verdict. See script below. In that case the court should rule on the defendant's motion before proceeding. If no such motion is made or if the court denies the defendant's motion, 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 closed the evidence in this cause?"

Give the following instructions to the jury after both sides close:

"Ladies and gentlemen of the jury, all of the evidence is now before you. However, you have not yet heard the charge 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 review that charge before it is read to you. Please remember the jury instructions, and follow them carefully. You are not to discuss the case with anyone; you are not to remain within the hearing of anyone discussing the case. You are not to discuss the case among yourselves."

"We will recess until ______ o'clock. Please return to the jury room then."

After the jury charge is prepared, the court should proceed as follows, outside of the presence of the jury:

"The court has prepared the charge of the court and submitted it to both counsel. Let the record reflect that the attorneys for the parties are present in the courtroom at this time. The jury is not present in the courtroom."

"The court will entertain objections to the charge on behalf of the state."

Sustain or overrule any objections.

"On behalf of the defendant?"

Sustain or overrule any objections.

"We will proceed with the trial. Bailiff, please bring the jury back into the courtroom."

Read the jury charge to the jury, as follows:

"On the record, in cause number _____, _______ v. _________, let the record reflect the attorney for the state and the attorney for the defendant are present in the courtroom. All members of the jury are present and seated in the courtroom."

"I will read the charge of the court. Please listen very carefully. The original will be placed on the table in the jury room when you retire to begin your deliberations upon the verdict in this case."

Read the charge of the court to the jury. Each charge must include the following, which is also given to the jury as written instructions.

"Ladies and Gentlemen of the Jury:"

"This case is submitted to you on a written form of verdict. 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 be governed by the instructions in this charge. In discharging your responsibility on this jury, you will observe all the instructions that have previously been given you. I shall now give you additional instructions that you should carefully and strictly follow during your deliberations."

"Do not let bias, prejudice, or sympathy play any part in your deliberations."

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

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

"You must render your verdict upon the vote of all six members of the jury. All six of you must agree on the verdict. You will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than six jurors. If the verdict is reached by unanimous agreement, the presiding juror shall sign the verdict for the 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 be jury misconduct and it may require another trial by another jury; then all of our time will have been wasted."

"The presiding juror or any other who observes a violation of the court's instructions shall immediately warn the other one who is violating the same and caution the juror not to do so again."

[Read prepared charge to the jury.]

"After you retire to the jury room, you will select your own presiding juror. The first thing the presiding juror will do is have this complete charge read aloud and then you will deliberate upon your verdict."

"We will now proceed with closing arguments in this case.

"Mr./Ms. ______________ (prosecutor), you may proceed with your closing argument."

[Closing argument presented by state.]

"Mr./Ms. ______________ (defense counsel), you may proceed with your closing 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 of counsel are before you. I am going to hand to the bailiff the charge of the court applicable to the law in this case along with the verdict form. He will lay this on the table in the jury room."

"Once all members of the jury are present in the jury room, the case is formally submitted to you and you may begin 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 the defendant 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. ______, _________ 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 jury into the courtroom."

Bailiff brings the jury into the courtroom.

"In this cause, let the record reflect that the attorney for the state and the attorney for the defendant, and all members of the jury, are present and seated in the courtroom. 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 signed appropriately 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 unanimous verdict of all members of the jury?"

If the presiding juror does not indicate that the verdict is unanimous, the court shall return the jury to the jury room to continue its deliberations. If the presiding juror responds that the 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 or her individual verdict. We will proceed at this time with the poll of the jury."

"(Mr. or Ms.) Juror No. 1, the court has received a verdict, which the court 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 and receive 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 and the court is to assess punishment.

"Ladies and gentlemen of the jury, your duty as jurors is now complete. At the beginning of the trial, the court placed each of you under a number of instructions. The court releases you from all of the instructions that the court has given you. Here is your final instruction: the court has previously instructed you that you should observe strict secrecy during the trial and during your deliberations, 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 your deliberations with anyone. However, you are also free to decline to discuss the case and your deliberations if you wish. Ladies and gentlemen, thank you for your service, you are free to go."

If guilty and jury is to assess punishment, proceed with SCRIPT FOR PUNISHMENT PHASE - below.


SCRIPT FOR PUNISHMENT PHASE

Address the court:

"Ladies and Gentlemen, we will recess and prepare for the punishment phase of the trial. Do not discuss this case with anyone or permit anyone to discuss it with you. You are still bound by the instructions I gave at the start of this trial."

Bring the jury back and proceed as follows:

"Is the State ready to proceed on the matter of punishment?"

(YES)

"Is the Defense ready to proceed on the matter of punishment?"

(YES)

"Mr. Prosecutor, you may call your first witness.

State presents evidence on punishment, including cross examination by the Defense.

"Does the State rest?"

(YES)

"Mr. (Defense Attorney) you may call your first witness."

Defense presents evidence including cross by the State

"Do both sides rest and close? (YES)

"Members of the Jury, we will recess while the Court prepares the charge on the punishment phase of this trial. During this recess you will be bound by all the instructions given you earlier bearing on your contact with any person regarding your service as a juror."

Return the jury to the courtroom.

"Ladies and gentlemen, I will read the charge of the court as to the Assessment of Punishment in this case."

Read the prepared charge to the jury

"Counsel, each of you will be allowed ________ minutes to address the jury on the matter of punishment. Mr. 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. Prosecutor, you may proceed."

After State's argument, the Defense will proceed.

"Mr. Defense Attorney, you may proceed."

If the State has elected to split time and close, allow the prosecutor to conclude argument.

"Ladies and gentlemen, you will retire to consider your verdict on punishment. The presiding juror selected by you will continue to preside over your deliberations. Once you have reached a verdict, please notify the Bailiff."

After the verdict is reached, proceed as follows:

"On the record in Cause no. ______, _________ 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 jury into the courtroom?"

Bailiff brings the jury into the courtroom.

"In this cause, let the record reflect that the attorney for the state and the attorney for the defendant, and all members of the jury, are present and seated in the courtroom. 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 signed appropriately 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 unanimous verdict of all members of the jury?"

If the presiding juror does not indicate that the verdict is unanimous, the court shall return the jury to the jury room to continue its deliberations. If the presiding juror responds that the 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 or her individual verdict. We will proceed at this time with the poll of the jury.

"Mr./Ms. Juror No. 1, the court has received a verdict, which the court 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 and receive the verdict and orders it entered upon the minutes of this court."

"Ladies and gentlemen of the jury, your duty as jurors is now complete. At the beginning of the trial, the court placed each of you under a number of instructions. The court releases you from all of the instructions that the court has given you. Here is your final instruction: the court has previously instructed you that you should observe strict secrecy during the trial and during your deliberations, 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 your deliberations with anyone. However, you are also free to decline to discuss the case and your deliberations if you wish."

"Thank you for your service. You are free to go."


SPECIAL CHARGES WHILE JURY IS DELIBERATING

The following charges are suggested for special problems that may arise during jury deliberation.

Note: ALWAYS put the special charge in writing and give the attorneys an opportunity to read it and object to it. Then deliver it to the jury in open court, or, by stipulation of all parties, allow the bailiff to hand it 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 written communication, which reads as follows:"

Read the question or questions asked.

"In answer to your question, you are instructed as follows:"

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

If the question cannot be properly answered, state:

"The court under the law is not permitted to answer the question that you have presented. Please refer to and follow the charge of the court."

"Please consider these instructions along with those already 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 of testimony, you are instructed that the law does not permit a general rereading of the testimony of any witness. You are instructed that if the jurors disagree as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter's notes that part of the witness's testimony on the particular point in dispute and no other. Therefore, if you have disagreed upon any point in the testimony, and you will so state to the court in writing, and point out in writing the point upon which you have disagreed, then the court will have the court reporter read back to you only the testimony on the point in dispute. The court reporter will need sufficient time to examine the notes to locate all of the testimony on the point concerning your inquiry; therefore, the court will request that you be patient and allow sufficient time for this to be done."

III. Dynamite Charge

"If you can resolve this case by your verdict, you should do so. I don't mean to say that any individual juror should yield his or her conscience and positive conviction. But I do mean that when you are in the jury room, you should discuss this matter among yourselves carefully 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 juror should not have any pride of opinion, and should avoid hastily forming or expressing an opinion. A juror should not, however, surrender any conscientious views founded upon the evidence unless convinced by fellow jurors. I am satisfied that you have not deliberated sufficiently. In good conscience, at this moment I cannot accept any report that you are unable to arrive at an agreement. Accordingly, I return you to your deliberation."


INSTRUCTED VERDICT SCRIPT

If at any time you grant an instructed verdict, the following instruction, which is optional, may help the jury understand what has happened.

"Ladies and gentlemen of the jury, after you left the courtroom a few minutes ago, I had to resolve various legal questions presented by the attorneys. After a very careful review of the evidence that has been presented and the law that applied to that evidence, I concluded that the state failed to prove everything that must be proved in this kind of case. Therefore, I am required by law to direct entry of judgment in favor of the defendant and I have done so. That means that your service as a juror in this case is over."

"Although you are probably glad you can go home, you are also wondering why you had to sit there and listen to all of that evidence if you were not going to decide the case. The truth is that your presence here resolved the case. The state charged the defendant with a crime and was entitled to present evidence in support of that charge. Until you were sworn in and sat down in the jury box, that evidence could not be presented, and I could not know whether the evidence was sufficient to present questions for you to resolve. Thus your role has been just as important as mine or that of the other participants in the trial. Together, we have given the parties their right to a trial and resolved the case. Please accept my personal thanks for your help. Now, let me give you a final set of instructions."

"Ladies and gentlemen of the jury, your duty as jurors is now complete. At the beginning of the trial, the court placed each of you under a number of instructions. The court releases you from all of the instructions that the court has given you. Here is your final instruction: the court has previously instructed you that you should observe strict secrecy during the trial and during your deliberations, 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 your deliberations with anyone. However, you are also free to decline to discuss the case and your deliberations if you wish."

"Thank you for your service. You are free to go."


HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISION

PRE-HEARING MATTERS

The following are matters that the court should consider before the court conducts a hearing on the prosecution's motion to revoke a defendant's community supervision.

Jurisdiction to revoke or modify community supervision lies only with the court that granted the community supervision or the court to which supervision was transferred with the consent of the granting court. {Tex. Code Crim. Proc. art. 42.12, Sec. 10}

At any time during the period of community supervision, the court, in its discretion or on the motion of the prosecutor, may issue a written or oral order for the arrest of the defendant serving community supervision imposed by the court for violation of any of the conditions of the community supervision. {Tex. Code Crim. Proc. art. 42.12, Sec. 21(b)}

The motion to revoke community supervision must be filed before the end of the supervisory period; the hearing or the motion, however, may take place after the supervisory period has ended.

After the defendant has been arrested, he or she may be detained in the county jail or other appropriate place of confinement until he or she can be taken before the judge. Upon arrest, the arresting officer must report the arrest and detention to the judge. {Tex. Code Crim. Proc. art. 42.12, Sec. 21(b)}

After arrest, the defendant may be released or detained until a community supervision revocation hearing is conducted. Bail is within the discretion of the court. The Texas Court of Criminal Appeals has held that there is no right to bail pending a revocation hearing. If the defendant is not released on bail, a revocation hearing must be held within twenty 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 arrested for violating a condition of deferred adjudication community supervision. Such a defendant is still awaiting trial. Because the Texas Constitution grants the right to bail to those defendants awaiting trial, a defendant who has been arrested for violating a condition of deferred adjudication community supervision has a right to bail because he or she has not been convicted of any offense. In such a case, therefore, the court must set bail.

The defendant must receive written notice of the grounds for revocation.

A defendant has a right to counsel at a revocation hearing. {Tex. Code Crim. Proc. art. 42.12, Sec. 21(d)} Prior to the hearing, therefore, the court should inquire into the defendant's desire to be represented by counsel and allow time to hire or to appoint counsel if the defendant is indigent. If the court appoints counsel because the defendant is indigent, there is no requirement that the appointed counsel be given ten days to prepare for the revocation hearing.

In its motion to revoke, the prosecution must set forth the alleged violations of the community supervision. The prosecution may amend its motion in a misdemeanor case at any time prior to the revocation hearing. The prosecution may not amend its motion after the commencement of taking evidence at the hearing.

The defendant may waive the revocation hearing if the defendant: is imprisoned in a penal institution; in writing, before a court of record in the jurisdiction in which the penal institution is located, waives the right to a hearing and to counsel; and affirms that he or she has nothing to say as to why 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. 42.12, Sec. 21(b)}

ORDER OF HEARING

  1. The court calls the case and notes that court is in session to consider the prosecution's motion to revoke the defendant's community supervision as a result of the defendant's alleged violation of the terms of that community supervision.
  2. The court determines that the defendant is present with retained or appointed counsel, or that the defendant is appearing 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 permit a finding of time without the presentation of evidence.]
  5. The court hears the prosecution's evidence. The prosecution must prove by a preponderance of the evidence that:
    1. judgment was entered against the defendant granting community supervision (or the court can take judicial notice of judgment);

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

    3. the defendant in court is the same defendant who was placed on community supervision (or the court can take judicial notice of the defendant's identity); and

    4. the defendant violated the specific conditions of the community 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 of community supervision by failing to pay compensation paid to appointed counsel, community supervision fees, court costs, restitution, or reparations, the inability of the defendant to pay as ordered is an affirmative defense to revocation, which the defendant must prove by a preponderance of the evidence. {Tex. Code Crim. Proc. art. 42.12, Sec. 21(d)}
  7. After hearing the evidence, the court renders its decision. After determining that the defendant violated a condition of community supervision, the court may enter an order continuing, modifying, or revoking the community supervision. {Tex. Code Crim. Proc. art. 42.12, Secs. 22, 23}
    1. Continuation of Supervision - The court may continue a period of community supervision as deemed necessary, but in no case may the period of community supervision in a misdemeanor case exceed three years. If the prosecution filed the motion before the period of supervision ends, the court may continue the period of supervision at any time before the first anniversary of the date on which the period of supervision ends. {Tex. Code Crim. Proc. art. 42.12, Sec. 22(c)}
    2. Modification of Supervision - The court may modify the community supervision by imposing any other conditions the court determines are appropriate, including: the requirement of community service or an increase in the number of community service hours previously required, but not to exceed double the number of hours permitted by art. 42.12, Sec. 16; or an increase in the fine, but not to exceed the maximum fine for the offense for which the defendant was sentenced. The court may modify community supervision as often as the judge determines is necessary, but in no case may the period of community supervision in a misdemeanor case exceed three years. If the prosecution filed the motion before the period of supervision ends, the court may modify at any time before the first anniversary of the date on which the period of supervision ends.
    3. Revocation of Supervision - The court may revoke community supervision and impose the original sentence. In the alternative, the court may revoke community supervision and reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense for which the defendant was convicted, 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 the defendant on the date of revocation in the judgment.
    4. SPECIAL NOTE FOR HEARINGS ON A MOTION TO REVOKE DEFERred ADJUDICATION COMMUNITY SUPERVISION.
      If the prosecution has moved to revoke deferred adjudication community supervision, the court must alter the above procedures. After a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant's appeal, continue as if the adjudication of guilt had not been deferred. Generally, this means that the court will: enter a finding of guilt; conduct a full-blown punishment hearing if requested by the defendant; assess punishment 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 fact.

SCRIPT FOR HEARING ON MOTION TO REVOKE COMMUNITY SUPERVISION

Call the case

"I call Cause #_____________, State of Texas v. ________________________. We are here this morning to hear a motion to revoke community supervision granted by order of this court on the _________day of _______________, 20__ after a plea of guilty entered by the Respondent."

"Is the Respondent represented by counsel?"

If yes, proceed.

If no, ask defendant:

"Do you want to waive representation by counsel and proceed without an attorney?"

If yes, proceed.

If no, proceed with appointment of counsel.

Art. 42.12, Sec. 21(d) of the Code of Criminal Procedure provides for the right to counsel in any revocation proceeding. Although the Fair Defense Act is silent on this issue, it is recommended that the court proceed with the appointment of counsel following the procedure set forth in the county's standing order for indigent defense.

Once the issue of the defendant's right to counsel has been established continue:

"Has the Respondent been served with a copy of the motion?"

"Is the State ready to proceed on the motion to revoke?"

(YES)

"Is the Respondent ready to proceed on the motion to revoke?"

(YES, from Counsel)

"The Prosecutor will now read the motion."

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

"Mr. ______________, the petition to revoke which has been filed in this court alleges that you have violated the terms and conditions of your community supervision in several ways. I will read each allegation in the petition and ask you 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 have said?"

(Yes)

Then the court reads each individual allegation contained in the state's petition and receives a plea to each. If the Respondent pleads true to all allegations, inquire about a plea bargain. If no bargain is reached, proceed with sentencing as appropriate. If the Respondent pleads not true to any allegation, proceed with the hearing.

"Mr. _______________________ has entered a plea of not true to allegations numbered ____, _____ and _____ (or as relevant) in the Petition to Revoke."

"Are there witnesses that need to be sworn? If so, Counselors have all your witnesses stand and I will administer the oath."

"Do each of you solemnly swear or affirm that the testimony you will give in the cause now on trial before the court will be the truth, the whole truth and nothing but the truth?"

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

"The rule of sequestration of witnesses has been invoked. Therefore, all witnesses, except those exempt from the rule, must leave the courtroom and are not to discuss the case with anyone except the attorneys and are not to allow anyone else to discuss it with them or read or listen to any report of the case, until they are released from the rule."

"Is the State ready to call its first witness?"

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

"Respondent may call its first witness."

Witnesses for respondent will testify.

"Any rebuttal testimony from the State?"

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

"I will allow ____ minutes a side for closing argument (or such time as may be appropriate)."

"Mr. Prosecutor, present the state's closing argument."

There follows closing argument for the State

"Counsel for Respondent, proceed with your closing argument."

After hearing the closing arguments and all witness, you are ready to make a ruling. Announce your ruling firmly and concisely and in conformity with the original order entered in the criminal case. Set forth specific findings of fact that support your judgment. Announce your judgment firmly and concisely and in conformity with the original order entered in the criminal case.

"After listening to the evidence and arguments of Counsel, I find that the Respondent did on the ___ day of __________, 200__ violate the terms of his community supervision by __________________ (example: using alcohol to intoxication)."

"I further find that the Respondent violated the terms and conditions by ______________ (list your findings consistent with the evidence which shows that the respondent did violate the conditions as alleged in the petition.)"

"Based upon these findings it is the order of the Court that the Respondent be, and he hereby is, ordered to serve ____ days in the ______ County Jail, such sentence to begin today. It is furthered ordered that the Respondent shall pay a fine of $___ and all costs of court associated with the original trial of this matter as well as any cost incurred in today's hearing."

"Mr. Bailiff, you may take the Respondent into custody and deliver him/her to the Sheriff for this sentence to be carried out."

If the terms and conditions of community supervision are modified only and jail time assessed, announce the modification in open court as a part of the court's order.

"Anything further from the State?"

(NO)

"From Respondent?"

(NO)

"Then Court is adjourned."


SCRIPT FOR GIVING ART. 15.17  MAGISTRATE'S WARNINGS For a printable version of the above  click here


For further study see,

Texas Municipal Courts Education Center Texas Municipal Courts Education Center's MAGISTRATION UNDER ARTICLE 15.17, C.C.P.

JOHN MANUEL QUINTANILLA, JR., Appellant v. THE STATE OF TEXAS, Appeal of Case 03-3-20,037-D HERE

CLEWIS v. TEXAS,  386 U.S. 707 (1967)


Quotes from Ayn Rand's, "Atlas Shrugged", 1957

When you see that in order to produce, you need to obtain permission from men who produce nothing -

When you see that money is flowing to those who deal, not in goods, but in favors -

When you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you -

When you see corruption being rewarded and honesty becoming a self-sacrifice -

You may know that your society is doomed.


"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted - and you create a nation of law-breakers - and then you cash in on guilt. Now, that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with."


NOTICE: Unknown author is not affiliated with Freedom School. NOT intended as legal advice.
NOTICE: If anything in this presentation is found to be in error a good faith effort will be made to correct it in timely fashion upon notification.
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