In Texas the defendant chooses whether to go to the judge or jury for punishment except in capital murder cases. In a capital murder case the jury always assesses punishment. The defendant must make this choice before the start of jury selection. The reason is that if the defendant chooses jury punishment the jury must be qualified on the punishment range. They must be willing to consider both the high and low end of the range.
Why should someone choose jury punishment?
Some judges have a reputation for handing down long sentences. A jury might be willing to consider a lesser sentence. An experienced attorney can help make the proper choice.
Why would someone consider going to the judge?
Only a judge can grant probation for most state jail felonies, so if the defendant wanted the possibility of probation, they would have to choose the judge for punishment. Another reason might be because the attorney thinks there is a strong chance of winning but is concerned about planting the punishment idea in the mind of the jurors. Finally, just as some judges hand down tough sentences, some judges are easier on punishment. An experienced attorney is essential in making the correct choice.
Will the defendant's criminal history come in?
Not in the guilt - innocence phase unless the defendant takes the stand. In punishment, anything the state can prove beyond a reasonable doubt, including prior convictions can come in. Even crimes for which the defendant has not been convicted if the state can prove them.
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