The Texas punishment phase is the second stage of a criminal trial, held only after a guilty verdict, where the sole question is what sentence the defendant should receive within the range the Penal Code sets. Texas Code of Criminal Procedure Article 37.07 creates this split structure so that evidence about a defendant’s record, character, and prior conduct stays out of the guilt-or-innocence decision and comes in only when sentencing is on the table.1State of Texas. Texas Code of Criminal Procedure Article 37.07 – Verdict Must Be General; Separate Hearing on Proper Punishment The evidence rules are looser here, the stakes inside each sentencing range are enormous, and the choices a defendant makes before the hearing starts shape everything that follows.
Who Sets the Sentence
A Texas defendant has the right to choose whether a judge or a jury decides punishment. The election generally must be made in writing before jury selection begins. Even after a jury returns a guilty verdict, a defendant who filed the right paperwork can still send sentencing to the judge instead.1State of Texas. Texas Code of Criminal Procedure Article 37.07 – Verdict Must Be General; Separate Hearing on Proper Punishment
The choice is strategic. Juries hear the case with fresh eyes but have no benchmark for what similar defendants received. Judges sentence regularly and tend to be more predictable. A sympathetic defendant with a strong personal story may do better in front of a jury; a case driven by harsh facts and legal nuance may land better with a judge who has seen the pattern before.
How the Hearing Unfolds
The State goes first. Prosecutors present evidence aimed at pushing the sentence toward the top of the statutory range: the severity of the offense, the defendant’s criminal history, the harm to victims. Once the State rests, the defense puts on its own case for a lighter sentence through character witnesses, evidence of rehabilitation, or expert testimony about mitigating circumstances. The State then gets a chance at rebuttal, both sides deliver closing arguments, and the court instructs the fact-finder on the punishment range for the specific offense so the sentence stays inside the boundaries the Penal Code sets.
Before the sentence is formally pronounced, the defendant usually has an opportunity to address the court directly. This is called allocution. The judge asks whether the defendant wants to say anything, and the defendant may offer an apology, express remorse, or explain the circumstances behind the offense. For a defendant who did not testify at the guilt phase, it can be the only time the judge or jury hears from them in their own voice.
What Evidence Comes In During Punishment
Article 37.07, Section 3 opens the door to a much broader picture of the defendant than the guilt phase allowed.2State of Texas. Texas Code of Criminal Procedure Article 37.07 – Section 3 The purpose is to let the fact-finder tailor the punishment to the person, not just the crime.
Criminal History, Reputation, and Character
The State can introduce the defendant’s prior criminal record, general reputation in the community, and evidence of character traits relevant to sentencing. The defense can respond with evidence of good character, community involvement, employment history, family obligations, and anything else that fills in the picture. Letters of support, testimony from employers and family members, and records of community contributions all belong at this stage.
Extraneous Offenses and Unadjudicated Bad Acts
Texas lets the prosecution introduce prior wrongful acts that never produced a formal charge or conviction. These are called extraneous offenses, and they can change the temperature of a sentencing hearing fast. A defendant on trial for assault, for instance, might face evidence of earlier violent incidents that were never prosecuted.
The safeguard is a demanding burden of proof. The State must prove any extraneous offense beyond a reasonable doubt before the fact-finder can consider it,2State of Texas. Texas Code of Criminal Procedure Article 37.07 – Section 3 which is the same standard required to convict. The defense also has the right to request advance notice of any extraneous offenses the State intends to introduce, giving the defense time to investigate and prepare a response.
Expert Testimony
Both sides can call experts during punishment. The State may bring in witnesses to testify about the long-term impact of the offense or the defendant’s risk of reoffending. The defense often relies on psychologists, psychiatrists, neuropsychologists, and substance abuse counselors to explain how mental health history, cognitive impairment, childhood trauma, or addiction contributed to the conduct that led to the conviction. A mitigation expert can connect a defendant’s life history to the offense in ways lay witnesses cannot.
Presentence Investigation Reports
In some cases the court orders a presentence investigation report before sentencing. A probation officer interviews the defendant and gathers detailed information about their background: childhood, family, education, employment, finances, physical and mental health, and substance use. The report covers the offense, the defendant’s prior record, and often includes a sentencing recommendation, giving the judge a baseline that goes beyond what either side puts on in court.
Victim Impact Evidence
Texas gives crime victims and their families two separate ways to be heard during sentencing, and the two work differently.
Victim Testimony in the Hearing
During the evidentiary portion of punishment, victims or their family members can take the stand and testify about how the crime affected their lives. This is evidence. It goes to the fact-finder while the sentence is still being decided, and it is subject to cross-examination. Witnesses can describe physical injuries, emotional trauma, financial losses, and effects on their families. They cannot recommend a specific number of years or a specific fine. The line is between describing harm and advocating for a sentence.
The Written Victim Impact Statement
Separate from courtroom testimony, Texas law provides for a written victim impact statement submitted to the attorney representing the State. The statute requires the court to ask whether a victim impact statement has been returned and, if so, to consider the information in it before imposing sentence. The defendant or defense attorney must be given a reasonable opportunity to read the statement, comment on it, and, with court approval, challenge any factual inaccuracies before the sentence is pronounced.3State of Texas. Texas Code of Criminal Procedure Chapter 56A – Rights of Crime Victims – Section: Art. 56A.158
Felony Punishment Ranges
Texas sets a sentencing range for each degree of felony. The judge or jury can land anywhere inside the range but cannot step outside it.
- First-degree felony: 5 to 99 years in prison, or life, with an optional fine of up to $10,000.4State of Texas. Texas Penal Code Chapter 12 – Punishments – Section: 12.32
- Second-degree felony: 2 to 20 years in prison, with an optional fine of up to $10,000.5State of Texas. Texas Penal Code 12.33 – Second Degree Felony Punishment
- Third-degree felony: 2 to 10 years in prison, with an optional fine of up to $10,000.
- State jail felony: 180 days to 2 years in a state jail facility, with an optional fine of up to $10,000.
The spread inside each range is wide. A first-degree defendant could receive 5 years or life for the same category of offense. That gap is exactly why the hearing matters: the evidence, witnesses, and argument are what move the sentence between the floor and the ceiling.
Enhancements for Prior Convictions
Prior felony convictions can dramatically lift the applicable range. A defendant convicted of a second-degree felony who has a prior felony conviction can be punished in the first-degree range instead. Defendants with two or more prior felony convictions can face enhanced ranges reaching 25 years to life regardless of what the base offense would normally carry. Enhancements are proven during the punishment phase, not at guilt, and the State must give notice of its intent to seek them. A defendant otherwise facing 2 to 10 years for a third-degree felony could be looking at 25 to life if habitual-offender enhancements are proven up.
Community Supervision as an Alternative
Community supervision, commonly called probation, lets a defendant serve the sentence in the community under court-imposed conditions rather than in custody. A judge has authority to suspend a prison sentence and place the defendant on community supervision when it serves the interests of justice, the public, and the defendant.6State of Texas. Texas Code of Criminal Procedure Chapter 42A – Community Supervision – Section: Art. 42A.053
Eligibility is limited. A defendant is not eligible for judge-ordered community supervision if the prison sentence exceeds 10 years.6State of Texas. Texas Code of Criminal Procedure Chapter 42A – Community Supervision – Section: Art. 42A.053 Jury-recommended probation has its own restrictions: the jury can only recommend it if the defendant has never been convicted of a felony, and certain offenses are excluded entirely. Defendants convicted of aggravated offenses or specific crimes listed in the Code of Criminal Procedure are generally ineligible for jury probation regardless of their criminal history. Typical conditions include regular reporting to a probation officer, drug testing, community service, payment of fees and restitution, and restrictions on travel or associations.
The Verdict, Stacking, and the Appeal Clock
A jury must reach a unanimous decision on the sentence for it to be valid.7Texas Judicial Branch. Basics of the Texas Judicial System If the jurors cannot agree, the court declares a mistrial on punishment only. The guilty verdict stands, and a new jury is brought in to hear punishment evidence and decide the sentence. A punishment-phase mistrial does not give the defendant a second chance at acquittal.
When a defendant is convicted on multiple counts, the court decides whether the sentences run at the same time or back to back. Concurrent sentences are served simultaneously, so a 10-year and a 5-year sentence together produce 10 years total. Consecutive sentences stack, so the same combination produces 15 years. Texas judges have discretion over which way to go, and the choice can change how long the defendant actually spends in custody.
The judge is bound by the jury’s sentence as long as it falls within the statutory range. Once the verdict is signed and read in open court, it becomes the final judgment of the trial court, and that entry of judgment starts the clock on any appeal. In Texas, a defendant generally has 30 days from the date the sentence is imposed to file a motion for new trial and 90 days to perfect an appeal. Missing those deadlines can forfeit appellate review entirely.