Art. 37.072. PROCEDURE IN REPEAT SEX OFFENDER CAPITAL CASE
Sec. 1.  If a defendant is found guilty in a capital felony case punishable under Section 12.42(c)(3), Penal Code, in which the state does not seek the death penalty, the judge shall sentence the defendant to life imprisonment without parole.
Sec. 2.  (a)  (1)  If a defendant is tried for an offense punishable under Section 12.42(c)(3), Penal Code, in which the state seeks the death penalty, on a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment without parole.  The proceeding shall be conducted in the trial court and, except as provided by Article 44.29(d) of this code, before the trial jury as soon as practicable.  In the proceeding, evidence may be presented by the state and the defendant or the defendant's counsel as to any matter that the court considers relevant to sentence, including evidence of the defendant's background or character or the circumstances of the offense that mitigates against the imposition of the death penalty.  This subdivision may not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.  The state and the defendant or the defendant's counsel shall be permitted to present argument for or against sentence of death.  The introduction of evidence of extraneous conduct is governed by the notice requirements of Section 3(g), Article 37.07.  The court, the attorney representing the state, the defendant, or the defendant's counsel may not inform a juror or a prospective juror of the effect of a failure of a jury to agree on issues submitted under Subsection (b) or (e).
(2)  Notwithstanding Subdivision (1), evidence may not be offered by the state to establish that the race or ethnicity of the defendant makes it likely that the defendant will engage in future criminal conduct.
(b)  On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1)  whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(2)  in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually engaged in the conduct prohibited by Section 22.021, Penal Code, or did not actually engage in the conduct prohibited by Section 22.021, Penal Code, but intended that the offense be committed against the victim or another intended victim.
(c)  The state must prove beyond a reasonable doubt each issue submitted under Subsection (b) of this section, and the jury shall return a special verdict of "yes" or "no" on each issue submitted under Subsection (b) of this section.
(d)  The court shall charge the jury that:
(1)  in deliberating on the issues submitted under Subsection (b) of this section, it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty;
(2)  it may not answer any issue submitted under Subsection (b) of this section "yes" unless it agrees unanimously and it may not answer any issue "no" unless 10 or more jurors agree; and
(3)  members of the jury need not agree on what particular evidence supports a negative answer to any issue submitted under Subsection (b) of this section.
(e)(1)  The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b), it shall answer the following issue:
Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed.
(2)  The court shall:
(A)  instruct the jury that if the jury answers that a circumstance or circumstances warrant that a sentence of life imprisonment without parole rather than a death sentence be imposed, the court will sentence the defendant to imprisonment in the Texas Department of Criminal Justice for life without parole; and
(B)  charge the jury that a defendant sentenced to confinement for life without parole under this article is ineligible for release from the department on parole.
(f)  The court shall charge the jury that in answering the issue submitted under Subsection (e) of this section, the jury:
(1)  shall answer the issue "yes" or "no";
(2)  may not answer the issue "no" unless it agrees unanimously and may not answer the issue "yes" unless 10 or more jurors agree;
(3)  need not agree on what particular evidence supports an affirmative finding on the issue; and
(4)  shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.
(g)  If the jury returns an affirmative finding on each issue submitted under Subsection (b) and a negative finding on an issue submitted under Subsection (e)(1), the court shall sentence the defendant to death.  If the jury returns a negative finding on any issue submitted under Subsection (b) or an affirmative finding on an issue submitted under Subsection (e)(1) or is unable to answer any issue submitted under Subsection (b) or (e), the court shall sentence the defendant to imprisonment in the Texas Department of Criminal Justice for life without parole.
(h)  The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals.
Added by Acts 2007, 80th Leg., R.S., Ch. 593 (H.B. 8), Sec. 1.04, eff. September 1, 2007.