Posted on 11/27/17

Article 1.13 of the Texas Code of Criminal Procedure grants a defendant an automatic right to a trial by jury in a criminal case. In contrast to a civil case where the party must file a request, a defendant in a criminal trial must file a written waiver of a jury trial or it is presumed that the defendant wants a jury trial. In addition, the state must consent to the waiver of the jury trial in criminal cases, or else the trial will be before a jury. Note that with the exception of a capital felony case wherein the prosecution seeks the death penalty, a criminal defendant may enter a plea and waive his or her right to a jury trial, provided that the waiver is made in person, in writing, and in open court.


The Texas Criminal Code places the responsibility on the trial judge toassess punishment, unless the defendant requests that the jury assess punishment. This request must be done prior to jury selection.

As such, if a defendant decides to plead guilty, then a subsequent hearing before the jury is for the purpose of assessing punishment. Note that a defendant must file a motion for a jury punishment assessment.

Jury Not Necessary

With respect to pre-trial hearings, it is not necessary to convene a jury to hear the motion. The motion will go before a judge.

The most common type of pre-trial hearing before a judge is a suppression hearing. A suppression hearing is a hearing before a judge where the judge will decide whether to suppress evidence. There are often questions about whether police action violated theFourth Amendment of the United States Constitution illegal search and seizure clause. A defendant may seek to suppress such evidence, pursuant to the Fourth Amendment. Another suppression hearing is when a defendant motions to suppress evidence obtained due to the police falsely using items to obtain a confession or other damaging information. The defendant, if successful, can suppress that evidence from being presented at trial.

Note that suppression hearings are common with DUI and DWI cases. A defendant will often seek to suppress the results of a breathalyzer test. A defendant will often suppress evidence of a blood test because drawing blood without consent can be a violation of the Fourth Amendment’s illegal search and seizure clause. There is, however, no physician-patient privilege in criminal cases in Texas so suppressing blood tests from a doctor’s office would not be protected and therefore not subject to a suppression hearing.

Other types of pre-trial hearings are extradition hearings and bond hearings. Extradition hearings are in respect of foreign nationals who are accused of crimes in the United States. Bond hearings are motions where a judge determines whether the defendant will need to post bond in order to go free until the trial and how much such bond should be.

Accused of a crime? Contact a lawyer with the experience and knowledge to advocate on your behalf. Contact the law firm of Christopher Abel.

(imge courtesy of Joe Perales)


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