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Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.11-1.13 Right to Trial

Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.11-1.13 – Brian Foley Board Certified in Criminal Law in Houston, Texas.


Today we are covering three more sections of the Texas Code of Criminal Procedure starting with Article 1.11. Article 1.11 of the Texas Code of Criminal Procedure is titled Acquittal a bar. If I start a restaurant/bar in the Houston area I might have to call it Acquittal a bar after section 1.11. What it means is double jeopardy after acquittal in a criminal case. It reads, “an acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction.”

This means that even if a group of citizens stormed into the courtroom and demanded an acquittal if he actually got the acquittal then double jeopardy will bar a second trial, no matter how “irregular the proceedings may have been . . . .” This section is original to the code’s passage in its current form in 1965 and has been unamended since.


There is a part about not having jurisdiction. This means that if the offense was tried in Harris County but there was an acquittal because the offense was actually found to have taken place in Montgomery County, then perhaps a second trial could be had. I do however believe that it could violate the federal double jeopardy clause.

Article 1.12 is the right to a jury trial in Texas. Here it reads quite clearly, “The right to a jury trial shall remain inviolate.” Because this is part of the code of criminal procedure it is arguable that it only applies to criminal cases and thus the constitutions $20 minimum requirement would still be allowable as a condition for a jury trial in a civil case.


The right to a jury trial is sacred in our system of government and is an essential check on the power of local governments and prosecutors. A jury of your peers must first convict beyond a reasonable doubt after hearing evidence from witnesses on the matter and free from such evidence as might violate the rule against hearsay and otherwise. A criminal defense attorney in Houston, Texas is the wall between you and the government. It is important to choose a criminal defense team that is prepared to go to trial if necessary to secure your rights.



Article 1.13 is Waiver of Trial by Jury and sets out the process by which an individual can waive this right which is supposed to “remain inviolate.” The rules for waiving the right to a jury trial are that you may waive your right to a jury trial only with the consent of the prosecutor. That’s right, the State of Texas has a right to a jury trial too. Waiver of a defendant’s right to a jury trial will not result in a bench trial in front of the judge or a plea bargain and punishment hearing only if the State does not agree. The Prosecutor must sign their own waiver of a jury trial in writing and file it with the papers of the court according to Article 1.13 of the Texas Code of Criminal Procedure.


In a death penalty case the defendant cannot waive his right to a jury trial and the State may not waive their right to a jury trial. Only a jury can find someone guilty of capital murder and impose the death penalty. If the State waives the death penalty then they may also waive the trial. Every time someone pleads guilty in open court that is a “trial” of the offense. If a defendant does not have an attorney then he can still waive his right to a jury and plead guilty in court. This is not true for a felony because of Article 1.13(c) which requires the judge to appoint any person charged with a felony a court appointed attorney in the event they cannot afford to pay for their own attorney.


Art. 1.11. ACQUITTAL A BAR. An acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


Art. 1.12. RIGHT TO JURY. The right of trial by jury shall remain inviolate. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.


Art. 1.13. WAIVER OF TRIAL BY JURY. (a) The defendant in a criminal prosecution for any offense other than a capital felony case in which the state notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that, except as provided by Article 27.19, the waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the state shall be in writing, signed by that attorney, and filed in the papers of the cause before the defendant enters the defendant's plea. (b) In a capital felony case in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty, the defendant may waive the right to trial by jury but only if the attorney representing the State, in writing and in open court, consents to the waiver. (c) A defendant may agree to waive a jury trial regardless of whether the defendant is represented by an attorney at the time of making the waiver, but before a defendant charged with a felony who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by Acts 1991, 72nd Leg., ch. 652, Sec. 1, eff. Sept. 1, 1991; Subsec. (c) amended by Acts 1997, 75th Leg., ch. 285, Sec. 1, eff. Sept. 1, 1997. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 1031 (H.B. 2847), Sec. 1, eff. September 1, 2011.


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