A Texas criminal jury trial runs through stages in order: jury selection (voir dire), opening statements, the State's evidence, the defense case, closing arguments, the judge's charge, deliberation, and a unanimous verdict. A felony jury has 12 members, a misdemeanor jury 6. If convicted, a separate punishment phase sets the sentence, usually decided by the judge, not the jury.
Below is what each stage actually looks like, what the Texas Code of Criminal Procedure requires, and where a good defense lawyer goes to work.
The statute
Several sections of the Texas Code of Criminal Procedure control how a jury trial unfolds:
Art. 33.01 (Jury Size). In district court, a felony jury consists of 12 qualified jurors; in county court, a misdemeanor jury consists of 6. (A misdemeanor tried in a district court also uses a 6-member jury.)
Art. 35.15 (Number of Challenges). Each side gets peremptory challenges (jurors it may strike without giving a reason): 10 each in a non-capital felony, 5 each in a misdemeanor tried in district court, and 3 each in county court or county court at law. Challenges for cause (Art. 35.16) are unlimited but must be justified.
Art. 36.01 (Order of Proceeding). The indictment or information is read, pleas are entered, the State makes its opening statement and puts on its evidence, and the defense may open immediately after the State opens and then present its case.
Art. 36.14 (Charge of the Court). Before argument, the judge delivers a written charge instructing the jury on the law that governs the case.
Art. 36.29 (Verdict). In a felony case, the verdict must be concurred in by each of the 12 jurors; in other words, it must be unanimous. (A narrow exception lets 11 jurors return a verdict if a juror dies or becomes disabled before the charge is read.)
Art. 37.07 (Verdict Must Be General; Separate Hearing on Proper Punishment). The verdict is general (guilty or not guilty). If there is a conviction, the judge assesses punishment unless the defendant elects in writing before voir dire begins to have the jury do it, or has filed a sworn motion for community supervision before trial.
Art. 38.08 (Defendant May Testify). A defendant may testify, but the failure to testify "shall not be taken as a circumstance against him," and neither lawyer may comment on it.
The presumption of innocence and the State's burden to prove guilt beyond a reasonable doubt run through the entire trial (Art. 38.03; Texas Penal Code § 2.01), and the Texas Constitution guarantees the right to trial by jury (Tex. Const. art. I, § 15), including an accused's right to a speedy public trial by an impartial jury in a criminal prosecution (Tex. Const. art. I, § 10; see also art. V, § 13 on jury composition in district courts).
What it means in practice
Jury selection (voir dire). Trial begins with a panel of prospective jurors. The lawyers question them (this is voir dire) to expose bias, life experiences, and attitudes that matter to the case. Jurors who cannot be fair are removed "for cause." Each side then uses its peremptory strikes (10 in a felony, fewer in a misdemeanor) to shape the final panel of 12 or 6. Voir dire is often the most consequential stage of the whole trial: the case is frequently won or lost by who ends up in the box.
Opening statements. The State opens first, previewing what it intends to prove. The defense may open right after or wait until it puts on its own case. Openings are a roadmap, not evidence; nothing a lawyer says in opening is proof of anything.
The State's case and cross-examination. The prosecution carries the entire burden and goes first. It calls witnesses and offers exhibits, and your defense lawyer cross-examines each witness, testing memory, motive, and reliability, and holding the State to its burden. Because the State must prove every element beyond a reasonable doubt, effective cross-examination and objections can leave the prosecution short of what the law requires.
The defense case and the right not to testify. After the State rests, the defense may call witnesses, present evidence, or rest without putting on anything at all. A defendant has an absolute right not to testify, and under Art. 38.08, the jury is instructed that it cannot hold that silence against you. The defense never has to prove innocence; the question is always whether the State proved guilt.
Closing argument, the charge, and deliberation. Once both sides rest, the judge reads the written charge, the law the jury must apply. The lawyers then deliver closing arguments (again, argument, not evidence). The jury retires to deliberate in private and must reach a unanimous decision. If jurors cannot agree, the result is a hung jury and the judge may declare a mistrial, which can lead to a retrial.
The verdict and the separate punishment phase. The jury returns a general verdict of guilty or not guilty. A not-guilty verdict ends the case. If the verdict is guilty, the trial moves to a distinct punishment phase with its own evidence and arguments. Here Texas differs from what many people expect: the judge assesses punishment by default. The jury sets the sentence only if the defendant made a timely written election, so the decision of who sentences you is a strategic call your lawyer makes with you before trial ever starts.
Felony vs. misdemeanor jury trial at a glance
Feature
Felony (District Court)
Misdemeanor (County Court)
Jurors
12
6
Peremptory challenges (each side)
10
3 (5 if tried in a district court)
Standard of proof
Beyond a reasonable doubt
Beyond a reasonable doubt
Verdict required to convict or acquit
Unanimous
Unanimous
Who assesses punishment
Judge, unless jury elected in writing before voir dire
Judge, unless jury elected in writing before voir dire
Peremptory-challenge counts under Art. 35.15: 10 each in a non-capital felony, 5 each for a misdemeanor tried in district court, and 3 each in county court or county court at law (15 each in a capital case).
Common Misconceptions
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Myth
"If I don't testify, the jury will assume I'm guilty."
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Correction
Not under Texas law. Art. 38.08 forbids the jury from treating your silence as evidence, and the judge specifically instructs jurors that they cannot consider it. Neither prosecutor nor defense counsel is allowed to comment on it.
✗
Myth
"A majority of jurors is enough to convict."
✓
Correction
No. A Texas criminal verdict must be unanimous: all 12 (felony) or all 6 (misdemeanor). If even one juror holds out, there is no conviction; the case ends in a mistrial and may be retried.
✗
Myth
"The jury that convicts me automatically decides my sentence."
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Correction
Usually the opposite. Under Art. 37.07, § 2(b), the judge assesses punishment unless you elected jury sentencing in writing before jury selection began (or filed a sworn motion for community supervision before trial). Once made, that election can be changed after a guilty finding only with the consent of the attorney for the State.
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Myth
"What the lawyers say in opening and closing is evidence."
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Correction
It isn't. Only sworn witness testimony and admitted exhibits are evidence. Opening statements and closing arguments are the lawyers' framing of that evidence.
How it affects your case
Every stage is a place to build a defense. Voir dire is where we identify jurors who can hold the State to its burden and remove those who cannot. The State's case is where cross-examination and evidentiary objections can expose weak proof, unreliable witnesses, and gaps between what the prosecution promised and what it actually delivered. The decision whether you testify, and the decision of whether the judge or the jury assesses punishment, are deliberate strategic choices, not defaults to stumble into.
Because the burden never shifts, a jury trial can end in acquittal even when the defense calls no witnesses at all; the only question is whether the State proved every element beyond a reasonable doubt. No lawyer can promise a particular verdict, but understanding how each stage works lets us make the decisions that give you the strongest possible position at trial. If you are facing a criminal charge in Austin, San Antonio, or the surrounding Texas counties, the time to prepare for trial is now, not the week it is set.
Talk to a Texas criminal defense lawyer
Call Lance Kennedy Law at (737) 324-7540 for a free, confidential case review. We will walk you through what to expect at trial and build a strategy for your specific charge. Austin (principal office) and San Antonio.
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If authorities arrested you or a family member in Austin, here are some key steps to consider:
Exercise your right to remain silent. Avoid discussing your case with anyone except your lawyer.
Request an attorney immediately. If you can’t afford one, ask for a court-appointed lawyer.
Contact a family member or trusted friend to inform them of your situation.
Do not resist arrest or argue with law enforcement, even if you believe the arrest is unjustified.
Remember details about your arrest, including officer names and badge numbers if possible.
Attend your arraignment, where you’ll be informed of charges and can enter a plea.
Gather relevant documents and information for your case.
Follow all court orders and attend all scheduled hearings.
Consider contacting a bail bondsman if bail is set and you need assistance posting it.
Contact Lance Kennedy Law for a free consultation about potential defense strategies and the next steps in your case.
Whether you should plead guilty or not guilty is a serious legal decision that requires careful consideration of the specific details of your case. This choice can have major consequences for your future.
The best course of action is to consult criminal defense attorney Lance Kennedy, who can review the evidence, charges, and circumstances of your case. I’ll examine your case at no cost, advise you on the potential outcomes of different pleas, and help you make an informed decision. Contact Lance Kennedy Law as soon as possible so we can get started on your case.
Three things: Contact a criminal defense lawyer in your county and then call a bail bondsman to see about getting your friend or family member released.
Tell your friend or family member not to answer any questions about the incident and to ask for a lawyer, which should stop any police questioning.
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