Chapter 17: Voir Dire

§17.1 Voir dire, general rules

  • Texas Code of Criminal Procedure (Click Here)
    • NOTE: Almost the entire Code of Criminal Procedure Chapter 35 applies to selection of the jury.
      • ARTICLE 35.01. JURORS CALLED
      • ARTICLE 35.02. SWORN TO ANSWER QUESTIONS
      • ARTICLE 35.03. EXCUSES
      • ARTICLE 35.04. CLAIMING EXEMPTION
      • ARTICLE 35.05. EXCUSED BY CONSENT
      • ARTICLE 35.06. CHALLENGE TO ARRAY FIRST HEARD
      • ARTICLE 35.07. CHALLENGE TO THE ARRAY
      • ARTICLE 35.08. WHEN CHALLENGE IS SUSTAINED
      • ARTICLE 35.09. LIST OF NEW VENIRE
      • ARTICLE 35.10. COURT TO TRY QUALIFICATIONS
      • ARTICLE 35.11. PREPARATION OF LIST
      • ARTICLE 35.12. MODE OF TESTING
      • ARTICLE 35.13. PASSING JUROR FOR CHALLENGE
      • ARTICLE 35.14. A PEREMPTORY CHALLENGE
      • ARTICLE 35.15. NUMBER OF CHALLENGES
      • ARTICLE 35.16. REASONS FOR CHALLENGE FOR CAUSE
      • ARTICLE 35.17. VOIR DIRE EXAMINATION
      • ARTICLE 35.18. OTHER EVIDENCE ON CHALLENGE
      • ARTICLE 35.19. ABSOLUTE DISQUALIFICATION
      • ARTICLE 35.20. NAMES CALLED IN ORDER
      • ARTICLE 35.21. JUDGE TO DECIDE QUALIFICATIONS
      • ARTICLE 35.22. OATH TO JURY
      • ARTICLE 35.23. JURORS MAY SEPARATE
      • ARTICLE 35.25. MAKING PEREMPTORY CHALLENGE
      • ARTICLE 35.26. LISTS RETURNED TO CLERK
      • ARTICLE 35.261. PEREMPTORY CHALLENGES BASED ON RACE PROHIBITED
      • ARTICLE 35.29. PERSONAL INFORMATION ABOUT JURORS
  • Court of Criminal Appeals of Texas
    • Sanchez v. State, 165 S.W.3d 707 (Tex.Crim.App., 2005)
      • Note: This case sets forth the three major purposes for conducting voir dire. Also, it happens to be a DWI case.
      • 1)   A purpose of voir dire is to elicit information which would establish a basis for a challenge for cause because the venireman is legally disqualified from serving or is biased or prejudiced for or against one of the parties or some aspect of the relevant law; this function furthers defendant's constitutional right to, and society's interest in, an impartial jury.
      • 2)   A purpose of voir dire is to facilitate the intelligent use of peremptory challenges which may be exercised without a reason stated, without inquiry and without being subject to the court's control; this function may further both defendant's and the prosecution's statutory right to make peremptory challenges.
      • 3)   A purpose of voir dire, albeit not necessarily a legally legitimate one, is to indoctrinate the jurors on the party's theory of the case and to establish rapport with the prospective jury members; this is of important practical interest to both the state and defendant, but it has neither a constitutional nor a statutory basis, and voir dire for this purpose is entirely within the trial judge's discretion, and he may permit or prohibit it as he deems appropriate.

 §17.2 Individual responses

  • Court of Criminal Appeals of Texas
    • Pena v. State, 29 S.W.2d 785 (Tex.Crim.App., 1930)
      • Each venireman need not be examined separately on voir dire, but matter is within trial court’s discretion, within certain limits.
 
    • Carlis v. State, 121 Tex.Crim. 290, 51 S.W.2d 729 (Tex.Crim.App., 1932)
      • Defendant's counsel has right, within reasonable limits, to examine each juror individually to prepare himself for exercise of peremptory challenges.
Gonzalez v. State, 169 Tex.Crim. 49, 331 S.W.2d 748 (Tex.Crim.App. Feb 10, 1960)
      • In DWI case, Court held that where voir dire examination of venireman disclosed that he was so opposed to drinking of intoxicants as to constitute bias and prejudice, defendant's challenge to the juror should have been sustained, and where the court's certification showed that defendant exhausted his peremptory challenge and was forced to accept the objectionable juror, reversal of the conviction was required.
    • Mooney v. State, 817 S.W.2d 693
      • Where venire member states that she can set aside her bias, trial court's refusal to sustain defendant's challenge for cause will be reviewed in light of all of answers venire member gives.
      • In trial for capital murder, trial court had discretion to deny defendant's challenge for cause to juror who stated that members of her family had been murdered in recent years, even though juror vacillated on whether this would prejudice her against defendant, where juror concluded by stating that her feelings would not prejudice her and she could abide by oath of juror.
      • This rule has been applied by at least one appellate court to deny defendant’s challenge for cause where veniremember states that a friend had been killed by a drunk driver. See Thompson v. State, Not Reported in S.W.2d, 1997 WL 109960 (Tex.App.-Hous. [1 Dist.],1997)
      •  
Smith v. State, 907 S.W.2d 522 (Tex.Cr.App.,1995)
      • While a trial court may hold a juror qualified who states that he can lay aside an opinion he may have formed, no such discretion vests in the court with reference to a juror with a bias or prejudice against the parties.
    • Perillo v. State, 656 S.W.2d 78 (Tex.Crim.App. Jun 29, 1983)
      • Refusing to allow defense counsel to question a prospective juror on voir dire prior to granting the prosecuting attorney's challenge for cause was reversible error where it could not be said with certainty that prospective juror held such a firm and fixed position that he would have been prevented from making an impartial decision as to the defendant's guilt or from deciding the submitted statutory special issues fairly.
      •  
 
    • Green v. State, 840 S.W.2d 394 (Tex.Crim.App. 1992)
      • Case was overruled on other grounds.
      • When faced with a vacillating or equivocal venireperson, Supreme Court will accord great deference to trial judge on a challenge to a venireperson for cause; trial judge has better opportunity to see and hear the venireperson.
    • Franco v. State, 141 Tex.Crim. 246, 147 S.W.2d 1089 (Tex.Crim.App. 1941)
      • The fact that the juror at one time had been a peace officer would not disqualify him in murder prosecution.

§17.3 Discretion of the court

  • Court of Criminal Appeals of Texas
    • Murphy v. State, 112 S.W.3d 592 (Tex.Crim.App.,2003)
      • A trial court's discretion regarding voir dire is abused only when a proper question about a proper area of inquiry is prohibited.
    • Shipley v. State, 790 S.W.2d 604 (Tex.Cr.App.,1990)
      • A trial judge is given wide discretion to control the voir dire; “however, the permissible areas of questioning the panel in order to exercise peremptory challenges are broad and cannot be unnecessarily limited.” If a trial judge prevents the defendant's attorney from asking a proper question on voir dire, then the trial judge has abused his discretion. A question is proper if it seeks to discover a juror's views on an issue applicable to the case.
    • NOTE: Could not find Court of Criminal Appeals case that says whether court could refuse to prevent defense counsel from asking “Are your feelings about the use of alcohol such that you do not feel you could fairly and impartially hear this case” or anything similar.

 

    • Hankins v. State, 132 S.W.3d 380 (Tex.Crim.App.,2004)
    • Trial court did not abuse discretion in denying defendant's request to ask venirepersons whether they could “consider and follow” definition of reasonable doubt contained in prior case, as instruction was no longer required due to disapproval in subsequent case in which Court of Criminal Appeals had stated that the better practice was to give no definition of reasonable doubt to the jury.

 §17.4 Hypothetical questions

  • Court of Criminal Appeals of Texas
    • Cuevas v. State, 742 S.W.2d 331, 336, n. 6 (Tex.Cr.App.1987)
      • Overruled on other grounds.
      • It is proper to use hypothetical fact situations to explain the application of the law. However, it is improper to inquire how a venireman would respond to particular circumstances as presented in an hypothetical question.

 

    • Clem v. State, 166 Tex. Crim. 429, 314 S.W.2d 579 (1958)
      • Juror, on voir dire examination, may be interrogated touching his views of law and its application to any fact situation that the evidence may present.

 

    • Sanchez v. State, 165 S.W.3d 707 (Tex.Crim.App., 2005) [NOTE: DWI case]
      • In criminal cases, questions that are not intended to discover bias against the law or prejudice for or against defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence, are not proper.
      • This is for the purpose of ensuring that that the jury will listen to the evidence with an open mind, i.e., a mind that is impartial and without bias or prejudice, and render a verdict based upon that evidence; commitment questions require a venireman to promise that he will base his verdict or course of action on some specific set of facts before he has heard any evidence, much less all of the evidence in its proper context, and it is this prejudgment of the value and importance of certain evidence that is the evil to be avoided unless the law requires such a commitment.
      • Commitment questions during voir dire are improper when the law does not require the commitment, such that a juror would not be disqualified for cause by being influenced by a particular fact or by having a particular attitude or opinion, or even if the question meets the challenge for cause requirement, if it also includes facts in addition to those necessary to establish a challenge for cause.
      • Courts assess the issue of harm with the following non-exclusive list of considerations: (1) whether questions were unambiguously improper and attempted to commit one or more veniremen to a specific verdict or course of action, (2) how many, if any, veniremen agreed to commit themselves to a specific verdict or course of action if state produced certain evidence, (3) whether veniremen who agreed to commit themselves actually served on jury, (4) whether defendant used peremptory challenges to eliminate any or all of those veniremen who had committed themselves, (5) whether defendant exhausted all his peremptory challenges upon those veniremen and requested additional peremptory challenges to compensate for their use on improperly committed veniremen, (6) whether defendant timely asserted that named objectionable veniremen actually served on jury because he had to waste strikes on the improperly committed jurors, and (7) whether there is a reasonable likelihood that jury's verdict or course of action in reaching a verdict or sentence was substantially affected by state's improper commitment questioning.
    • Standefer v. State, 59 S.W.3d 177 (Tex.Crim.App.,2001)
      • An attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts. Proposed voir dire question seeking to discover whether any venireperson would have automatic predisposition to find person guilty simply because he refused to take breath test was improper commitment question.
      •  
 

§17.5 Sample voir dire questions

 

§17.6 Peremptory challenges

  • Texas Code of Criminal Procedure
    • See below §35.261 Peremptory challenges based on race prohibited.

 

  • Supreme Court of the United States
    • Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (U.S.,1986)
      • Equal Protection Clause forbids prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State's case against a black defendant.
      • A defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial; to establish such a case, defendant must first show that he is a member of a cognizable racial group, that prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race and that the facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Once a defendant makes a prima facie showing of purposeful discrimination in selection of the petit jury, burden shifts to State to come forward with a neutral explanation for challenging black jurors; prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption where his intuitive judgment, that they would be partial to the defendant because of their shared race, but rather, must articulate a neutral explanation related to the particular case to be tried.

 Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991)

      • Under equal protection clause, criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not defendant and excluded jurors share same race.
 
    • Purkett v. Elem., 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995)
      • Race-neutral explanation tendered by proponent of peremptory challenge need not be persuasive, or even plausible; persuasiveness of the justification only becomes relevant when trial court determines whether opponent of strike has carried his burden of proving purposeful discrimination. Prosecutor's proffered explanation for peremptory challenge of black male, that juror had long, unkempt hair, a moustache and a beard, was race-neutral and satisfied prosecution's burden of articulating nondiscriminatory reason for the strike.

Court of Criminal Appeals of Texas

    • Casarez v. State, 913 S.W.2d 468 (Tex.Crim.App.,1994)
      • Litigants may use peremptory challenges to exclude persons from service on juries in individual cases on basis of their religious affiliation. The State of Texas may not permit the peremptory exclusion of jurors on the basis of irrational prejudices which violate the Equal Protection Clause. But we do not read Supreme Court jurisprudence yet to condemn exclusion on the basis of belief.
      •   

Texas Code of Criminal Procedure – Chapter 35

  • Art. 35.01. JURORS CALLED.  • Art. 35.01. JURORS CALLED. When a case is called for trial and the parties have announced ready for trial, the names of those summoned as jurors in the case shall be called. Those not present may be fined not less than one hundred dollars and not more than five hundred dollars. An attachment may issue on request of either party for any absent summoned juror, to have him brought forthwith before the court. A person who is summoned but not present, may upon an appearance, before the jury is qualified, be tried as to his qualifications and impaneled as a juror unless challenged, but no cause shall be unreasonably delayed on account of his absence.

 

  • Art. 35.02. SWORN TO ANSWER QUESTIONS.  To those present the court shall cause to be administered this oath:  "You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God."

 

  • Art. 35.03. EXCUSES.
    • Sec. 1.  Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror's service to a date specified by the court, as appropriate.
    • Sec. 2.  Under a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court's designee may hear and determine an excuse offered for not serving as a juror, including any claim of an exemption or a lack of qualification.  The court's designee may discharge the prospective juror or postpone the prospective juror's service to a date specified by the court's designee, as appropriate, if:
      • (1)  the court's designee considers the excuse sufficient;  and  
      • (2)  the juror submits to the court's designee a statement of the ground of the exemption or lack of qualification or other excuse.
    • Sec. 3. A court or a court's designee may discharge a juror or postpone the juror's service on the basis of the juror's observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code.
  • Art. 35.04. CLAIMING EXEMPTION.  Any person summoned as a juror who is exempt by law from jury service may establish his exemption without appearing in person by filing a signed statement of the ground of his exemption with the clerk of the court at any time before the date upon which he is summoned to appear.
  • Art. 35.05. EXCUSED BY CONSENT.  One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.
  • Art. 35.06.  CHALLENGE TO ARRAY FIRST HEARD.  The court shall hear and determine a challenge to the array before interrogating those summoned as to their qualifications.
  • Art. 35.07. CHALLENGE TO THE ARRAY.  Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal.  All such challenges must be in writing setting forth distinctly the grounds of such challenge.  When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person.  When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.
  • Art. 35.08. WHEN CHALLENGE IS SUSTAINED.  The array of jurors summoned shall be discharged if the challenge be sustained, and the court shall order other jurors to be summoned in their stead, and direct that the officer who summoned those so discharged, and on account of whose misconduct the challenge has been sustained shall not summon any other jurors in the case.
  • Art. 35.09. LIST OF NEW VENIRE.  When a challenge to the array has been sustained, the defendant shall be entitled, as in the first instance, to service of a copy of the list of names of those summoned by order of the court.
  • Art. 35.10. COURT TO TRY QUALIFICATIONS.  When no challenge to the array has been made, or if made, has been over-ruled, the court shall proceed to try the qualifications of those present who have been summoned to serve as jurors.
  • Art. 35.11. PREPARATION OF LIST.  The trial judge, on the demand of the defendant or his attorney, or of the State's counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to be randomly selected from the members of the general panel drawn or assigned as jurors in the case.  The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the case.  The clerk shall deliver a copy of the list to the State's counsel and to the defendant or his attorney.
  • Art. 35.12.  MODE OF TESTING. 
    • (a)  In testing the qualification of a prospective juror after the juror has been sworn, the juror shall be asked by the court, or under its direction:
      • 1.  Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state?
      • 2.  Have you ever been convicted of theft or any felony?  
      • 3.  Are you under indictment or legal accusation for theft or any felony?  
    • (b)  In testing the qualifications of a prospective juror, with respect to whether the juror has been the subject of an order of nondisclosure or has a criminal history that includes information subject to that order, the juror may state only that the matter in question has been sealed.
  • Art. 35.13. PASSING JUROR FOR CHALLENGE.  A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance or challenge first to the state and then to the defendant.  Challenges to jurors are either peremptory or for cause.
  • Art. 35.14. A PEREMPTORY CHALLENGE.  A peremptory challenge is made to a juror without assigning any reason therefor.
  • Art. 35.15. NUMBER OF CHALLENGES. 
    • (a) In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges.  Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant;  and each defendant shall be entitled to eight peremptory challenges.
    • (b) In non-capital felony cases and in capital cases in which the State does not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges.  If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.
    • (c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law.  If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court.
    • (d) The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled.  The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.

 

  • Art. 35.16. REASONS FOR CHALLENGE FOR CAUSE. 
    • (a)  A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.  A challenge for cause may be made by either the state or the defense for any one of the following reasons:
      • 1.  That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
      • 2.  That the juror has been convicted of misdemeanor theft or a felony;
      • 3.  That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;
      • 4.  That the juror is insane;  
      • 5.  That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;
      • 6.  That the juror is a witness in the case; 
      • 7.  That the juror served on the grand jury which found the indictment;
      • 8.  That the juror served on a petit jury in a former trial of the same case;
      • 9.  That the juror has a bias or prejudice in favor of or against the defendant;
      • 10.  That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict.  To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror's opinion, the conclusion so established will influence the juror's verdict.  If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court.  If the juror answers in the negative, the juror shall be further examined as to how the juror's conclusion was formed, and the extent to which it will affect the juror's action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case.  If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;
      • 11.  That the juror cannot read or write.
      • No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent.  All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist.
      • In this subsection "legally blind" shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.
    • (b) A challenge for cause may be made by the State for any of the following reasons:
      • 1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
      • 2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant;  and
      • 3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.
    • (c) A challenge for cause may be made by the defense for any of the following reasons:
      • 1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case;  and
      • 2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.
  • Art. 35.17. VOIR DIRE EXAMINATION.
    • 1. When the court in its discretion so directs, except as provided in Section 2, the state and defendant shall conduct the voir dire examination of prospective jurors in the presence of the entire panel.
    • 2. In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles, as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence, and opinion.  Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may further question the juror on the principles propounded by the court.
  • Art. 35.18. OTHER EVIDENCE ON CHALLENGE.  Upon a challenge for cause, the examination is not confined to the answers of the juror, but other evidence may be heard for or against the challenge.
  • Art. 35.19. ABSOLUTE DISQUALIFICATION.  No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.

 

  • Art. 35.20. NAMES CALLED IN ORDER.  In selecting the jury from the persons summoned, the names of such persons shall be called in the order in which they appear upon the list furnished the defendant.  Each juror shall be tried and passed upon separately.  A person who has been summoned, but who is not present, may, upon his appearance before the jury is completed, be tried as to his qualifications and impaneled as a juror, unless challenged, but no cause shall be unreasonably delayed on account of such absence.

 

  • Art. 35.21. JUDGE TO DECIDE QUALIFICATIONS.  The court is the judge, after proper examination, of the qualifications of a juror, and shall decide all challenges without delay and without argument thereupon.

 

  • Art. 35.22. OATH TO JURY.  When the jury has been selected, the following oath shall be administered them by the court or under its direction:  "You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God".
  • Art. 35.23. JURORS MAY SEPARATE.  The court may adjourn veniremen to any day of the term.  When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury.  The court on its own motion may and on the motion of either party shall, after having given its charge to the jury, order that the jury not be allowed to separate, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged.  Any person who makes known to the jury which party made the motion not to allow separation of the jury shall be punished for contempt of court.  If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors.  In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict.  In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.
  • Art. 35.25. MAKING PEREMPTORY CHALLENGE.  In non-capital cases and in capital cases in which the State's attorney has announced that he will not qualify the jury for, or seek the death penalty, the party desiring to challenge any juror peremptorily shall strike the name of such juror from the list furnished him by the clerk.
  • Art. 35.26. LISTS RETURNED TO CLERK. 
    • (a) When the parties have made or declined to make their peremptory challenges, they shall deliver their lists to the clerk.  Except as provided in Subsection (b) of this section, the clerk shall, if the case be in the district court, call off the first twelve names on the lists that have not been stricken.  If the case be in the county court, he shall call off the first six names on the lists that have not been stricken.  Those whose names are called shall be the jury.
    • (b) In a capital case in which the state seeks the death penalty, the court may direct that two alternate jurors be selected and that the first fourteen names not stricken be called off by the clerk.  The last two names to be called are the alternate jurors.
  • Art. 35.261. PEREMPTORY CHALLENGES BASED ON RACE PROHIBITED. 
    • (a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case.  The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race.  If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges.  The burden of persuasion remains with the defendant to establish purposeful discrimination.
    • (b) If the court determines that the attorney representing the state challenged rospective jurors on the basis of race, the court shall call a new array in the case.
  • Art. 35.29. PERSONAL INFORMATION ABOUT JURORS.  Information collected by the court or by a prosecuting attorney during the jury selection process about a person who serves as a juror, including the juror's home address, home telephone number, social security number, driver's license number, and other personal information, is confidential and may not be disclosed by the court, the prosecuting attorney, the defense counsel, or any court personnel except on application by a party in the trial or on application by a bona fide member of the news media acting in such capacity to the court in which the person is serving or did serve as a juror.  On a showing of good cause, the court shall permit disclosure of the information sought.