If a defendant is found guilty, a punishment phase to determine the sentence occurs.

In Texas, the judge is the default choice to decide the sentence. However, a defendant has a right to have a jury decide the sentence.

The punishment phase is similar to guilt-innocence in that both sides make opening and closing statements and put on witnesses. The big difference is that almost any information about the defendant can be considered in the punishment phase. The state may prove up the defendant’s prior criminal record, put on witnesses to testify about the defendant’s character, or try to prove that the defendant committed other bad acts. Basically, the state can ask the judge or jury to consider much more information about the defendant—information that would not be allowed into evidence during the guilt-innocence phase.