In a criminal prosecution, if the defendant is convicted the case moves to the penalty or punishment phase of the trial. The penalty or punishment phase of the trial begins with the judge setting a date for sentencing. Before the sentencing a probation officer will conduct a presentence investigation to help the judge determine the appropriate sentence for the defendant from the range of possible sentences provided in the applicable statutes.

The presentence investigation will generally consider the defendant’s prior criminal record, custody status, plea bargain, pending cases, substance abuse history, education history, employment history, marital history, finances, physical health, mental health, gang affiliations, ties to the community, and other relevant factors.

The presentence report makes a recommendation based on how the sentencing guidelines rate the seriousness of the offense—and on the defendant’s criminal history. The judge is not required to follow the recommendations of the probation officer or the parties—but if the judge rejects a sentence agreed to by the defense and prosecution, the defendant may withdraw a guilty plea.

The sentencing hearing is often much like a mini-trial, and both the prosecution and the defense are given a chance to make opening and closing statements and to call witnesses. The court may also hear and consider victim impact statements.

In most states, and in the federal court system, the judge determines the sentence for a convicted defendant—but in some states, the defendant has the right to choose to be sentenced by the judge or the jury. And in most states juries determine the sentence in cases in which the defendant is eligible for the death penalty and the prosecution is seeking the death penalty. And in many states and the federal court system there are sentencing guidelines to assist judges in determining appropriate sentences and to encourage uniformity in sentencing convicted defendants.

In Texas, after a defendant is convicted in a criminal prosecution, the case proceeds to the sentencing phase. A judge will schedule a sentencing date, and a probation officer will conduct a presentence investigation to gather information that will aid the judge in determining an appropriate sentence within the statutory range. The investigation includes an assessment of various aspects of the defendant's life and history, such as criminal record, substance abuse, employment, and mental health, among others. The presentence report provides a recommendation, but the judge is not bound to follow it. If the judge does not accept a plea agreement's suggested sentence, the defendant may have the option to withdraw their guilty plea. During the sentencing hearing, which resembles a mini-trial, both the prosecution and defense can present arguments, call witnesses, and make statements. Victim impact statements may also be considered. In Texas, the judge typically decides the sentence, except in death penalty cases where a jury may be involved. Texas follows sentencing guidelines to promote consistency in sentencing, but judges have discretion within the guidelines' framework.