37.07: The Use of Prior Criminal Record, Bad Acts, Reputation and Character at Sentencing
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
Once a defendant has been convicted in Texas, either by a jury or a judge, a separate hearing under Art. 37.07 of the Texas Code of Criminal Procedure must be conducted to determine the punishment of the defendant. The prosecution may offer, and the trial judge has broad discretion to admit, evidence of extraneous offenses during this punishment phase. The defense may offer evidence of good character and reputation, as well as evidence contradicting the state’s offer of prior bad acts. Section 3(a)(1) of Art. 37.07 governs the use of extraneous offense and character evidence “after a finding of guilty.” It provides:
“Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged or finally convicted of the crime or act…”
The Texas Court of Criminal Appeals (“CCA”) two years ago, in Hayden v. State, discussed the kind of evidence that can be admitted during an Art. 37.07 hearing:
“In a non-capital felony trial, evidence is admissible during the punishment phase if ‘the court deems [it] relevant to sentencing. The Legislature did not define the term ‘relevant’ in the Code of Criminal Procedure, and beyond the few items enumerated in Article 37.07, it has not given any guidance as to what evidence is relevant to punishment. Borrowing from the definition of ‘relevant’ in Texas Rule of Evidence 401 is of little avail because the factfinder’s role during the guilt phase is different from its role during the punishment phase. Unlike the guilt phase, where the factfinder must decide discrete factual issues, deciding what punishment to impose is a ‘normative process, not intrinsically factbound. Thus, what is ‘relevant’ to assessing punishment is ‘a function of policy rather than relevancy.’ Evidence is relevant if it helps the factfinder decide what sentence is appropriate for a particular defendant given the facts of the case.”
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