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.”


Texas appellate courts have consistently held that an individual’s history of violating the law is undoubtedly a relevant factor for a jury or judge to consider when assessing a sentence because it relates to the defendant’s character (here and here).


The CCA in 1999 and again in 2006, in Mozon v. State and Gigliobianco v. State, held that the “balancing test” used to weigh the prejudice/probative value of relevant evidence, including extraneous offense evidence, should include the following factors:


  • How compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable a factor which is related to the strength of the evidence by the proponent to show the defendant in fact committed the extraneous offense;
  • The potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way;”
  • The time the proponent will need to develop the evidence, during which the jury will be distracted from the consideration of the indicted offense; and
  • The force of the proponent’s need for this evidence to provide this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.


Significantly, under Art. 37.07 § 3(g), before the State can introduce extraneous offenses evidence during the punishment phase, it must, if the defendant timely request, give notice that it plans to introduce such evidence. This subsection specifically provides:


“On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence, if the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes that date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that an attorney representing the state give notice only if the defendant makes a timely request to the attorney representing the state for the notice.”


The First District Court of Appeals, in Apolinar v. State, held that this purpose of this notice is to prevent “unfair surprise and to enable the defendant to prepare to answer the extraneous offense evidence.” The Third District Court of Appeals, sitting in Austin, in Roethel v. State, explained not only the purpose of the notice but the limitations which have been placed on it: “The legislature’s enactment of article 37.07, section (3)(g), limits the trial court’s discretion to admit evidence of extraneous offenses at the punishment phase. Unlike Rule 404(b), article 37.07, section 3(g) specifies that notice is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred. Despite the plain language of the statute, courts have carved out exceptions to the rule so that the notice need not specify exact counties (here) … Courts also have given the State leeway in specificity regarding dates, perhaps because children (and adults victimized as children) may not always be able to recall specific dates of offenses (here)…”


Thus, the courts have essentially held that the State need only “substantially comply” with the subsection 3(g) notice requirement. And even when the State fails to completely comply with this notice requirement, the error does not automatically result in a reversal of the punishment imposed; it simply means that the appeals court will conduct a “harmless error analysis” under Rule 44.2(a) of the Texas Rules of Appellate Procedure as mandated by the CCA in McDonald v. State. Under this rule, the court must reverse a conviction unless it determines beyond a reasonable doubt that the error complained of did not contribute to a defendant’s conviction or punishment. The Roethel court held that an insufficient notice, or even a lack thereof, under Subsection 3(g) is a non-constitutional error which does not have a substantial or injurious effect or influence of the jury’s verdict (here).


Roethel also instructed that the “harmless error analysis” should include an examination of the record to determine whether the insufficient, or lack of, notice “resulted from prosecutorial bad faith” or “prevented the defendant from preparing for trial,” the latter including an inquiry of whether the defendant was “surprised” by the extraneous offense evidence and/or whether the lack of notice passes legal mustard under Art. 37.07 if it includes the date on which and the county in which the extraneous offense or bad act occurred and the name of the alleged victim of the extraneous offense or bad act. The state’s courts of appeals have held the following notices “substantially complied” with Art. 37.07, § 3(g):


  • McQueen v. State, held that notice which failed to give county of unadjudicated offense substantially complied with § 3(g) because defendant could have reasonably inferred missing information; and
  • Hohn v. State, held that State substantially complied with § 3(g) when it gave range of three months in which extraneous offenses occurred rather than a specific date;

Likewise, the courts of appeal have held in the following cases that the § 3(g) notices did not substantially comply with the statute:

  • Wheeler v. State, held that notice which failed to specify county or state in which the alleged offense occurred and failed to name the victim was inadequate under § 3(g); and
  • James v. State, held that State’s notice was defective under § 3(g) for failure to state any date, where evidence showed a pattern of abuse over a period of decades.


Art. 37.07 can be misleading. The language of the statute strongly suggests that only juvenile adjudications involving a felony or a misdemeanor carrying jail time are admissible at punishment. But the Texas appeals courts have placed a much broader definition on the statute’s language, finding that unadjudicated crimes or bad acts committed by a juvenile are admissible at the punishment phase of an adult criminal trial (here, here, here and here).


In response to the courts of appeals broad interpretation of Art. 37.07 tending to favor the State, Randy T. Leavitt, Travis County Attorney’s Office, in November 2006, presented a legal paper to the Austin Bar Association at its 11th Annual Criminal Law Retreat which suggested that attorneys use Art. 37.07 as a “defense tool.” Pointing out that defense attorneys can use Art. 37.07 to admit “positive character evidence” at the punishment phase, Leavitt listed the following published cases to support his position:


  • Mitchell v. State, the legislature determined that § 3(a) permits the use of any evidence at the punishment phase which is “relevant to sentencing;”
  • Beasley v. State, If the trial court, who decides what evidence is relevant, determines that the defendant’s “character or reputation” is relevant, then it is admissible under the Rules of Evidence (evidence necessary to “assess fair and appropriate punishment);
  • Murphy v. State, held in 1989 that “circumstances such as family background, religious affiliation, education, employment history”, etc. “are appropriate considerations in assessment of punishment.”


But, as Leavitt cautioned, defense attorneys must be aware that if they open the door to positive character or reputation of the defendant, the State can then question the witness about “instances of misconduct that tend to mitigate against the positive image” the attorney is trying to create (here). This caveat notwithstanding, an attorney representing a client with a fairly “clean background” should seriously consider using Art. 37.07 to put the defendant’s best foot forward.  This can only be done when the defense attorney is honest about the always present possibility of a guilty verdict and is prepared with compelling witnesses and arguments for a punishment that reflects justice tempered with mercy.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization