The jury found him guilty! Now what?

Jason Bennyhoff

Assistant District ­Attorney in Fort Bend County

A primer on basic issues relating to punishment evidence and some potential pitfalls for the unwary

Prosecutors tend to define themselves and their trial strategies in terms of guilty verdicts. But oftentimes, the real battle in a criminal trial begins at the punishment stage. This is particularly true in the realm of serious felony offenses, where oftentimes the real bone of contention between the prosecution and defense is the punishment to be assessed rather than the defendant’s guilt or innocence. With that in mind, this article is designed to present a primer on some basic issues relating to punishment evidence, from what items are admissible and inadmissible, to identifying potential pitfalls for the unwary.

What is admissible?
The general rule is that “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing.”1 As with most general rules, however, this general rule is replete with inclusions and exclusions.
    Article 37.07 of the Code of Criminal Procedure specifically enumerates certain items that are admissible at the punishment phase. These include but are not limited to: 1) the defendant’s prior criminal record; 2) reputation and opinion evidence about the defendant’s character; 3) the circumstances of the underlying offense; 4) any extraneous bad acts which the State proves beyond a reasonable doubt to have been committed by the defendant, regardless of whether he was charged or convicted of them; and 5) an adjudication of juvenile delinquency based on a violation of the penal law that was a felony or a misdemeanor punishable by confinement in jail.2

What’s out?
Article 37.07 of the Code of Criminal Procedure also specifically enumerates certain items of evidence that cannot be admitted.
    1)    The State may not offer evidence that the defendant’s race or ethnicity makes it more likely that he will engage in future criminal conduct;
    2)    Neither party may introduce evidence that the defendant intends to undergo an orchiectomy (removal of the testicles); and
    3)     Neither party may introduce evidence of how the parole and good conduct time laws will apply to the defendant.3
    While the statute addressing punishment evidence gives some guidance as to what evidence is admissible and inadmissible at the punishment phase, caselaw has addressed a much wider variety of scenarios. Some of these are addressed below, with an eye towards assisting the practitioner in successfully introducing evidence and avoiding the potential mistakes of allowing inadmissible evidence to permeate his case.    

Prior convictions
As one might imagine, prior convictions are the bread-and-butter for a prosecutor looking to either enhance a defendant’s punishment or obtain the maximum punishment within the statutory range. As such, a great deal of caselaw has been developed addressing that type of evidence.
    “To establish that a defendant has been convicted of a prior offense, the State must prove beyond a reasonable doubt that 1) a prior conviction exists, and 2) the defendant is linked to that conviction.”4 Prosecutors should make certain that they are relying on final convictions, so verify that the prior judgments at issue were not appealed; if they were appealed, confirm that the conviction has nonetheless become final. A conviction that has been appealed becomes final when the mandate issues from the appellate court.5
    Once the prosecutor has established that he does in fact have a final conviction, he must then prove beyond a reasonable doubt that the defendant is the person who was convicted of that offense.6 The courts have held that there is no mandated way to establish such proof,7 which leaves open a wide variety of ways to connect the defendant to the prior conviction beyond the traditional judgment and sentence and pen packet combination, such as: 1) fingerprints,8 2) photographs,9 3) the defendant’s handwriting,10 4) eyewitness testimony of a person who witnessed or was otherwise aware of the prior conviction,11 and 5) certified copies of a defendant’s driving record.12

Unadjudicated extraneous offenses
Although unadjudicated extraneous offenses are admissible by statute, the fact-finder may consider them only when they are proven beyond a reasonable doubt.13 So if punishment is being tried to a jury, the prosecutor should request an instruction—or the trial court should give the jury an instruction sua sponte—that jurors may not consider extraneous offenses until such offenses have been proven to have been committed by the defendant beyond a reasonable doubt.14 But even this general rule has limited exceptions. For example, a trial court may consider extraneous bad acts even where they are not proven beyond a reasonable doubt where they are referenced in a court-ordered pre-sentence investigation report.15
    One might tend to think of extraneous-offense evidence as relating to criminal acts in particular, but the law does not limit the prosecution to admitting only criminal acts as evidence at punishment. For example, the State may introduce evidence that the defendant is a member of a criminal street gang, even though membership in the gang is not in itself illegal, if the State also presents evidence of the gang’s violent and illegal activities.16

Traps for the unwary
The category of legitimate punishment evidence is broad and has relatively few limits in the governing statute. However, some limitations on what the State may introduce are found outside of the statutes, which can be traps for the unwary. For example, while victim impact testimony is generally admissible, victims’ opinions about what punishment is appropriate are not admissible, and these opinions are evidence violative of Texas Rule of Evidence 403.17 Further, the rules of evidence apply at the punishment phase, including the notice requirements as to extraneous bad-act evidence contained in Texas Rule of Evidence 404(b).18 So failure to include such bad acts in your 404(b) responses can keep the jury from hearing it.
    While there are potential pitfalls from the admission of certain evidence by the prosecution at trial, there are also potential pitfalls for the defense from failing to object to the admission of certain evidence. For example, while certain evidence about a victim may be admissible, there are many scenarios in which the defense has attempted to offer unflattering evidence about the victim, which has ultimately been held inadmissible.19 These include evidence of the victim’s homosexuality and evidence of a victim’s status as a registered sex offender; these were held to be inadmissible because they were not relevant to the circumstances of the crime.20 The prosecution would do well to prepare for such potential attacks with a knowledge of what the defense may not inquire about, so as to avoid both unfairly prejudicing the jury against the victim and causing unnecessary pain to the family.

There are several TDCAA resources that may prove helpful to prosecutors in preparation for trying the punishment phase of trial. The first of these is likely already on your desk: TDCAA’s Annotated Criminal Laws of Texas, which contains a wonderful set of annotations regarding punishment evidence following Article 37.07 of the Texas Code of Criminal Procedure. Diane Burch Beckham’s book, Punishment and Probation, also published by TDCAA, is another excellent resource for those seeking more in-depth treatment of this topic in that it includes charts laying out punishment options for various offenses and gives a detailed breakdown of the various potential probation conditions. TDCAA also publishes the Prosecutor Trial Notebook, which contains an extensive and useful section on the punishment phase on just a few laminated pages, filled with information and the requisite citations. (All publications are available for sale at
    The punishment phase is a critical portion of trial and worth the prosecutor’s best efforts. Oftentimes even more than the finding of guilt, a positive result in punishment can deter crime and provide closure for the victims of crime.


1 Tex. Code Crim. Proc. art. 37.07 §3(a)(1).
2 Tex. Code Crim. Proc. art. 37.07 §§3(a)(1), 3(a)(1)(A), 3(a)(1)(B).
3 Tex. Code Crim. Proc. art. 37.07 §3(a)(2), (3)(h), (4)(d).
4 Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
5 Beal v. State, 91 S.W.3d 794, 796 (Tex. Crim. App. 2002).
6 Flowers, 220 S.W.3d at 921; Ex parte Augusta, 639 S.W.2d 481 (Tex. Crim. App. 1982).
7 Flowers, 220 S.W.3d at 922.
8 See Cain v. State, 468 S.W.2d 856 (Tex. Crim. App. 1971).
9 Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1984) (op. on reh’g); Pachecano v. State, 881 S.W.2d 537, 545 (Tex. App.—Fort Worth 1994, no pet.).
10 Orsag v. State, 312 S.W.3d 105, 118-19 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); Pachecano, 881 S.W.2d at 545; see Tex. Code Crim. Proc. art. 38.27.
11 Orsag, 312 S.W.3d at 118; Bautista v. State, 642 S.W.2d 233, 236-37 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d).
12 Flowers, 220 S.W.3d at 924-25.
13 Tex. Code Crim. Proc. art. 37.07 §3(a)(1); Huizar v. State, 12 S.W.3d 479, 481 (Tex. Crim. App. 2000).
14 Huizar, 12 S.W.3d at 484.
15 Smith v. State, 227 S.W.3d 753, 762 (Tex. Crim. App. 2007).
16 Davis v. State, 329 S.W.3d 798, 805 (Tex. Crim. App. 2010).
17 Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003); Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999).
18 Tex. Code Crim. Proc. art. 37.07 §3(g).
19 Hayden v. State, 296 S.W.3d 549, 552-53 (Tex. Crim. App. 2009) (listing scenarios in which “comparative worth” testimony inadmissible).
20 Goff v. State, 931 S.W.2d 537, 553-54 (Tex. Crim. App. 1996) (holding that trial court did not abuse its discretion in refusing to allow cross examination a witness about the victim’s prior conviction for injury to a child and victim’s homosexuality); Hayden, 296 S.W.3d at 553-54 (trial court did not abuse its discretion by excluding evidence of the victim’s status as a registered sex offender because it was not relevant to the defendant’s punishment).