September-October 2010

What lies beneath

The defendant may look like a model citizen when sitting at defense counsel’s table, but he just may have a rap sheet longer than his arm. Here’s how to properly use a defendant’s criminal history at punishment to cast him in the right light for the jury.

Ben Hoover

Assistant Criminal District Attorney in Wichita County

A defendant’s criminal history is a vital tool in prosecutors’ arsenal. By giving proper notice of our intent to offer a criminal history and using it at punishment, we can help the jury see past a defendant’s clean-shaven, crisp-shirt exterior in the courtroom for what he really is. On the other hand, improper use of such histories, especially with nondisclosures and expunctions, can land prosecutors in hot water with the justice system. Here’s how to use—and when not to use—these valuable tools.

Criminal history at punishment

The authority to use a defendant’s criminal history against him during a trial’s punishment phase is found in art. 37.07, §3 of the Texas Code of Criminal Procedure. The law authorizes either the State or the defense to offer any evidence the court deems relevant to sentencing, including the defendant’s criminal record, his general reputation, his character, the circumstances of the offense, and any other evidence of extraneous crimes or bad acts.1 A prosecutor must give notice of her intent to introduce such evidence only if the defendant makes a timely request for the notice;2 the notice requirement applies only to evidence presented in the State’s case in chief. (Texas courts have suggested that at least 10 days’ notice is reasonable in most cases.3) When extraneous offense evidence is introduced during cross-examination or rebuttal, a defendant is not entitled to notice of the extraneous offenses,4 nor is the State required to give notice of its intent to introduce character or reputation evidence of the accused.5

The notice requirement raises an interesting question: If the defense attorney fails to request notice, should we give it anyway just to be safe? Some may choose to give it out of an abundance of caution to avoid an ineffective assistance claim down the road. Whether a defendant received ineffective assistance of counsel must be assessed with a two-pronged analysis.6 Texas courts have been reluctant to uphold ineffective assistance claims based on the failure to request notice; one held that defense counsel’s failure to request notice was unreasonable because there was no strategic basis for not requesting notice. Even though it was unreasonable, the appellant failed to show that he was so prejudiced that he was deprived of a fair trial.7 Another court held that failure to request notice was not per se ineffective assistance of counsel.8 The court rejected a per se rule because such a rule would allow the defendant to claim ineffective assistance as a matter of right and would give the defense attorney a veto over the prosecution’s use of extraneous offense testimony.9 The one court that did find ineffective assistance, the Waco Court of Appeals, was subsequently reversed.10 It is permissible under art. 37.07 to withhold giving notice until a request is received. However, be aware that the circumstances of a particular case will dictate whether the defendant was prejudiced.

Improper disclosure of criminal records

Despite the fact that a defendant’s history can haunt him when he re-offends, the law prohibits the improper use and dissemination of certain information. The Texas Government Code dictates that a person cannot knowingly or intentionally obtain criminal history record information in an unauthorized manner, use the information for an unauthorized purpose, or disclose the information to someone not entitled to it. A violation is a Class B misdemeanor or a second-degree felony if the disclosure was done for remuneration or the promise thereof.11

So, practically speaking, how does this law affect prosecutors? It means we must be cautious to whom and how we disseminate a defendant’s criminal history. For example, a prosecutor is required to list in detail the prior convictions and extraneous offenses that she intends to prove in a written notice to the defense upon request. This notice is typically filed with the district clerk, which makes it a public record. Even though this practice is legally mandated, it is inadvisable to attach or include a copy of the defendant’s NCIC record along with the notice. If so, a defense attorney could allege that the State committed an offense by giving the public access to not only his client’s criminal record but also to personal identifying information. It would also be inadvisable to disclose this information to any other person without a specific criminal justice purpose. To improperly disseminate this information would not only violate state law but federal law as well. The FBI regulates NCIC information and permits disclosure only to authorized users, such as criminal justice agencies.

Orders of nondisclosure

Another aspect of a person’s criminal history that can be used at punishment is what has been sealed by an order of nondisclosure. Nondisclosure means that a person’s criminal record has been sealed under specifically prescribed circumstances (when a person is placed on deferred adjudication and later receives a discharge and dismissal of the offense) that prohibit a criminal justice agency from disseminating “criminal history record information.”12 A person whose criminal history has been sealed is not required to state in any application for employment, information, or licensing that he was the subject of a criminal proceeding;13 indeed, the general public would have no way of discovering that the person had been placed on deferred adjudication.

While an order of nondisclosure may afford some protection from discovery by members of the public, it does not prevent the use of the information in a subsequent criminal proceeding. For those defendants who fail to learn a lesson the first time around, a prior deferred adjudication can be used against them when they re-offend. This raises another important question: How do we give notice of intent to offer the deferred adjudication without violating the nondisclosure order?

First, the Government Code provides a general exception as long as the criminal record is used for a “criminal justice purpose.”14 This provision should protect prosecutors who file notice with the clerk and serve it upon the defense. However, if you are still concerned about violating the nondisclosure order, you can file the notice with the clerk’s office and have the notice or the entire file sealed. If you would rather avoid a claim that you violated the nondisclosure order altogether, you could put the notice on the record in open court during a pre-trial hearing. Doing so would accomplish the same thing without putting it in writing or on file with the clerk’s office. The code says that orders of nondisclosure do not apply to court records of public judicial proceedings.15


Expunctions are another tool used to prevent the dissemination of criminal record information. A person can have his arrest record expunged in various circumstances, including when he is acquitted or pardoned, when an indictment is not presented, or if an indictment is later dismissed.16 Its ultimate purpose is to allow a person a clean slate in the event of an unlawful arrest. When an expunction is granted, it places a duty upon law enforcement agencies to comply with the order by destroying all files, records, and indices arising from the arrest. Destruction may be accomplished by obliterating the file, returning the records to the court, or redacting any identifying information.17

Texas law makes it a Class B misdemeanor to violate an expunction order by knowingly releasing, disseminating, or otherwise using expunged records or files.18 It is also an offense to knowingly fail to return or obliterate identifying portions of an expunged record or file.19 The law places an affirmative duty upon the state agent who receives this information to either send it back or destroy it.


We prosecutors cherish those opportunities to confront the defendant with a criminal record so voluminous it requires its own file folder. In doing so, though, it is important to ensure that our verdicts are secure by avoiding simple procedural errors. We must also be aware of the criminal and civil penalties for misusing criminal record information. It is crucial that we not become targets for accusations from defense attorneys and stay above reproach—all while exposing the defendant’s criminal background for the jury to plainly see.


1 Tex. Code Crim. Proc. art. 37.07, §3(a)(1).
2 Tex. Code Crim. Proc. art. 37.07, §3(g).
3 See Fairrow v. State, 112 S.W.3d 288, 295 (Tex. App.—Dallas 2003, no pet.).
4 See Jaubert v. State, 74 S.W.3d 1 (Tex. Crim. App. 2002).
5 See Hardaway v. State, 939 S.W.2d 224 (Tex. App.—Amarillo 1997, no pet.).
6 See Loredo v. State, 157 S.W.3d 26, 29 (Tex. App.—Waco 2004, no pet.).
7 See Loredo at 30.
8 See Rodriguez v. State, 981 S.W.2d 357, 359 (Tex. App.—San Antonio 1998, no pet.).
9 Id.
10 See Jaubert at 4.
11 Tex. Govt. Code §411.085.
12 Tex. Gov’t Code §411.081.
13 Tex. Gov’t Code §411.081(g-2).
14 Tex. Gov’t Code §411.081(d).
15 Tex. Gov’t Code §411.081(a)(4).
16 Tex. Code Crim. Proc. art. 55.01.
17 Tex. Code Crim. Proc. art. 55.02 §5(a)(1).
18 Tex. Code Crim. Proc. art. 55.04 §1.
19 Tex. Code Crim. Proc. art. 55.04 §2.