Motion for Notice of Extraneous Offenses in Texas

What a Motion for Notice of Extraneous Offenses Is

An extraneous offense is any crime, wrong, or other bad act a defendant is alleged to have committed that is not charged in the indictment or information on trial. Texas law lets the State offer that kind of evidence only in limited situations, and a motion for notice of extraneous offenses is the pretrial tool defense counsel uses to learn, before the jury is seated, exactly which other acts the prosecution plans to prove.

The motion rests on three separate authorities that operate at different stages of the case:

Texas Rule of Evidence 404(b)

Governs the guilt-innocence phase. Other-acts evidence is not admissible to show the defendant acted in conformity with bad character, but it may come in for a non-character purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. On timely request, the State must give reasonable notice before trial of the extraneous evidence it intends to offer in its case-in-chief.

Article 37.07, Section 3(g)

Governs the punishment phase. It requires the State, on timely request, to give notice of any extraneous crime or bad act it intends to prove at sentencing, in the same manner as Rule 404(b).

Article 38.37

Governs certain child sex-offense prosecutions. It broadens admissibility of separate offenses and carries its own advance-notice deadline.

A related provision, Texas Rule of Evidence 609(f), requires notice when the State intends to impeach a witness with a prior conviction and the witness requests it. Together these rules give the defense a right to advance warning so it can prepare, object, and, where appropriate, move to exclude.

Why and When Defense Counsel Files It

Rule 404(b) and Article 37.07 do not require the State to volunteer anything. The disclosure duty is conditional: it is triggered only by a timely request from the accused. Filing a written motion is how the defense makes that request part of the record and starts the clock.

Counsel generally files early, often with the first round of pretrial motions, for several reasons:

• Preparation. Knowing the other acts in advance lets the defense investigate them, locate witnesses, and prepare cross-examination rather than reacting mid-trial.
• Preserving error. A request on the record is a prerequisite to complaining on appeal that notice was inadequate.
• Framing objections. Advance notice lets counsel prepare Rule 404(b) relevance objections and Rule 403 balancing arguments, and request a limiting instruction.
• Punishment strategy. Because sentencing evidence in Texas is broad, early notice of unadjudicated bad acts is often more consequential than guilt-phase notice.

The motion is not a broad demand for the State's trial strategy; it asks only for identification of the specific extraneous acts the State intends to prove, which the rules already require it to disclose on request.

What Triggers the State's Reasonable-Notice Duty

The single most important word in Rule 404(b) is request. The Court of Criminal Appeals has repeatedly held that the State's notice duty arises only after the defendant makes a timely request, and that the State's ordinary discovery practices do not substitute for that request-and-response exchange.

In Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), the court held that an open-file policy does not satisfy Rule 404(b). The court explained that the mere presence of an offense report in a file the defense may inspect does not communicate the State's intent to introduce that act in its case-in-chief.

The mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an intent to introduce such evidence in its case in chief.

That principle means a defendant who wants notice must do two things: file a specific request that identifies Rule 404(b) and, for punishment, Article 37.07; and obtain a ruling or at least place the request squarely before the court. A discovery motion that is never presented or ruled on may not qualify as a Rule 404(b) request at all. Once a proper request is on file, the burden shifts to the State to respond with reasonable notice.

Guilt-Phase 404(b) Notice vs. Punishment-Phase Article 37.07 Notice

Although the two notice provisions look alike, they are not identical. Rule 404(b) requires only reasonable notice and does not dictate the contents of that notice. Article 37.07, Section 3(g) is stricter: for an extraneous act that has not resulted in a final conviction, the notice is reasonable only if it states the date and the county of the alleged act and the name of the alleged victim.

Practically, a defendant should request notice under both provisions. A request that mentions only guilt-phase Rule 404(b) may not compel the more detailed punishment-phase disclosure that Article 37.07 requires.

The Special Rule for Child Sex-Offense Cases (Article 38.37)

Article 38.37 changes the ordinary character-conformity rule in prosecutions for certain sexual offenses against children. In those cases, evidence that the defendant committed a separate enumerated offense may be admitted for any bearing it has, including the defendant's character and acts in conformity with that character. That is a significant departure from Rule 404(b)'s general prohibition.

Because the stakes are high, Article 38.37 builds in procedural protections:

• Advance notice. The State must give the defendant notice of its intent to introduce the evidence not later than the 30th day before trial.
• Gatekeeping hearing. The trial judge must hold a hearing outside the jury's presence and determine that the evidence will support a jury finding that the defendant committed the separate offense beyond a reasonable doubt.

A motion for notice in a child sex-offense case therefore does two things at once: it invokes the 30-day Article 38.37 deadline and preserves the defense demand for the required hearing. Counsel often pairs the notice request with a motion in limine and a request for the beyond-a-reasonable-doubt threshold determination, so that no separate-offense evidence reaches the jury without a ruling.

Procedure, Timing, and What Reasonable Notice Must Contain

There is no statewide deadline that fixes exactly when a Rule 404(b) request must be filed or when the State must respond. The rule requires only that notice be reasonable and given in advance of trial, and the Court of Criminal Appeals has treated reasonableness as a fact-specific question reviewed case by case.

In Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001), the court held that Rule 404(b) does not prescribe a formalistic method of notice and does not even require a writing. Delivering witness statements that detail the extraneous offenses can, in the right circumstances, be reasonable notice, because when the State turns over such statements shortly after a request the implicit message is that these are the acts it intends to offer. The court stressed that the purpose of the rule is to prevent surprise.

Good practice for the defense still favors a clear paper trail:

• File the request in writing and calendar it against the trial date.
• Ask the court to set a specific deadline for the State's response.
• If the State's notice is vague, promptly move to compel a more specific notice that identifies each act, its date, and its location.
• Renew the request for the punishment phase under Article 37.07 so the date, county, and victim detail is compelled.

Courts have found notice given only a day or two before trial unreasonable in some settings and adequate in others, which is precisely why counsel should request an early, court-ordered deadline rather than rely on timing arguments after the fact.

Rule 403 Balancing and the Limiting Instruction

Notice is only the first step. Even when the State gives proper notice and the evidence has a non-character purpose, the defense can still contest admission on two fronts.

The Rule 403 balancing test

Under Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991), extraneous-offense evidence that is relevant apart from character is still subject to Rule 403. Once the opponent invokes Rule 403, the trial judge has no discretion about whether to weigh the evidence: the court must balance the probative value against the danger of unfair prejudice, confusion of the issues, and needless delay. Montgomery also holds that a reviewing court disturbs that ruling only for a clear abuse of discretion.

The limiting instruction

When other-acts evidence is admitted for a narrow purpose, the defense may ask the court to tell the jury it can consider the evidence only for that purpose. In Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1998), the Court of Criminal Appeals held that, on a proper request, the limiting instruction must be given when the evidence is admitted, not merely folded into the written charge at the end of trial. Requesting the instruction at the moment of admission, and again in the charge, preserves the point and blunts the prejudice.

Consequence of Inadequate Notice and the Standard of Review

What happens if the State offers an extraneous act it never disclosed after a timely request? The remedy is exclusion. When notice is required and was not given, the trial court should keep the evidence out; admitting it over objection is error.

Two review principles shape how that error is handled on appeal:

Admissibility rulings: abuse of discretion

Whether the notice was reasonable, and whether the evidence was admissible under Rules 404(b) and 403, are reviewed for abuse of discretion. The trial court's ruling stands if it falls within the zone of reasonable disagreement.

Harm: was the defense surprised?

Because the purpose of the notice rule is to prevent surprise, appellate courts assessing harm from a notice violation focus on whether the lack of notice actually hindered the defense, for example by impairing its ability to investigate or cross-examine. If the record shows the defendant was not surprised and mounted a full defense, a notice error may be found harmless.

This is why preserving the record matters so much. Counsel who objects on the specific ground of no notice, shows what the defense would have done differently, and requests a continuance if needed gives the trial court a reason to exclude and gives the appellate court a record from which to gauge harm.

Where This Motion Fits in the Pretrial Sequence

A motion for notice of extraneous offenses is one piece of a coordinated pretrial defense. It is closely related to, but distinct from, several neighboring motions:

• Motion for discovery under Article 39.14 (Michael Morton Act). Seeks broad discovery of the State's evidence, including exculpatory material. Notice of extraneous offenses is narrower and rule-specific.
• Motion in limine. Asks the court to require a bench approach before the State mentions the extraneous act in front of the jury. It pairs naturally with a notice request.
• Motion to suppress. Attacks the legality of how evidence was obtained, a different question from whether an other-act may be used at all.

Counsel typically files the notice request at or near arraignment, tracks the State's response against the trial setting, and revisits it whenever the State amends its witness or exhibit lists. Handled early, the motion turns a conditional statutory right into a concrete disclosure the defense can build around.

The information here is general and educational, not legal advice for any specific case. Anyone facing criminal charges in Texas should consult a licensed attorney about how these rules apply to the facts. L and L Law Group, PLLC, is a Frisco criminal-defense firm; its attorneys can be reached at (972) 370-5060 or info@landllawgroup.com.

Common Situations & Variations

This motion comes up in several recurring situations. Each guide below walks through a specific fact pattern, the governing standard, and how Texas courts have handled it.

What the Case Law Says

These decisions—verified against primary sources—control how this motion is litigated. Every case still turns on its own facts.

• Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) — Extraneous-offense evidence is inadmissible to prove character conformity but admissible if relevant apart from character; once Rule 403 is invoked, the court must balance.
• Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995) — The State's open-file policy does not satisfy Rule 404(b)'s requirement to give notice of intent to introduce extraneous-offense evidence in its case-in-chief.
• Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001) — Rule 404(b) notice need not be written; delivering witness statements detailing extraneous offenses after a timely request may constitute reasonable notice.
• Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1998) — A Rule 404(b) objection demands a relevancy analysis tied to a fact of consequence; a requested limiting instruction must be given when evidence is admitted.

General summaries of published opinions for information only — not predictions about any specific case.