Punishment-Phase Notice of Extraneous Offenses Under Article 37.07

What the State Can Prove at a Texas Punishment Hearing

Once a defendant is found guilty, the sentencing hearing opens the door far wider than the trial did. Article 37.07, section 3(a) lets both sides offer evidence of any matter the court deems relevant to sentencing, and it expressly includes extraneous crimes and bad acts — regardless of whether the defendant was ever charged with or convicted of them.

That breadth is the reason punishment-phase notice matters so much. At guilt, the State usually has to tie an extraneous act to a specific non-character purpose. At punishment, the relevance bar is lower: prior crimes and bad acts come in simply to inform the jury’s decision about the appropriate sentence. In Fields v. State, the Court of Criminal Appeals described the rule plainly — for purposes of assessing punishment, the State may offer evidence of any extraneous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible.

Because the sentencing exposure is so open-ended, the defense needs to know in advance exactly what uncharged conduct the State will parade before the jury — the old bar fight, the dismissed drug case, the unreported assault. Section 3(g) supplies that mechanism. It borrows the timing and manner of Rule 404(b) but adds a punishment-specific content requirement, and it works in tandem with the reasonable-doubt limits discussed below. The result is a disclosure duty tailored to the reality that, at sentencing, a defendant is effectively defending against a lifetime of alleged conduct in a single hearing.

Section 3(a) sweeps in more than extraneous offenses. It reaches the defendant’s prior criminal record, general reputation, character, and the circumstances of the charged offense, and it lets the defense answer with its own mitigation. The extraneous-offense component is simply the most contested slice of that broad field, because it invites the jury to weigh conduct that was never tried. Isolating which items are extraneous crimes or bad acts — as opposed to reputation testimony or record evidence — is the first step in deciding which notice and burden rules govern each part of the State’s sentencing case.

The Beyond-a-Reasonable-Doubt Burden on Extraneous Acts

The statute does not let the jury punish a defendant for uncharged conduct on a whim. Before jurors may consider an extraneous crime or bad act in assessing punishment, they must be satisfied beyond a reasonable doubt that the defendant actually committed it. This burden is the single most important limit on the State’s otherwise broad sentencing evidence.

Fields settled the point: section 3(a) evidence “may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that these prior acts are attributable to the defendant.” The burden is a matter of statute, not constitutional command — the court was careful to note that the reasonable-doubt standard of article 37.07 is neither constitutionally required nor based on a constitutional mandate. That distinction shapes the harm analysis when something goes wrong, but it does not weaken the burden itself. Unadjudicated conduct that the State cannot prove to that level of confidence is not a proper basis for a harsher sentence.

For the defense, the burden is a strategic anchor. It means every un-noticed or thinly supported extraneous act is a target: if the State cannot marshal beyond-a-reasonable-doubt proof, the evidence should not factor into the sentence, and the jury must be told so. That is where the burden connects to the notice question — without advance disclosure of the specific act, the defense cannot investigate, gather contrary evidence, or be ready to argue that the State has not met its heavy burden on a decades-old or poorly documented allegation.

The burden also shapes cross-examination. Because the jury may not weigh an unadjudicated act unless convinced of it beyond a reasonable doubt, defense questioning at sentencing often targets exactly that confidence level — gaps in the investigation, the absence of a conviction, inconsistent accounts, or the passage of time. The goal is not necessarily to disprove the act but to leave the jury unable to say it is sure. Advance notice under section 3(g) is what makes that cross-examination possible, because counsel can run down the details of each alleged act before the witness ever takes the stand.

The Court's Sua Sponte Reasonable-Doubt Instruction

The reasonable-doubt burden is not just an evidentiary rule the lawyers argue about. It is baked into the jury charge. When extraneous-offense evidence is admitted at punishment, the trial court must instruct the jury on the burden on its own initiative, whether or not the defense asks.

In Huizar v. State, the Court of Criminal Appeals held that the section 3(a) requirement — that the jury be satisfied of the defendant’s culpability in the extraneous acts beyond a reasonable doubt — is “law applicable to the case.” Because it is law applicable to the case, the trial court must include a reasonable-doubt instruction in the punishment charge sua sponte, and a defendant does not forfeit the issue by failing to request it. Left out, the charge would let jurors weigh uncharged conduct under some looser standard, contrary to the statute.

Two practical wrinkles follow. First, because the error is statutory charge error rather than constitutional error, Huizar directs that any harm be measured under the Almanza standard — the degree of harm needed for reversal depends on whether the defendant objected. Second, Fields draws a line between the instruction and a definition: the court must instruct on the burden, but it need not sua sponte define “beyond a reasonable doubt” absent a request. A defendant who wants the fuller definition should ask for it. Together, Huizar and Fields give the defense a built-in safeguard at punishment and a reason to scrutinize the charge closely before it goes to the jury.

Counsel should still review the punishment charge line by line rather than rely on the sua sponte duty alone. The instruction must actually track the statute, applying the reasonable-doubt requirement to every extraneous act the jury heard, and a defendant who wants the full reasonable-doubt definition must request it under Fields. Confirming the charge is correct — and requesting the definition where it helps — turns a background statutory protection into a concrete instruction the jurors will read while they deliberate on the sentence.

How the Section 3(g) Notice Requirement Works

Section 3(g) is the punishment-phase counterpart to a Rule 404(b) request. On the defendant’s timely request, the State must give notice of intent to introduce sentencing evidence “in the same manner required by Rule 404(b).” But the statute layers a content requirement on top of that borrowed timing, and the content requirement is where punishment notice becomes more demanding than guilt-phase notice.

For 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, section 3(g) provides 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 and the name of the alleged victim.” A vague reference to “prior bad acts” or a bare list of offense labels does not satisfy the statute for unadjudicated conduct; the State must pin down when, where, and against whom.

The purpose mirrors the guilt-phase rule: to prevent unfair surprise and let the defendant prepare to meet the extraneous-offense evidence — to line up cross-examination, gather rebuttal, and marshal mitigation. As with a 404(b) request, the duty is triggered only by a timely defense request, and an open-file policy is not a substitute for that request. The reasonableness and specificity of the notice, and the harm that follows a deficient one, are taken up in depth on the companion page devoted to that subject.

Practically, a defendant should serve the section 3(g) request alongside the guilt-phase 404(b) request, because the two regimes cover different stages and the punishment request is easy to overlook while preparation focuses on guilt. A single, clearly labeled filing that invokes both Rule 404(b) and article 37.07, section 3(g), and that asks for the date, county, and victim of each unadjudicated act, puts the State on notice of its full disclosure obligation and preserves every downstream objection.

Prior Convictions Versus Unadjudicated Acts

Not everything the State offers at punishment is treated the same. A prior final conviction stands on different footing from an unadjudicated allegation, both for the burden of proof and for what the notice must contain. Getting the category right tells the defense which rules apply.

In Bluitt v. State, the Court of Criminal Appeals held that prior convictions introduced at punishment need not be re-proved beyond a reasonable doubt. The very fact of a final conviction shows the beyond-a-reasonable-doubt burden was already met in a prior proceeding, so requiring the State to prove it again would be an “absurd result.” The court treated a defendant’s criminal record — final convictions, and offenses resulting in probation or deferred adjudication where guilt was established — as a category distinct from unadjudicated extraneous offenses. It follows that the sua sponte reasonable-doubt instruction is a “useless act” when the only prior-conduct evidence consists of such adjudicated matters. The section 3(g) date-county-victim content requirement likewise applies by its terms only to acts that have not resulted in a final conviction, probation, or a suspended sentence.

Same-Transaction Evidence Escapes the Section 3(g) Duty

The final category is the one defendants most often overlook. Evidence that is part of the same transaction as the charged offense is not an “extraneous” crime or bad act at all, so the State owes no section 3(g) notice of it even at the punishment stage. That carve-out can swallow a surprise that looks, at first glance, like a notice violation.

In Worthy v. State, the Court of Criminal Appeals resolved a split among the courts of appeals and held that section 3(g) does not require pretrial notice of same-transaction contextual evidence offered at the punishment stage of a non-capital trial. The court reasoned that section 3(g) requires notice “in the same manner required by Rule 404(b),” and that phrase governs the scope of the evidence as well as the timing. Because same-transaction contextual evidence is intrinsic to the offense and is not an “extraneous crime or bad act,” it is exempt from notice under Rule 404(b) and therefore exempt under section 3(g) too.

The upshot for the defense is a threshold characterization fight. If the State springs damaging conduct at sentencing without prior notice, the first question is whether that conduct is truly separate from the charged offense or is instead woven into it. When it is genuinely intertwined — part of one indivisible episode — Worthy forecloses a notice objection. When it is a distinct act, the section 3(g) machinery, its content requirement, and its remedy for deficient notice all come back into play. Because so much turns on that line, the defense should request section 3(g) notice early and press the State to categorize each item of sentencing evidence it intends to use.

Worthy also clarifies the analytical order. The court does not ask first whether notice was reasonable; it asks first whether the evidence is extraneous at all. Only conduct that qualifies as a separate crime or bad act triggers the section 3(g) machinery, so the defense should be ready to argue both points in the alternative — that the conduct is truly separate and therefore required notice, or, if the court disagrees, that it is so intertwined the State should not be allowed to dwell on it beyond what the charged offense requires.

Where This Fits

This guide is one of four situations that arise under the Motion for Notice of Extraneous Offenses (404(b) / Punishment). Start with the parent motion for the overall framework, or move to a related fact pattern:

What the Case Law Says

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

• Fields v. State, 1 S.W.3d 687 (Tex. Crim. App. 1999) — At punishment, extraneous crimes or bad acts are admissible only if shown beyond a reasonable doubt to be the defendant's.
• Huizar v. State, 12 S.W.3d 479 (Tex. Crim. App. 2000) — When extraneous-offense evidence is admitted at punishment, the trial court must instruct the jury on the reasonable-doubt burden sua sponte.
• Bluitt v. State, 137 S.W.3d 51 (Tex. Crim. App. 2004) — Prior final convictions need not be re-proved beyond a reasonable doubt at punishment; a defendant's criminal record is distinct from unadjudicated extraneous offenses.
• Worthy v. State, 312 S.W.3d 34 (Tex. Crim. App. 2010) — Article 37.07 section 3(g) requires no pretrial notice of same-transaction contextual evidence at punishment, because such evidence is intrinsic, not extraneous.

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