PROVING UP PROBATION ELIGIBILITY

Art. 42.12(4)(A)(e), Texas Code of Criminal Procedure, provides that: “A

defendant is eligible for community supervision under this section only if
before the trial begins the defendant files a written sworn motion with the
judge that the defendant has not previously been convicted of a felony in this
or any other state, and the jury enters in the verdict a finding that the
information in the defendant’s motion is true.”

Under this article, a criminal defendant has a two-fold burden. First, he must
file a “sworn motion,” and, second, he must prove that he has never been
convicted of a felony. The sworn motion and proof are separate, independent
requirements. The mere filing of a sworn motion stating that the defendant
does not have a prior felony conviction is an insufficient showing that the
defendant is eligible for community supervision from a jury. See, Palasota v.
State, 460 S.W.2d 137, 140-41 (Tex.Crim.App. 1970). See also: Beyince v.
State, 954 S.W.2d 878 (Tex.App.-Houston [14th Dist.] 1997 pet. ref’d).

It was not until 2004 that an appeals court decided the degree of a
defendant’s burden of proof. In Ward v. State, 143 S.W.3d 271 (Tex.App.-
Waco 2004) the appeals court held that a jury’s refusal to find the defendant
had no prior felony conviction is subject to a “factual sufficiency review
because it involves a jury determination of an issue of historical fact.” Id., at
274. The appeals court noted that Texas courts have traditionally conducted
factual sufficiency reviews in cases where the jury has to determine a
historical fact, even one made in the punishment phase. Id. See also: Wardip
v. State, 56 S.W.3d 588, 590-91 (Tex.Crim.App. 2001).

Before making a factual sufficiency review, the Ward court dealt with the
preliminary issue of whether a defendant has to prove that he has never been
convicted of a felony “by a preponderance of the evidence, by substantial
evidence, or by some other quantum of evidence…” Id. Turning to
“preponderance of the evidence” standard applicable to an affirmative
defense, the court said this standard should also apply under Art. 42.12(4)(a)
(e). Quoting Zullani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003), the
Ward court then concluded that an appeals court must determine that a jury’s
refusal to find a defendant did not have a prior felony conviction is “’so
against the great weight and preponderance of the evidence as to be clearly
wrong’” in order to require reversal. Id., at 275.
Once again following the direction of the Texas Court of Criminal Appeals
the Ward court said that the appellate “factual sufficiency review” analysis
must “weigh both the evidence supporting the jury’s determination and the
evidence contrary to it.” Id. See also: Zuniga v. State, 2004 WL 840786 at 7,
2004 Tex.Crim.App. LEXIS 668 at 20 (Tex.Crim.App. 2004).

The typical, and potentially most dangerous, way a defendant meets the
preponderance of evidence burden is for him or her to testify at the penalty
phase that he or she has never been convicted of a felony in the State of
Texas or any other State. See, Watson v. State, 717 S.W.2d 765 (Tex.App.-
San Antonio 1986)[defendant’s testimony alone sufficient proof of no prior
conviction]. In State v. Ward, supra, the defense called upon defendant’s
mother to testify that she had no knowledge that her son had ever been
convicted of any crime, and in State v. Hall, 62 S.W.3d 918, 921 (Tex.App.-
Dallas 2001, pet. ref’d) the defense relied upon the defendant’s wife who
testified that she had no knowledge of any prior felony conviction against
her husband. Significantly, however, the appeals court rejected the testimony
of these individuals as insufficient on the issue of no prior felony conviction.
But in Trevino v. State, 577 S.W.2d 242 (Tex.Crim.App. 1979) the court of
criminal appeals said that in a situation where the defendant submitted a
sworn motion but he did not testify, his wife’s testimony, who testified she
had known her husband since he was 10 years of age, was sufficient proof to
require the trial court to submit the question to the jury.

In addition to a “sworn motion” under Art. 42.12(4)(a)(e), a defense attorney

should file a Motion for Discovery of Punishment Evidence requesting the
following information:

1. The names of witnesses or identification of tangible evidence which

the State intends to offer related to any unadjudicated offenses of the
Defendant.
2. Copies of any documents which the State intends to offer
purporting to represent any prior criminal adjudications of defendant.
3. The names and locations of any witnesses that the State intends to
call to testify about the bad reputation and/or character of defendant.
4. The names and locations of any witnesses that might testify.
5. The names and locations of any expert witnesses that the State
intends to call and a summary of the expected nature of their
testimony.
 6. The names and locations of any witnesses that might testify
regarding evidence of defendant's intent to kill, attempt to kill, or
contemplation that life would be taken relative to the instant offense.
7. The names and locations of any witnesses that the State intends to
call to testify about defendant's propensity for violence or that he
poses a continuing threat to society.
8. Any statements, whether oral or written made by or attributed to
defendant, and which the State intends to offer which reflect a desire
or ability to kill another person.
9.Any evidence, whether written or oral, relating to the following:
a. Any efforts or lack of effort of defendant at self-
rehabilitation;
b. Expressions of remorse or lack of remorse by defendant as
related to the instant offense.
10, Defendant alleges that the requested information is within the
possession or control of the State of Texas or its agents. Other than
discovery by these means, defendant has no other means by which to
obtain the information requested, which is necessary for the proper
preparation of the defense of this cause in the punishment hearing.

This information is discoverable under Smith v. State, 721 S.W.2d 844, 851
(Tex. Crim. App. 1986); Reed v. State, 644 S.W.2d 494, 497-99 (Tex.
App.--Corpus Christi 1982, pet. ref'd).

In addition, a defense attorney may want to explore the possibility of

requesting a subpoena duces tecum, or business record affidavit, against the
Custodian of Records for the Texas Department of Public Safety, Crime
Records Service for any criminal history data reported to the DPS and to the
Custodian of Records for and Texas Department of Criminal Justice under
for any information in the “corrections tracking system” relating to any
sentence served by the defendant. No criminal history information in the
DPS and TDCJ “tracking systems” would be relevant on the no prior
conviction issue.

Finally, criminal background searches can be conducted online through the

legal research services offered by LEXIS-NEXiS and Westlaw, and through
commercial online sites, such at Net.Detective, that conduct criminal
background checks.
In the final analysis, a defense attorney would best be served to file his Art.
42.12 “sworn motion,” secure through the discovery any information in the
District Attorney’s files concerning the defendant’s criminal history and
prepare witnesses who can testify categorically that the defendant has not
been convicted of a felony in Texas or any other state.

THE ISSUE

Does a criminal defendant have a right to access to his own criminal history?

ANALYSIS

V.T.C.A., Government Code § 411.083(a) provides that the Texas

Department of Public Safety is the repository for criminal history
information.

Subsection (b)(3) provides that the department shall grant access to criminal
history information to “the person who is the subject of the criminal history
record information.” See, State v. Blesi, Not Reported in S.W.3d, 2000 WL
1782545 (Tex.App.-Dallas).

In Landers v. State, 239 S.W.3d 532 (Tex.App.-Texarkana 2007) held by

implication that an individual’s criminal history is a matter of public record
in the State of Texas.

The Texas Department of Public Safety makes records of adult convictions

and deferred adjudications available to the public on its web site. See: 43B
Tex. Prac., Criminal Practice And Procedure § 48.08 (2d ed.). See also:
http://records.txdps.state.tx.us/

Under § 411.083 the Texas Department of Public Safety makes its criminal
history information available to local District Attorneys.

Vernon's Ann.Texas C.C.P. Art. 60.01 provides the definitions in the state’s
“criminal records system”:
(1) "Administration of criminal justice" means the performance of any of
the following activities: detection, apprehension, detention, pretrial release,
post-trial release, prosecution, adjudication, correctional supervision, or
rehabilitation of an offender. The term includes criminal identification
activities and the collection, storage, and dissemination of criminal history
record information.
(2) "Appeal" means the review of a decision of a lower court by a superior
court other than by collateral attack.
(3) "Computerized criminal history system" means the data base
containing arrest, disposition, and other criminal history maintained by
the Department of Public Safety.
(4) "Corrections tracking system" means the data base maintained by the
Texas Department of Criminal Justice on all offenders under its supervision.
(5) "Council" means the Criminal Justice Policy Council.
(6) "Criminal justice agency" means a federal or state agency that is engaged
in the administration of criminal justice under a statute or executive order
and allocates a substantial part of its annual budget to the administration of
criminal justice.
(7) "Criminal justice information system" means the computerized criminal
history system and the corrections tracking system.
(8) "Disposition" means an action that results in the termination, transfer to
another jurisdiction, or indeterminate suspension of the prosecution of a
criminal charge.
(9) "Incident number" means a unique number assigned to a specific person
during a specific arrest.
(10) "Offender" means any person who is assigned an incident number.
(11) "Offense code" means a numeric code for each offense category.
(12) "Rejected case" means:
(A) a charge that, after the arrest of the offender, the prosecutor declines to
include in an information or present to a grand jury; or
(B) an information or indictment that, after the arrest of the offender, the
prosecutor refuses to prosecute.
(13) "Release" means the termination of jurisdiction over an individual by
the criminal justice system.
(14) "State identification number" means a unique number assigned by
the Department of Public Safety to each person whose name appears in
the criminal justice information system.
(15) "Uniform incident fingerprint card" means a multiple part form
containing a unique incident number with space for information relating to
the charge or charges for which a person is being arrested, the person's
fingerprints, and other information relevant to the arrest.
(16) "Electronic means" means the transmission of data between word
processors, data processors, or similar automated information equipment
transmission.
With respect to proving up a defendant’s probation eligibility under Art.
42.12(4)(a)(e) of the Texas Code of Criminal Procedure, a criminal
defendant’s criminal history is public record. It can be accessed through the
official website of the Texas Department of Public Safety.

Second, the District Attorney’s Office must request, and will receive, from
the Texas Department of Public Safety the criminal history of each
defendant it prosecutes for a criminal offense. This criminal history
information is not only subject to public records disclosure but is
discoverable under the Brady doctrine.

A defendant does not have to take the witness stand at the punishment phase
in her/her trial to either verify the “sworn motion” or to offer proof of a non-
criminal history. The State, through its prosecutorial and law enforcement
agencies, have ample public record/discoverable information about a
defendant’s criminal history.