When are Pen Packets Admissible in a Punishment Hearing?

When a person is convicted of a crime and sentenced to jail time in Texas, the Texas Department of Corrections must fill out paperwork regarding the individual’s name, gender, State ID number, cause number, and criminal history along with a written description of the defendant’s crimes, copy of the indictment, and copy of the jail conduct report. These penitentiary packets (pen packets) are generally used to identify defendants at future trials and can help the State provide evidence of the defendant’s criminal history. Pen packets are only admissible in certain cases and must follow the Texas Rules of Evidence. The Eighth District Curt of Appeals dealt with the issue of when pen packets may and may not be used in BILLINGTON v. TEXAS.

In Billington, the defendant was arrested and charged with DWI with felony repetition. Felony repetition in DWI cases means a person has multiple arrests for DWI. The trial court found that the Billington was guilty and sentenced him to thirty-five years in jail. He appealed the sentence, claiming that the trial court erroneously allowed two pen packets into evidence.

Under Texas law, pen packets are only admissible to show a defendant’s criminal history if they are “properly authenticated” under Texas Evidence Rules 901 and 902. A pen packet can be proven by a number of methods, including: 1) testimony of witness with knowledge; nonexpert opinion on handwriting; 3) comparing the packets with prior packets; 4) distinctive characteristics of the packets; 5) identifying the voice of the defendant; 6) evidence of telephone calls between the defendant and others; and finally by a certificate that complies with State law.

In Billington, the State’s fingerprint expert had trouble matching the pen packet fingerprints with the ones taken after Billington’s latest arrest. The State then used previous pen packets from Billington’s past arrests to prove that the current pen packets were, in fact, Billington’s fingerprints. Billington argued that the pen packets should not have been entered into evidence because the State could not match the fingerprints in those pen packets with Billington’s current fingerprints. There are three different ways the State can prove that a defendant in in fact the same person from the pen packets. First, the State may use an admission by the defendant; second, the State may use testimony from a third party who can identify the defendant as the person in question; and third, the State can use a document containing enough proof to prove the defendant’s identity and the fact that the defendant has a criminal history. In Billington, the State had photo evidence that the defendant matched the person in each of the previous pen packets as well as information about the defendant’s date of birth, driving record, and physical description. The state found that all of this evidence compiled together was more than enough to link the defendant to the prior pen packets, therefore the defendant’s argument failed.

As with any other type of case, time is of the essence in criminal law matters. At Guest and Gray Law Firm, are ready to help you, regardless of whether your case is in Dallas, Rockwall, Kaufman, or Tarrant County. Please call us at 972-564-4644 to schedule a consultation with one of our qualified attorneys.