If you’ve been arrested before but never convicted, you might wonder whether prosecutors can use that history against you in your current case. It’s a valid concern—and one that causes significant stress for people facing new criminal charges.
Here’s what you need to know: just because you were arrested or charged with a crime doesn’t mean that information can automatically be introduced in court. Texas has specific rules governing when and how prior charges can be used, and understanding these rules is critical to protecting your rights.
At Keith & Lorfing, our attorneys know how prosecutors try to leverage your past—and more importantly, how to stop them. If you’re facing charges and worried about your past, reach out to our criminal defense attorneys for guidance.
The Difference Between an Arrest, a Charge, and a Conviction
Many people use these terms interchangeably, but they represent very different legal stages:
An arrest means law enforcement suspected you of committing a crime and took you into custody. An arrest doesn’t prove guilt—it’s simply the beginning of the legal process.
A charge is a formal accusation filed by prosecutors after reviewing the evidence. Not every arrest leads to charges.
A conviction occurs when you plead guilty or are found guilty by a judge or jury. This is the only outcome that creates a permanent criminal record showing guilt.
Grand juries can refuse to indict (called a “no-bill”), prosecutors may dismiss cases due to weak evidence, or charges might be reduced through plea negotiations. Texas courts treat unconvicted charges very differently from actual convictions.
What Do Texas Courts Say About Prior Bad Acts?
Texas Rule of Evidence 404(b)
Texas Rule of Evidence 404(b) establishes a general prohibition: evidence of prior crimes, wrongs, or acts cannot be used simply to show that you’re a bad person or that you have a tendency to commit crimes.
However, there are exceptions. Prior acts may be admitted to prove:
- Motive (why you might have committed the alleged crime)
- Opportunity (you had access or means)
- Intent (you acted purposefully)
- Preparation (you planned the alleged conduct)
- Plan (the act was part of a larger scheme)
- Knowledge (you knew about specific facts)
- Identity (you were the person who committed the act)
- Absence of mistake or accident (the act wasn’t inadvertent)
Consider this hypothetical scenario:
Someone is charged with drug possession with intent to distribute. Prosecutors might try to introduce evidence of a dismissed drug charge from two years ago to argue “knowledge” or “intent.” However, a defense attorney can challenge this by arguing the prior charge is unfairly prejudicial and doesn’t actually prove intent in the current case.
Even if one of these exceptions applies, judges must still weigh whether the evidence’s value outweighs its potential to unfairly prejudice the jury against you.
Texas Rule of Evidence 609 (Impeachment by Prior Conviction)
Rule 609 addresses when prior convictions—not arrests or dismissed charges—can be used to attack your credibility if you choose to testify.
Only actual convictions meeting specific requirements can be used for impeachment:
✓ The conviction must be for a felony or a crime involving moral turpitude, regardless of punishment
✓ Less than 10 years must have passed since conviction or release from confinement
✓ The judge must determine the conviction’s probative value outweighs its prejudicial effect
✓ The evidence must be elicited from the witness or established by public record
Dismissed charges generally cannot be used to show you’re “a bad person” or to suggest you have criminal tendencies.
When Can Prior Charges Be Introduced in Court
During Trial (Limited Circumstances)
At trial, prior charges that didn’t result in conviction face significant admissibility hurdles. Prosecutors must demonstrate a specific, non-character purpose under Rule 404(b), and the judge must conduct a careful balancing test.
Your defense attorney will typically file a motion in limine before trial—a request for the judge to rule that certain evidence (like prior arrests) cannot be mentioned. This prevents the jury from hearing prejudicial information that serves no legitimate purpose.
| Prior Record Type | Admissible at Trial? | Key Consideration |
|---|---|---|
| Prior conviction | Possibly | Must meet Rule 609 requirements |
| Dismissed charge | Rarely | Must fit 404(b) exception AND pass prejudice test |
| Pending charge | Rarely | Presumption of innocence applies |
| Arrest without charge | Almost never | Highly prejudicial with no probative value |
If the judge rules in your favor, prosecutors cannot mention the prior charges to the jury. Violating that order could result in a mistrial.
During Sentencing
Sentencing operates under different rules. Once convicted, judges have much broader discretion to consider your criminal history—including arrests and dismissed charges—when determining punishment within the statutory range.
Bond Hearings
Prior charges often surface during bond hearings. Judges consider your entire criminal history, including dismissed cases and pending charges, when deciding whether to grant bail and setting bail amounts based on flight risk or danger to the community.
What If the Prior Case Was Dismissed
A dismissal means prosecutors dropped the charges—but the arrest record typically remains. Background checks will still show the arrest and the charge, even if the case was dismissed.
Prosecutors often have access to your full criminal history, including dismissed charges. While they face restrictions on introducing this information at trial, they may still use it during plea negotiations, bond hearings, and sentencing arguments.
The good news? Texas law provides two powerful tools to address old charges: expunction and orders of nondisclosure. An experienced Lubbock criminal defense lawyer can evaluate whether you qualify for either remedy.
How Prosecutors Try to Use Prior Charges Strategically
Prosecutors are skilled at leveraging your criminal history, even when charges didn’t result in conviction. Common tactics include:
Establishing a pattern – Suggesting multiple arrests indicate criminal behavior, even without convictions to back it up.
Pressuring plea agreements – Using your history as leverage during negotiations, implying a jury will hold it against you.
Arguing intent or knowledge – Claiming prior similar charges show you knew what you were doing in the current case.
Using charges during bail arguments – Painting you as a repeat offender to justify high bail or no bail.
If you’re concerned that a past charge may resurface in your case, contact our lawyers immediately at 325-480-8100.
How a Texas Criminal Defense Lawyer Can Protect You
When prior charges threaten your current case, an experienced attorney becomes essential. Here’s how we protect your rights at Keith & Lorfing:
File motions to exclude evidence – We proactively ask the court to prohibit prosecutors from mentioning prior arrests or dismissed charges to the jury.
Challenge improper character evidence – If prosecutors try to introduce prior charges, we object under Rule 404(b) and argue the evidence is unfairly prejudicial.
Negotiate from a position of strength – We don’t let prosecutors use your history as leverage during plea discussions.
Pursue expunction where eligible – If you have arrests or charges that qualify, we can petition to have them completely removed from your record.
Attack the relevance – We challenge prosecutors to prove a genuine connection between past conduct and current charges—mere similarity isn’t enough.
Our team has handled over 500 jury trials across West Texas. We know the judges, we understand the local prosecutors’ strategies, and we’ve successfully protected clients from having their past unfairly used against them.
Reach out to our attorneys today to protect your rights.
Should You Seek Expunction or Nondisclosure in Texas
If you have prior arrests or charges on your record, you may be eligible to have them removed or sealed through two distinct legal processes.
Expunction
Expunction is the complete removal of arrest records. When a court grants an expunction, it’s as if the arrest never happened. Law enforcement agencies, prosecutors, and courts must destroy their records.
You may qualify for expunction if:
✓ You were arrested but never charged
✓ Charges were dismissed
✓ You were acquitted at trial
✓ You were convicted but later pardoned
✓ You successfully completed certain pretrial diversion programs
✓ You were convicted of a crime but that conviction was later determined to be based on identity theft
Expunction eligibility has specific waiting periods:
- Class C misdemeanor: 180 days from arrest date
- Class B or A misdemeanor: 1 year from arrest date
- Felonies: Varies by specific offense (generally 3+ years)
The statute of limitations must have expired for ALL offenses arising from your arrest. If you received deferred adjudication, you generally cannot expunge the record unless it was for a Class C misdemeanor.
Orders of Nondisclosure
When expunction isn’t available, you might qualify for an order of nondisclosure under Texas Government Code Chapter 411. This seals the record from public view but doesn’t erase it.
After nondisclosure is granted, employers and landlords cannot access the records through background checks. However, law enforcement and certain licensing agencies can still see sealed records.
You may qualify for nondisclosure if you:
✓ Successfully completed deferred adjudication
✓ Met waiting period requirements (varies from immediate to 5 years depending on offense)
✓ Paid all fines and completed all terms of probation
✓ Haven’t been convicted of disqualifying offenses (family violence, sex offenses requiring registration)
✓ Were not convicted or placed on deferred adjudication for any other offense during or after your supervision
The court must also determine that issuing the order is “in the best interest of justice.”
Important note:
These processes are not automatic. You must petition the court and meet strict legal requirements. An attorney can evaluate your eligibility and handle the petition process.
Protect Your Future With Keith & Lorfing
Your past doesn’t have to define your future—but only if you have the right legal representation.
At Keith & Lorfing, we’ve spent over 75 years combined protecting West Texans from prosecutors who try to use every advantage, fair or unfair. We know how to keep improper evidence out of the courtroom, how to challenge prosecutorial overreach, and how to fight for the best possible outcome in your case.
Prior charges that didn’t lead to conviction shouldn’t haunt you forever. Whether you need an aggressive defense in your current case or help clearing your record through expunction or nondisclosure, our team has the experience and courtroom toughness to get results.
Don’t let prosecutors use your past against you. Call Keith & Lorfing today at 325-480-8100 for a confidential consultation.
We serve clients throughout Abilene, Lubbock, Midland, San Angelo, and all of West Texas.
Frequently Asked Questions About Prior Charges in Texas
Can a dismissed charge be brought up in court in Texas?
Generally no, dismissed charges cannot be introduced at trial unless prosecutors demonstrate a specific non-character purpose under Texas Rule of Evidence 404(b) and the judge determines the evidence’s value outweighs its prejudicial effect. However, dismissed charges may be mentioned during sentencing or bond hearings where different rules apply.
Can prior arrests affect sentencing in Texas?
Yes. After conviction, judges have broad discretion to consider your entire criminal history during sentencing, including prior arrests and dismissed charges. Judges may view them as context when determining punishment within the statutory range for your current conviction.
Does a no-billed case count as a conviction?
No. A no-bill means the grand jury refused to indict you—no formal charges were filed. Without an indictment, there’s no case to prosecute and therefore no possibility of conviction. However, the arrest record remains unless you pursue expunction.
Will prior charges show up on a background check?
Yes, unless you’ve obtained an expunction or order of nondisclosure. Background checks typically show arrests and charges even if they were dismissed. Expunction completely removes the record, while nondisclosure seals it from most private background checks.
Can expunction prevent prior charges from being used?
Yes. Once a record is expunged, it’s as if the arrest never occurred. Law enforcement agencies must destroy their records, and you can legally deny the arrest happened. This prevents prosecutors from accessing or using the information in future cases.
