Linda Dooley v. State

• Court: Court of Appeals of Texas
• Decided: October 20, 2020
• Docket: 06-20-00052-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-20-00052-CR

LINDA DOOLEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 19F1340-202

Before Morriss, C.J., Stevens and Carter,* JJ. Memorandum Opinion by Chief Justice Morriss

____________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment MEMORANDUM OPINION After a jury convicted Linda Dooley of trafficking of persons, she was sentenced to life in

prison and ordered to pay a $10,000.00 fine. Dooley appeals, maintaining that her counsel

rendered ineffective assistance during the punishment phase of her trial by failing to object to

evidence of an extraneous offense. Dooley also argues, and the State concedes, that the trial

court’s judgment should be modified to correctly reflect the statute under which Dooley was

convicted.

We modify the trial court’s judgment to reflect that Dooley was convicted pursuant to

Section 20A.02(a)(7) of the Texas Penal Code and affirm the judgment, as modified, because

(1) Dooley has failed to establish her claim of ineffective assistance of counsel, but (2) the trial

court’s judgment must be modified to reflect the correct statute under which Dooley was

After the guilt/innocence portion of Dooley’s trial had concluded with her conviction, the

trial moved into the punishment phase. Initially, the State introduced, by virtue of a stipulation

with Dooley, the following exhibits: (1) Miller County, Arkansas, sentencing order related to

Dooley’s 2002 conviction of felony theft of property, sentencing Dooley to seventy-two month’s

confinement in prison; (2) a Bowie County misdemeanor community supervision order, placing

Dooley on community supervision in 2000 for possession of marihuana; (3) a 2009 order,

sentencing Dooley to thirty days confinement in the Bowie County jail for a misdemeanor

conviction; (4) a 2011 judgment of conviction for forgery, sentencing Dooley to two years’

confinement in state jail, but suspending her sentence and placing her on community supervision

2 for five years; (5) a 2011 judgment revoking her community supervision and placing Dooley in

state jail for two years; (6) another 2011 judgment of conviction for forgery, ordering Dooley to

spend two years’ confinement in state jail; (7) a 2015 order, sentencing Dooley to twelve days’

confinement in the Bowie County jail as a result of a misdemeanor conviction; (8) a 2016 order,

sentencing Dooley to twenty-eight days’ confinement in the Bowie County jail for a

misdemeanor conviction; (9) a 2015 order from Louisiana, sentencing Dooley to fifteen days’

confinement in jail for prostitution; and (10) a 2012 Miller County, Arkansas, sentencing order,

sentencing Dooley to ninety-six months in prison for another felony forgery conviction.

Next, Les Munn, a traffic investigator with the Texarkana, Arkansas, Police Department,

testified that he had an encounter with Dooley in 2013 that involved a traffic stop in which

Dooley fled the scene in a residential area, reaching a speed of sixty-five miles per hour. The

chase culminated in an accident, with Dooley crashing into a sports utility vehicle (SUV) and

injuring the family inside the SUV.1 At that point, Dooley fled, but Munn and other officers

were able to locate her about five to ten minutes later and place her under arrest. Dooley was

taken to the hospital. Munn said he believed Dooley was impaired by an intoxicant, either drugs

or alcohol. Dooley admitted to having consumed marihuana before driving. Following Dooley’s

arrest for driving while intoxicated, leaving the scene of an injury accident, fleeing, reckless

driving, and refusing to submit to chemical testing, Munn discovered that Dooley also had

1 After hitting the SUV and flipping it over, Dooley’s vehicle spun out of control and ran into a day school, which resulted in damage to the school property. 3 pending warrants for her arrest. In addition, Munn testified that Dooley had been convicted of

theft of a vehicle, for which she was sentenced to six years’ confinement in prison.2

Finally, X.D., who was twenty-four years old at the time of trial, testified that, when he

was a child, Dooley lived in an apartment downstairs from his family’s apartment. X.D. testified

that, when he was about ten or eleven years of age, he was in Dooley’s apartment watching

television when Dooley engaged in sexual contact with X.D. in various ways not relevant here.

The incident ended when another child caught Dooley, “and then [Dooley] just jumped up and

went in the kitchen.” Dooley told X.D. not to tell anyone what she had done to him. X.D. said

that Dooley was subsequently arrested for aggravated sexual assault of a child but that she was

never actually prosecuted.

After its deliberations, the jury assessed Dooley’s punishment as confinement in prison

for life and a $10,000.00 fine. This appeal followed.

(1) Dooley Has Failed to Establish Her Claim of Ineffective Assistance of Counsel

Dooley maintains that she received ineffective assistance of counsel because her counsel

failed to object to the extraneous-offense evidence regarding Dooley’s sexual assault of X.D. To

prevail on a claim of ineffective assistance of counsel, an appellant must establish by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by

the appellant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d

289, 307 (Tex. Crim. App. 2013). The first Strickland prong requires a demonstration that trial

counsel’s performance failed to meet an objective standard of reasonableness under prevailing

2 Additional officers testified to Dooley’s involvement with law enforcement, her generally poor reputation in the community of law enforcement, and her involvement in prostitution and other criminal activity. 4 professional norms. Strickland, 466 U.S. at 687–88; Nava, 415 S.W.3d at 307. The second,

prejudice, prong requires a showing of a reasonable probability—one sufficient to undermine

confidence in the outcome—that the result of the proceeding would have been different but for

the deficient performance under the first prong. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d

at 308. Failure to establish either prong defeats the claim. Strickland, 466 U.S. at 700; Perez v.

State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

We review trial counsel’s representation in a highly deferential manner and presume that

such representation was within a wide range of reasonable assistance. Tong v. State, 25 S.W.3d

707, 712 (Tex. Crim. App. 2000). “Any allegation of ineffectiveness must be firmly founded in

the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thomas

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “Under normal circumstances, the record

on direct appeal will not be sufficient to show that counsel’s representation was so deficient and

so lacking in tactical or strategic decision making as to overcome the presumption that counsel’s

conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App.

2002).

Specifically, Dooley maintains that her trial counsel was ineffective for failing to object

under Rule 403 to the admission of X.D.’s testimony regarding Dooley’s sexual assault of X.D.,

which occurred, according to Dooley, fifteen years before the time of trial.3 Dooley contends

that, even if the evidence had been relevant, based on the “large time-gap” between the

3 Dooley maintains that the extraneous offense occurred almost fifteen years before trial. Yet, considering that the indictment alleged that Dooley trafficked until March 14, 2019, the extraneous offense and the charged offense occurred not more than eight years apart. 5 extraneous offense4 and the charged offense, X.D.’s testimony was inherently inflammatory and

had the potential to unfairly prejudice her. According to Dooley, her trial counsel’s failure to

object to the extraneous-offense evidence amounted to ineffective assistance.

When making an ineffective-assistance claim for counsel’s failure to object, an appellant

must demonstrate that, if trial counsel had objected, the trial court would have committed error in

refusing to sustain the objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

In this case, the trial court could have properly overruled the objection that Dooley claims her

counsel should have made.

It is well-settled that a trial court is afforded a wide range of discretion within which to

admit or exclude evidence. Wilder v. State, 111 S.W.3d 249, 255 (Tex. App.—Texarkana 2003,

pet. ref’d). As a reviewing court, we will not reverse a trial court’s decision to admit or exclude

evidence absent a showing that the lower court abused its discretion. If the trial court’s decision

falls within the zone of reasonable disagreement, that decision will not be disturbed. Green v.

State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996); Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990) (op. on reh’g).

The Texas Rules of Evidence favor the admission of all relevant evidence at trial. TEX.

R. EVID. 402. “Relevant evidence” is evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more or less probable than it

would be without the evidence. TEX. R. EVID. 401. Yet, even relevant evidence may be

4 “An extraneous offense is any act of misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which was to have been committed by the accused.” Hernandez v. State, 817 S.W.2d 744, 746 (Tex. App.—Houston [1st Dist.] 1994, no pet.). 6 excluded if the probative value of that otherwise relevant evidence is “substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID.

403. “‘[U]nfair prejudice’ refers to ‘an undue tendency to suggest decision on an improper basis,

commonly, though not necessarily, an emotional one.’” Erazo v. State, 144 S.W.3d 487, 501–02

(Tex. Crim. App. 2004) (quoting Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999)).

During the punishment phase,

“[a] rule 403 balancing test includes, but is not limited to, four factors: (1) the probative value of the evidence, or how compelling the extraneous-offense evidence serves to make a fact of consequence more or less probable; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.

Beham v. State, 476 S.W.3d 724, 737 (Tex. App.—Texarkana 2015, no pet.) (quoting Flores v.

State, 440 S.W.3d 180, 199–200 (Tex. App.—Houston [14th Dist.] 2013), vacated on other

grounds, 427 S.W.3d 399 (Tex. Crim. App. 2014)).

Further, the Texas Court of Criminal Appeals has offered the following explanation of

the meaning of Article 37.07 of the Texas Code of Criminal Procedure5 and its relevancy

parameters with respect to evidence admitted during a punishment trial:

5 Article 37.07, Section 3(a)(1), states, in part,

Regardless of the plea and whether the punishment be assessed by the judge or jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . the circumstances of the offense for which he is being tried, and notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Supp.). 7 Article 37.07, § 3(a)(1) allows for admission of any evidence the trial court “deems relevant to sentencing.” The Legislature has expressly provided that “relevant” punishment evidence includes, but is not limited to, both character evidence in the form of opinion testimony as well as extraneous-offense evidence. Because there are no discrete fact issues at the punishment phase of a non-capital trial, we have ruled that the definition of “relevant,” as stated in Rule 401 of the Texas Rules of Evidence, does not readily apply to Article 37.07. What is “relevant” to the punishment determination is simply that which will assist the fact-finder in deciding the appropriate sentence in a particular case. When the jury assesses punishment, it must be able to tailor the sentence to the particular defendant, and relevance is simply “a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.”

Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (citations omitted). Thus, a person’s

history of violating the law is undoubtedly a relevant factor for a jury to consider when assessing

a sentence because it relates to the defendant’s character. Fowler v. State, 126 S.W.3d 307, 310

(Tex. App.—Beaumont 2004, no pet.). Juries should also be able to consider a person’s criminal

history. Lujan v. State, 626 S.W.2d 854, 864 (Tex. App.—San Antonio 1981, pet. ref’d).

Here, the evidence regarding X.D., who was a child at the time Dooley allegedly

sexually assaulted him, was relevant, not only in addressing Dooley’s character, but also in that it

was an example of a sexually related offense committed by Dooley against another child, it

helped to establish a pattern of sexual criminal conduct, and it informed the punishment decision.

And, although the complained-of evidence occurred around 2011 or 2012—not more than eight

years before the offense for which Dooley was being tried—that offense, along with Dooley’s

extensive criminal history, which notably included a 2015 conviction for prostitution,

demonstrated Dooley’s complete disregard for the law over a period of many years, as well as

her ongoing propensity to use children for her own advantage, both sexually and financially.

8 Moreover, the State neither spent an inordinate amount of time presenting X.D. as its witness nor

emphasized X.D.’s testimony to any great extent in its closing argument. X.D.’s testimony may

have encouraged the jury to increase Dooley’s punishment, but that is merely a legitimate

purpose for the State’s presentation of the evidence.6 And, as the State points out, the jury was

free to consider the remoteness in time between the extraneous offense and the charged offense

when weighing the significance of each piece of the State’s evidence relating to Dooley’s

punishment.

Therefore, we find that the trial court could have properly admitted X.D.’s testimony

over an objection during the punishment phase of Dooley’s trial. The trial court could have

concluded that the probative value of the extraneous-offense evidence was not substantially

outweighed by any unfair prejudice resulting from the admission of the evidence. Because the

trial court would not have abused its discretion by admitting X.D.’s testimony over an objection,

Dooley’s trial counsel did not render ineffective assistance for failing to object to it.

Moreover, even if the trial court would have erred in allowing the extraneous-offense

evidence over an objection, Dooley’s argument is meritless for another reason. Dooley’s

complaints directed at her trial counsel involve decisions that may or may not be grounded in

6 See Fowler v. State, 126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.). In Fowler, the Beaumont Court of Appeals explained,

Appellant provides no specific authority for his remoteness argument in this context. Even assuming as a general proposition that the probative value of evidence in some context conceivably could be diminished by the passage of time, the argument is not persuasive here. The evidence showed a pattern of conduct over a ten year period of time. And the Legislature has determined under art. 37.07, section 3 that extraneous offenses and bad acts may be introduced for the purpose of assisting the jury in assessing punishment. That statute does not provide a time restriction.

Id. 9 trial strategy.7 Clearly, the record does not reflect her counsel’s reasoning for doing or failing to

do the things of which Dooley now complains. In situations such as this one, the issues would be

better presented in a post-conviction application for a writ of habeas corpus pursuant to Article

11.07 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07; Ex

parte Torres, 943 S.W.2d 469, 475–76 (Tex. Crim. App. 1997); see also Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (“A substantial risk of failure accompanies an

appellant’s claim of ineffective assistance of counsel on direct appeal. Rarely will a reviewing

court be provided the opportunity to make its determination on direct appeal with a record

capable of providing a fair evaluation of the merits of the claim . . . .”). Because counsel’s

failure to raise an objection was not shown to be deficient and could have been part of a rational

trial strategy, Dooley failed to meet the requirements of the first Strickland prong.8

We overrule this point of error.

(2) The Judgment Must Be Modified to Reflect the Correct Statute of Conviction

While the trial court’s judgment against Dooley provides a correct shorthand description

of the offense for which he was convicted, “Trafficking Child Engage Conduct/Sex/Benefit,” the

judgment incorrectly listed the statute for the offense as Section 20A.02(a)(8) of the Texas Penal

Code. See TEX. PENAL CODE ANN. 20A.02(8) (Supp.). Our review of the record shows the

7 Although the record does not provide counsel’s reasoning for his failure to object, counsel could have determined that an objection (1) would have unnecessarily emphasized the extraneous offense to the jury, (2) would have allowed the jury to believe that Dooley was hiding something, or (3) would have prompted the production of additional evidence that might have been detrimental to Dooley’s defense.

8 Since Dooley did not meet the first Strickland prong, it is unnecessary for us to address the second prong. 10 correct offense to be set out in subsection (a)(7) of that section. See TEX. PENAL CODE ANN.

§ 20A.02(a)(7) (Supp.). The State concedes the mistake.

Dooley’s suggested modification of the trial court’s judgment is appropriate. We have

authority to modify the judgment to make the record speak the truth when the matter has been

called to our attention by any source. TEX. R. APP. P. 43.2; French v. State, 803 S.W.2d 607, 609

(Tex. Crim. App. 1992). Accordingly, we modify the judgment to reflect that Dooley was

convicted pursuant to Section 20A.02(a)(7) of the Texas Penal Code, not Section 20A.02(a)(8) as

previously reflected in the judgment.

We affirm the trial court’s judgment, as modified.

Josh R. Morriss, III Chief Justice

Date Submitted: October 12, 2020 Date Decided: October 20, 2020

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