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Date: 01-03-2021
Case Style:
Linda Dooley v. The State of Texas
Case Number: 06-20-00052-CR
Judge: Josh R. Morriss, III
Court: Court of Appeals
Sixth Appellate District of Texas at Texarkana
Plaintiff's Attorney: J. Randle Smolarz
Jerry D. Rochelle
Defendant's Attorney:
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Description:
Texarkana, Texas - Criminal defense attorney represented Linda Dooley with maintaining that her counsel rendered ineffective assistance during the punishment phase of her trial by failing to object to evidence of an extraneous offense.
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
convicted.
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
3
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
1After 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.
4
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
2Additional 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.
5
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
3Dooley 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.
6
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.).
7
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:
5Article 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.).
8
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.
9
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
6See 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.
10
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
7Although 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.
8Since Dooley did not meet the first Strickland prong, it is unnecessary for us to address the second prong.
11
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.
Outcome: We affirm the trial court’s judgment, as modified.
Plaintiff's Experts:
Defendant's Experts:
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