## 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 Assignment2 

### ME MORANDUM OPINION After a jury convicted Linda Dooley of trafficking of per sons, 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 extran eous 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 t o reflect th at Dooley was convicted pursuant to
Se ction 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 ineffectiv e assistance of counsel, bu t (2) the trial
court ’ s judgment must be modi fie d to reflect the correct statute u nder 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 stipu lation with Dooley, the following exh i bits : (1) Miller County, Arkansas , sentencing order related to Dooley ’ s 2002 conviction of felony theft of property, sentenci ng Dooley to seventy

- two month ’ s confinement in prison; (2) a Bowie C ounty misdemeanor community supervision order, placing Doole y on community supervision in 2000 for possession of marihuana; (3) a 2009 order , sentencing Dooley to thirty days confinement in the Bow ie County jail for a misdemeanor conviction; (4) a 2011 judgment of co nviction for forgery, sentencing Dooley to two yea r s ’ confinement in state jail, but suspending her sentence and placing her on community supervision3

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 convicti o n for forgery, ordering Dooley to spend two years ’ confinement in state jail ; (7) a 2015 ord er , sentencing Dooley to twelve days ’ confinement in the Bowie County jail as a resul t of a misdemeanor conviction; (8) a 2016 order , sentencing Dooley to twenty

- e ig h t days ’ confinement in the Bowie County jail for a misdemeanor conviction ; (9) a 2 015 order from Louisiana , sentencing Dooley to fifteen days ’ confinement in jail for p rostitution; and (10) a 2012 Miller County, Arkansas , sentencing order, sentencing Do ole y to ninety

- six months in prison for another felony forgery conviction. Next, Les Munn, a traffic investigator with the Texarkana, Arkansas , Police Depa rtment, testified that he had an encounter with Dooley in 2013 that involved a traffic stop in whic h
D o oley fl ed the scene in a residential area, reaching a speed of sixty

- five miles per hour. The chase culminated in an accident, with Dool ey crashing into a s ports utility vehicle (SUV) and injuring the family inside the SUV

. 1 At that point, Dooley fle d, b ut Munn and other off icers were able to locate her about five to ten minutes la ter and place her under arrest. Dooley was taken to the hospita l. Munn said he believed Dooley was impaired by an intoxicant, either drugs or alcohol. Dooley admitted to hav i ng consumed marihua na before driving. Follo wing 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 t he school property.4

pending wa rrants for her arres t. 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, testif i ed t hat , when he was a child, D ooley 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 w i th X .D. in various ways not rel evant here. The incident ended when an other 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 subseque n tly arr e sted for aggravated s exual 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 $10,0 00.00 fine. This appeal followed. (1) Dooley H

as F ail e d t o Establish Her C laim o f Ineffective Assistance o

f Counsel Dooley maintains that she received ineffective assistance of counsel because h er counsel failed to object to the extraneous

- offen se evidence regarding Dooley ’ s sexual assault of X.D. T o
pr eva i l on a claim of inef fective 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); N a va v . S t ate , 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 Dool ey’s involvement w i t h law enfo rcement, her generally p oor 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 , 41 5 S.W.3 d 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 deficien t perfo r manc e u n der the first prong

. Strickland , 466 U.S. at 694; Nava , 415 S.W.3d
at 308. Failure to estab lish 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 cou nsel ’ s r epre sen t ation in a highly d eferential manner and presume that such representation was within a wide r ange of reasonable assistance. Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “ Any allegation of ineffectiveness must be firmly founde d in th e rec ord , and the record mus t 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 repres e ntat ion was so deficient a nd 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, Dool ey maint a ins tha t h er 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 , e v en if the evidence had been relevant, based on the “ large time

- gap ” between the

3 Dooley maintains that t he extraneous offense occurred almost fifteen years before trial

. Yet, consi d e r i ng tha t the indictment alleged that Dooley trafficked until March 14, 2019, the extra neous off ense and the charged offense occurred not more than eight years apart

.6

extraneous offense 4 and the charged offense, X.D. ’ s testimony was inherently inflammatory and had the potential to unfairly prejud ice her. According to Dooley, her tr i al c oun s el ’ s failure to ob ject to the extraneous

- offense evidence amounted to ineffective assistance. When making an ineffective

- assistance claim for counsel’s fail ure to object, an app ellant must demonstrate that , if trial counsel had objected, the tr i al c our t would have commit ted 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 o verruled the objection that Dooley claims h er counsel should have m a de.
It is well

- settled th at a trial court is affor ded 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 c o urt ’ s d e cision to admit or exclude

e vidence absent a showing that the lower court abused its discretion. If the trial court ’ s decision falls within the zone of reasonable disagreement, th at decision will not be disturbed. Green v.
State , 934 S.W.2d 92, 1 02 ( Tex

. Crim. App. 1996); Montgomer y 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 tria l. T EX
. R. E VID
. 402. “ Relevant evidence ” is evidence having any t ende ncy to make the existe nce of any fact that is of consequence to the determination of the action more or less probabl e tha n it would be without the evidence. T EX
. R. E VID
. 401. Yet, even relevant evidence may be

4 “An extra ne ous of

f e n se is any act of misconduct, whether resulting i n prosecution or no t, which is not shown in the charging instrument and whic h was to have been committed by the accused.” Hernandez v. State , 817 S.W.2d 744, 746 (Tex. App.

— Houston [1st Dist.] 199 4, no pe t

. )

.7

excluded if the probative value of tha t oth erw i se relevant eviden ce is “ substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or need less presentation of cumulative evidence. ” T EX
. R. E VID
. 403. “‘ [U]n f

air pre j udice ’ refe rs 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. C rim. Ap p . 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 t he extraneous

- offense evidence serves to make a fact of consequence m o r e or le s s probable ; (2) t he 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 evidenc e. Beham v. State , 476 S.W.3d 724, 737 (Tex. App.

— Texarkana 2015, no pe t

. ) (quoting Flor es 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, t he Texas Court of Criminal Appeals has offered the following explanation of the m eaning o f Article 37.07 o f the Texas Code of Criminal Procedure 5 and its relevancy parameters with respect to evidence admitted during a punishment tr ial:

5 Article 37.07, Section 3(a)(1) , states, in p art, Regardless of the plea and whether the punishment be asse ssed by the judge or jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to se ntenci ng, inc l u din g but not limited to . . . the circumstances o f the offense fo r wh ich 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 reasonabl e doub t by ev i d enc e to have been committed by the defendant or f

or which he coul d be held criminally responsible, regardless of whether he has previously be en charged with or finally convicted of the crime or act.
T EX
. C ODE C RIM
. P ROC
. A NN . art. 37.07, § 3( a)(1 ) (Supp

. )

.8

Article 37.07, § 3(a ) ( 1) allows fo r admission of any evidence the trial court

“ deems relevant to s en t encing. ” The Legislatur e 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 ext raneous - offense evidence. Because there are n o discrete fact is su e s at th e punishment phas e 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 simp ly that wh i ch will assist t he fact

- finder in deciding the appropria te sentence in a particular case. When the jury assesses punishment, it must be able to tailor the sentence to the particula r defendant, and relevance is simply “ a question of what is help fu l to the jury in determin ing the appropriate sentence for a parti cular defendant in a particular case. ”
Sims v. State , 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (citations omitted). Thu s, a person ’ s history of violating the law is undoubtedly a rele va n t facto r for a jury to c onsider when assessing a sentence becaus e 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. Lu

ja n v. Sta t e , 626 S.W.2d 85 4, 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 on ly in addressing Dooley’s character, but also in that i t

w as an e x ample of a sexua lly related offense committed by Dooley against anot her child, it helped to establish a pattern of sexual criminal conduct , and it informed the punishment decision

. And, a lthou gh the complained

- of evidence occurred around 2011 o r 2 012

— n ot more than ei ght
years befor e the offense f or which Dooley was being tried

— th at offense , along with Dooley ’ s extensive criminal history, which notably included a 2015 conviction for prostitution, demonstrat ed Dooley ’ s complete disregard for the law over a p e r i od 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 emphasize d X.D. ’ s testimon y t o a n y great extent in it s 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 e vidence. 6 And, as the State points out, the jury wa s f re e t o consider the remo teness 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. The refore, we find that the trial court could have prop erl y a d m i tt ed X.D

. ’ s testim ony 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 su bstantially outweighed by any unfair prejudice resul tin g f r o m the admission of the evidence. Because the trial court would not have abuse d its discretion by admitting X.D. ’ s testimony over an ob jection , Dooley ’ s trial counsel did not render ineffective as sistance for failing to object to it.
Moreover , ev en if t h e trial court would have erred in allowing the extraneous

- offense evidence over an objection , Dooley ’ s argument is meritless for anothe r reason . Dooley ’ s complaints directed at h er trial counsel involve decisions that may or may not be grounded in

6 S ee Fowler v. State , 126 S.W.3d 307, 311 (Te x. App.

— Beaumon t 200 4, no pet.). In Fowler , the Beaumont Court of Appeal s explained, Appellant provides no specific authority for his remoteness argument in this context. Even assuming as a gen e ral pr o p ositi on that the probative value of evidence i n so me context conc eivab ly could be diminished by the passage of time, the ar gument is not persuasive here. The evidence showed a pattern of conduct over a ten year period of time. And the Legisla tur e has d e t ermin ed under art. 37.07, section 3 that extraneou s offenses and bad a cts may be introduced for the purpose of assisting the jury in assessing punishment. That statute does not provide a time restriction. Id

.10

tr ia l s t rategy. 7 Clearly, the record does not reflect h er counsel ’ s reason ing for doing or failing to do the things of which Dooley now comp lains. In situations such as this one, the issues would be be tter presented in a post

- conviction application for a w rit of habeas c orpus p u r suant to A rticle
1 1.07 of the Texas Code of Criminal Procedure. See T EX
. C ODE C RIM
. P ROC
. A NN
. 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. Ap p. 1999) ( “ A su bstan t i a l risk of failure a ccompanies an appellant ’ s claim of ineffective assistance of counsel on direct appeal. Rarely will a rev iewing court be provided the opportunity to make its determination o n direct appeal with a record capable of providing a fai r eva l u a t ion 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 Stri ckland prong. 8
We o v e r rule this point of error. (2) The Judgment Must Be Modified t o Reflect t he Correct Statute o f Conviction While the trial court ’ s judgment against Dooley provides a correct shorthand description of th e offense for which he was conv icted, “ Traffick ing C hi l d Engage Conduct/Se x/Benefit , ” the judgment incorrectly listed the statute for the offense as Section 20A.0 2(a ) ( 8) of the Texas Penal Code. See T EX
. P ENAL C ODE A NN
. 20A.02( 8 ) (Supp.) . Our review of t he record shows the

7 Although the record does not prov i de coun s e l’s rea so ning for h is failure to object, counsel co uld have deter mined that an objection (1) would have unnecessarily emphasi zed the extraneous offense to the jury, (2) would have allowed the jury to believe th at Dooley was hiding something, or (3 ) would h ave prom pt ed the production of additional evidence that might hav e been detrimental to Dooley’s defense.

8 Since Dooley did not meet the first Strickland prong, it is unnecessary for us to addre ss the second prong.11

correct off

ense to be set out in s u b s ection (a ) ( 7) of th at secti on . See T EX
. P ENAL C ODE A NN
. § 20A.02 (a ) ( 7) (Supp.) . The State concedes the mista ke. Dooley ’ s suggested modification of the trial court ’ s ju dgment is appropriate

. We have

au thority to modify the jud gment to make the r ec or d speak th e truth when the matter has been called to our attention by any source. T EX
. R. A PP
. P. 43.2; French v. State , 803 S.W.2d 607, 609 (Tex. Crim. App. 1992). Accordi ngly, we modify the judgment to re flect that Dooley was

con victed pursuant to Se ct i o n 20A.02 (a ) ( 7) of the Texas Penal C ode , not S ection 20A.02(a ) ( 8) as previously reflected in the judgment. We affirm the trial court ’ s judgment, as modified.

Josh R. Morriss, III Chief Justi ce Date Submitted: October 12, 2020 Date Deci d ed : October 20 , 2020 Do Not Publish