                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00212-CR


TOMMY GEORGE DOOLEY                                             APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE

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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR13341

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                                 OPINION

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      In a single issue, Appellant Tommy George Dooley appeals his conviction

for capital murder. Tex. Penal Code Ann. § 19.03(a)(2) (West Supp. 2017). We

affirm.
                                    Background

      Appellant shot and killed his wife, LaVera, on February 12, 2015. He shot

her six times while she was sitting in her SUV in their driveway and on the phone

with 911. LaVera died while she was still on the phone with 911.

      In an interview that evening with Investigator Robert Young, Appellant

explained the tumultuous relationship he and LaVera shared. They had been

married just over three years. During that time, they had worked together in an

insurance business that LaVera owned, but had been struggling financially and

often argued over money. The couple had discussed divorce as a possibility,

and according to Appellant, he had been in the process of moving out of their

home at the time of the shooting.

      Appellant described LaVera, who was his fourth wife, as verbally and

emotionally abusive toward him, claiming that LaVera would “get in [his] f***ing

face” all the time when they argued, which was often, “beat down” on him, and

according to Appellant, “[s]he just wouldn’t f***ing leave [him] alone.” Appellant

told Young that he could not take it anymore.

      LaVera had called 911 on one prior occasion, and when they began to

argue again earlier in the evening of LaVera’s death, Appellant said that LaVera

went outside and threatened to call 911 again. Appellant told Young, “I asked

her to get out of the g**d*** car, she wouldn’t get out of the g**d*** car, I went

into the house, I got the gun, I went back and I shot her. I guess I shot her six

times because the gun was empty.”


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      Appellant made multiple statements along these lines. At one point he

said he told LaVera, “Open the window, let’s talk,” but LaVera replied, “I’m talking

to 911,” and then he shot her. At another point, he explained that he said, “Come

here, let’s talk,” and she said, “I’ve got 911, I’m calling the police on you again,”

and Appellant thought, “Well, this is it, I’m f***ed.” Yet another time he explained,

“[S]he [went] and got in her g**d*** Mercedes and [said] ‘I’m calling 911.’ When

you push somebody so much, then—well” and, “she just decided that she was

going to go out and call the g**d*** police on me again.” Appellant said that after

he shot her initially, LaVera screamed to the 911 operator, “He shot me! He shot

me!” so he shot her again. At another point, he told Investigator Young that he

shot her “because she [was] f***ing mean.”

      Appellant also explained to Young that he was concerned she would report

him for domestic abuse.         Although he strenuously denied ever hitting or

otherwise physically abusing LaVera, he was worried that domestic abuse

charges could place his license to sell insurance at risk.

      Appellant was charged with capital murder for killing LaVera in retaliation

for or to obstruct her from calling 911 and reporting him to the police. See id.

(providing elements of capital murder), § 36.06 (West 2016) (providing that a

person commits an offense if he harms another by an unlawful act in retaliation

for or to prevent their reporting of a crime).

      At trial, Appellant only contested whether he shot LaVera in retaliation or

obstruction of her call to 911. To support his defensive theory, Appellant offered


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the testimony of Dr. Brian Falls, a forensic psychiatrist who met with Appellant

once about a year after the murder. The State challenged the admissibility of

Dr. Falls’s testimony, and at a pretrial hearing, Dr. Falls explained his opinion.

      Dr. Falls testified that, after meeting with Appellant for approximately five

hours, he diagnosed Appellant with severe alcohol use disorder, general

personality disorder, and a depressive disorder.          Dr. Falls also testified that

based on his review of a dozen or perhaps “a few dozen” peer-reviewed journals

and literature from the Food and Drug Administration, Appellant’s use of the drug

Chantix, a smoking-cessation aid, was “one of several contributing factors” that

caused Appellant to kill his wife.        According to Dr. Falls, medical literature

reported that Chantix had the ability to make some people act “aggressive[ly],”

“impulsively, irrationally, and . . . very quickly, oftentimes.”

      Dr. Falls opined that Appellant’s use of Chantix,1 his heavy consumption of

alcohol (contrary to the warning to avoid alcohol use on Chantix’s packaging), his

personality traits (including narcissism), and his psychopathic traits (including

impulsivity) combined to cause him to abruptly kill his wife. In Dr. Falls’s view,

the spontaneous nature of the murder and because, a year after the fact,

Appellant could not explain to Dr. Falls why he murdered LaVera, Appellant’s

actions were illogical and irrational. And, because of the illogical and irrational

      1
       Falls admitted that Appellant had stopped taking Chantix four or five days
before the murder, but testified that the FDA has acknowledged that people can
have issues with aggression or violence even after they have stopped taking
Chantix.


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nature of the murder, Dr. Falls opined that Appellant did not murder LaVera in

retaliation for her calling 911.

      At the conclusion of the hearing, the trial court found that while Dr. Falls

was qualified to testify as an expert, his expert opinion was inadmissible because

it was not relevant to the jury’s determination of guilt.

      The jury found Appellant guilty of capital murder.        Because the State

elected not to seek the death penalty, Appellant was automatically sentenced to

life in prison without parole. See id. § 12.31(a)(2) (West Supp. 2017).

                                     Discussion

      On appeal, Appellant argues that the trial court erred by excluding

Dr. Falls’s testimony regarding the effects of Chantix because, in his estimation, it

goes directly to Appellant’s mental state and whether he killed LaVera in

retaliation for or to prevent her from calling 911.

I. Standard of review and applicable law

      We review the trial court’s decision to exclude expert testimony for an

abuse of discretion and will not disturb the decision so long as it is “within the

zone of reasonable disagreement.” Kelly v. State, 824 S.W.2d 568, 574 (Tex.

1992).

      Rule 702 allows for the admission of testimony by an expert witness so

long as (1) the witness qualifies as an expert by reason of his knowledge, skill,

experience, training, or education; (2) the subject matter of the testimony is an

appropriate one for expert testimony; and (3) admitting the expert testimony will


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actually assist the factfinder in deciding the case. Tex. R. Evid. 702; Alvarado v.

State, 912 S.W.2d 199, 215–16 (Tex. Crim. App. 1995). As the sponsoring party,

Appellant was required to demonstrate, by clear and convincing evidence, that

Dr. Falls’s testimony was (1) based on a reliable foundation and (2) relevant to

the issues in this case. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011) (citing Hartman v. State, 946 S.W.2d 60, 62 n.4 (Tex. Crim. App. 1997);

Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)); see also Kelly,

824 S.W.2d at 573 (establishing the burden of proof as clear and convincing

evidence rather than simply preponderance of the evidence before scientific

evidence may be admitted under rule 702).

      To be relevant, an expert’s opinion must not only assist the trier of fact in

understanding the evidence or determining a fact in issue, but also be sufficiently

tied to the facts of the case. See Tex. R. Evid. 702; Jordan, 928 S.W.2d at 555.

In other words, as the expert, Dr. Falls was required to “make an effort to tie

pertinent facts of the case to the scientific principles which are the subject of his

testimony.” Tillman, 354 S.W.3d at 438 (quoting Jordan, 928 S.W.2d at 555).

      With regard to expert testimony involving mens rea, the court of criminal

appeals has generally disapproved of opinion testimony to another person’s state

of mind. In Winegarner v. State, the court acknowledged that while a witness

may testify to his own intention or state of mind, a witness’s testimony to another

person’s state of mind is “necessarily based on conjecture” because “one person

cannot possibly know another’s state of mind.” 505 S.W.2d 303, 305 (Tex. Crim.


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App. 1974), overruled on other grounds by White v. State, 576 S.W.2d 843, 845

(Tex. Crim. App. 1979); see also Jackson v. State, 548 S.W.2d 685, 692–93

(Tex. Crim. App. 1977) (relying upon Winegarner in holding it was not proper for

psychiatrist to testify to defendant’s state of mind at time of voluntary

manslaughter). However, expert testimony to a defendant’s intent or state of

mind has been held admissible in some limited circumstances, including:

(1) cases involving the defense of insanity, see Ruffin v. State, 270 S.W.3d 586,

593 (Tex. Crim. App. 2008) (“Insanity is the only ‘diminished responsibility’ or

‘diminished capacity’ defense to criminal responsibility in Texas.”); (2) cases

involving the defense of self-defense in a domestic violence situation, Tex. Code

Crim. Proc. Ann. art. 38.36(b) (West 2005); or (3) cases where such testimony

may be relevant to rebut or disprove the defendant’s culpable mens rea, Ruffin,

270 S.W.3d at 593; Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App.

2005). Appellant argues that Dr. Falls’s testimony is admissible because it was

relevant to rebut or disprove Appellant’s mens rea.

      In 2005, the court of criminal appeals differentiated between evidence that

tended to negate the requisite mens rea for a crime and evidence that simply

presented an excuse for the crime. Jackson, 160 S.W.3d at 572. In Jackson,

the defendant claimed that he had killed his brother because he was paranoid

that his brother was out to get him. Id. He sought to present a defense of

diminished capacity and presented evidence of his mental illnesses through his

own testimony and that of a psychiatrist expert witness. Id.


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      The court, in reiterating that Texas does not recognize a diminished-

capacity defense, held that evidence of the defendant’s mental illness was

inadmissible because it did not tend to negate the requisite mens rea. Id. The

court explained that any evidence of defendant’s mental illness did not serve to

negate the applicable mens rea, but instead presented an excuse for the crime—

“that Appellant killed his brother because he was so paranoid that he thought his

brother was out to get him.” Id. The expert testimony, the court explained,

actually made the defendant’s mens rea—the intent to seriously injure or kill his

brother—more clear, not less so.       Under the facts of that case, the expert

testimony regarding the defendant’s mental illness simply provided a motive for

his intentional act. Id.

      Three years later, however, in a case involving a mental illness in a

different context, the court of criminal appeals rejected a blanket ban against the

admission of expert testimony offered to rebut a defendant’s mens rea, holding

that expert testimony could be relevant and aid the jury in determining whether

the defendant possessed the requisite mens rea under the facts of that case.

Ruffin, 270 S.W.3d at 596. In Ruffin, the defendant was charged with aggravated

assault of a police officer. Id. at 597–98. At trial, Ruffin offered testimony by his

psychologist to the existence and severity of his mental disease and delusions,

which had caused him to believe he was shooting at trespassers or Muslims, not

police officers. Id. at 588. The court of criminal appeals compared Ruffin’s

delusions to blindness and used the example of a blind defendant who shot a


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person upon hearing them approach his front porch. Id. at 593. If that person

turned out to be a uniformed police officer, the court reasoned, the blind

defendant could not be convicted of aggravated assault of a police officer

because his blindness prevented him from seeing the uniform and knowing that

the person was a police officer. Id. at 593–94. In that situation, evidence of

defendant’s blindness—either from a layperson or an expert witness—would

certainly be relevant to rebut the argument that the man intended to shoot at a

police officer. Id. at 594.

       Using this analogy, the court reasoned that in other circumstances, expert

testimony could be relevant to explain how a physical condition could distort a

person’s perceptions thereby negating mens rea:

       If, instead of blindness, the defendant suffers from mental delusions
       such that he sees a “trespasser” or a “Muslim” when everyone else
       around him sees a police officer, he cannot be convicted of
       intentionally shooting at a police officer, although he may be
       convicted of intentionally shooting at a trespasser or Muslim. Guilt of
       the greater offense requires that the State prove, beyond a
       reasonable doubt, that the defendant intended to shoot a police
       officer, not a trespasser or Muslim. That is the required mens rea
       and that is the State’s constitutional burden of proof.

Id. at 594 (footnotes omitted). Thus, the court held, expert testimony to Ruffin’s

mental diseases and delusions was relevant to explain how his delusions

distorted his “auditory and visual perceptions” and could aid the jury in

determining whether the defendant intended to shoot at police officers. Id. at

597.




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II. Application

      First, unlike the defendant in Ruffin, here there was no evidence that

Appellant’s use of Chantix actually negated his mens rea.        Rather, Dr. Falls

broadly opined that several factors—including Appellant’s use of Chantix—

combined to, essentially, create a “perfect storm” that made Appellant more

impulsive and irrational.

      But the question here is whether Dr. Falls’s testimony was offered to

provide an excuse for the crime, as in Jackson, or whether it was probative as to

mens rea, as in Ruffin. The mens rea of capital murder as it was charged in this

case was twofold: (1) Appellant’s intent to kill LaVera, and (2) Appellant’s intent

to obstruct or retaliate against LaVera’s calling of 911. See Tex. Pen. Code Ann.

§§ 19.03(a)(2), 36.06.

      Appellant argues that Dr. Falls’s testimony was relevant and admissible to

negate the mens rea of retaliation or obstruction, but we disagree. As it was

presented in this case, the evidence of the influence of Chantix on Appellant is

more closely akin to the influence of paranoia in Jackson—it merely provides a

possible excuse for his irrational and impulsive behavior.

      Dr. Falls essentially testified that Appellant killed LaVera because Chantix

caused him to act impulsively and irrationally.2 Notably, Dr. Falls did not testify


      2
       Given the potentially harsh penal consequences of violent crime, much
violent criminal behavior could be characterized as irrational and impulsive,
regardless of whether drugs—prescription or otherwise—are involved.


                                        10
that Chantix prevented him from being motivated, at least in part, by the fact that

she was on the phone with 911, reporting him for domestic abuse.             Here,

Dr. Falls merely provided an excuse as to why, in his expert opinion, Appellant

did not reflect and consider the consequences of his act prior to pulling the

trigger multiple times.   Thus, Dr. Falls’s testimony provided an excuse for

Appellant’s overreaction to LaVera’s contacting 911, but it does not negate

Appellant’s mens rea.3

      We do not go so far as to hold that expert testimony to the side effects of

Chantix or other medications is wholesale inadmissible. Appropriately presented,

such testimony may be helpful to a jury if, for example, it caused delusions or

hallucinations similar to those caused by mental illness in Ruffin. Ruffin, 270

S.W.3d at 597; see also Jackson, 160 S.W.3d at 574 (“[R]elevant evidence may

be presented which the jury may consider to negate the mens rea element.”).

But the opinion evidence offered in this case by Dr. Falls was irrelevant.

      Because the trial court did not abuse its discretion in excluding Dr. Falls’s

testimony, we overrule Appellant’s only issue.




      3
       To the extent that Dr. Falls intended to opine that Appellant could not
have intended to kill LaVera in retaliation for or obstruction of her call to 911
because Appellant’s actions were impulsive and irrational, this is the very type of
impermissible speculation that Winegarner held to be impermissible conjecture
as to another’s state of mind. 505 S.W.2d at 305.

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                                  Conclusion

      Having overruled Appellant’s sole issue on appeal, we affirm the trial

court’s judgment.


                                                  /s/ Bonnie Sudderth

                                                  BONNIE SUDDERTH
                                                  CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

PUBLISH

DELIVERED: March 1, 2018




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