Opinion
No. 10-16-00096-CR
10-11-2017
EX PARTE KELLY MARIE OLDNER
From the County Court at Law No. 1 Johnson County, Texas
Trial Court No. M201202002
MEMORANDUM OPINION
Kelly Marie Oldner appeals the trial court's order denying her application for writ of habeas corpus challenging her misdemeanor theft conviction. We will affirm.
Oldner worked as a cashier at a Target store. On her last day of employment, video surveillance showed her providing significant unauthorized discounts for two customers. For the first customer, Oldner provided discounts totaling $159.93 and failed to charge for an item valued at $62.99. Oldner provided discounts totaling $185.94 for the second customer, and failed to charge for an item valued at $79.99. Oldner knew both customers prior to the transactions. The total amount of discounts and unpaid merchandise equaled $488.85. Target's loss prevention manager, Zachary Hayes, began to investigate shortly after the first transaction and brought Oldner into his office for an interview after the second transaction, in accordance with Target's procedure. During the interview, Oldner verbally admitted to providing the discounts without prior authorization and signed a written statement on a Target form. When the police officer
arrived, she read Oldner her Miranda rights and arrested her for theft.Oldner v. State, No. 04-13-00458-CR, 2014 WL 3013135, at *1 (Tex. App.—San Antonio Jul. 2, 2014, pet. ref'd) (mem. op., not designated for publication). The jury assessed Oldner's punishment at ninety days' confinement in jail and a $200 fine but recommended that both the jail term and fine be probated. The trial court rendered judgment accordingly. Oldner's sentence was probated for one year, but she was ordered to serve seventy-two hours in jail as a condition of probation.
At trial, Oldner objected to admission of the inculpatory statements she made during the interview at the store, claiming the statements were inadmissible because they were custodial and she was not read her Miranda rights. The trial court overruled her objection. Hayes and Jason Stone, an asset protection specialist at the store, testified that Oldner verbally confessed during the interview, explaining that it was her last day working at the store and she wanted to give her friends a discount and did not realize it was "that big of a deal." Hayes explained Target's policy that any discount over $20 must be approved by a manager and described its procedure for investigating internal and external theft at its stores. The store videotape of the two suspicious transactions at Oldner's cash register was admitted and played for the jury. Oldner testified in her defense that she was unaware of the store policy requiring a manager to approve any "price-matching" or discount over $20, and that she did not notice the unpaid merchandise left in the customers' carts. Oldner acknowledged that, at the end of the interview with Hayes, she signed a Target document admitting that she was working at the particular register where the discounts were given and that she checked out the two particular customers. Oldner denied, however, that she intended to commit theft. The jury found Oldner guilty of theft as alleged in the indictment.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Oldner appealed her conviction in two issues: (1) the trial court erred in admitting the confession she made to the Target employees who investigated the transactions and (2) the evidence was insufficient to support her conviction because she testified that she was following store policy and did not intend to commit theft. Id. at *1 & 3. The San Antonio Court of Appeals overruled Oldner's issues and affirmed the trial court's judgment. Id. at *3-4. The Court of Criminal Appeals refused Oldner's petition for discretionary review.
A review of our records indicates that Oldner appealed the conviction to this Court but that the appeal was transferred to the Fourth Court of Appeals in San Antonio pursuant to a Texas Supreme Court order.
Oldner subsequently filed an application for writ of habeas corpus, alleging that she was denied effective assistance of counsel. The trial court held an evidentiary hearing. At the hearing, Oldner offered as evidence the record from her previous appeal and affidavits signed by each of the customers for whom she had given the significant unauthorized discounts. Oldner then pointed the trial court to the following exchange between her defense counsel and Hayes, a State's witness, at her trial:
The reporter's record of the habeas hearing reflects that the trial court took judicial notice of the record from Oldner's previous appeal, that Oldner's counsel had a copy of that appellate record to introduce into evidence, and that the trial court "received" it into evidence. The appellate record, however, was never marked as an exhibit and tendered to the court reporter. Therefore, that appellate record was not made an exhibit in the reporter's record in this appeal. We abated this appeal for the trial court to hold a hearing to address this issue and, if so determined, receive the appellate record as an exhibit to be filed in a supplemental reporter's record. At the abatement hearing, the trial court "admitted" the appellate record from Oldner's previous appeal, and it has now been filed in a supplemental reporter's record.
Oldner stated at the habeas hearing and also asserts in her appellant's brief that this exchange occurred between Hayes and the prosecutor and that there was no defense cross-examination of Hayes at her trial; however, the record reveals that the exchange actually occurred between Hayes and Oldner's counsel during defense counsel's cross-examination of Hayes.
Q Okay. Any -- any offense ever charged against the woman that you think got away with $116?
A Yes, sir.
Q "Yes, sir" what?
A Yes, she was charged.
Q Okay. She has a criminal charge; is that correct?Oldner next directed the trial court's attention to the affidavits that had both been signed five days after Hayes gave the foregoing testimony. Each affidavit states: "This statement is made voluntarily regarding the purchases made on Saturday, November 17, 2012, at the Target Store located in Burleson[,] Texas." It continues:
A Yes, sir.
. . . .
Q Okay. And was there anybody charged with a crime from -- Was any customer charged with a crime at that time?
A Yes, sir, subject number two was.
Q All right. And so there's -- there's a theft charge against him to your knowledge?
A Yes, sir.
I did not meet with Kelly Oldner at anytime [sic] to plan to get items at a reduced price or to get any items for free.Oldner argued that, based on the foregoing evidence, (1) the prosecutor participated in misconduct because he "produced" false evidence at her trial or (2) her trial counsel was deficient for failing to object to "that misstatement of the fact" or to "in some way make a record more clear." The trial court denied Oldner's application for writ of habeas corpus.
Kelly Oldner "price matched" items that I told her were on sale at other stores locally.
I have not been contacted by Target stores, Burleson Police or the Johnson County Prosecutor[']s office regarding the purchases made at Target on this date.
I have not been arrested or charged with any crime connected with the purchases made at Target stores on this date. [Emphasis added.]
In her first issue, Oldner contends that she was denied a fair trial and due process of law because the prosecutor submitted false evidence before the jury to buttress the case against her. Oldner complains that the false evidence admitted at her trial includes the above-quoted testimony from Hayes and the following testimony elicited from Stone, also a State's witness, during defense counsel's cross-examination of him:
Q Okay. All right. And were charges filed on at least the second person?For purposes of this opinion, we assume without deciding that Oldner's false-evidence issue has been preserved as to both Hayes's and Stone's testimony. See TEX. R. APP. P. 33.1(a).
A I believe so. I'm not 100 percent positive.
Q What about the first person that you have a report on, were charges filed?
A Yes. I actually -- I believe they both were.
Q All right. And when I say charges filed, would that be where Target turns over their -- their investigation to the police department[?]
A Yes, sir. Yes, sir, and both of them were.
Q All right. And Target did those things and those people got charged with theft?
A Yes, sir.
With respect to the substantive analysis of a due-process false-evidence claim, [the Court of Criminal Appeals] has recognized that the use of material false evidence to procure a conviction violates a defendant's
due-process rights under the Fifth and Fourteenth amendments to the United States Constitution. See [Ex parte] Weinstein, 421 S.W.3d [656, 665 (Tex. Crim. App. 2014)]; [Ex parte] Chavez, 371 S.W.3d [200, 207-10 (Tex. Crim. App. 2012)]; see also U.S. CONST. amend. V, XIV; Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). A conviction based on such materially false evidence results in a due-process violation, regardless of whether the falsity of the evidence is known to the State at the time of trial. Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex. Crim. App. 2011); Ex parte Robbins, 360 S.W.3d 446, 460 (Tex. Crim. App. 2011). In order to be entitled to post-conviction habeas relief on the basis of false evidence, an applicant must show that (1) false evidence was presented at his trial and (2) the false evidence was material to the jury's verdict of guilt. See Weinstein, 421 S.W.3d at 659, 665. An applicant must prove the two prongs of his false-evidence claim by a preponderance of the evidence. See id.Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015).
Because it is dispositive of this issue, we need review only whether the alleged false evidence was material to the judgment. That conclusion is reviewed de novo. See id. (citing Weinstein, 421 S.W.3d at 664). "[F]alse testimony is material only if there is a 'reasonable likelihood' that it affected the judgment of the jury." Weinstein, 421 S.W.3d at 665.
Oldner argues that the introduction of the alleged false evidence contributed to her conviction and to the period of confinement that she was required to serve as a condition of her probation. Specifically, Oldner asserts in her appellant's brief:
. . . [I]n considering harm it should be noted that under the State's theory of prosecution[,] the State sought to make [Oldner] responsible not only for her act of deeply discounting the price of merchandise but also for the fact that 2 of her friends received those discounts making all 3 responsible for the Theft in its proof at trial. Thus, in the jury's eye the testimony before them that all 3 persons had been arrested and charged supported that theory and made the case then pending against [Oldner] stronger. In the same manner[,] this shifted the balancing scales of the credibility of [Oldner] as a witness against her and in favor of the State.
Contrary to Oldner's assertions, however, the record reveals that the testimony about which she complains was brought out by her own counsel during cross-examination of the witnesses, not by the State. And examination of the record reveals that the State never argued or implied that Oldner's guilt or punishment was supported by the fact that the customers who received the discounts had also been arrested or charged. Neither the prosecutor nor defense counsel mentioned whether others had been arrested or charged during opening statements or closing arguments.
After both Hayes and Stone had testified, Burleson Police Department Officer Tiffany Bauereisen did testify in response to the prosecutor's questioning as follows:
Q Okay. And to your knowledge were charges filed on those two persons out-of-custody?Oldner did not complain about Bauereisen's testimony at the habeas hearing and does not complain about it in this appeal.
A Yes, sir.
Q And by out-of-custody, would you -- I guess -- Let me ask you to tell the jury what out-of-custody means.
A They were not on scene and I did not witness them to be on scene, they had already left, so we filed out-of-custody on them for later; meaning, the detectives kind of took over the written report, they filed for an arrest warrant and presented the case and were able to get a warrant and they were later arrested at ... another time.
The record also contains substantial incriminating evidence that supported Oldner's conviction and sentence. Hayes and Stone testified that Oldner verbally confessed during the interview at the store, explaining that it was her last day working at the store and that she wanted to give her friends a discount and did not realize it was "that big of a deal." Oldner herself admitted at her trial that she gave two of her friends significant discounts, including that she sold a $49.99 DustBuster for $10, two $24.99 bathmats for $5 each, a $24.99 throw for $1, a $34.99 Sony DVD player for $10, and another $34.99 Sony DVD player for $5. The store videotape of the two suspicious transactions at Oldner's cash register was also admitted and played for the jury; therefore, the jurors were able to determine for themselves whether Oldner was being asked to "price match" the items that she had discounted and whether she had simply not noticed the items that she did not scan.
In light of the foregoing, we conclude that there is no reasonable likelihood that the alleged false evidence affected her conviction and sentence. The alleged false evidence was therefore not material to the judgment. See Weinstein, 421 S.W.3d at 665. Accordingly, Oldner has failed to establish a due-process violation, see id., and we overrule her first issue.
In her second issue, Oldner contends that she was denied the effective assistance of counsel because her counsel failed to properly investigate whether her alleged co-actors had been arrested or charged and because her counsel failed to object when the prosecutor submitted false evidence on that issue before the jury to buttress the case against her.
To prevail on an ineffective assistance of counsel claim, the familiar Strickland v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005) (same). Under Strickland, the appellant must prove by a preponderance of the evidence that (1) counsel's performance was deficient, and (2) the defense was prejudiced by counsel's deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent both showings, an appellate court cannot conclude that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
To show prejudice, the appellant must show there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome, meaning counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id.
For the same reasons that we concluded above that there is no reasonable likelihood that the alleged false evidence affected Oldner's conviction and sentence, we also conclude that even if defense counsel's performance was deficient, Oldner's defense was not prejudiced by counsel's performance. See, e.g., Samarripas v. State, 438 S.W.3d 673, 676 (Tex. App.—San Antonio 2014, no pet.) (holding that appellant had not established prejudice in light of overwhelming evidence of his guilt, even if defense counsel's performance was deficient). Thus, defense counsel's performance did not rise to the level of ineffective assistance based on Oldner's complaint in this issue. We overrule Oldner's second issue.
Having overruled both of Oldner's issues, we hold that the trial court did not abuse its discretion in denying her application for writ of habeas corpus. See Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006) ("An appellate court reviewing a trial court's ruling on a habeas corpus claim . . . must uphold that ruling absent an abuse of discretion."). We affirm the trial court's order.
REX D. DAVIS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed October 11, 2017
Do not publish
[CR25] * (Chief Justice Gray concurs in the Court's judgment but does not join the Court's opinion. A separate opinion will not issue. Chief Justice Gray notes, however, that the grounds in this appeal were not raised in the habeas application. The issues cannot be raised for the first time on appeal of the denial of the application for a writ of habeas corpus.)