Kelly Marie Oldner v. State ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00458-CR
Kelly Marie OLDNER,
Appellant
v.
The STATE of
The STATE of Texas,
Appellee
From the County Court at Law No. 1, Johnson County, Texas
Trial Court No. M201202002
Honorable Robert B. Mayfield III, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: July 2, 2014
AFFIRMED
The trial court entered a judgment finding appellant Kelly Oldner guilty of theft of the
value of $50 or more, but less than $500. Oldner appeals, challenging the admission of her
confession to a Target store loss prevention manager, and the sufficiency of the evidence for the
jury to convict her of theft. We affirm the trial court’s judgment.
BACKGROUND
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
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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 1 rights and arrested her for theft.
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
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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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.
ADMISSION OF CONFESSION
In her first issue on appeal, Oldner asserts the trial court erred in admitting the confession
she made to the Target employees who investigated the transactions. Oldner argues her
inculpatory statements were inadmissible because they were the product of custodial interrogation
and were obtained in violation of Miranda and article 38.22 of the Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2, 3 (West Supp. 2013); see also id. art. 38.23(a)
(West 2005). She contends that Hayes and Stone were “acting in concert with law enforcement,
without the required Miranda warnings” when they obtained her oral and written statements. The
State responds that Oldner’s inculpatory statements were admissible because the store employees
are private actors and there is no evidence they were acting in concert with law enforcement when
they interviewed Oldner.
We apply the test set forth in Wilkerson v. State to determine whether an individual was
acting as an agent of law enforcement at the time he interviewed the defendant. Wilkerson v. State,
173 S.W.3d 521, 530 (Tex. Crim. App. 2005). Under this analysis, we determine whether Hayes
and Stone were acting in tandem with law enforcement by examining the record for the following
three factors: (1) the relationship between law enforcement and the interviewer, (2) the
interviewer’s actions and perceptions, and (3) the defendant’s perceptions of the encounter. Id. at
530-31. The defendant bears the initial burden to establish that the statements she wishes to
exclude were the product of custodial interrogation. Id. at 529-30.
The first factor of the Wilkerson examination relates to the relationship between law
enforcement and the purported agent. See id. at 530. Here, Hayes testified that he is a loss
prevention manager employed by Target and that he followed the store protocol when he was
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alerted to a possible theft at the store. After he noticed a second suspicious transaction on Oldner’s
register, Hayes called Oldner into his office at the store. She was interviewed about the two
transactions in the presence of Hayes, Stone, and other store employees. Hayes stated the interview
began at 9:21 p.m. and Oldner admitted to making the unauthorized price adjustments at 9:24 p.m.
Hayes testified the police were contacted at 9:30 p.m. and the interview with Oldner ended at 9:32
p.m. Hayes also stated that Oldner signed a written statement at 9:35 p.m., before the police officer
arrived. The officer testified that she received the dispatch order at 9:28 p.m. The record does not
contain any evidence that the police told the Target employees what to ask during Oldner’s
interview or that the police used the Target employees to collect information for a criminal
prosecution. Thus, the record contains no evidence showing a relationship between the Target
employees who interviewed Oldner and the police.
The second factor of the Wilkerson examination focuses on the interviewer’s own actions
and perceptions to determine whether he believed he was acting as an agent of law enforcement.
Id. at 530. Hayes testified that his daily duties include surveillance of the store and that he received
training on how to handle internal theft by a Target employee. Once alerted to the first suspicious
transaction at Oldner’s register, he began an investigation according to the store’s procedures.
Stone testified that, at the time, he was employed by Target as an asset protection specialist and
was trained to follow the store’s internal procedures for investigating theft. Neither employee
stated he was acting as an agent of the police department or indicated any perception that he was
an agent of law enforcement. Moreover, the document Oldner signed was an internal Target form,
not the type of written statement taken by the police for purposes of a criminal prosecution.
Finally, although Oldner’s brief states the police were called before Oldner made her admission,
Hayes testified that the police were called after her admission and the jury is free to determine the
credibility of the witnesses. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The
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interview with Oldner was part of Hayes’s and Stone’s duties as the loss prevention manager and
asset protection specialist for Target and fell within the scope of their employment. Accordingly,
the evidence shows they were acting as agents of a private corporation, i.e., Target, not as agents
of law enforcement.
The final factor relates to Oldner’s perceptions at the time of the interview. Wilkerson, 173
S.W.3d at 530-31. At trial, Oldner testified that she recognized all the people present during the
interview as employees of Target. Oldner did not indicate that she perceived any of these
employees as law enforcement agents, or as someone with the actual or apparent authority of law
enforcement. Therefore, Oldner’s perceptions do not satisfy the third factor under Wilkerson.
The record contains no evidence that Hayes and Stone were acting in tandem with police
officers to investigate and gather evidence for a criminal prosecution during the interview with
Oldner. See id. at 531 (ultimate inquiry is whether the interviewer was acting as an
“instrumentality” or “conduit” for police prosecution). Because Oldner failed to establish that
Hayes or any of the other Target employees present during the interview were acting as agents of
law enforcement, she has failed to show that her inculpatory statements were the product of
custodial interrogation. Therefore, the requirements of Miranda and article 38.22 did not apply,
and the statements were admissible. We overrule Oldner’s first issue.
SUFFICIENCY OF THE EVIDENCE
In her second issue, Oldner asserts the evidence is insufficient to support her theft
conviction because she testified she was following store policy and did not intend to commit theft.
Oldner makes an argument challenging the factual sufficiency of the evidence, but we no longer
engage in a separate factual sufficiency review in criminal cases. Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010) (holding legal sufficiency standard is the sole standard of review
in criminal cases). We thus review the sufficiency of the evidence in the light most favorable to
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the jury’s verdict to determine whether the jury was rationally justified in finding the essential
elements of the offense beyond a reasonable doubt. Id. (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In evaluating the sufficiency of the evidence, we are mindful that the jury, as the trier
of fact, exclusively determines the credibility of the witnesses and reconciles any conflicts in the
evidence. Mosley, 983 S.W.2d at 254.
To convict Oldner of theft, the State was required to prove beyond reasonable doubt that
she “unlawfully appropriate[d] property with intent to deprive the owner of property.” TEX. PENAL
CODE ANN. § 31.03(a) (West Supp. 2013). Appropriation of property is unlawful if it occurs
without the owner’s effective consent. Id. § 31.03(b)(1) (West Supp. 2013). The mental state
required by section 31.03 is the intent to deprive the owner of property. Id. § 31.03(a). Direct
evidence is not required to establish that the defendant had the intent to commit the theft. Hart v.
State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002). The jury may infer intent based upon the evidence
as a whole. Id.
Giving deference to the jury’s function in assessing the witnesses’ credibility, we conclude
the jury could reasonably infer that Oldner had the requisite intent to commit theft at the time of
the transactions. The jury heard Hayes and Stone testify that during the interview Oldner verbally
admitted making the discounts and non-charges, and stated that it was her last day of work and she
was trying to be nice to her friends and did not think the discounts were a big deal. In her
testimony, Oldner admitted that she provided the discounts to two friends without prior
authorization from store management, but claimed that she thought the “price matching” discounts
did not require management approval. In addition, the jury viewed the store videotape of the two
transactions which shows that the items in the two transactions were rung up rapidly and that no
coupons or store advertisements were shown to Oldner during the transactions. Based on this
evidence, the jury could have reasonably found that Oldner had the intent to deprive Target of the
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full marked price of the items, and thus had the requisite intent to commit theft. We conclude the
evidence is legally sufficient to support the jury’s finding of guilt. We therefore overrule Oldner’s
second issue.
Based on the foregoing reasons, we affirm the trial court’s judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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