                                                                            PD-1214-17
                                                           COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                            Transmitted 12/22/2017 3:19 PM
                                                              Accepted 12/22/2017 4:20 PM
                          NO. PD-1214-17                              DEANA WILLIAMSON
                                                                                    CLERK

                                                                FILED
          IN THE TEXAS COURT OF CRIMINAL APPEALS
                                            COURT OF CRIMINAL APPEALS
                                                           12/22/2017
                                                      DEANA WILLIAMSON, CLERK
                     KELLY MARIE OLDNER
                           Petitioner

                                 v.

                        STATE OF TEXAS
                           Respondent

                      Case No. 10-16-00096-CR
            from the Tenth Court of Appeals, Waco, Texas

                        Cause No. M201202002
          from the Johnson County Court at Law Number One
              Honorable Robert Mayfield, Presiding Judge


   RESPONSE TO PETITION FOR DISCRETIONARY REVIEW BY
            THE STATE OF TEXAS, RESPONDENT


BILL MOORE                            COLBY RIDEOUT
JOHNSON COUNTY ATTORNEY               Assistant County Attorney
Guinn Justice Center                  Guinn Justice Center
204 South Buffalo Avenue              204 South Buffalo Avenue
4th Floor, Suite 410                  4th Floor, Suite 410
Cleburne, Texas 76033-5404            Cleburne, Texas 76033-5404
Telephone: 817.556.6330               Telephone: 817.556.6330
Facsimile: 817.556.6331               Facsimile: 817.556.6331
efilecao@johnsoncountytx.org          efilecao@johnsoncountytx.org
State Bar No. 14321100                State Bar No. 24073106



                ORAL ARGUMENT NOT REQUESTED

                                 i
                         IDENTITY OF PARTIES AND COUNSEL


Hon. Robert Mayfield ........................................................................ Presiding Judge
County Court at Law No. One
Guinn Justice Center
204 South Buffalo Avenue
Cleburne, Texas 76033

Hon. Chief Justice Gray .................................................................. Presiding Justices
Hon. Justice Davis
Hon. Justice Scoggins
Tenth Court of Appeals
McLennan County Courthouse
501 Washington Avenue, Room 415
Waco, Texas 76701-1373

Kelly Marie Oldner ...................................................................................... Petitioner

Hon. William Mason ....................................................... Trial Counsel for Petitioner
P.O. Box 767
Cleburne, Texas 76033
817.556.3223
wgmlaw@gmail.com

Hon. George B. Mackey ........................................ Appellate Counsel for Petitioner
121 N. Rayner
Fort Worth, Texas 76111
817.336.1008
gmackey1@me.com

Hon. Bill Moore ........................................................... Trial Counsel for Respondent
Hon. Stuart Madison
204 South Buffalo Avenue
4th Floor, Suite 410
Cleburne, Texas 76033-5404
817.556.6330
efilecao@johnsoncountytx.org



                                                         ii
Hon. Bill Moore ................................................... Appellate Counsel for Respondent
Hon. Colby Rideout
204 South Buffalo Avenue
4th Floor, Suite 410
Cleburne, Texas 76033-5404
817.556.6330
efilecao@johnsoncountytx.org




                                                iii
                                           TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ......................................................................................................iv

Index of Authorities ..................................................................................................vi

Statement of the Case................................................................................................. 2

Statement of the Procedural History .......................................................................... 3

Response to Grounds for Review .............................................................................. 3

Arguments .................................................................................................................. 4

         Preliminary Statement ..................................................................................... 4

         Response to Ground One ................................................................................. 6
         Petitioner, first, failed to preserve her false evidence complaint for
         appellate review. Second, Petitioner’s false evidence complaint is
         without merit. She was not denied a fair trial and was not denied due
         process of law because Petitioner fails to establish by a preponderance
         of the evidence that the false testimony was material to the judgment.
         The Court of Appeals’ decision to overrule Petitioner’s claim was not a
         departure from the accepted and usual course of judicial proceedings,
         and this Court need not exercise its power of supervision.

         Response to Ground Two .............................................................................. 14
         Petitioner failed to meet her burden of proving her ineffective assistance
         claim under the Strickland test by a preponderance of the evidence. The
         Court of Appeals’ decision to overrule Petitioner’s claim that her trial
         counsel was ineffective was not a departure from the accepted and usual
         course of judicial proceedings, and this Court need not exercise its
         power of supervision.

Conclusion ............................................................................................................... 20

Prayer ....................................................................................................................... 20

                                                               iv
Certificate of Compliance ........................................................................................ 22

Certificate of Service ............................................................................................... 22




                                                           v
                                       INDEX OF AUTHORITIES


RULES

Tex. Code Crim. Proc. art. 40.001 ............................................................................. 9

Tex. R. App. Proc. 21.3.............................................................................................. 9

Tex. R. App. Proc. 21.4.............................................................................................. 9

Tex. R. App. Proc. 33.1 .................................................................. 4, 6, 8, 11, 12, 17

CASES

Alvarado v. State, No. 04-03-00289-CR, 2006 WL 332536 (Tex. App.—San
      Antonio 2006, pet. ref’d) .............................................................................. 17

Clayton v. State, No. 10-06-00254, 2007 WL 2875021 (Tex. App.—Waco
      February 6, 2008, pet. ref’d) (mem. op., not designated for publication)
      .............................................................................................................. 8, 9, 11

Ex parte De La Cruz, 466 S.W.3d 855 (Tex. Crim. App. 2015) .............7, 10, 12, 14

Ex parte Evans, 410 S.W.3d 481 (Tex. App.—Fort Worth 2013, pet. ref’d)
      .............................................................................................. 4, 6, 8, 11, 12, 17

Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) ............................. 7

Ex parte Jimenez, 364 S.W.3d 866 (Tex. Crim. App. 2012)................................... 15

Ex parte Jones, 473 S.W.3d 850 (Tex. App.—Houston [14th Dist.] 2015, pet.
      ref’d) .......................................................................................................... 6, 14




                                                             vi
Ex parte Oldner, No. 10-16-00096-CR, 2017 WL 4542985 (Tex. App.—Waco
      Oct. 11, 2017) (mem. op., not designated for public opinion) ........................ 2

Ex parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 (Tex. App.—Waco July
      9, 2015, pet. ref’d) (mem. op., not designated for publication)
      ...............................................................................................................4, 8, 12

Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014) ............................8, 14

Haliburton v. State, 80 S.W.3d 309 (Tex. App.—Fort Worth 2002, no pet) ......9, 11

Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998).....................................16

King v. State, 649 S.W.2d 42 (Tex. Crim. App. 1983) ............................................ 17

Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959) ................ 7

Oldner v. State, No. 04-13-00458-CR, 2014 WL 3013135 (Tex. App.—San
     Antonio July 2, 2014, pet. ref’d) (mem. op.,
     not designated for publication) ........................................................................ 2

Perez v. State, 403 S.W.3d 246 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 310
      S.W.3d 890 (Tex. Crim. App. 2010)............................................ 16, 17, 18, 19

Ramirez v. State, 96 S.W.3d 386 (Tex. App.—Austin 2002, pet. ref’d) ................... 7

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) .................................. 16

Rylander v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003).................. 15, 16, 18, 19

State v. Romero, 962 S.W.2d 143 (Tex. App.—Houston [1st Dist.] 1997,
       no pet.) ............................................................................................................. 4

Strickland v. Washington, 466 U.S. 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ...
       ..................................................................................................... 15, 17, 18, 19

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ..................................... 16




                                                             vii
                                NO. PD-1214-17


               IN THE TEXAS COURT OF CRIMINAL APPEALS


                           KELLY MARIE OLDNER
                                 Petitioner

                                        v.

                              STATE OF TEXAS
                                 Respondent


                            Case No. 10-16-00096-CR
                  from the Tenth Court of Appeals, Waco, Texas

                             Cause No. M201202002
               from the Johnson County Court at Law Number One
                   Honorable Robert Mayfield, Presiding Judge


     RESPONSE TO PETITION FOR DISCRETIONARY REVIEW BY
              THE STATE OF TEXAS, RESPONDENT




TO THE HONORABLE COURT OF APPEALS:

         COMES NOW, Respondent, the State of Texas (hereinafter known as “the

State”) and respectfully submits this Response to Petition for Discretionary Review

filed by Petitioner, KELLY MARIE OLDNER, in the above-styled and numbered

cause.


                                        1
      References to the Reporter’s Record from Petitioner’s jury trial shall be

denoted as “TRR,” and references to the Clerk’s Record shall be denoted as

“TCR.” References to the Reporter’s Record from the hearing on the writ

application will be denoted as “WRR,” and references to the Clerk’s Record on the

Writ Application will be denoted as “WCR.” References to the Supplemental

Reporter’s Record will be denoted as “SRR.”

                        STATEMENT OF THE CASE

      A jury convicted Petitioner of a Class B misdemeanor theft. TCR I: 41-44.

The jury assessed punishment at 90 days jail, probated for one year, with the

condition that she serve 72 hours in jail and other terms and conditions of

probation. TCR I: 45. The Fourth Court of Appeals affirmed Petitioner’s conviction

on July 2, 2014. See Oldner v. State, No. 04-13-00458-CR, 2014 WL 3013135

(Tex. App.—San Antonio July 2, 2014, pet. ref’d) (mem. op., not designated for

publication). Her petition for discretionary review was refused on November 5,

2014. Id. Petitioner filed her Application for Writ of Habeas Corpus on or about

January 20, 2016. WCR I: 4-10 (Application). On March 11, 2016, the trial court

conducted a hearing on the application and denied her writ. WRR II: 1-13. The

Tenth Court of Appeals affirmed the trial court’s order. See Ex parte Oldner, No.

10-16-00096-CR, 2017 WL 4542985 (Tex. App.—Waco Oct. 11, 2017) (mem.




                                        2
op., not designated for publication). Petitioner now seeks discretionary review

from this Court.

             STATEMENT OF THE PROCEDURAL HISTORY

Nature of the Case:      Petitioner Kelly Marie Oldner was charged on December
                         3, 2012, by information, for a Class B misdemeanor
                         Theft. A jury convicted Petitioner Kelly Marie Oldner of
                         the same and assessed punishment on or about May 8,
                         2013. On July 2, 2014, the Fourth Court of Appeals
                         affirmed Petitioner’s conviction, and on November 5,
                         2014, the Petition for Discretionary Review was refused.
                         Petitioner filed an Application for Writ of Habeas Corpus
                         on or about January 20, 2016. Following a hearing on or
                         about March 11, 2016, the trial court denied her writ.
                         Petitioner appealed the trial court’s denial of her writ.
Trial Court Judge:       Honorable Robert Mayfield.
Trial Court:             County Court at Law Number One, Johnson County.
Disposition:             The Tenth Court of Appeals affirmed the lower court’s
                         denial of Petitioner’s writ and issued a memorandum
                         opinion on or about October 11, 2017.
Parties:                 Kelly Marie Oldner as Petitioner and the State of Texas
                         as Respondent.
Court of Appeals:        Tenth Court of Appeals in Waco, Texas.
Justices:                Honorable Chief Justice Gray, Honorable Justice Davis,
                         and Honorable Justice Scoggins. Memorandum Opinion
                         by Honorable Justice Davis.

                   RESPONSE TO GROUNDS FOR REVIEW

      RESPONSE TO GROUND ONE: Petitioner, first, failed to preserve
      her false evidence complaint for appellate review. Second, Petitioner’s
      false evidence complaint is without merit. She was not denied a fair
      trial and was not denied due process of law because Petitioner fails to
      establish by a preponderance of the evidence that the false testimony
      was material to the judgment. The Court of Appeals’ decision to
      overrule Petitioner’s claim was not a departure from the accepted and
      usual course of judicial proceedings, and this Court need not exercise
      its power of supervision.
                                        3
      RESPONSE TO GROUND TWO: Petitioner failed to meet her
      burden of proving her ineffective assistance claim under the
      Strickland test by a preponderance of the evidence. The Court of
      Appeals’ decision to overrule Petitioner’s claim that her trial counsel
      was ineffective was not a departure from the accepted and usual
      course of judicial proceedings, and this Court need not exercise its
      power of supervision.

                                  ARGUMENTS

                          PRELIMINARY STATEMENT

      A complainant may not raise new issues on appeal that she did not bring

before the trial court in her writ application. TEX. R. APP. P. 33.1; Ex parte Evans,

410 S.W.3d 481, 485 (Tex. App.—Fort Worth 2013, pet. ref’d) (citing State v.

Romero, 962 S.W.2d 143, 144 (Tex. App.—Houston [1st Dist.] 1997, no pet.))

(declining to consider grounds not pled in the writ of habeas corpus, even when the

complaints were mentioned in passing during the writ hearing); see also, e.g., Ex

parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 at *3 (Tex. App.—Waco

July 9, 2015, pet. ref’d) (mem. op., not designated for publication).

      Petitioner’s Application for Writ of Habeas Corpus (which is the subject of

this appeal) alleged that her trial counsel provided ineffective assistance in the

following six ways:

1.    Failing to object to the manner in which the law of parties was applied in the

      court’s charge;

                                          4
2.    Failing to call the other parties to her offense to testify in her defense;

3.    Failing to object to the way that the court’s charge defined “appropriation;”

4.    Failing to object to the prosecutor’s jury argument;

5.    Failing to object to the court’s charge regarding the determination of the

      value of property; and

6.    Failing to object to the court’s instruction on legal rights of possession in

      paragraph 3.

WCR I: 7-9. After conducting a hearing on the application the trial court denied

Petitioner’s request for relief. WCR I: 27. Petitioner appealed the trial court’s

denial of her application on two new grounds that were not pled in her application:

(1) the prosecutor at her trial submitted false evidence; and (2) her trial counsel

provided ineffective assistance by failing to investigate whether other parties to her

offense had been arrested or charged.

      Petitioner’s complaints to the Tenth Court of Appeals were only mentioned

in passing during her writ hearing, and none of them were pled in her Application.

See WCR I: 7-9; WRR II: 1-13. Accordingly, the record is not sufficiently

developed for this Court to judge the merits of Petitioner’s claims, and the trial

court has not had the necessary opportunity to review evidence or rule on the bases

of these new complaints. Therefore, due to Petitioner’s failure to present a

cognizable claim, this Court should overrule Petitioner’s complaints and affirm the

                                           5
lower court’s judgment. See TEX. R. APP. P. 33.1; Ex parte Evans, 410 S.W.3d at

485.

                          RESPONSE TO GROUND ONE

       Petitioner, first, failed to preserve her false evidence complaint for
       appellate review. Second, Petitioner’s false evidence complaint is
       without merit. She was not denied a fair trial and was not denied due
       process of law because Petitioner fails to establish by a preponderance
       of the evidence that the false testimony was material to the judgment.
       The Court of Appeals’ decision to overrule Petitioner’s claim was not a
       departure from the accepted and usual course of judicial proceedings,
       and this Court need not exercise its power of supervision.

A.     Standard of Review

       A trial court’s denial of a writ of habeas corpus is reviewed for abuse of

discretion. Ex parte Jones, 473 S.W.3d 850, 853 (Tex. App.—Houston [14th Dist.]

2015, pet. ref’d). The applicant seeking post-conviction habeas relief bears the

burden of establishing by a preponderance of the evidence that the facts entitle her

to relief. Id. “The trial court is the sole finder of fact in a habeas proceeding.” Id.

When reviewing a trial court’s denial of relief, the courts view the facts in the light

most favorable to the trial court’s ruling. Id. Appellate courts afford almost total

deference to the trial court’s findings, especially when those findings are based on

the evaluation of demeanor and credibility. Id. A trial court’s judgment is upheld if

it is correct on any theory of law applicable to the case. Id.




                                           6
B.    Applicable Law

      Convictions based on material false evidence violate a defendant’s due-

process rights regardless of whether its falsity is known to the State at the time of

trial. Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015); see also

Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). “[T]he same

result obtains when the prosecution, ‘although not soliciting false evidence, allows

it to go uncorrected when it appears.’” Ramirez v. State, 96 S.W.3d 386, 394 (Tex.

App.—Austin 2002, pet. ref’d) (quoting Napue v. Illinois, 360 U.S. 264, 269, 79 S.

Ct. 1173, 3 L. Ed. 2d 1217 (1959)). It is irrelevant whether the prosecutor actually

knows that the evidence is false; it is enough that the prosecutor should have

recognized the misleading nature of the evidence. Ex parte Ghahremani, 332

S.W.3d at 477. There is no requirement that false testimony rose to the level of

criminal perjury because the rule is designed to ensure that the defendant is

convicted and sentenced only on truthful testimony. Id.

      In order to be entitled to relief on a false evidence claim, 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. Ex parte De La Cruz, 466 S.W.3d at 866.

An applicant must establish both falsity and materiality by a preponderance of the

evidence. Id. In determining whether a particular piece of evidence has been

demonstrated to be false, the Court asks whether the testimony, taken as a whole,


                                          7
gives the jury a false impression. Id. Improper suggestions, insinuations, and

insinuations of personal knowledge constitute false testimony. Id. False testimony

is material if there is a reasonable likelihood that it affected the judgment of the

jury. See Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). This

standard requires the beneficiary of the error to prove beyond a reasonable doubt

that the error did not contribute to the verdict obtained. See Ex parte Ghahremani,

332 S.W.3d at 478.

C.    Application

1.    Petitioner Fails to Present a Cognizable Claim

      Petitioner fails to bring a cognizable claim of false evidence before this Court

because the factual basis for which she now seeks relief was not pled in her

application. TEX. R. APP. P. 33.1; Ex parte Evans, 410 S.W.3d at 485; see also,

e.g., Ex parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496 at *3. Petitioner’s

claims of false evidence and prosecutorial misconduct were not pled in her writ

application and were only mentioned in passing during her writ hearing. WCR I: 7-

9; WRR II: 1-13. Accordingly, this Court should overrule Petitioner’s first ground

for failure to bring a cognizable claim.

      Furthermore, allegations of false evidence must be preserved for appellate

review by an objection. See Clayton v. State, No. 10-06-00254, 2007 WL 2875021

at *1 (Tex. App.—Waco February 6, 2008, pet. ref’d) (mem. op., not designated

                                           8
for publication) (citing Haliburton v. State, 80 S.W.3d 309, 315 (Tex. App.—Fort

Worth 2002, no pet)). Nothing in the record indicates that Petitioner presented an

objection to the trial court on the basis of false evidence. See Clayton, No. 10-06-

00254, 2007 WL 2875021 at *1 (citing Haliburton, 80 S.W.3d at 315). If the

affidavits propounded by Petitioner are to be believed, they show that she was

aware of the basis of her “false evidence” complaint on May 13, 2013; just four

days after her conviction and well within the amount of time for her to make a

motion for new trial based on the discovery of that evidence. See TEX. CODE CRIM.

P. Art. 40.001; TEX. R. APP. P. 21.3; TEX. R. APP. P. 21.4; WRR III: Defendant’s

Exhibits 1 and 2. Instead, Petitioner did nothing, waiting nearly three years to raise

this complaint, rather than presenting her objection in a timely manner while the

trial court retained jurisdiction to hold a hearing on a motion for new trial.

Petitioner should not be rewarded for her failure to present her objection in a timely

manner when she was required to preserve her complaint. See Clayton, No. 10-06-

00254, 2007 WL 2875021 at *1 (citing Haliburton, 80 S.W.3d at 315).

Accordingly, this Court should overrule her objection to the evidence and sustain

the order of the trial court.

2.     Petitioner Fails to Establish the Falsity of the Evidence

       Petitioner argues the evidence was falsely submitted by the State’s witnesses;

that is the witnesses testified that both of her co-conspirators had been arrested and

                                          9
charged at the time of her trial. During none of the complained of portions of

testimony did Zachary Hays or Jason Stone testify whether they knew if the other

party had been arrested. See TRR III: 35-36, 40, 50-51. Accordingly, Petitioner’s

accusation of prosecutorial misconduct, which is based on her inaccurate reading of

the trial record, is frivolous, without any basis in the record, and should be

overruled outright.

      More to the point, Petitioner’s defense counsel clarified that when he said

“charged,” he meant where “. . . Target turns over their – their investigation to the

police department.” TRR III: 50-51. Jason Stone responded affirmatively. TRR III:

50-51. Therefore, the most that can be said is that the testimony raised a conflicting

inference of what defense counsel meant by using the word “charged” because

“charged” appears to be capable of meaning several different things, ranging from

the Target store submitting its investigation to police for charges, to charges being

formally brought by the police department or prosecutor’s office. Conflicting

testimony, without more, does not support a finding of falsity. See Ex parte De La

Cruz, 466 S.W.3d at 871. In such cases the habeas court defers to the jury’s

determination of weight and credibility of the evidence. Id. at 870-71. Accordingly,

it cannot be said that Petitioner has carried her burden of establishing falsity of the

objected-to testimony by a preponderance of the evidence. Ex parte De La Cruz,

466 S.W.3d at 866.

                                          10
      The only other testimony regarding whether anyone else had been charged or

arrested was offered by Officer Bauereisen in response to the prosecutor’s question

regarding the meaning of “out-of-custody.” TRR III: 58-59. The prosecutor asked,

“Ok. And to your knowledge were charges filed on those two persons out-of-

custody.” TRR III: 58. Bauereisen answered affirmatively. TRR III: 58. The

prosecutor followed up with the question, “And by out-of-custody, would you -- I

guess -- Let me ask you to tell the jury what out-of-custody means.” TRR III: 58-

59. Bauereisen responded,

      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.

TRR III: 59.

      Petitioner just now asserts that Officer Bauereisen’s testimony was false,

although she could have objected during trial, in a motion for new trial, in her writ

application, and in her prior appeal. TEX. R. APP. P. 33.1; Ex parte Evans, 410

S.W.3d at 485; Clayton, No. 10-06-00254, 2007 WL 2875021 at *1 (citing

Haliburton, 80 S.W.3d at 315). Had she objected timely, the context of the

testimony raises the possibility that Bauereisen’s testimony created a conflicting

inference of whether she was describing police procedure generally, or whether she

was testifying to her personal knowledge of whether the other parties had actually

                                         11
been charged and arrested. See Ex parte De La Cruz, 466 S.W.3d at 871.

Regardless, this Court is not properly positioned to determine the falsity or veracity

of any of the discussed testimony because Petitioner’s allegations of falsity have

never been the subject of an evidentiary hearing, which would develop the

necessary record evidence regarding the truthfulness of the statements and whether

Petitioner’s proffered affidavits are truthful or credible. Therefore, based on the

record available to the Court, Petitioner cannot carry her burden of proving falsity

and her first point of error should be overruled. Id.; TEX. R. APP. P. 33.1; Ex parte

Evans, 410 S.W.3d at 485; see also, e.g., Ex parte Tutton, No. 10-14-00360-CR,

2015 WL 4384496 at *3.

3.    Petitioner Fails to Establish the Materiality of the Evidence

      The jury heard evidence that, for two people who she knew, Petitioner

provided unauthorized discounts and failed to charge for certain items because she

wanted to give her friends a discount. TRR III: 17-18, 48. The jury heard that the

total value lost by Target for the marked-down and uncharged items was $495.85.

TRR III: 41. Petitioner also admitted to the jury that she sold a $24 bathmat for $5,

a $49.99 DustBuster for $10, $1 for a $5 pair of socks, $5 for a $24.99 throw, $5 for

a $25.99 bathmat, and $10 for a DVD player. TRR III: 83-86. She admitted that she

gave discounts of over $26 for five different DVDs, and charged only $5 for

another DVD player. TRR III: 87. Finally, Petitioner admitted that the only two

                                         12
people who received such massive mark downs that day were her friends. TRR III:

92-93.

      In addition to the witnesses’ testimony, the jury saw the video evidence

against Petitioner and was able to determine for themselves whether the video was

consistent with her claim that she did not notice the unpaid items, and that she was

being asked to price match the items she marked down. See TRR III: 22-26, 75, 87;

SRR I: State’s Exhibits No. 1 & No. 2. Finally, neither the prosecutor nor defense

counsel mentioned whether the other parties had been arrested or charged for the

offense during opening and closing arguments. TRR II: 73-78; TRR IV: 6-21; TRR

IV: 35-42.

      Thus, contrary to Petitioner’s suggestion, the record demonstrates that

nobody at Petitioner’s trial created the impression on the jury that they should find

her guilty based on greater evidence of her co-conspirators guilt, which could be

inferred from whether they had been charged or arrested for theft. Rather,

Petitioner’s conviction was based solely on the strength of the evidence against her,

and not the strength of the evidence against her co-conspirators. Petitioner’s

implication that the State sought its conviction on some theory of imputed guilt or

guilt by association requires a completely inaccurate interpretation of the record.

Petitioner was not convicted because the other parties to her crime were guilty; she

was convicted because the State proved she was guilty beyond a reasonable doubt.

                                         13
      Assuming for the sake of argument that the objected-to testimony was false,

the absence of any argument of Petitioner’s implied guilt imputed from the apparent

guilt other parties further demonstrates that the State’s case relied solely on the

strength of the evidence against her. Therefore, there is no reasonable likelihood

that the outcome of Petitioner’s trial might have been different absent any reference

to the arrest or charging of the other parties. See Ex parte Weinstein, 421 S.W.3d at

665. Considering the great weight of the foregoing evidence and other evidence

adduced at trial Petitioner has failed to carry her burden of establishing materiality

by a preponderance of the evidence. Ex parte De La Cruz, 466 S.W.3d at 866.

Accordingly, the Court should overrule Petitioner’s first point of error.

                          RESPONSE TO GROUND TWO

       Petitioner failed to meet her burden of proving her ineffective
       assistance claim under the Strickland test by a preponderance of the
       evidence. The Court of Appeals’ decision to overrule Petitioner’s claim
       that her trial counsel was ineffective was not a departure from the
       accepted and usual course of judicial proceedings, and this Court need
       not exercise its power of supervision.

A.    Standard of Review

      A trial court’s denial of a writ of habeas corpus is reviewed for abuse of

discretion. Ex parte Jones, 473 S.W.3d at 853. The applicant seeking post-

conviction habeas relief bears the burden of establishing by a preponderance of the

evidence that the facts entitle her to relief. Id. “The trial court is the sole finder of


                                           14
fact in a habeas proceeding.” Id. When reviewing a trial court’s denial relief, the

courts view the facts in the light most favorable to the trial court’s ruling. Id.

Appellate courts afford almost total deference to the trial court’s findings,

especially when those findings are based on the evaluation of demeanor and

credibility. Id. A trial court’s judgment is upheld if it is correct on any theory of

law applicable to the case. Id.

B.    Applicable Law

      To establish an ineffective assistance claim, the complaining party must show

that (1) her counsel’s performance fell below an objective standard of

reasonableness, and (2) but for counsel’s unprofessional error, there is a reasonable

probability the result of the proceedings would have been different. Strickland v.

Washington, 466 U.S. 687, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674

(1984); Ex parte Jimenez, 364 S.W.3d 866, 882-83 (Tex. Crim. App. 2012). A

reasonable probability is a “probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to establish either

prong defeats an ineffective assistance claim. Rylander v. State, 101 S.W.3d 107,

110 (Tex. Crim. App. 2003).

      Texas courts indulge the strong presumption that counsel’s conduct fell

within the wide range of reasonable assistance. Ex parte Jimenez, 364 S.W.3d 883.

An attorney’s conduct is judged by the totality of the representation, not by isolated

                                         15
acts or omissions. Id. “[T]he test is applied from the viewpoint of an attorney at the

time he acted, not through 20/20 hindsight.” Id. The complaining party bears the

burden of proving her ineffective assistance claim by a preponderance of the

evidence. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

      An allegation of ineffective assistance must be firmly founded in the record.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Appellate courts

often comment that an undeveloped record usually cannot adequately reflect a trial

attorney’s reasons for his conduct, particularly when the alleged deficiencies are

matters of omission rather than commission. See, e.g., Jackson v. State, 973

S.W.2d 954, 957 (Tex. Crim. App. 1998). Trial counsel should normally be

afforded the opportunity to explain his actions before being denounced as

ineffective. Rylander, 101 S.W.3d at 111. When the record is silent regarding the

reasons for counsel’s conduct, a finding of ineffectiveness generally requires

impermissible speculation. Perez v. State, 403 S.W.3d 246, 250 (Tex. App.—

Houston [14th Dist.] 2008), aff’d, 310 S.W.3d 890 (Tex. Crim. App. 2010).

      A defense attorney has a duty to make an independent investigation of the

facts of the case, which includes seeking out and interviewing potential witnesses.

Perez, 403 S.W.3d at 250. A breach of the duty to investigate may cause

ineffectiveness where it results in a viable defense not being advanced. Id. The

Court’s review of ineffectiveness for failure to investigate must be assessed for

                                         16
reasonableness under all the circumstances, applying a heavy measurement of

deference to counsel’s judgments. Id. citing Strickland, 466 U.S. at 691, 104 S.C.t

at 2066.

C.     Application

1.     Petitioner Fails to Present a Cognizable Claim

       Petitioner fails to bring a cognizable claim of ineffective assistance before

this Court because the factual basis for which she now seeks relief was not pled in

her application. TEX. R. APP. P. 33.1; Ex parte Evans, 410 S.W.3d at 485.

Petitioner’s application pled that her trial counsel “failed to call” witnesses, which

is a legally discrete claim from “failure to investigate,” requiring a review of

different factual bases, such as establishing that the witness was available and that

the witness’ testimony would have actually benefited the defense. See Alvarado v.

State, No. 04-03-00289-CR, 2006 WL 332536 at *3 (Tex. App.—San Antonio

2006, pet. ref’d) (citing King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983));

see also Perez, 403 S.W.3d at 250. Because a “failure to investigate” complaint is

not the same as the “failure to call” complaint Petitioner pled in her writ

application, she has failed to present anything for this court to review. See WCR I:

7-9.




                                         17
2.    Petitioner Fails to Meet Her Burden Under Strickland

a.    There is no evidence that counsel’s performance fell below the objective
standard of reasonableness

      Here, the record is completely silent as to what measures Petitioner’s counsel

took to investigate her case before trial. Nowhere in the record is there any evidence

of whether or not her trial counsel sought to verify whether either party had been

charged or arrested. Petitioner’s trial counsel has also not had an opportunity to

testify in his own defense regarding what actions he took to investigate her case

before trial, and what his rationale was for his course of action. Petitioner alone

bears the burden of establishing by a preponderance of the evidence that her trial

counsel’s performance fell below the objective standard of reasonableness in the

manner in which he investigated her case. See Strickland, 466 U.S. 687, 687-94,

104 S. Ct. 2052, 2064-68. Petitioner assumes but has presented no evidence at all of

her trial counsel’s failure to investigate. Accordingly, finding of ineffectiveness

would require impermissible speculation based on a silent record. Perez v. State,

403 S.W.3d 246, 250 (Tex. App.—Houston [14th Dist.] 2008). This Court should

not entertain a finding of ineffectiveness until trial counsel has had the opportunity

to explain his actions. Rylander, 101 S.W.3d at 111.




                                         18
b.    There is no showing of a reasonable probability that the outcome would
have been different but for counsel’s error

      Assuming, for the sake of argument, that Petitioner’s counsel did err by

failing to investigate whether the other parties had been charged or arrested, she

fails to present any evidence to satisfy her burden of proving that, but for that error,

there exists a reasonable probability that the outcome of her trial would have been

different. Strickland, 466 U.S. 687, 687-94, 104 S. Ct. 2052, 2064-68. A

“reasonable probability” is a “probability sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. There is nothing on the

record to indicate that the outcome of Petitioner’s trial would have been any

different absent any supposed failure to investigate on the part of her trial counsel.

Because there is no evidence of a reasonable probability that the outcome of

Petitioner’s trial would have been different, and because trial counsel’s conduct

must be considered under all the circumstances, this Court should not entertain a

finding of ineffectiveness based on a silent record. Perez, 403 S.W.3d at 250;

Rylander, 101 S.W.3d at 111; Strickland, 466 U.S. at 691, 104 S. C.t at 2066.

      Because Petitioner has failed to meet her burden of establishing either of the

required prongs of her ineffective assistance claim by a preponderance of the

evidence, the Court should overrule her second point of error. See Rylander, 101

S.W.3d at 110.


                                          19
                                 CONCLUSION

      In conclusion, Petitioner has failed to bring a cognizable claim before this

Court because she failed to plead her appellate grounds for relief in her Application

for Writ of Habeas Corpus. Furthermore, Petitioner has failed to establish her

entitlement to relief for her complaints of false evidence, prosecutorial misconduct,

and ineffective assistance by a preponderance of the evidence. Therefore, this Court

should overrule Petitioner’s first and second points of error and affirm the decision

of the lower appellate court.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Respondent respectfully prays

that this Court AFFIRM the trial court’s judgment and deny Petitioner’s request to

reverse the court’s judgments of conviction, punishment, and denial of application

for writ of habeas corpus.

                                Respectfully Submitted,

                                /s/ Bill Moore
                                BILL MOORE
                                JOHNSON COUNTY ATTORNEY
                                Guinn Justice Center
                                204 South Buffalo Avenue
                                4th Floor, Suite 410
                                Cleburne, Texas 76033-5404
                                Telephone: 817.556.6330
                                Facsimile: 817.556.6331
                                efilecao@johnsoncountytx.org
                                State Bar No. 14321100

                                         20
/s/ Colby Rideout
Colby Rideout
Assistant County Attorney
Guinn Justice Center
204 South Buffalo Avenue
4th Floor, Suite 410
Cleburne, Texas 76033-5404
Telephone: 817.556.6330
Facsimile: 817.556.6331
crideout@johnsoncountytx.org
State Bar No. 24073106




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                      CERTIFICATE OF COMPLIANCE

      I hereby certify that this document complies with the typeface requirements

of Texas Rule of Appellate Procedure 9.4(e) as it has been prepared in a

conventional typeface no smaller than 14-point for text and 12-point for footnotes.

Further, this document complies with the word-count limitations of Texas Rule of

Appellate Procedure 9.4(i), if applicable, because it contains 4,526 words. This

document was drafted in Microsoft Word 2013.



                                /s/ Colby Rideout
                                Colby Rideout

                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing instrument has

been served upon:

Hon. George B. Mackey
121 N. Rayner Street
Fort Worth, Texas 76111
gmackey1@me.com

electronically on this the 22nd day of December 2017.


                                /s/ Colby Rideout
                                Colby Rideout




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