ACCEPTED
03-14-00703-cr
3609471
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/29/2014 11:24:10 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00703-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS
12/29/2014 11:24:10 PM
JEFFREY D. KYLE
AT AUSTIN Clerk
TIMOTHY WHEAT, Appellant
V.
THE STATE OF TEXAS, Appellee
FROM THE 21ST DISTRICT COURT OF BASTROP COUNTY;
NO. 15,333; HONORABLE CHRISTOPHER D. DUGGAN, JUDGE
APPELLANT’S BRIEF
LAW OFFICE OF CHRIS M. “MATT” DILLON
Chris M. Dillon
State Bar No. 24025328
P.O. Box 446
Bastrop, Texas 78602
Telephone (512) 303-ATTY (2889)
Telecopy (866) 375-1815
dillonlaw@yahoo.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Appellant
Timothy Wheat
Appellant’s Attorney
Chris M. Dillon
State Bar No. 24025328
P.O. Box 446
Bastrop, Texas 78602
Telephone (512) 303-2889
Telecopy (866) 375-1815
Appellant’s Attorney at Trial
Neal Pfeiffer
State Bar No. 15883500
807 Pecan
Bastrop, Texas 78602
Telephone (512) 303-6963
Appellee
The State of Texas
Attorney for the State of Texas
Bryan Goertz
Bastrop County Criminal District Attorney
804 Pecan
Bastrop, Texas 78602
Telephone (512) 581-7125
Trial Court Judge
Honorable Christopher D. Duggan
Bastrop County Courthouse
804 Pecan
Bastrop, Texas 78602
Telephone (512) 581-7137
Brief for Appellant Timothy Wheat 2
TABLE OF CONTENTS
Identity of Parties and Counsel………………………………………… 2
Table of Contents………………………………………………………. 3
Index of Authorities……………………………………………………. 4
Statement of the Case…………………………………………………... 5
Issues Presented………………………………………………………… 6
Statement of Facts……………………………………………………… 7
Summary of the Argument……………………………………………... 15
Argument……………………………………………………………….. 16
Issues Presented
1. Appellant received ineffective assistance of counsel 16
Prayer…………………………………………………………………… 23
Certificate of Service…………………………………………………… 23
Certificate of Compliance……………………………………………… 23
Brief for Appellant Timothy Wheat 3
INDEX OF AUTHORITIES
Statutory Law and Court Rules and Treatises
Tex. Code Crim. Proc. art. 62.102………………………………………… 7
Case Law
Strickland v. Washington, 466 U.S. 668 (1984)…………………………... 16
Ex parte Martinez, 330 S.W.3d 891 (Tex.Crim.App. 2011)………………. 17
Goodspeed v. State, 187 S.W.3d 390 (Tex.Crim.App. 2005)……………... 17
Hunnicutt v. State, 531 S.W.2d 618 (Tex.Crim.App.1976)……………….. 18
King v. State, 649 S.W.2d 42 (Tex.Crim.App.1983)……………………… 18
Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011)…………………... 17
Menefield v. State, 363 S.W.3d 591 (Tex.Crim.App. 2012)……………… 17
Nava v. State, 415 S.W.3d 289 (Tex.Crim.App. 2013)…………………… 16
Perez v. State, 310 S.W.3d 890 (Tex.Crim.App. 2010)…………………… 16
Salinas v. State, 163 S.W.3d 734 (Tex.Crim.App. 2005)…………………. 17
Cochran v. State, 78 S.W.3d 20 (Tex.App.—Tyler 2002, no pet .)……….. 17
Brief for Appellant Timothy Wheat 4
STATEMENT OF THE CASE
Appellant Timothy Wheat was convicted by a jury for the second
degree felony offense of failure to register as a sex offender. This offense
was enhanced by appellant’s prior criminal history such that the punishment
range for appellant would be 25 – 99 years or life under the habitual statute.
The jury assessed appellant’s punishment at 28 years in the Texas
Department of Criminal Justice – Institutional Division.
Appellant presents one issue complaining of ineffective assistance of
counsel. This complaint is based on the failure of trial counsel to adequately
investigate appellant’s case and present favorable testimony at trial.
Brief for Appellant Timothy Wheat 5
ISSUES PRESENTED
1. Appellant received ineffective assistance of counsel.
Brief for Appellant Timothy Wheat 6
STATEMENT OF FACTS
Appellant was convicted in this case for failing to register as a sex
offender. The allegations at trial were not that appellant had failed to
register completely but that he had failed to comply with the registration
requirements. See Tex. Code Crim. Proc. art. 62.102. The basis of the
allegations were that appellant had changed his residence without notifying
the authorities of such change.
Appellant registered his residence address as 204 BJ Mayes Road on
June 14, 2013, as required and just as he had for years prior. (R.R. Vol. 5,
pp. 52-53). A week later, Investigator Randall Looney of the Bastrop
County Sheriff’s Department performed a compliance check on appellant’s
address. (R.R. Vol. 5, pp. 62-63). Investigator Looney visited the residence
at 204 BJ Mayes Road on June 21, 2013. (R.R. Vol. 5. p. 63). Appellant
was not home at the time of Investigator Looney’s visit. Id. This fact was
not unexpected as appellant had also reported his employment in the
registration paperwork as being a flagger for Nixon Enterprises and that his
work required him to travel. (R.R. Vol. 5, p. 59).
At the time of Investigator Looney’s compliance check, appellant’s
half-brother, Jonah Bates, Jr. (“Jr.” is used throughout this brief to
differentiate between Jonah Bates the father who did testify at trial while Jr.
Brief for Appellant Timothy Wheat 7
did not), was home and spoke with Investigator Looney. The relevant
testimony of the conversation between Investigator Looney and Jonah Bates,
Jr. is as follows:
Q. MS. METCALF: And when you arrived at 204 BJ Mayes Road
was Mr. Wheat at the home?
A. LOONEY: No, he wasn't.
Q. Was there someone else at the home?
A. Yes, his brother.
Q. What was his brother's name?
A. Jonah Bates.
Q. Were you able to obtain any information from Mr. Bates with
regards to whether or not Mr. Wheat lived in that home?
A. Yes, ma'am, I was.
Q. Did Mr. Wheat live in that home at 204 BJ Mayes Road?
A. No, ma'am, he didn't. At the time of my visit, he did not,
according to Mr. Bates.
Q. How long had it been since Mr. Wheat lived at 204 --
MR. PFEIFFER: I object to that as being something that calls for a
hearsay response based on the information that Mr. Bates told
him.
THE COURT: Response, State.
MS. METCALF: Your Honor, this is information that this officer
acted upon in order to evaluate and investigate his case.
Therefore, it's not offered for the truth of the matter asserted.
But it's offered to show what this officer did in order to
investigate his case. So by definition it is not hearsay under the
Rules of Evidence.
THE COURT: All right. I'll allow it for that purpose.
Q. MS. METCALF: According to Mr. Bates, how long had it been
since Mr. Wheat lived at 204 BJ Mayes Road?
Brief for Appellant Timothy Wheat 8
A. Let's see. Mr. Bates said that it had been towards the end of
May, close to the end of May 2013, when Mr. Wheat had
moved out of the residence and he hadn't seen nor heard from
him since that date.
(R.R. Vol. 5, pp. 63-64) (Emphasis added).
Jonah Bates, Jr. subsequently provided a written affidavit of fact to
Investigator Looney. The relevant portion of this affidavit is stated here:
I understand that my brother, who is Timothy L. Wheat
B/M 6-27-62, moved into 204 BJ Mayes when he got out of
prison on or around 2000. Timothy Wheat had lived @ 204 BJ
Mayes up until the end of May 2013. He moved out at the end
of May 2013 after an incident occurred. I have not seen or
heard from Timothy since he moved out in May 2013. I do not
know where he is residing now.
(C.R. p. 91).
This affidavit was written by Investigator Looney and signed by Jonah
Bates, Jr. The affidavit was not admitted into evidence but was included as
an attachment to an affidavit attached to and incorporated in the motion for
new trial.
Based on the information obtained, Investigator Looney secured an
arrest warrant for appellant for the offense of failure to register as a sex
offender. Appellant was arrested on June 29, 2013 in Dewitt County. (R.R.
Vol. 5, p. 66). After his arrest, appellant was transported to Bastrop County.
Id. On July 10, 2013, Investigator Looney met with appellant while he was
Brief for Appellant Timothy Wheat 9
still in custody. This meeting was video recorded and a written voluntary
statement was also obtained from appellant. The substance of that
voluntary statement is recited here:
I, Timothy L. Wheat used to reside @ 204 BJ Mayes Rd.
up until 3 or 4 months ago at which time I moved to 8400
Exchange Dr. in Austin, Tx. I lived in an apartment on
Exchange Dr. I know I should have notified the Bastrop Co.
Sheriff’s Ofc. prior to moving but I didn’t because I was scared
to. I know I made a mistake by not contacting the BCSO and I
will not do this again.
(R.R. Vol. 8, State Ex. No. 3).
This statement was also written by Investigator Looney and signed by
appellant.
The trial court denied appellant’s motion to suppress his statements
and these statements were admitted into evidence over appellant’s
objections. (R.R. Vol. 5, pp. 70-72).
The State only called one witness, Investigator Looney, and rested its
case. (R.R. Vol. 5, p. 106). The State had subpoenaed Jonah Bates, Jr. who
did appear at the courthouse and was available to testify at trial. However,
neither the State nor appellant called Jonah Bates, Jr. as a witness.
Brief for Appellant Timothy Wheat 10
Appellant’s trial counsel completed an affidavit after trial concerning
certain relevant matters. The relevant portion of the affidavit is included
here:
At all relevant times, the District Attorney’s office in
Bastrop County had provided access to its case file through its
open file policy, and I was aware of reported statements
including, a written statement by Jonah Bates, “Jr.”, a copy of
which is attached, as well as the report of Investigator Looney,
who turned out to be the state’s only witness. The State
subpoenaed Jonah Bates, “Jr.” as a witness and I was made
aware of such by the District Attorney. I was also aware of a
meeting between Assistant D.A., Kristin Metcalf on Tuesday,
September 30th, the day trial began. Later Tuesday¸ while the
State was still putting on evidence, I approached Jonah Bates,
“Jr.”¸ who apparently was waiting to testify, with family
members and witnesses for the Defendant, in the corridor
outside the courtroom.
I don’t recall how the conversation began, but Jonah
Bates, Jr. stated that he had been waiting a long time to testify.
I asked him if was aware that his father and sister were going to
testify that Timothy Wheat had in fact lived at 204 B.J. Mayes
Road up until the time of his arrest last year, contrary to his
statement. He replied “yes”. I then asked if he still planned to
testify that what he said his statement was true and he stated
“yes” again.
The State did not call Jonah Bates, Jr., as a witness and
neither did I. On Thursday, while the jury was deliberating, as
to punishment, the investigator for the Defense, Allan Dickman,
approached me and told me that Jonah Bates, Jr., was telling a
family member that he had “wanted” to testify “for” Timothy
Wheat. Later that day after the jury finally returned a verdict,
Jonah Bates, Jr. came to my office and told me that he had told
Assistant D.A. Metcalf earlier that week before the trial began
that his written statement was not altogether true or complete.
He stated to me that he had only meant to say in his written
statement that he had not seen the Defendant at the house
Brief for Appellant Timothy Wheat 11
during June 2014. He also told me that during such time he
was not there himself every weekend and that he knew Timothy
had a job which caused him to work out of town during the
week, although I don’t recall him saying that he discussed these
matters with anyone from the District Attorney’s office.
(C.R. pp. 89-90).
Jonah Bates, Jr. also provided an affidavit after the trial of this case
and such affidavit was attached to and incorporated in appellant’s motion for
new trial. The substance of the statement is as follows:
I, Jonah Bates, provided a statement to law enforcement
in the investigation of this case. I was subpoenaed as a witness
for the trial of Timothy Wheat and appeared at the courthouse
for the trial. I was provided a copy of the statement I had
previously given. One of the district attorneys (a woman)
spoke to me about my previous written statement. I informed
the district attorney that my written statement was
misunderstood and that my testimony would be different than
my previous statement. The district attorney let me know that
the officer was on the stand testifying and that I would be called
as the next witness. The district attorney asked me about my
previous statement which I had a copy and asked me what I had
planned to testify about. I let the district attorney know that my
statement was inconsistent with what I planned to testify. She
told me that she felt that the statement I gave previously was
the truth and that I was under pressure to testify differently. She
informed me that the trial was closed and that I would be in the
courtroom and that I didn’t have to worry about the pressure.
She then informed me to be ready to be called as a witness. The
fact is that Timothy Wheat continued to reside at the property
although I rarely saw him because of our different schedules
and because I did not want Timothy Wheat to have contact with
my children. Timothy never moved from his residence but he
would be out of town during the week for work which is why I
rarely saw him. I informed the district attorney of these facts
and that is what I would testify to in court. However, I was not
Brief for Appellant Timothy Wheat 12
called on to testify in trial. While the jury was deliberating for
sentencing, I had an opportunity to speak to Timothy’s lawyer,
Mr. Pfeiffer. I informed Mr. Pfeiffer at that time about the
conversation I had with the district attorney and how my
testimony would have been different from the written
statement. I told Mr. Pfeiffer that Timothy and I hardly ever
seen each other because Timothy worked for Nixon and would
be out of town for work. Timothy would come back home
every week to get his clothes washed and his stuff together and
then would leave again for work.
(C.R. pp. 92-93).
During closing arguments, appellant’s trial counsel presented
argument concerning the affidavit of fact provided by Jonah Bates, Jr. to
Investigator Looney. The relevant portion of this testimony is as follows:
MR. PFEIFFER: What he had was one statement. One piece of
paper. And that paper was something, I assume, from
what's been eluded to, not even introduced into evidence,
that paper has never been introduced into evidence -- it's
been eluded to in statements here -- and the one -- the
times it's been eluded, I objected to it as being hearsay.
And which, of course, it is hearsay. And it was admitted
by the Judge, notwithstanding my objection, because it
was not offered for the truth of the matter stated, it was
offered solely to show that this is what the officer had to
work with at the time to pursue his investigation.
Now, suddenly that statement has been elevated.
It's been testified to just a few minutes ago as if it were
evidence. It's not evidence. Joseph [sic] Bates is -- has
not been here. Where was he yesterday?
MS. METCALF: Your Honor, I'm going to object to this line of
argument as Mr. Bates has been outside the courtroom,
and both parties have equal subpoena power. Mr. Pfeiffer
could have called him as a witness, should he have
chosen.
Brief for Appellant Timothy Wheat 13
MR. PFEIFFER: I'm going tell the jury that, Your Honor. Give
me a chance.
…
MR. PFEIFFER: Your Honor, from the witness stand yesterday
a witness testified when I asked where Mr. Bates was,
Jonah Bates, Jr., he was outside the courtroom. That's
from the witness stand. That's what I heard. What did you
hear? What does the record say? Some of you are
nodding -- that's what was said. That's from the witness
stand. Why didn't I call him? Why didn't I call a State's
witness to prove this paper that they supposedly have? I
didn't know what to expect, what he probably would have
said. And also, he didn't like his half-brother. He moved
his kid and his other -- his kids -- having four kids -- his
girlfriend, his wife, into this little house that you have
pictures of here. Why would he lie? I think I might lie,
too, to get those people out of the house.
This man had a bedroom. They were in the living
room. Now he's out of the house, they're in the bedroom.
He's someplace else. He accomplished his purpose. And
pardon me if I did not see fit to put their witness on the
witness stand to the facts that they should have proven.
(R.R. Vol. 6, pp. 44-46) (Emphasis added).
In apparently providing a response to this argument, the State supplied
the following:
MS. METCALF: Now, the details of that confrontation, why
Jonah Bates told Mr. Wheat he had to go are not before
you for a reason. The State cannot call a witness who
we know is going to lie. The State cannot call a witness
who we know is under pressure to say falsehoods to
protect someone. Mr. Bates was outside this courtroom.
But I will not suborn perjury.
(R.R. Vol. 6, p. 62) (Emphasis added).
Brief for Appellant Timothy Wheat 14
SUMMARY OF THE ARGUMENT
Appellant received ineffective assistance of trial counsel. Trial
counsel failed to perform an adequate investigation into the source of the
allegation that appellant no longer lived at his registered address. This
source was appellant’s half-brother who gave a statement to law
enforcement that he had not seen appellant since May. This half-brother
provided a subsequent affidavit after trial that stated his original statement
was incomplete and that appellant did in fact continue to reside at the
registered address but that he had not seen him because of their differing
schedules. Trial counsel discovered this information while the jury was
deliberating during the sentencing phase of trial. Trial counsel provided an
affidavit as to his discovery of this information that was filed with
appellant’s motion for new trial. Trial counsel was also ineffective for
failing to discover valuable impeachment evidence and failing to call the
half-brother as a favorable witness at trial.
Brief for Appellant Timothy Wheat 15
ARGUMENT
1. Appellant received ineffective assistance of counsel.
To establish ineffective assistance of counsel, an appellant must
demonstrate by a preponderance of the evidence both deficient performance
by counsel and prejudice suffered by the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Nava v. State, 415 S.W.3d 289, 307
(Tex.Crim.App. 2013). The appellant must first demonstrate that counsel's
performance fell below an objective standard of reasonableness under
prevailing professional norms. Strickland, 466 U.S. at 687–88; Nava, 415
S.W.3d at 307. The appellant must then show the existence of a reasonable
probability—one sufficient to undermine confidence in the outcome—that
the result of the proceeding would have been different absent counsel's
deficient performance. Strickland, 466 U.S. at 694; Nava, 415 S.W.3d at
308. Failure to make the required showing of either deficient performance
or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S.
at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010).
Appellate review of counsel's representation is highly deferential and
the appellate court must indulge a strong presumption that counsel's
representation falls within the wide range of reasonable professional
assistance and that trial counsel's decisions were reasonably professional and
Brief for Appellant Timothy Wheat 16
motivated by sound trial strategy. Strickland, 466 U.S. at 686; Salinas v.
State, 163 S.W.3d 734, 740 (Tex.Crim.App. 2005); see Nava, 415 S.W.3d at
307–08 (“courts indulge in a strong presumption that counsel's conduct was
not deficient”). To rebut that presumption, a claim of ineffective assistance
must be “firmly founded in the record” and “the record must affirmatively
demonstrate” the meritorious nature of the claim. See Menefield v. State,
363 S.W.3d 591, 592 (Tex.Crim.App. 2012); Goodspeed v. State, 187
S.W.3d 390, 392 (Tex.Crim.App. 2005). Rarely will the trial record by itself
be sufficient to demonstrate an ineffective-assistance claim. Nava, 415
S.W.3d at 308; see Lopez v. State, 343 S.W.3d 137, 143 (Tex.Crim.App.
2011).
Even if an appellant shows that particular errors of counsel were
unreasonable, he must further show that they actually had an adverse effect
on the defense. Strickland, 466 U.S. at 693–95; Cochran v. State, 78 S.W.3d
20, 24 (Tex.App.—Tyler 2002, no pet .). It is not sufficient that an appellant
show, with the benefit of hindsight, that his counsel's actions or omissions
during trial were of questionable competence. Lopez, 343 S.W.3d at 142–
43. Further, merely showing that the errors had some conceivable effect on
the proceedings will not suffice. Strickland, 466 U.S. at 693; Ex parte
Martinez, 330 S.W.3d 891, 901 (Tex.Crim.App. 2011). The appellant must
Brief for Appellant Timothy Wheat 17
prove that counsel's errors, judged by the totality of the representation, not
by isolated instances of error or by a portion of the trial, denied him a fair
trial. Strickland, 466 U.S. at 695.
Defense counsel performed an inadequate investigation
Trial counsel failed to conduct an adequate investigation and failed to
discover valuable impeachment evidence. Specifically, trial counsel failed
to investigate the substance of Jonah Bates, Jr.’s statement and potential
testimony.
To obtain relief on an ineffective assistance of counsel claim based on
an uncalled witness, the appellant must show that Jonah Bates, Jr. had been
available to testify and that his testimony would have been of some benefit
to the defense. King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App.1983)
(counsel's failure to call witnesses at the guilt-innocence and punishment
stages is irrelevant absent a showing that such witnesses were available and
appellant would benefit from their testimony); see also Hunnicutt v. State,
531 S.W.2d 618 (Tex.Crim.App.1976). (appellant's complaint that his
counsel failed to call witnesses at the guilt stage of the trial or character
witnesses later is unwarranted in absence of showing that such witnesses
were available and appellant would benefit from the presentation of such
evidence).
Brief for Appellant Timothy Wheat 18
Here, Jonah Bates, Jr. was available to testify. According to trial
counsel’s affidavit, trial counsel did have a brief conversation with Jonah
Bates, Jr. that involved whether he would testify consistent with his prior
statement. Jonah Bates, Jr. responded in the affirmative and that was the end
of the inquiry. This all occurred outside the courtroom during trial on
Tuesday. After trial was effectively over on Thursday, trial counsel had the
opportunity to discuss the matter further with Jonah Bates, Jr. and
discovered that his original statement was incomplete. Jonah Bates, Jr.
informed trial counsel that his original statement was incomplete in that “he
had only meant to say in his written statement that he had not seen the
Defendant at the house during June 2014…that during such time he was not
there himself every weekend and that he knew Timothy had a job which
caused him to work out of town during the week…” (C.R. pp. 89-90).
Had this information been investigated and discovered before trial,
appellant could have secured the testimony of Jonah Bates, Jr. for his motion
to suppress hearing and during the guilt/innocence phase of trial.
It is interesting to note that the State apparently garnered this
information on that same Tuesday. Although Jonah Bates, Jr. was
subpoenaed by the State for trial and his appearance was secured pursuant to
Brief for Appellant Timothy Wheat 19
that subpoena, the State elected not to call Jonah Bates, Jr. as a witness
because:
The State cannot call a witness who we know is going to
lie. The State cannot call a witness who we know is under
pressure to say falsehoods to protect someone. Mr. Bates was
outside this courtroom. But I will not suborn perjury.
(R.R. Vol. 6, p. 62).
According to Jonah Bates, Jr.’s subsequent affidavit attached to
appellant’s motion for new trial, Jr. informed the State that his prior
statement was misconstrued. In that affidavit, Jonah Bates, Jr. stated:
One of the district attorneys (a woman) spoke to me
about my previous written statement. I informed the district
attorney that my written statement was misunderstood and that
my testimony would be different than my previous statement.
The district attorney let me know that the officer was on the
stand testifying and that I would be called as the next witness.
The district attorney asked me about my previous statement
which I had a copy and asked me what I had planned to testify
about. I let the district attorney know that my statement was
inconsistent with what I planned to testify. She told me that she
felt that the statement I gave previously was the truth and that I
was under pressure to testify differently. She informed me that
the trial was closed and that I would be in the courtroom and
that I didn’t have to worry about the pressure.
(C.R. p. 92).
This subsequent affidavit calls into question the validity of the
allegation against appellant and undermines the limited investigation
conducted by Investigator Looney. This is especially true when the fact that
Brief for Appellant Timothy Wheat 20
Investigator Looney wrote the original affidavit of fact that Jr. signed. Jonah
Bates, Jr. continued in his subsequent affidavit by stating:
The fact is that Timothy Wheat continued to reside at the
property although I rarely saw him because of our different
schedules and because I did not want Timothy Wheat to have
contact with my children. Timothy never moved from his
residence but he would be out of town during the week for
work which is why I rarely saw him. I informed the district
attorney of these facts and that is what I would testify to in
court.
(C.R. pp. 92-93).
The affidavits of appellant’s trial counsel and Jonah Bates, Jr. attached
to appellant’s motion for new trial are consistent and raise a myriad of
questions. If Jonah Bates, Jr. informed the State that he intended to testify
differently from his previous statement, is that why the State argued that it
“will not suborn perjury?” Why else would this type of argument be made?
If the State learned that Jonah Bates, Jr. intended to testify differently from
his previous statement on Tuesday, why didn’t appellant’s trial counsel learn
such fact then also?
The answers to these questions point directly to trial counsel’s
inadequate investigation. The fact is trial counsel accepted Jonah Bates,
Jr.’s original statement prepared by Investigator Looney without performing
any further inquiry. Trial counsel did present several other witnesses that
Brief for Appellant Timothy Wheat 21
confirmed appellant’s residence at his registered address. However, trial
counsel did not seek the rest of the story in regards to Jonah Bates, Jr. Nor
did trial counsel call Jonah Bates, Jr. as a witness at any stage of the
proceeding. These errors by trial counsel were unreasonable and confirm
the existence of ineffective assistance of counsel.
Judged by the totality of representation, these errors denied appellant
a fair trial. The source of the original information that began the
investigation of this matter provided an incomplete statement that resulted in
appellant providing a statement against himself. In other words, Jonah
Bates, Jr. had only intended to state that he had not seen appellant in June
2013 because of their differing schedules but that is not the way the
statement was written by the investigator. This information was not learned
by appellant’s trial counsel until the trial was effectively ended.
Appellant was unable to question the source of the original
information that led to his arrest, subsequent statement and ultimate
conviction in this case. As such, appellant was denied a fair trial due to trial
counsel’s inadequate investigation, failure to discover valuable impeachment
evidence and failure to call a favorable witness.
Brief for Appellant Timothy Wheat 22
PRAYER
Accordingly, appellant respectfully prays that this Court reverse the
judgment of the trial court and order a new fair trial, and for such other relief
to which he may be entitled.
Respectfully submitted,
___________________________
Chris M. Dillon
State Bar No. 24025328
P.O. Box 446
Bastrop, Texas 78602
Telephone (512) 303-2889
Telecopy (866) 375-1815
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant Timothy Wheat’s
Brief on Appeal has been served on Bryan Goertz, 804 Pecan, Bastrop,
Texas 78602 on the 29th day of December 2014 via facsimile transmission.
___________________________
Chris M. Dillon
CERTIFICATE OF COMPLIANCE
I certify that this document contains 4,791 words.
___________________________
Chris M. Dillon
Brief for Appellant Timothy Wheat 23
I further certify that this submitted computer disc or CD (or email
attachment) complies with the following requests of the Court:
1. This filing is labeled with or accompanied by the following
information:
a. Case Name: Timothy Wheat v. State
b. The Docket Number: 03-14-00703-CR
c. The Type of Brief: Appellant’s Brief
d. The Word Processing Software and Version Used to prepare the
filing: Microsoft Word 2010 converted to Adobe PDF
2. This disc or CD (or email attachment) contains only an
electronic copy of the submitted filing and does not contain any
appendices, any portion of the appellate record (other than a
portion contained in the text of the filing) hypertext links to
other material, or any document that is not included in the
filing.
3. The electronic filing is free of viruses or any other files that
would be disruptive to the Court’s computer system.
4. I understand that a copy of this filing will be posted on the
Court’s web site and becomes part of the Court’s record.
5. Copies have been sent to all parties associated with this case.
___________________________
Chris M. Dillon
December 29, 2014
Brief for Appellant Timothy Wheat 24