ACCEPTED
03-14-00703-cr
3908470
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 9:31:04 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00703-CR
IN THE FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
COURT OF APPEALS 1/27/2015 9:31:04 AM
JEFFREY D. KYLE
FOR THE THIRD SUPREME JUDICIAL DISTRICTClerk
AT AUSTIN, TEXAS
__________________________________________________________________
TIMOTHY WHEAT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
__________________________________________________________________
STATE’S BRIEF
__________________________________________________________________
Appeal from the 21ST Judicial District Court
Bastrop County, Texas
Cause 15333
Honorable Christopher D. Duggan
__________________________________________________________________
Bryan Goertz
Criminal District Attorney
Kristin Burns Metcalf, Assistant
Criminal District Attorney
Bastrop County, Texas
804 Pecan Street
Bastrop , Texas 78602
State Bar Number 24056654
Phone (512) 581-7125
Fax (512) 581-7133
Kristin.Metcalf@co.bastrop.tx.us
ORAL ARGUMENT REQUESTED
IDENTITY OF THE PARTIES
Appellant: Timothy Wheat
Appellant's Attorney for trial: Neal Pfeiffer
807 Pecan Street
Bastrop, Texas 78602
Appellant’s Attorney for appeal: Chris Dillon
Post Office Box 446
Bastrop, Texas 78602
State’s Attorneys: Bryan Goertz
Criminal District Attorney
Bastrop County, Texas
804 Pecan Street
Bastrop, Texas 78602
Kristin Burns Metcalf, Assistant
Criminal District Attorney’s Office
Bastrop County, Texas
804 Pecan Street
Bastrop, Texas 78602
Philip L. Hall, Assistant
Criminal District Attorney
Bastrop County, Texas
804 Pecan Street
Bastrop, Texas 78602
Presiding Judge at trial: Honorable Christopher D. Duggan
423rd Judicial District Court
Bastrop County, Texas
i
TABLE OF CONTENTS
PAGE
IDENTITY OF THE PARTIES...................................................................... i
TABLE OF CONTENTS............................................................................... ii
TABLE OF AUTHORITIES ........................................................................ iii
STATEMENT OF THE CASE ..................................................................... 1
STATE’S ISSUE ........................................................................................... 3
STATEMENT OF FACTS ............................................................................ 4
STATE’S ISSUE .......................................................................................... 5
The appellant received effective assistance of counsel.
PRAYER ...................................................................................................... 15
CERTIFICATE OF COMPLIANCE ........................................................... 16
CERTIFICATE OF SERVICE .................................................................... 17
ii
TABLE OF AUTHORITIES
PAGE
CASES
Burrus v. State, 266 S.W.3d 107 (Tex.App.-Fort Worth 2008, no pet.) ................... 8
Ex Parte Ellis, 233 S.W.3d 324 (Tex.Crim.App. 2007)........................................... 7
Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App. 2001) ........................................... 8
Godoy v. State, 122 S.W.3d 315 (Tex.App.-Houston [1st Dist.] 2003, pet
ref’d) ......................................................................................................................... 8
Jackson v. State, 139 S.W.3d 7 (Tex.App.-Fort Worth 2004, pet. ref’d) ................ 8
Lamb v. State, 680 S.W.2d 11 (Tex.Crim.App.1984) cert denied, 470 U.S.
1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 ..................................................................... 8
Lopez v. State, 343 S.W.3d 137 (Tex.Crim.App. 2011).......................... 6, 7, 10, 11
Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App. 2003) ..................................... 8
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984) ................................................................................................................... 6, 7
Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999) ...................................... 7
Tong v. State, 25 S.W.3d 707 (Tex.Crim.App. 2000) ............................................. 6
TEXAS RULES OF APPELLANT PROCEDURE
Rule 9.4 (e) ............................................................................................................. 16
Rule 9.4 (i)(3) ......................................................................................................... 16
iii
NO. 03-14-00703-CR
IN THE COURT OF APPEALS
FOR THE THIRD SUPREME JUDICIAL DISTRICT
AT AUSTIN, TEXAS
__________________________________________________________________
TIMOTHY WHEAT, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
__________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
The State of Texas respectfully submits this brief in support of the appellant’s
conviction for the offense of Failure to Register as a Sex Offender in Bastrop
County, Texas.
STATEMENT OF THE CASE
On August 6, 2013 a Bastrop County grand jury indicted the appellant for the
offense of Failure to Register as a Sex Offender that occurred on or about June 14,
2013 in Cause Number 15333 in the 21st Judicial District Court. (CR, page 6) On
October 1, 2013 a jury convicted the appellant. (CR, page 63 and RR 6, page 72)
On October 2, 2013 the jury found two enhancement paragraphs to be true and
sentenced the appellant to twenty eight years in the Texas Department of Criminal
Justice. (CR, page 75 and RR 7, page 7) On October 2, 2013 the trial court
sentenced the appellant in accordance with the jury’s verdict. (CR, page 76-77 and
RR 7, page 18) On October 29, 2013 the appellant filed a notice of appeal. (CR,
page 85) On October 29, 2013 the appellant filed a motion for new trial with three
documents attached. (CR, page 86-93) The appellant never requested a hearing
on the motion for new trial. The trial court never conducted a hearing on the
appellant’s motion for new trial.
2
STATE’S ISSUE
The appellant received effective assistance of counsel.
3
STATEMENT OF FACTS
The appellant is a registered sex offender for a reportable conviction for
Indecency with a Child by Contact in Cause Number 7847 on February 8, 1993 in
Bastrop County, Texas. (RR 5, page 43 and State’s Exhibit 2) Investigator
Looney began registering the appellant with the Bastrop County Sheriff’s Office
January 8, 2009. (RR 5, page 51) The appellant had previously registered with
another investigator at the Bastrop County Sheriff’s Office. (RR 5, page 51) The
appellant last registered June 14, 2013 where he reported his address as 204 BJ Mays
Road in Bastrop, Texas. (RR 5, page 52) The appellant completed the state
mandated registration paperwork with Investigator Looney on June 14, 2013. (RR
5, page 52-58 and State’s Exhibits 4-6) On June 21, 2013 Investigator Looney went
to the appellant’s home to verify his registration. (RR 5, page 63-64) Upon his
arrival, Investigator Looney spoke with a man who identified himself as the
appellant’s half-brother, Jonah Bates Jr. (RR 5, page 63) Mr. Bates allowed
Investigator Looney to enter the home and showed Investigator Looney the
appellant’s old room. (RR 5, page 63-65) Investigator Looney noticed that the
home and specifically, this bedroom appeared to be void of any personal objects
belonging to the appellant. (RR 5, page 65) The appellant was subsequently
arrested in Dewitt County, Texas on June 29, 2013. (RR 5, page 66) On July 10,
2013 Investigator Looney interviewed the appellant in the Bastrop County jail.
4
(RR 5, page 66) During this custodial interview the appellant admitted both on
video and in a written statement that he had not lived at BJ Mays Road for three to
four months after he and his brother got into a disagreement, and that he failed to
update his registration information with his new address in Austin, Texas. (RR 5,
page 66 and State’s Exhibits 1 and 3) The appellant continued that he knew he was
wrong for not updating his registration as required by law. (RR 5, page 66 and
State’s Exhibits 1 and 3) Investigator Looney was then subjected to cross
examination including the details of the appellant’s work schedule, work related
travel, other residents in the home, interview techniques and Mr. Bates Jr.’s criminal
history. (RR 5, page 81-102) The appellant called four witnesses during the guilt
phase of trial to testify about his place of residency, work schedule and work related
travel. (RR 5, page 107-157)
STATE’S ISSUE
THE APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL.
SUMMARY OF ARGUMENT
The appellant failed to prove that his counsel’s representation fell below the
objective standard of reasonableness and that any deficient performance prejudiced
the appellant.
ARGUMENT AND AUTHORITIES
To prevail on a claim of ineffective assistance of counsel, the appellant must
show his counsel’s representation fell below an objective standard of
5
reasonableness, and the deficient performance prejudiced the defense. The
benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result. Strickland v. Washington,
466 U.S. 688, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Unless the appellant
can prove both prongs, an appellate court must not find counsel’s representation to
be ineffective. Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App. 2011).
To prove deficient performance, the appellant must show that counsel made
errors so serious that counsel was not functioning as the “counsel” guaranteed by the
Sixth Amendment. Strickland, 466 U.S. at 687. To satisfy the first prong, the
appellant must prove by a preponderance of the evidence that his trial counsel’s
performance fell below an objective standard of reasonableness under the prevailing
professional norms. Lopez, 343 S.W.3d at 142.
In making an assessment of effective assistance of counsel, an appellate court
must review the totality of the representation and the circumstances of each case
without the benefit of hindsight. Lopez, 343 S.W.3d at 143. The review of
defense counsel’s representation is highly deferential and presumes that counsel’s
actions fell within a wide range of reasonable professional assistance. Tong v.
State, 25 S.W.3d 707, 712 (Tex.Crim.App. 2000). In assessing a claim of
ineffective assistance of counsel based on deficient performance, an appellate court
6
must indulge a strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance, that is, the convicted defendant must
overcome the presumption that, under the circumstances, the challenged action or
omission might be considered sound trial strategy. Ex Parte Ellis, 233 S.W.3d
324, 330 (Tex.Crim.App. 2007).
If the appellant can show his counsel’s performance fell below an objective
standard of reasonableness under the prevailing professional norms, the appellant
must further show that a reasonable probability, or a probability sufficient to
undermine confidence in the outcome, exists that the result of the proceeding would
have been different. Lopez, 343 S.W.3d at 142. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Strickland, 466 U.S. at 687. It is not enough for the
defendant to show that the errors had some conceivable effect but that there is a
reasonable probability, meaning a probability sufficient to undermine confidence in
the outcome, that the result of the proceeding would have been different but for the
unprofessional errors of counsel. Strickland, at 687.
An ineffective assistance claim must be firmly founded in the record and the
record must affirmatively demonstrate the meritorious nature of the
claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Direct
appeal is usually an inadequate vehicle for raising such a claim because the record is
7
generally undeveloped. Id. Trial counsel should be afforded an opportunity to
explain his actions before being denounced as ineffective. Rylander v. State, 101
S.W.3d 107, 111 (Tex.Crim.App. 2003). If trial counsel is not given that
opportunity, then the appellate court should not find deficient performance unless
the challenged conduct was so outrageous that no competent attorney would have
engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001). If any
reasonably sound strategic motivation can be imagined the appellate court should
not find counsel’s performance deficient. Garcia, 57 S.W.3d at 440.
A motion for new trial is not self-proving. Lamb v. State, 680 S.W.2d 11, 13
(Tex.Crim.App.1984) cert denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391.
During a hearing on a motion for new trial, a trial court may receive evidence by
affidavits. Godoy v. State, 122 S.W.3d 315, 319 (Tex.App.-Houston [1st Dist.]
2003, pet ref’d). An affidavit attached to the motion, however, is merely a pleading
that authorizes the introduction of supporting evidence and is not evidence
itself. Jackson v. State, 139 S.W.3d 7, 20 (Tex.App.-Fort Worth 2004, pet. ref’d).
To constitute evidence, the affidavit must be introduced as evidence at the hearing
on the motion. Id. Relying on affidavits attached to a motion for new trial without
a hearing does not constitute evidence supporting a claim of ineffective assistance of
counsel. Burrus v. State, 266 S.W.3d 107, 113 (Tex.App.-Fort Worth 2008, no
pet.).
8
In this case, the appellant filed a motion for new trial with three documents
attached. (CR, page 86-93) The appellant never requested a hearing on his motion
for new trial. Instead the appellant cites these documents in his brief to the court as if
they are fact with only a clerk’s stamp for approval. (Appellant’s Brief page
11-13).
The appellant complains that his counsel failed to complete an adequate
investigation and discover impeachment evidence. (Appellant’s Brief page 18)
Appellant alleges that trial counsel should have known that Jonah Bates, Jr. would
have testified differently in front of the jury than his written statement provided to
law enforcement. (Appellant’s Brief page 19) Appellant concedes however, that
trial counsel did speak with Jonah Bates, Jr. during trial and that Mr. Bates affirmed
that he would testify consistently with his written statement. (Appellant’s Brief
page 19) The appellant now seeks the court to evaluate trial counsel’s effectiveness
based on the untested affidavit of Jonah Bates Jr. after Mr. Bates’ half-brother had
been sentenced to twenty eight years in the Texas Department of Criminal Justice.
(Appellant’s Brief page 19) The court’s record is silent as to any details regarding
these allegations. The documents attached to a motion for new trial are the sole
support for the contention of ineffective assistance of counsel. The affidavits are
untested in any court of law.
The appellant had the opportunity to supplement the record for the court and
9
chose to produce no evidence explaining the actions of his trial counsel. Therefore,
the appellant failed to show his trial counsel’s representation fell below an objective
standard of reasonableness. Lopez, 343 S.W.3d at 143-4.
The record does show that the appellant’s counsel presented evidence that
Jonah Bates, Jr. was unreliable and untruthful in front of the jury. Counsel
specifically asked Investigator Looney during cross examination if he had ever met
Jonah Bates before the date of the home visit. (RR 5, page 83) Counsel asked if
Investigator Looney was aware if Jonah Bates had a criminal history or not. (RR 5,
page 83) Counsel asked if it would have made a difference to Investigator Looney
if he found out that Jonah Bates, Jr has a criminal history and was recently on felony
probation in Bastrop County, Texas. (RR 5, page 83) Counsel also pointed to the
fact that Investigator Looney only spoke to one resident of the home and that
resident had a criminal history. (RR 5, page 101) The appellant’s trial strategy
was to discredit Jonah Bates as a criminal and a liar.
The appellant continued to execute a trial strategy to discredit Jonah Bates Jr.
as an unreliable witness during his direct examination of Regina Bates. Ms. Bates
testified that she was aware Jonah Bates Jr. told the police that the appellant had
moved. (RR 5, page 132) Ms. Bates continued that Jonah Bates Jr. was outside
the courtroom in the hallway while she was on the witness stand. (RR 5, page 132)
According to Ms. Bates there was no reason her brother Jonah could not testify.
10
(RR 5, page 132) Ms. Bates continued that if Jonah Bates Jr. testified that the
appellant had moved away from the house in 2013 consistent with his statement that
he would be telling the truth. (RR 5, page 132) She painted a picture that Jonah
Bates Jr. did believe he was telling the truth when he gave his statement to the police
but that he was simply mistaken. (RR 5, page 133)
If the court finds from reviewing the record without the benefit hindsight that
error did occur, the record is silent as to the strategy of the appellant’s trial counsel.
An almost endless list of possibilities exists to explain the decisions an attorney
makes during trial. For example, during voir dire, some experienced trial attorneys
prefer to watch the reactions of a jury panel to provocative questions to better make
their strikes. Some experienced trial attorneys like to cross examine an expert to
gain agreement from the State’s expert and use the expert to make points that help
their client. Some experienced trial attorneys do not want to alienate a jury with
continuous objections that do not benefit their client.
Finally, the court must not only find the appellant’s trial counsel’s
representation fell below an objective standard of reasonableness, but that the
appellant must further show that a reasonable probability, or a probability sufficient
to undermine confidence in the outcome, exists that the result of the proceeding
would have been different. Lopez, 343 S.W.3d at 142.
The appellant complains that if trial counsel had done an adequate
11
investigation he would have known Jonah Bates Jr.’s testimony would have been
that the appellant continued to reside at the residence but that he rarely saw him
because of different work schedules. (Appellant’s Brief page 21) This requires
that the court assume this post trial affidavit is true. This is an assumption since this
affidavit has never been evaluated by the trial court and the state has never been
given the opportunity to challenge the veracity of Jonah Bates Jr.’s statements.
Even if this affidavit was true and Jonah Bates Jr. would have testified consistent
with the post-trial affidavit, the appellant has not shown that this testimony would
have swayed the jury.
Four witnesses, who unlike Jonah Bates Jr., had never given conflicting
statements testified on behalf of the appellant during the guilt phase of trial. These
included Jonah Bates, Sr., Regina Bates, Daron Manor and Teri Bates. (RR 5, page
107-160) Jonah Bates, Sr. is the appellant’s father who has resided at 204 BJ Mays
Road for approximately thirty three years. (RR 5, page 108) At the time of the
alleged offense Mr. Bates reports that the appellant along with his other son, Jonah
Bates Jr., daughter Regina and the family of Jonah Bates Jr. all lived at the residence
together. (RR 5, page 109) Jonah Bates Sr. testified that the appellant began
living at the residence in 2008 and remained at the residence until his arrest in 2013.
(RR 5, page 110) Mr. Bates testified about the appellant’s employment with Nixon
Enterprises, the appellant’s work out of the county and his work schedule which
12
took him away from the home during the week. (RR 5, page 110-111) Mr. Bates,
Sr. further testified regarding the appellant’s use of the family kitchen and identified
photograph of the home and the appellant’s bedroom. (RR 5, page 110-111) Mr.
Bates, Sr. acknowledged that the appellant was in Austin on the weekends and that
most of his testimony was based on information his daughter Regina had conveyed
to him. (RR 5, page 118) After reviewing the appellant’s written statement Mr.
Bates Sr. acknowledged that the appellant told the police he moved from 204 BJ
Mays Road three to four months prior to his arrest in 2013. (RR 5, page 124-125)
Regina Bates is the appellant’s sister. (RR 5, page 129) At the time of trial
Ms. Bates lived at 204 BJ Mays Road and had done so since 1975. (RR 5, page
129) Ms. Bates testified that the appellant lived at 204 BJ Mays Road in June 2013.
(RR 5, page 129-130) Ms. Bates testified regarding the appellant’s work history
and schedule in 2013. (RR 5, page 129-131) Ms. Bates reassured the jury that if
Jonah Bates Jr. told them that the appellant had moved away from the home in 2013
and that Mr. Bates Jr. did not know where the appellant was living at the time that
Mr. Bates Jr. was being truthful. (RR 5, page 132) Ms. Bates testified that the
appellant was not working in June 2013 but that he received his mail at the
residence. (RR 5, page 173-139) Ms. Bates would call the appellant when she
was not sure when he would return to the home. (RR 5, page 137-139)
Daron Manor is the appellant’s former coworker. (RR 5, page 144) Ms.
13
Manor testified that the appellant lived at his father’s house at 204 BJ Mays Road in
2013. (RR 5, page 145-146) Ms. Manor continued that she had personally seen
his belonging consisting of a television, computer and clothes in his room during
that time period. (RR 5, page 148-149) Ms. Manor was unaware that the appellant
had ever lived in Austin, Texas in 2013 or where he lived at the time of trial. (RR 5,
page 149-150)
Teri Bates is the appellant’s sister. (RR 5, page 153) The appellant lived
with her at the time of trial. (RR 5, page 153) Ms. Bates testified that the appellant
lived at 204 BJ Mays Road in June of 2013 as evidenced by the fact he received his
mail at 204 BJ Mays Road. (RR 5, page 153-154) Ms. Bates also identified the
appellant’s room at the house and elaborated on the appellant’s work schedule in
June 2013. (RR 5, page 154-155)
Appellant alleges that trial counsel failed to conduct a proper investigation
because he was unaware that Jonah Bates, Jr. would have testified consistent with
his affidavit produced after trial and not his affidavit given to the Bastrop County
Sheriff’s Department in 2013. Appellant failed to show that even if this allegation
were true that this was deficient performance or that the deficient performance is
supported by the record or that this deficient performance prejudiced the defendant.
There is no evidence to support the reasonable probability that the result of the
proceeding would have been any different had Jonah Bates Jr. testified pursuant to
14
his post-trial affidavit. The sole supposition given by the appellant to support this
contention is the highly suspect post-trial affidavits, which have never been
evaluated by a court, and one line from the State’s closing argument. Simply
posing questions in the form of an appellate brief does not create a record. The
record clearly supports that the jury has already heard appellant’s “work schedule”
argument at great length in the form of the skilled cross examination of Investigator
Looney as well as the four witnesses who testified on behalf of the appellant and
closing argument of trial counsel.
The appellant’s argument on appeal is nowhere to be found in the trial court’s
record and does not constitute the level of unprofessional conduct to be labeled
deficient and denouncing trial counsel as ineffective.
PRAYER
The State prays that this Honorable Court affirm the appellant’s conviction
for Failure to Register as a Sex Offender.
Respectfully Submitted
/s/ Kristin Burns Metcalf
Kristin Burns Metcalf
Criminal District Attorney’s Office
Bastrop County Texas
804 Pecan Street
Bastrop, Texas 78602
State Bar Number 24056654
Phone: 512 581-7125
Fax: 512 581-7133
kristin.metcalf@co.bastrop.tx.us
15
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the State certifies that
the length of this brief is 3301 words. Pursuant to Texas Rule of Appellate Procedure
9.4(e), the State certifies that a conventional typeface 14-point was used to generate
this brief.
/s/ Kristin Burns Metcalf
Kristin Burns Metcalf
16
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above notice was mailed by
certified mail to Chris Dillon, Post Office Box 446, Bastrop, Texas 78602, counsel
for the appellant, on January 27, 2015.
/s/ Kristin Burns Metcalf
Kristin Burns Metcalf
17