                                                                                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
