                                                                         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
