NO. 03-14-00703-CR

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AT AUSTIN

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

ACCEPTED

03-14-00703-cr

3609471

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/29/2014 11:24:10 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/29/2014 11:24:10 PM JEFFREY D. KYLE Clerk
Brief for Appellant Timothy Wheat 2

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 3

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..........................................................................

Issues Presented

1. Appellant received ineffective assistance of counsel

16

16

Prayer.............................................................................. 23

Certificate of Service............................................................ 23

Certificate of Compliance...................................................... 23
Brief for Appellant Timothy Wheat 4

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 5

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 6

ISSUES PRESENTED

1. Appellant received ineffective assistance of counsel.
Brief for Appellant Timothy Wheat 7

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 8

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 9

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 10

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 11

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 12

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 13

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 14

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 15

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 16

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 17

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 18

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 19

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 20

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 21

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 22

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 23

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 24

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