### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00703- CR

Timot hy Wheat, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ASTROP CO UNTY, 21ST JUDICI AL DISTRICT NO. 153 33, H ONO RAB LE CHRI STO P HER DARROW DUGGAN, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Timothy Wheat appea ls his conviction for failure to reg ist er as a s ex offe nder, a second- deg ree felony
. He claims he rec eived ineffe ctive assistance of counsel due to his counsel’s failure to call a c erta in witness at trial. We will affirm.
BACK GR OUND Wheat has been a reg istered sex offe nder since 1993. He is thus require d to reg ister with local law enfor ceme nt and comply with the require ments of the sex-offende r re gi s tration prog ram. See Tex. Code Crim. Proc. Ch. 62. Specifica lly , he was require d to reg ister ever y ninety day s in the county wher e he resided or intended to reside for more than seven day s. Id
. art. 62.102.

On J une 14, 2013, Wheat regis t er ed with law enfor ceme nt and repor ted a cer tain addre ss as his residenc e. The following wee k, an investiga to r we n t t o that addre ss to verify his reg istration. Wheat’s half-br other, J onah Ba tes, J r., answe red the door and informed the investiga torthat Wheat had not lived at that addre ss sinc e late May 2013. The investiga tor visited the room in

which Wheat had resided, which appea red to be devoid of any persona l items belong ing to Whea t. Ba tes later pr ovided the investig ator a n aff idavit affir

ming his ora l statements. Wheat was arr ested for fa i l u re to reg ister. During his custodial interview, Wheat admitted that he had not lived at that addre ss for sever al months and that he had failed to repor t his
new addre ss. At trial, the State subpoenae d Ba tes as a wi tness, but ultimately did not call him to testify
. A jury found Wheat g uilty
. Wheat pleade d “true ” to two enhanc ement para g raphs alleg ing two prior felony convictions, and the jury assessed punishment at twenty -eig ht y ear s’ confine ment.

Wheat filed a motion for new trial, to which he attache d two post -t ri al aff idavits. 1 One was prepa

red by Ba tes, in which he stated that, during the g uilt phase of trial, he had privately
rec anted his previous statement to law enfor ceme nt to the State’s attorney and informed her that his testimony at t rial would not comport with his origina l statement. He further stated that, while t he jury was delibera ting during sentenc ing, he inf o rm ed Wheat’s counsel of his rec antation to the State’s attorney
. The other aff idavit was prepar ed b y W h eat’s counsel, who stated t hat Bates had in fo rmed him of Bates’s reca ntation afte r t rial. Counsel also stated t hat, during t he guilt phase of trial, Ba tes had informed him that he planned to testify consistently with his orig in al s t at em ent to law enf orce ment. No hear ing was held on Wheat’s motion, and the motion was overr uled by opera tion of law. Whea t appea led.

He also attache d Ba tes’s orig inal aff idavit tha t B ates provided the investiga tor afte r their 1 initial meeting. 2DISCUSSIO N I n his sole issue, Wheat claims that his tria l c ounsel provided ineffe ctive assistance by failing to call B ates to testify on Wheat’s beha lf.
I. Ineff

ect ive assistance of counsel We apply the Strickland test when revie wing claims of ineff ec t i v e assistance of counsel under the Six th Amendment. See Strickland v. W ashington , 466 U.S. 668, 687 (1984); Nava

v. State , 415 S.W .3d 289, 307 (Tex
. C ri m . App. 2013). To preva il on a claim, an appellant must show by a prepondera

nce of evidenc e that (1) his counsel’s repr esenta tion fell below the s tandar d of preva iling profe ssional norms and (2) there is a rea s o n able probability that the result of the proce eding would have b ee n differ ent but for his counsel’s defic ient perf ormanc e. Strickland , 466 U.S. at 687-88, 694; Nava , 415 S.W .3d at 307-08.
II. Wheat has f

ailed to dem onstrate that he re ceive d in eff ect ive assistance of counsel I n support o f h i s claim, W heat relies prim arily on the pos t-trial affidavits prepa red by his counsel and Ba tes, which wer e attache d to Wheat’s motion for new trial. Howeve r, the rec ord does not indicate that a hear ing was held on that motion, and Wheat does not contend there was such
a hear ing or that he reque sted one. The State contends that such aff idavits are thus not in evidenc e 2 and may not be consider ed on appe al. We ag ree .
Although Wheat’s mot i o n for new trial contains a cer tificate of prese ntment, that alone 2 does not demo n s t ra t e that the trial court was on actua l notice that Wheat soug ht a hear ing on the motion. See Rouse v. State , 300 S.W .3d 754, 760 (Tex. Crim. App. 2009); Rodr i g uez v. State , 425 S.W .3d 655, 663 (Tex. App.—Houston [14t h Dist.] 2014, no pet.). 3I n Ro u s e v. S t a t e , the Court of Criminal Appea ls considere d whether the court of

appea ls err ed i n re l y i ng on alleg ations made in a party ’s post-trial motion in concluding that the defe ndant’s g uilty plea was involuntary
. 300 S.W .3d 754, 762 (Tex. Crim. App. 2009). The post-trial motion was overr uled by opera tion of law with no indication on the rec ord that a hear ing had been conducted or reque sted. Id. at 760. The Court held t hat t he court of appeals commi tted
reve rsible err or beca

use the motion had not been introduced i n t o evidence at a hear ing, and any alleg ation made in support of a post-trial motion “by way of aff idavit or otherwise must be offe red into evidenc e at a hear ing .” Id. at 762; see also Lamb v. State , 680 S.W .2d 11, 13 (Tex. Crim. App. 1984) (“Motions for new t rial are n o t s el f- p rovi ng . They must be supported by aff idavits and the aff idavits must be offe red into evidenc e.”) ; Mclntire v. State , 698 S.W .2d 652, 658 (Tex. Crim. App. 1985) (in order to introduce aff idavits att ached to motion for new trial, “a hearing is require d”). Be cause Wheat’s affidavits wer e not introduced into ev i d en ce at a hearing on his motion for new trial, we ma

y not consider them. See Rouse , 300 S.W .3d at 762. The only other portions of the rec ord Wheat cites in support of his claim are rema rks made by his counsel and the State’s attorney in closing arg ument reg arding their decisions not to call Ba tes to testify
. Wheat’s counsel told the j u ry t h at h e d eclined to call Ba tes beca use Ba tes’s testimony would have been unpredic table, unreliable , and likely incrim i natory
. That rema rk, howeve r, serve s only to demonstrate the rea sonablene ss of counsel’s decision not to call Ba tes as a witness. The State’s attorney simil arly explained on closing that she did not call Ba tes beca use she believed he might provide false testimony
. But that rema rk does not establish that Wheat’s counsel
was unrea sonable in failing to call Ba tes to testify g iven the information available to counsel at trial,

4namely , that Ba tes had previously provided law enfor ceme nt with statements incriminating Wheat.

See Mata v. State , 226 S.W .3d 425, 430 (Tex. Crim. App. 2007) (re viewing court does not evalua te counsel’s pe rfor

mance “with the bene fit of hindsight” ). Be ca u s e Wheat failed to establish the first Strickland prong , we overr ule h i s sole issue.
CONCLUSION

We affir m the trial court’ s judgme nt of conviction.

_________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Nove mber 9, 2016 Do Not Publish

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