Timothy Wheat v. State, 03-14-00703-CR

Wheat, a registered sex offender since 1993, was required to register every 90 days at his county residence under Texas law.
On June 14, 2013, Wheat registered an address; an investigator later spoke with Wheat’s half-brother, Jonah Bates, who told the investigator Wheat had not lived there since late May and provided an affidavit to that effect.
Wheat was arrested for failure to register; in a custodial interview he admitted he had not lived at the registered address for months and had not reported the new address.
At trial Bates was subpoenaed but not called by the State; Wheat was convicted, pleaded true to two prior-felony enhancements, and received 28 years’ imprisonment.
After trial Wheat filed a motion for new trial attaching post-trial affidavits from Bates (recanting his prior statement to police and stating he informed both prosecutors and defense counsel) and from Wheat’s counsel (confirming Bates told counsel he would testify consistently with his initial statement); no hearing was held and the motion was overruled by operation of law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not calling Bates	Wheat: counsel was deficient for failing to call Bates, whose recantation would have helped defense	State: affidavits of recantation were not in evidence (no hearing); counsel reasonably declined to call Bates because his prior statements were incriminating and testimony unpredictable	Court: Affirmed — Wheat failed to meet Strickland; affidavits not in evidence and counsel’s decision was reasonable

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test)
Nava v. State, 415 S.W.3d 289 (applies Strickland in Texas criminal cases)
Rouse v. State, 300 S.W.3d 754 (post-trial motion allegations/affidavits must be offered into evidence at a hearing)
Mata v. State, 226 S.W.3d 425 (courts do not judge counsel with hindsight)
Lamb v. State, 680 S.W.2d 11 (motions for new trial are not self-proving; affidavits required)
McIntire v. State, 698 S.W.2d 652 (affidavits attached to motion for new trial require a hearing)