Post on 30-Jul-2020
No. WR-64,017-05
_________________________________________________
IN THE TEXAS COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
_________________________________________________
EX PARTE CHRISTOPHER EUGENE WIMBERLY, Applicant
_________________________________________________
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 54,705-E IN THE 27TH
DISTRICT COURT OF BELL COUNTY
_________________________________________________
BRIEF FOR APPLICANT
_________________________________________________
Richard E. Wetzel
State Bar No. 21236300
1411 West Avenue, Suite 100
Austin, Texas 78701
(512) 469-7943
(512) 474-5594 (fax)
Wetzel_law@1411west.com
Attorney for Applicant
Christopher Eugene Wimberly
ORAL ARGUMENT REQUESTED
WR-64,017-05COURT OF CRIMINAL APPEALS
AUSTIN, TEXASTransmitted 6/24/2016 9:37:08 AMAccepted 6/24/2016 10:12:02 AM
ABEL ACOSTACLERK
ii
Identity of Parties and Counsel
Applicant: Christopher Eugene Wimberly
Trial Counsel for Applicant: John McDurmitt
Attorney at Law
P. O. Box 855
Belton, TX 76513
Appeal Counsel for Applicant: Nikki Mundkowsky
Attorney at Law
501 Washington Ave.
Waco, TX 76701
Habeas Counsel for Applicant: Richard E. Wetzel
Attorney at Law
1411 West Ave., Ste. 100
Austin, TX 78701
Trial Counsel for State: Paul McWilliams
Michael Waldman
Assistant District Attorneys
P.O. Box 540
Belton, TX 76513
Appeal Counsel for State: Bob Odom
Assistant District Attorney
P.O. Box 540
Belton, TX 76513
Habeas Counsel for State: Sean Proctor
Assistant District Attorney
P.O. Box 540
Belton, TX 76513
Trial and Habeas Judge: Hon. Martha J. Trudo
iii
Table of Contents
Page
Identity of Party and Counsel . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . vi
I. Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . 3
III. Wimberly’s Claim for Relief on Habeas . . . . . . . . . . . . . . . . . . . . . . . . 3
IV. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Trial on the Merits . . . . . . . . . . . . . . . . . . . . . . . . 4
B. The Evidentiary Hearing on the Claim of Actual Innocence . . . . . . . . . 8
V. Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . 17
VI. Actual Innocence as a Basis for Habeas Corpus Relief . . . . . . . . 20
VII. Wimberly is Actually Innocent Based on Newly Available Evidence . . . 22
A. Tones’ Credibility and His Confession . . . . . . . . . . . . . . . . . . . . . . . 22
B. Wimberly’s Credibility and That of the Other Witnesses . . . 23
C. The Circumstances of Tones’ Affidavit . . . . . . . . . . . . . . . . . . . . . . . 24
D. Tones’ Affidavit is Both Newly Discovered and Newly Available
Evidence . . . . . . . . . . . . . . . . . . . . . . . 25
E. Weighing of the Old and New Evidence . . . . . . . . . . . . . . . . . . . . . . . 27
iv
VIII. Issues Presented in this Court’s Order . . . . . . . . . . . . . . . . . . . . . . . 29
A. Consistency of Tones’ Affidavit With Habeas Testimony
and Tones’ Prior Statements . . . . . . . . . . . . . . . . . . . . . . . 29
B. Consistency of Tones’ Confession and the Trial Testimony . . . . . . 34
C. Eyewitness Descriptions of the Robber . . . . . . . . . . . . . . . . . . . . . . . 39
1. Gender . . . . . . . . . . . . . . . . . . . . . . . 39
2. Race . . . . . . . . . . . . . . . . . . . . . . . 40
3. Age . . . . . . . . . . . . . . . . . . . . . . . 40
4. Height . . . . . . . . . . . . . . . . . . . . . . . 40
5. Weight . . . . . . . . . . . . . . . . . . . . . . . 40
6. Hair . . . . . . . . . . . . . . . . . . . . . . . 41
7. Facial Hair . . . . . . . . . . . . . . . . . . . . . . . 41
8. Scars, Marks, Tattoos, or Jewelry . . . . . . . . . . . . . . . . . . . . . . . 42
9. Accent or Unusual Speech Pattern . . . . . . . . . . . . . . . . . . . . . . . 42
10. The Gloves . . . . . . . . . . . . . . . . . . . . . . . 42
11. The Shotgun . . . . . . . . . . . . . . . . . . . . . . . 43
12. The Jacket . . . . . . . . . . . . . . . . . . . . . . . 43
IX. The Trial Court’s Flawed Findings and Conclusions . . . . . . . . . . . . . 44
A. The Erroneous Finding of Inconsistencies in Tones’ Affidavits . . 44
B. The Erroneous Finding Regarding Gerard Gioioso . . . . . . . . . . . . . 46
C. The Incomplete Findings Regarding David Sawchak . . . . . . . . . . . . . 46
v
D. The Erroneous Findings Regarding Karl Ortiz . . . . . . . . . . . . . 47
E. The Erroneous Finding Regarding the Shotgun . . . . . . . . . . . . . 47
F. The Erroneous Finding on Tones’ Credibility . . . . . . . . . . . . . 48
G. The Writ Writer Conspiracy Theory . . . . . . . . . . . . . 48
H. The Ignored Newly Discovered and Available Evidence . . . . . . . . 51
I. How Dare He Plead Not Guilty Without Proving It . . . . . . . . 52
J. The Instant Application is Not a Subsequent Application . . . . . . . . 53
Prayer . . . . . . . . . . . . . 55
Certificate of Compliance . . . . . . . . . . . . . 55
Certificate of Service . . . . . . . . . . . . . 56
vi
Index of Authorities
Page
Cases
Ex parte Briggs, 187 S.W.3d 458
(Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . .21
Ex parte Brown, 205 S.W.3d 538
(Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . .20
Ex parte Calderon, 309 S.W.3d 64
(Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . .21
Ex parte Elizondo, 947 S.W.2d 202
(Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . .20
Ex parte Franklin, 72 S.W.3d 671
(Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . .21
Ex parte Reed, 271 S.W.3d 698
(Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . .22
Ex parte Thompson, 153 S.W.3d 416
(Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . .21
Ex parte Tones, Nos. WR-64,931-01 and WR-64,931-02
(Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . 33
Ex parte Tuley, 109 S.W.3d 388
(Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . .20
Ex parte Wimberly, No. WR-67,017-01
(Tex. Crim. App. February 22, 2006) . . . . . . . . . . . . . . . . . . . . . . . . .2
Ex parte Wimberly, No. WR-67,017-02
(Tex. Crim. App. June 7, 2006) . . . . . . . . . . . . . . . . . . . . . . . . .2
Ex parte Wimberly, WR-67,017-03
(Tex. Crim. App. September 12, 2007) . . . . . . . . . . . . . . . . . . . . . . . . .2
vii
Ex parte Wimberly, No. WR-67017-04
(Tex. Crim. App. May 8, 2013) . . . . . . . . . . . . . . . . . . . . . . . . .2
Ex parte Wimberly, No. WR-67,017-05
(Tex. Crim. App. March 4, 2015) . . . . . . . . . . . . . . . . . . . . . . . . .2
Ex parte Wimberly, No. WR-67,017-05
(Tex. Crim. App. May 25, 2016) . . . . . . . . . . . . . . . . . . . . . . . . .3
Tones v. State, 2005 WL 723673
(Tex. App.—Austin 2005, pets. dism’d) . . . . . . . . . . . . . . . . . . . . . . . . .9
Wimberly v. State, 2005 WL 2573524
(Tex. App. – Austin 2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . .1
Statutes
TEX. CRIM. PROC. CODE art. 11.07 . . . . . . . . . . . . . . . . . . . . . . . . .1
TEX. CRIM. PROC. CODE art. 11.07 § 4(a)(1) . . . . . . . . . . . . . . . . . . . . . . . .53
Rule
TEX. R. APP. P. 9.4 . . . . . . . . . . . . . . . . . . . . . . . .55
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I. Statement of the Case
Christopher Eugene Wimberly was indicted by a Bell County jury for the
December 23, 2002, aggravated robbery of Gerard Gioioso with a firearm (CR 1).1
The charge was tried to a jury on Wimberly’s plea of not guilty (4 RR 8). On
October 21, 2003, the jury returned a verdict of guilty (5 RR 33). Punishment was
tried to the court and assessed at 50 years in prison (6 RR 10). The Honorable
Martha J. Trudo presided over the trial and the instant habeas corpus proceeding.
Notice of appeal was timely filed. Two points of error were presented on
direct appeal. First, it was claimed the evidence presented at trial was factually
insufficient to support the conviction. Second, it was urged trial counsel was
ineffective for failing to present expert witness testimony on eyewitness
identification procedures. Both points were rejected on direct appeal and the
conviction was affirmed on October 13, 2005. Wimberly v. State, 2005 WL
2573524 (Tex. App. – Austin 2005, pet. ref’d).
The instant habeas corpus application filed under TEX. CRIM. PROC. CODE
art. 11.07 is Wimberly’s fifth attempt at habeas corpus relief. His first application
was dismissed by this Court because it was filed while his direct appeal was still
1 “CR” refers to the clerk’s record in the underlying prosecution of State of Texas
v. Christopher Eugene Wimberly, No. 54,705, in the 27th
District Court of Bell
County. “RR” refers to the reporter’s record from the underlying prosecution.
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pending. Ex parte Wimberly, No. WR-67,017-01 (Tex. Crim. App. February 22,
2006). In his second application, Wimberly was successful in obtaining an out of
time petition for discretionary review. Ex parte Wimberly, No. WR-67,017-02
(Tex. Crim. App. June 7, 2006). His third application was denied on the merits.
Ex parte Wimberly, WR-67,017-03 (Tex. Crim. App. September 12, 2007).
Wimberly’s fourth attempt at habeas corpus relief was dismissed as a subsequent
application. Ex parte Wimberly, No. WR-67017-04 (Tex. Crim. App. May 8,
2013).
The instant application was filed pro se by Wimberly in the trial court on
September 25, 2014. It was remanded to the trial court by this Court for a hearing,
findings, and conclusions. Ex parte Wimberly, No. WR-67,017-05 (Tex. Crim.
App. March 4, 2015). Undersigned counsel was appointed by the trial court to
represent Wimberly in this matter on March 5, 2015. The evidentiary hearing
ordered by this Court was held on July 9, 2015 (WRR).2
On September 9, 2015, the trial court signed the State’s proposed findings of
fact and conclusions of law. The trial court recommended to this Court that the
relief sought be denied or the application be dismissed as a subsequent application.
2 “WRR” refers to the reporter’s record from the evidentiary hearing conducted on
July 9, 2015 in Ex parte Christopher Wimberly, No. 54,705-E, in the 264th
District
Court of Bell County, Texas.
- 3 -
On September 18, 2015, Wimberly timely filed his objections to the trial court’s
findings, conclusions, and recommendation.
On May 25, 2016, this Court entered an order in the cause filing and setting
the application, directing the filing of briefs, and permitting oral argument at
submission. The Court directed briefing on: (1) whether the newly confessing
party, Tones’, affidavit is consistent with his testimony at the habeas hearing and
any prior statement he has made regarding any of his convictions; (2) whether
Tones’ confession is consistent with the testimony from witnesses to the robbery
who testified at Wimberly’s trial; and (3) whether the original eyewitnesses
descriptions of the robber match Wimberly, Tones, or both. Ex parte Wimberly,
No. WR-67,017-05 (Tex. Crim. App. May 25, 2016).
II. Statement Regarding Oral Argument
In its order filing and setting the application, the Court indicated oral
argument would be permitted at submission. Counsel intends to be present and
argue on behalf of Wimberly at submission.
III. Wimberly’s Claim for Relief on Habeas
Wimberly seeks habeas corpus relief on the ground he is actually innocent of
the offense for which he was convicted. Within his application, Wimberly relies
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on newly available evidence consisting of an affidavit dated March 3, 2014, from
Royry Tones. In that affidavit, Tones takes sole responsibility for committing the
aggravated robbery for which Wimberly was convicted.
IV. Statement of Facts
A. The Trial on the Merits
In less than three minutes, someone wielding a shotgun robbed a Pizza Hut
on Rancier Avenue in Killeen on December 23, 2002 (4 RR 42). As deliveryman
Phillip Wynn exited the backdoor of the restaurant to load pizzas in his vehicle at
10:45 pm, he was confronted by an individual who put a shotgun to his chest and
told him to “get his ass back in the store” (4 RR 68). Once inside the restaurant,
the robber told Wynn to put the pizzas down and to get on the floor. Wynn
complied (4 RR 69).
The manager and complainant, Gerard Gioioso, was at his desk when he saw
Wynn backing into the store with a robber point a shotgun at Wynn’s chest (4 RR
32). Gioioso described the shotgun as sawed off, with a silver barrel, black handle
and 12 gauge (4 RR 32). Gioioso noted the differences between a shotgun
introduced into evidence, State’s exhibit 11, and the shotgun used by the robber
with regard to color and stock size (4 RR 49-50). The only similarity with the
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exhibit and the robber’s weapon was that they were both 12 gauge pump shotguns
(4 RR 50).
Gioioso, about six feet from the disturbance involving the robber and Wynn,
asked what was going on, whereupon the robber turned the shotgun toward
Gioioso and demanded money (4 RR 33). Gioioso walked toward the front of the
store to the safe while the robber was pointing the gun at his back. As soon as the
robber was focused on Gioioso, Wynn fled to a cooler and remained inside the
cooler until the robbery was over (4 RR 70).
At the front of the store, Gioioso approached the shift manager, Ida
Rodriguez. She was in the process of counting the cash taken in that day by the
restaurant (4 RR 35). The safe was open and money was on the counter before
Rodriguez handed it to the robber (4 RR 36). The robber kept his head down
during the robbery and Gioioso never got a good look at his face (4 RR 36). After
securing the money, the robber told everyone to get down and he left the restaurant
out the backdoor (4 RR 36). Upon the robber’s exit, employee Jared Castro yelled
“he’s gone” (4 RR 37). Gioioso testified the robber was in and out of the Pizza
Hut in “[l]ess than three minutes. It was quick enough for him to walk to the front,
hand him the money, have him walk out the backdoor, less than three minutes” (4
RR 42).
- 6 -
Gioioso described the robber as a black man dressed in a heavy black coat
with hood pulled up and the drawstring pulled tightly so that is “squished” his face
(4 RR 34). He indicated that he could only see the robber’s eyes, nose, cheeks, and
mouth (4 RR 37). When asked about the size of the robber, Gioioso responded that
he was about six feet tall, two hundred pounds, and in his early to mid-thirties (4
RR 48).
Gioioso testified at trial that he “never got a real good glance” of the robber
(4 RR 36). When asked at trial if he saw the person who committed the crime in
the courtroom, he responded “I believe I do, I believe that gentleman in the blue
shirt (the defendant)” (4 RR 38). Gioioso testified that he was eighty percent sure
that the defendant was the robber, but admitted that the robber could have been
someone else (4 RR 46).
Gioioso identified Wimberly in a photospread by folding the photos so that
all he could see of each photograph was the eyes (4 RR 64). In similar manner,
when Wynn viewed the photospreads, he folded the pictures so that only the
portion of the robber’s face he was visible (4 RR 72). With regard to facial hair,
Gioioso said the robber had a mustache and some facial hair while Wynn said he
had a “bunch of scrubs” like he had not shaved in a couple of days (4 RR 49, 74).
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Phillip Wynn was working part time delivering pizzas during the Christmas
holidays (4 RR 67). Wynn was shown two six person photospreads by the police
(4 RR 75). Wynn testified that he was 100 percent certain that Wimberly was the
robber based on Wimberly’s eyes (4 RR 72). When he initially looked at the
photospreads, Wynn did not immediately identify Wimberly as the robber; instead,
“I used a process of elimination, I knew it wasn’t the three bottom pictures. And
this guy here was sticking out to me” (4 RR 72). Wynn stated that during the
robbery, his main focus was on the robber’s eyes and he did not notice anything
else specific to the robber (4 RR 74-75). Wynn was 5’ 9’’ tall and the robber was a
few inches taller than him (4 RR 75). The photospread identification by Wynn
took place a month after the robbery (4 RR 78).
Thomas Bales was working at the Pizza Hut on the night of the robbery (4
RR 80). He was at the front of the restaurant near Rodriguez when Gioioso and the
robber approached (4 RR 81). Bales was unable to identify Wimberly as the
robber (4 RR 83).
Jared Castro was working at the Pizza Hut at the time of the robbery as a
cook (4 RR 86). He saw Wynn backing in the restaurant while the robber had a
gun to Wynn’s chest (4 RR 87). He then saw the robber proceed to the front with
Gioioso (4 RR 87-88). When the robber tried to go out the backdoor, the door
- 8 -
would not open and he pointed the shotgun at Castro and told him to open the door
(4 RR 89). Once the door was open, the robber fled (4 RR 89). Castro was unable
to identify Wimberly as the robber at trial (4 RR 90).
Two additional employees, Ida Rodriguez and David Sawchak were at the
Pizza Hut at the time of the robbery (4 RR 14, 31). They did not testify at trial.
Officer Kirt Yarbrough, of the Killeen Police Department, testified the Pizza
Hut was not equipped with a video surveillance system (4 RR 15). No fingerprints
were secured from the scene because the robber wore gloves (4 RR 15).
Officer Karl Ortiz, of the Killeen Police Department, assisted in the
investigation (4 RR 94). Due to the absence of physical evidence at the Pizza Hut,
there was no crime scene to investigate (4 RR 94). Ortiz noted there had been a
large number of aggravated robberies at fast food restaurants at the time of the
Pizza Hut robbery (4 RR 101).
In argument, the State relied on the identification testimony of Gioioso and
Wynn as sufficient to convict Wimberly (5 RR 17). Defense counsel challenged
the identification testimony in argument and had Wimberly stand before the jury
while noting he is a “big man” (5 RR 22). The jury returned a guilty verdict (5 RR
33).
- 9 -
B. The Evidentiary Hearing on the Claim of Actual Innocence
As ordered by this Court, an evidentiary hearing was held on July 9, 2015.
At the outset, the court took judicial notice of the court’s files involving Wimberly
and Royry Tones (WRR 6). Numerous documents from those files were also
admitted as State’s Exhibits C – J (WRR 7).
Royry Tones was called as a witness by Wimberly (WRR 10). Before his
testimony, the court admonished him of possible prosecution for aggravated
perjury (WRR 12-15). Tones understood the admonishments and agreed to testify
(WRR 15).
Tones testified he is currently incarcerated as a result of two aggravated
robbery convictions and two 75 year sentences from Bell County (WRR 16). His
trial took place in 2004 (WRR 16). The robberies for which he was convicted took
place at a Pizza Hut and Subway sandwich shop in Killeen (WRR 16-17). The
robberies were committed on March 3, 2003 (WRR State’s Exhibits G and H). He
was convicted on May 5, 2004 (WRR State’s Exhibits G and H). His convictions
were affirmed on appeal (WRR 17).3
3 Tones v. State, 2005 WL 723673 (Tex. App.—Austin 2005, pets. dism’d).
- 10 -
Tones identified his booking photo from the time he was arrested for the
robberies (WRR 17, Petitioner’s Exhibit 1). He also identified a picture of the
pistol grip shotgun he used in perpetrating the robberies (WRR 17, Petitioner’s
Exhibit 2). Tones identified a number of photographs introduced during in his own
trial depicting clothing he wore during the robberies (WRR 18, Petitioner’s
Exhibits 3 - 6).
The robberies for which Tones was convicted were not the first robberies he
committed (WRR 19). He committed a string of 12 to 15 aggravated robberies
with the first on December 23, 2002, and the last on March 3, 2003 at the time of
his arrest (WRR 19). He committed the robberies on his own until the final two
robberies for which he was arrested (WRR 19). Edward Montgomery assisted him
in those last two robberies (WRR 19).
He robbed fast food restaurants in the late evening (WRR 20). He was
always armed with the shotgun recovered at the time of his arrest (WRR 20).
During the robberies, he wore dark clothing like that admitted at his trial (WRR
20). He wore gloves and would attempt to disguise his appearance during the
robberies (WRR 21).
- 11 -
At the time of his arrest, he was 35 years old (WRR 21). He is 5’ 9” and
weighed 182 pounds when arrested (WRR 21). He is parole eligible on his current
sentences is in 2033 (WRR 22).
Tones testified he committed the aggravated robbery at the Pizza Hut on
Rancier on December 23, 2002 (WRR 22). He acted alone (WRR 22). He was
armed with the same shotgun taken from him at the time of his arrest in March of
2003 (WRR 22). He wore gloves and a dark jacket with a hood (WRR 22).
Tones entered the backdoor of the Pizza Hut as a delivery driver came in
(WRR 23). Once inside, he had another employee lead him to the safe (WRR 23).
There was a woman at the safe and she gave him the money (WRR 23). He left
out the backdoor (WRR 23).
Tones has never seen the offense report or witness statements for the offense
for which Wimberly was convicted (WRR 23). Wimberly had no involvement in
Tones robbery of the Pizza Hut on December 23, 2002 (WRR 23).
Although he and Wimberly were in the Bell County Jail awaiting trial at the
same time, he did not know Wimberly and did not know that Wimberly had been
charged with an offense Tones committed (WRR 24). Tones first learned in 2008
or 2009 from another inmate, a writ writer, of Wimberly’s conviction for a crime
he committed (WRR 24-25).
- 12 -
Tones contacted several attorneys and the Innocence Project in an effort to
find someone to help Wimberly (WRR 25-26). All of the lawyers wanted a fee up
front and it took the Innocence Project several years to respond to his request to
assist Wimberly (WRR 25, 28).
Tones acknowledged he executed the March 3, 2014, affidavit attached to
Wimberly’s habeas application taking responsibility for the aggravated robbery for
which Wimberly was convicted (WRR 26). He did so freely and voluntarily and
the statements in the affidavit are true and correct (WRR 26). After executing the
affidavit, he sent a copy to the Innocence Project (WRR 26). The affidavit was
returned by the Innocence Project to Tones with the admonishment not to send
materials unless first requested (WRR 26). After the affidavit was returned to him,
Tones gave a copy to Wimberly “for him to do whatever he needed to do with it”
(WRR 26). At the time he gave the affidavit to Wimberly, they were both housed
on the McConnell Unit of the Texas Department of Criminal Justice (WRR 27).
Tones testified he was motivated to help Wimberly in an effort to correct a
wrong which had occurred (WRR 27). Since being in prison, he has become a
Muslim and he attempts to follow the teachings of the Koran calling for making
amends to those he has harmed and doing the right thing in order to reach heaven
(WRR 27). He and Wimberly have no relationship in prison and simply see each
- 13 -
other occasionally at the chow hall or on the sidewalk (WRR 27). Wimberly has
not given him anything or promised him anything in return for Tones accepting
responsibility for his own conduct (WRR 28).
Christopher Wimberly is the applicant and is serving a 50 year prison
sentence for an aggravated robbery at a Pizza Hut on Rancier in Killeen on
December 23, 2002 (WRR 55-56). A jury found him guilty and the trial court
assessed punishment on November 24, 2003 (WRR 59, 6 RR 10). The instant
application is his fifth attempt at habeas corpus relief and was filed on September
25, 2014 (WRR 61).
Wimberly identified his booking photo from the time of his arrest and a
picture of a shotgun admitted into evidence at his trial (WRR 57, Petitioner’s
Exhibits 7 and 8).4 Wimberly was 35 years of age at the time he was charged in
2003 (WRR 58). He is 6’ 3” tall and weighed 190 pounds at the time of his arrest
(WRR 58).
Wimberly and Tones have no relationship (WRR 62). His only involvement
with Tones concerns Tones’ guilt for the offense for which Wimberly was
convicted and is incarcerated (WRR 62).
4 A supplemental reporter’s record reflects both exhibits were admitted into
evidence (Supp. WRR 1).
- 14 -
In 2008 or 2009, Wimberly learned from a writ writer on the McConnell
Unit that Tones might have committed the aggravated robbery for which Wimberly
was convicted (WRR 63). The writ writer was suspicious because he knew of
Tones committing a number of aggravated robberies at fast food restaurants in
Killeen at the time Wimberly allegedly committed the aggravated robbery (WRR
63). The writ writer said he would speak with Tones to see if he had any
involvement in the robbery for which Wimberly was convicted (WRR 64).
Wimberly learned from the writ writer that Tones did commit the robbery
and was willing to take responsibility for it (WRR 64). Wimberly’s effort to
secure legal assistance on presentation of the claim of actual innocence was
unsuccessful (WRR 64). In February of 2014, Wimberly received a hand written
affidavit from Tones taking responsibility for the robbery (WRR 64-65).
Wimberly had the affidavit typed and it was signed by Tones in March of 2014
(WRR 65). Wimberly thought the affidavit was critical to his presentation of a
claim of actual innocence and he needed it before he could file the application
(WRR 65-66). Wimberly also made note of a newspaper article concerning Tones’
multiple aggravated robbery offenses which he attached to his application as a
critical piece of evidence in the presentation of his actual innocence claim (WRR
66). The article was secured after he obtained Tones’ affidavit (WRR 66).
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Wimberly has never shown Tones the offense report or witness statements
for the offense for which he was convicted (WRR 66-67). He has not given or
promised anything to Tones in return for his affidavit or testimony (WRR 67).
Finally, Wimberly professed his innocence for the offense for which he was
convicted (WRR 67).
Gerard Gioioso has worked for the Pizza Hut on Rancier in Killeen for 15
years (WRR 87). He was present when a robbery occurred on December 23, 2002
(WRR 87). The robber was armed with a shotgun (WRR 88). After reviewing his
trial testimony describing the shotgun, Gioioso indicated the shotgun taken from
Tones at the time of his arrest was the type of weapon used when he was robbed
(WRR 90). He agreed he did not get a good look at the robber and the robbery
only lasted a couple of minutes (WRR 91-92).
David Sawchak previously worked at the Pizza Hut in Killeen in December
of 2002 (WRR 100). He was present when a robbery occurred on December 23,
2002 (WRR 100). He was at the oven cooking when the robber entered (WRR
100). He had a clear view of the robbery occurring (WRR 100). He saw the
robber and the shotgun the robber was holding (WRR 101). Sawchak described
the weapon as either a sawed off shotgun or a shotgun with a pistol grip and a
shortened barrel (WRR 101). Sawchak identified a picture of the shotgun taken
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from Tones as having similar characteristics to the shotgun he saw during the
robbery (WRR 102).
Sawchak provided a written statement to the police on the night of the
robbery in which he described the robber’s height as 5’ 7” to 5’ 9” (WRR 103).
After providing his statement, Sawchak was never again contacted by the police
and did not testify at Wimberly’s trial (WRR 104).
Sawchak was recently provided with three photographs to review concerning
the robbery (WRR 104, 111-112). After reviewing those photographs, he believed
the picture of Tones had the greatest likeness to the robber based on his eyes and
facial hair (WRR 105). The picture of Wimberly did not match his memory of the
robber based on facial hair, eyes, and height (WRR 105-106).
Charles Cox is the custodian of records for the Bell County Jail (WRR 114).
He provided testimony as to the incarceration dates of Tones and Wimberly in the
Bell County Jail (WRR 114). They were not housed in the same area and he had
no idea whether they ever had contact with each other (WRR 116-117).
Jon McDurmitt represented Wimberly at trial (WRR 121). He investigated
the case in preparation for trial (WRR 125). He attempted to develop a possible
alibi (WRR 125). He investigated possible avenues to demonstrate
- 17 -
misidentification of Wimberly (WRR 126). McDurmitt attempted to challenge and
discredit the identification testimony at trial (5 RR 17, 22).
Karl Ortiz was one of the investigating officers for the robbery for which
Wimberly was convicted (WRR 130). Ortiz spoke with witnesses to the robbery
and worked on developing a lead to a suspect (WRR 131). Wimberly became a
suspect following a Crime Stoppers tip (WRR 132-133). Gioioso said he was 80%
sure Wimberly was the robber in a photospread prepared by Ortiz (WRR 134).
Wynn was positive Wimberly was the robber after viewing the photospread
prepared by Ortiz (WRR 135). Ortiz identified the pistol grip shotgun depicted in
Petitioner’s Exhibit 2 as the weapon taken into evidence when Tones was arrested
(WRR 137).
V. Summary of the Argument
Wimberly seeks habeas corpus relief on the basis of actual innocence. He
has shown by clear and convincing evidence that despite the evidence of guilt
which supports the conviction, no reasonable juror could have found him guilty in
light of the newly available and discovered evidence.
The contested issue at trial was identification. Except for the testimony of
two eyewitnesses out of a possible six, there was no evidence connecting
Wimberly to the robbery. Nothing put him at the Pizza Hut at the time of the
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robbery; no fingerprints were recovered; no footprints or shoeprints were
recovered; there was no testimony presented concerning the pants or shoes worn
by the robber; no video surveillance was available; the coat worn by the robber
was not connected to Wimberly; the shotgun was not connected to Wimberly; and
the proceeds of the robbery were not connected to Wimberly.
At trial Gioioso testified “I never got a real good glance” (4 RR 36).
Although he could see the robber’s eyes, he admitted at trial that the robber could
have been someone other than Wimberly (4 RR 36, 46).
Wynn did not immediately identify Wimberly as the robber when he viewed
the photospread (4 RR 72). Instead, he used a process of elimination, because “I
knew it wasn’t the three bottom pictures. And this guy here [Wimberly] was
sticking out to me” (4 RR 72).
The new evidence supporting Wimberly’s claim of actual innocence consists
of Tones’ confession, testimony, and the corroborative evidence before this Court
indicating Tones did in fact commit the offense for which Wimberly was
convicted.
Tones committed a series of aggravated robberies at fast food restaurants in
Killeen during the relevant time period. He committed five such robberies on the
day of his arrest. His method of operation, including dress, disguise, and weapon
- 19 -
of choice was consistent during the robberies except for the final two which
included involvement of an accomplice.
Gioioso’s descriptions of the shotgun, both at trial and at the evidentiary
hearing, match the shotgun taken from Tones at the time of his arrest. Gioioso’s
description of the robber’s clothing at trial matches the clothing recovered from
Tones at the time of his arrest.
Sawchak’s description of the robber’s shotgun at the evidentiary matches the
shotgun recovered from Tones. At the evidentiary hearing, Sawchak testified that
after viewing photographs of Wimberly and Tones from the relevant period of
time, Tones most clearly resembled the robber. Sawchak provided a height
estimate to the police after the robbery. That estimate matches Tones rather than
Wimberly.
Tones description of the offense both in his affidavit and testimony at the
evidentiary hearing matches testimony at Wimberly’s trial concerning the manner
in which the robbery took place. Knowledge of those details could only occur by
someone who was actually present during the robbery.
This Court should conclude Wimberly has proven by clear and convincing
evidence his claim of actual innocence. In view of the newly available evidence,
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no rational juror would have convicted had the newly available evidence been
available and presented at trial. Wimberly is entitled to the relief which he seeks.
VI. Actual Innocence as a Basis for Habeas Corpus Relief
Establishing a bare claim of actual innocence is a Herculean task. Ex parte
Brown, 205 S.W.3d 538, 544-46 (Tex. Crim. App. 2006). Any person who has
once been finally convicted in a fair trial should not be permitted to wage a
collateral attack on that conviction without making an exceedingly persuasive case
that he is actually innocent. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim.
App. 1996). Thus, to succeed in an actual innocence claim the applicant must
show by clear and convincing evidence that, despite the evidence of guilt that
supports the conviction, no reasonable juror could have found the applicant guilty
in light of the new evidence. Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim.
App. 2002). This showing must overcome the presumption that the conviction is
valid and it must unquestionably establish applicant's innocence. Id.
Not only must the habeas applicant make a truly persuasive showing of
innocence, he must also prove that the evidence he relies upon is “newly
discovered” or “newly available.” The term “newly discovered evidence” refers to
evidence that was not known to the applicant at the time of trial and could not be
known to him even with the exercise of due diligence. He cannot rely upon
- 21 -
evidence or facts that were available at the time of his trial, plea, or post-trial
motions, such as a motion for new trial. Ex parte Briggs, 187 S.W.3d 458, 465
(Tex. Crim. App. 2005). An item of evidence warranting relief may be both newly
discovered and newly available. See Ex parte Calderon, 309 S.W.3d 64, 71 (Tex.
Crim. App. 2010).
In Ex parte Franklin, it was held that before a habeas applicant is entitled to
a hearing, the applicant must make a claim that, if true, establishes affirmative
evidence of his innocence. 72 S.W.3d 671, 678 (Tex. Crim. App. 2002). Then, at
the hearing, the trial judge assesses the witnesses' credibility, examines the “newly
discovered or available evidence,” and determines whether that “new” evidence,
when balanced against the “old” inculpatory evidence, unquestionably establishes
the applicant's innocence. Id. The habeas judge then sets out findings of fact and
conclusions of law, and she makes a recommendation to the Court of Criminal
Appeals. Upon submission to this Court, it will review the factual findings with
deference because the habeas judge is in the best position to make credibility
judgments. Ex parte Thompson, 153 S.W.3d 416, 417–18, 425 (Tex. Crim. App.
2005).
Even though deference is the prescribed standard, this Court is not bound by
the habeas judge's findings, conclusions, or recommendations when they are not
- 22 -
supported by the record. Id. Indeed, in cases, such as this, in which the Court
determines whether the trial judge's findings and conclusions are supported by the
record, require clarification, or supplementation, the Court may additionally
exercise its own judgment and make findings and conclusions that the record
supports and that are necessary to its independent review and ultimate disposition
of the habeas application. Ex parte Reed, 271 S.W.3d 698, 728 (Tex. Crim. App.
2008).
VII. Wimberly is Actually Innocent Based on Newly Available Evidence
A. Tones’ Credibility and His Confession
Tones’ confession and his testimony at the evidentiary hearing were
credible. That claim is based not only on his confession and testimony, but also
the corroborative evidence indicating he did in fact commit the offense for which
Wimberly was convicted.
Tones committed a series of aggravated robberies at fast food restaurants in
Killeen during the relevant time period. He committed five such robberies on the
day of his arrest. His method of operation, including dress, disguise, and weapon
of choice was consistent during the robberies except for the final two involving an
accomplice.
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Gioioso’s descriptions of the shotgun, both at trial and at the evidentiary
hearing, match the shotgun taken from Tones at the time of his arrest. Gioioso’s
description of the robber’s clothing at trial matches the clothing recovered from
Tones at the time of his arrest.
Sawchak’s description of the robber’s shotgun at the evidentiary matches the
shotgun recovered from Tones. At the evidentiary hearing, Sawchak testified that
after viewing photographs of Wimberly, Tones, and a third party from the relevant
period of time, Tones most clearly resembled the robber. Sawchak provided a
height estimate to the police after the robbery. That estimate matches Tones rather
than Wimberly.
Tones description of the offense both in his affidavit and testimony match
the testimony at Wimberly’s trial concerning the manner in which the robbery took
place. Knowledge of those details could only be had by one who was actually
present during the robbery.
B. Wimberly’s Credibility and That of the Other Witnesses
Wimberly has consistently maintained his innocence of the instant offense.
He entered a plea of not guilty. When the State claimed at trial that guilt had been
shown by the testimonies of Gioioso and Wynn, defense counsel sought to
challenge and discredits that identification testimony (5 RR 17, 22). Counsel had
- 24 -
Wimberly stand before the jury and noted “he is a big man” (5 RR 22).
Wimberly’s explanation for the offense in the presentence report was “I didn’t do
it” (CR 43). He continued to maintain his innocence during the instant evidentiary
hearing. Based on Tones’ credibility and Wimberly’s consistent protestations of
innocence, this Court should find Wimberly’s testimony from the evidentiary
hearing credible. There is no basis to doubt the credibility of the remaining
witnesses testifying at the evidentiary hearing.
C. The Circumstances of Tones’ Affidavit
Tones first learned of Wimberly’s conviction for an offense which he
committed from a writ writer on the McConnell unit in 2008 or 2009. By that
time, Tones’ convictions had been affirmed, discretionary review refused, and
habeas corpus relief denied. Tones was motivated to help Wimberly in an effort to
correct a wrong which had occurred. Since being in prison, he has become a
Muslim and he attempts to follow the teachings of the Koran calling for doing the
right thing in order to reach heaven.
For a protracted period, Tones sought to contact and secure legal counsel to
assist Wimberly in his challenge to a conviction for an offense he did not commit.
His efforts to retain counsel, without payment, were unsuccessful. His effort to
proceed through the Texas Innocence Project likewise found no success.
- 25 -
Eventually, in 2014, Tones simply gave Wimberly a handwritten version of the
affidavit which is attached to Wimberly’s habeas application.
Wimberly learned from a writ writer on the McConnell Unit in 2008 or 2009
that Tones might have committed the aggravated robbery for which Wimberly was
convicted. The writ writer was suspicious because he knew Tones had committed
a number of aggravated robberies at fast food restaurants in Killeen at the time
Wimberly allegedly committed the aggravated robbery of the Pizza Hut. The writ
writer told Wimberly he would communicate with Tones in an effort to determine
whether Tones was responsible for the robbery for which Wimberly was convicted.
Wimberly eventually learned from the writ writer that Tones committed the
robbery and was willing to take responsibility for it. Wimberly’s effort to secure
legal assistance on presentation of the claim was unsuccessful. Finally, he
received a hand written affidavit from Tones taking responsibility for the robbery
in February of 2014. Wimberly had the affidavit typed and it was signed by Tones
in March of 2014. The affidavit was attached to the instant application which filed
in the convicting court on September 25, 2014.
D. Tones’ Affidavit is Both Newly Discovered and Newly Available Evidence
Wimberly has filed four previous applications. The first was dismissed
because his direct appeal was still pending. The second resulted in an out of time
- 26 -
petition for discretionary review. The third was denied on the merits in 2007. The
fourth was dismissed as a subsequent application in 2013. The instant application
was filed in the convicting court on September 25, 2014.
Wimberly received a hand written affidavit from Tones taking responsibility
for the robbery in February of 2014. Wimberly had the affidavit typed and it was
signed by Tones in March of 2014. Wimberly thought the affidavit was critical to
his presentation of a claim of actual innocence and he needed the affidavit to attach
to his application before he could file the application. Wimberly also made note of
a newspaper article concerning Tones’ commission of multiple aggravated
robberies as critical to presentation of his actual innocence claim. The article was
secured after he obtained Tones’ affidavit. The affidavit and newspaper article
were attached to the instant application which was filed in the convicting court on
September 25, 2014.
Tones’ affidavit is both newly discovered and newly available evidence. It
was not known to Wimberly at the time of trial or available to Wimberly until
given to him by Tones in February of 2014. It was secured at the first available
opportunity in February of 2014. The delay in securing the affidavit was not due
to a lack of diligence by Wimberly. In view of Wimberly first learning of Tones
involvement in the offense for which Wimberly was convicted in 2008 or 2009, the
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factual basis underlying the claim of actual innocence was not ascertainable
through the exercise of reasonable diligence before Wimberly filed his initial
application which was considered on the merits in 2007 in WR-67,017-03.
E. Weighing of the Old and New Evidence
Wimberly has shown by clear and convincing evidence that despite the
evidence of guilt which supports the conviction, no reasonable juror could have
found the applicant guilty in light of the new evidence. The contested issue at trial
was identification. Except for the testimony of two eyewitnesses out of a possible
six, there was no evidence connecting Wimberly to the robbery. Nothing put him
at the Pizza Hut at the time of the robbery; no fingerprints were recovered; no
footprints or shoeprints were recovered; there was no testimony presented
concerning the pants or shoes worn by the robber; no video surveillance was
available; the coat worn by the robber was not connected to Wimberly; the shotgun
was not connected to Wimberly; and the proceeds of the robbery were not
connected to Wimberly.
At trial Gioioso testified “I never got a real good glance” (4 RR 36).
Although he could see the robber’s eyes, he admitted at trial that the robber could
have been someone other than Wimberly (4 RR 36, 46).
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Wynn did not immediately identify Wimberly as the robber when he viewed
the photospread (4 RR 72). Instead, he used a process of elimination, because “I
knew it wasn’t the three bottom pictures. And this guy here [Wimberly] was
sticking out to me” (4 RR 72).
The new evidence supporting Wimberly’s claim consists of Tones’
confession, testimony, and the corroborative evidence before the court indicating
Tones did in fact commit the offense for which Wimberly was convicted.
Tones committed a series of aggravated robberies at fast food restaurants in
Killeen during the relevant time period. He committed five such robberies on the
day of his arrest. His method of operation, including dress, disguise, and weapon
of choice was consistent during the robberies except for the final two which
included involvement of an accomplice.
Gioioso’s descriptions of the shotgun, both at trial and at the evidentiary
hearing, match the shotgun taken from Tones at the time of his arrest. Gioioso’s
description of the robber’s clothing at trial matches the clothing recovered from
Tones at the time of his arrest.
Sawchak’s description of the robber’s shotgun at the evidentiary matches the
shotgun recovered from Tones. At the evidentiary hearing, Sawchak testified that
after viewing photographs of Wimberly and Tones from the relevant period of
- 29 -
time, Tones most clearly resembled the robber. Sawchak provided a height
estimate to the police after the robbery. That estimate matches Tones rather than
Wimberly.
Tones description of the offense both in his affidavit and testimony at the
evidentiary hearing matches testimony at Wimberly’s trial concerning the manner
in which the robbery took place. Knowledge of those details could only occur by
someone who was actually present during the robbery.
This Court should conclude Wimberly has proven by clear and convincing
evidence his claim of actual innocence. In view of the newly available evidence,
no rational juror would have convicted had the newly available evidence been
available and presented at trial. Wimberly is entitled to the relief which he seeks.
VIII. Issues Presented in this Court’s Order
A. Consistency of Tones’ Affidavit
With Habeas Testimony and Tones’ Prior Statements
A review of the affidavit Tones provided to Wimberly as well as Tones’
testimony at the evidentiary hearing shows both are consistent with respect to
Tones’ claim he committed the aggravated robbery for which Wimberly was
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convicted. Tones’ affidavit5, dated more than 11 years after the robbery, states in
relevant part:
I am responsible for an aggravated robbery incident for which I had
committed alone on or about December 23, 2002, against a Pizza Hut
that of which was located on Rancier Avenue in Killeen, Texas,
approximately between the hours of 7:30 pm and 9:30 pm, which, this
particular robbery was one of the first robberies that I committed from
a series of other robberies those of which led to my arrest on March 3,
2003, for aggravated robbery with a deadly weapon.
On or about December 23, 2002, I gain forcible entry through the
back door of the Pizza Hut, when a white male, delivery guy, had
returned to the store at which he was being allowed access into the
store’s backdoor entrance. I then forced a Hispanic male, another
employee, to lead me to the store’s safe. Where, I came into contact
with what appeared to be the manager of the store, a Hispanic female,
who handed me the money from the safe. Immediately, after
obtaining the money from the safe, I then fled the scene by existing
the store’s back door, crossing the field that was behind the Pizza
Hut’s location, and entering into a nearby apartment complex that of
which I had parked.
During the evidentiary hearing, Tones acknowledged he executed the March
3, 2014, affidavit attached to Wimberly’s habeas application taking responsibility
for the aggravated robbery (WRR 26). He did so freely and voluntarily and the
statements in the affidavit are true and correct (WRR 26).
5 At the outset of the evidentiary hearing, on the State’s request, the trial court
took judicial notice of all the documents relative to the cause number under which
Wimberly was convicted (WRR 6).
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On July 9, 2015, more than 12 years after the robbery, Tones was called as a
witness by Wimberly at the evidentiary hearing (WRR 10). Tones explained that
the robberies for which he was convicted were not the first robberies he committed
(WRR 19). He committed a string of 12 to 15 aggravated robberies with the first
on December 23 and the last on March 3, 2003 at the time of his arrest (WRR 19).
He robbed fast food restaurants in the late evening (WRR 20). He was
always armed with the shotgun recovered at the time of his arrest (WRR 20).
During the robberies, he always wore dark clothing like that admitted at his trial
(WRR 20). He always wore gloves and would attempt to disguise his appearance
during the robberies (WRR 21).
At the time of his arrest, he was 35 years old (WRR 21). He is 5’ 9” and
weighed 182 pounds when arrested (WRR 21).
Tones testified he committed the aggravated robbery at the Pizza Hut on
Rancier on December 23, 2002 (WRR 22). He committed the robbery in the
evening between 7:00 pm and 9:00 pm (WRR 48). He acted alone (WRR 22). He
was armed with the same shotgun taken from him at the time of his arrest in March
of 2003 (WRR 22). He wore gloves and a dark “bomber” jacket with a hood
(WRR 22).
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Tones entered the backdoor of the Pizza Hut as a delivery driver came in
(WRR 23). Once inside, he had another employee lead him to the safe which was
below the cash register (WRR 23). There was a woman at the safe and she gave
him the money (WRR 23). He left through the backdoor (WRR 23).
Admittedly, the testimony provided by Tones at the hearing contains greater
details of the offense than the affidavit. As to the critical issue of Wimberly’s
actual innocence, both the affidavit and testimony are consistent. The details of the
offense, as provided in Tones’ testimony, support his affidavit claim of
commission of the offense. This Court should find the testimony and affidavit
consistent.
Within his affidavit, Tones admits committing a series of aggravated
robberies from December 23, 2002, to his ultimate arrest on March 3, 2003.
During the evidentiary hearing, the prosecutor questioned Tones concerning
habeas corpus applications he filed in relation to his own two aggravated robbery
convictions (WRR 30, SX I and SX J). Affidavits by Tones were attached to each
of the habeas applications (WRR 31). Within the habeas affidavits, Tones
complained his attorney did not permit him to testify at trial and that if he had
testified, he would have told the jury that “he did not help Montgomery commit
any robberies, nor did I know of his criminal acts” (WRR 32). The prosecutor
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maintained Tones’ affidavit taking responsibility for a string of robberies as
provided to Wimberly was inconsistent with his affidavit indicating that if
permitted to testify at his own trial, he would have denied complicity with and
knowledge of his co-defendant’s aggravated robbery activity (WRR 36). Tones
conceded that had he testified as alleged in his own writ denying involvement with
his co-defendant Montgomery, it would have been false testimony (WRR 43).
However, he never so testified during his own trial or during his own habeas
proceeding (WRR 43).6 Under further questioning by the prosecutor, Tones noted
that within his own habeas affidavits, he never denied guilt of the offenses for
which he was convicted (WRR 46).
Wimberly maintains that upon careful examination, the affidavit provided by
Tones to Wimberly is not inconsistent with the affidavits Tones attached to his
own writs. If Tones had testified as stated in his own writ affidavits, such
testimony would have been false. However, he never so testified and never denied
his guilt for all of the aggravated robberies he committed.
6 Tones’ habeas corpus applications were denied without written order on the
findings of the trial court without a hearing on July 19, 2006. Ex parte Tones, Nos.
WR-64,931-01 and WR-64,931-02 (Tex. Crim. App. 2006).
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B. Consistency of Tones’ Confession and the Trial Testimony
A review of the affidavit Tones provided to Wimberly as well as Tones’
testimony at the evidentiary hearing shows both are consistent with the testimony
from the witnesses to the robbery who testified at Wimberly’s trial. Tones
acknowledged he executed the March 3, 2014, affidavit attached to Wimberly’s
habeas application taking responsibility for the aggravated robbery (WRR 26). He
did so freely and voluntarily and the statements in the affidavit are true and correct
(WRR 26).
On July 9, 2015, more than 12 years after the robbery, Tones was called as a
witness by Wimberly at the evidentiary hearing (WRR 10). Tones explained that
the robberies for which he was convicted were not the first robberies he committed
(WRR 19). He committed a string of 12 to 15 aggravated robberies with the first
on December 23 and the last on March 3, 2003 at the time of his arrest (WRR 19).
He robbed fast food restaurants in the late evening (WRR 20). He was
always armed with the shotgun recovered at the time of his arrest (WRR 20).
During the robberies, he always wore dark clothing like that admitted at his trial
(WRR 20). He always wore gloves and would attempt to disguise his appearance
during the robberies (WRR 21).
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At the time of his arrest, he was 35 years old (WRR 21). He is 5’ 9” and
weighed 182 pounds when arrested (WRR 21).
Tones testified he committed the aggravated robbery at the Pizza Hut on
Rancier on December 23, 2002 (WRR 22). He committed the robbery in the
evening between 7:00 pm and 9:00 pm (WRR 48). He acted alone (WRR 22). He
was armed with the same shotgun taken from him at the time of his arrest in March
of 2003 (WRR 22). He wore gloves and a dark “bomber” jacket with a hood
(WRR 22).
Tones entered the backdoor of the Pizza Hut as a delivery driver came in
(WRR 23). Once inside, he had another employee lead him to the safe which was
below the cash register (WRR 23). There was a woman at the safe and she gave
him the money (WRR 23). He left out the backdoor (WRR 23).
The trial testimony, within a year of the offense, showed that in less than
three minutes, someone wielding a shotgun robbed a Pizza Hut on Rancier Avenue
in Killeen on December 23, 2002 (4 RR 42). As deliveryman Phillip Wynn exited
the backdoor of the restaurant to load pizzas in his vehicle at 10:45 pm, he was
confronted by an individual who put a shotgun to his chest and told him to “get his
ass back in the store” (4 RR 68).
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Trial testimony tended to show the manager and complainant, Gerard
Gioioso, was at his desk when he saw Wynn backing into the store with a robber
pointing a shotgun at Wynn’s chest (4 RR 32). Gioioso described the shotgun as
sawed off, with a silver barrel, black handle and 12 gauge pump (4 RR 32, 50).
Gioioso, about six feet from the disturbance, asked what was going on,
whereupon the robber turned the shotgun toward Gioioso and demanded money (4
RR 33). Gioioso walked toward the front of the store to the safe while the robber
was pointing the gun at his back.
At the front of the store, Gioioso approached the shift manager, Ida
Rodriguez. She was in the process of counting the cash taken in that day by the
restaurant (4 RR 35). The safe was open and money was on the counter before
Rodriguez handed it to the robber (4 RR 36). The robber kept his head down
during the robbery and Gioioso never got a good look at his face (4 RR 36). After
securing the money, the robber told everyone to get down and he left the restaurant
out the backdoor (4 RR 36). Upon the robber’s exit, employee Jared Castro yelled
“he’s gone” (4 RR 37). Gioioso testified the robber was in and out of the Pizza
Hut in “[l]ess than three minutes. It was quick enough for him to walk to the front,
hand him the money, have him walk out the backdoor, less than three minutes” (4
RR 42).
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Gioioso described the robber as a black man dressed in a heavy black coat
with hood pulled up and the drawstring tied tightly so that is squished his face (4
RR 34). He indicated that he could only see the robber’s eyes, nose, cheeks, and
mouth (4 RR 37). When asked about the size of the robber, Gioioso responded that
he was about six feet tall, two hundred pounds, and in his early to mid-thirties (4
RR 48). Gioioso testified at trial that he “never got a real good glance” of the
robber (4 RR 36).
Phillip Wynn was working part time delivering pizzas during the Christmas
holidays (4 RR 67). A little before 11:00 pm was leaving through the back door of
the Pizza Hut to make a delivery (4 RR 67). He was approached by a man
wielding a 12 gauge pump shotgun (4 RR 68). The shotgun was placed to Wynn’s
chest and he was told to reenter the Pizza Hut (4 RR 68). He and the robber
entered the Pizza Hut and Wynn was told by the robber to get on the floor (4 RR
69). Gioioso approached and the robber led Gioioso toward the front of the store
(4 RR 69). After Gioioso and the robber walked toward the front of the store,
Wynn hid in a cooler until he was told the robbery was over (4 RR 70).
Wynn testified the robber wore a dark jacket with the hood pulled down (4
RR 71). Wynn was able to see the robber’s face from the eyebrows to the chin (4
- 38 -
RR 74). Wynn was 5’ 9’’ tall and the robber was a few inches taller than him (4
RR 75). He was unable to estimate the robber’s weight (4 RR 75).
Thomas Bales was working at the Pizza Hut on the night of the robbery (4
RR 80). He was at the front of the restaurant near Rodriguez when Gioioso and the
robber approached (4 RR 81). Bales did not get a good look at the robber (4 RR
81). The robber was armed with a pump shotgun (4 RR 82).
Jared Castro was working at the Pizza Hut at the time of the robbery as a
cook (4 RR 86). He saw Wynn backing in the restaurant while the robber had a
gun to Wynn’s chest (4 RR 87). The robber was armed with a shotgun and wore a
dark big jacket with a hood (4 RR 87). He saw the robber proceed to the front with
Gioioso (4 RR 87-88). When the robber tried to go out the backdoor, the door
would not open and he pointed the shotgun at Castro and told him to open the door
(4 RR 89). Once the door was open, the robber fled (4 RR 89).
Two additional employees, Ida Rodriguez and David Sawchak were at the
Pizza Hut at the time of the robbery (4 RR 14, 31). They did not testify at trial.7
Law enforcement witnesses testified that the witnesses said the robber wore gloves
(4 RR 15, 20).
7 As noted above, Sawchak testified at the evidentiary hearing held on
Wimberly’s habeas application (WRR 100).
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A review of the above reveals substantial consistency between Tones’
affidavit and habeas testimony with the testimony provided by the witnesses who
testified at Wimberly’s trial. Among the most notable, consistencies are shown in
the following areas: date of the robbery; place of the robbery; relative time of the
robbery; manner of entry by the robber; manner of exit by the robber; description
of the employees present at the robbery; who provided the proceeds of the robbery
to the robber; how the proceeds of the robbery were provided to the robber; where
the proceeds of the robbery were located; way in which the robber was dressed;
robber’s attempt to disguise his appearance; robber’s use of gloves; and robber’s
weapon of choice. This Court should find those consistencies undermine
Wimberly’s conviction and provide by clear and convincing evidence Wimberly is
actually innocent for the offense for which he was convicted.
C. Eyewitness Descriptions of the Robber
Eyewitnesses to the robbery testified both during trial and at the evidentiary
hearing. Those descriptions and whether they match Tones, Wimberly, or both,
are set forth below.
1. Gender
Gioioso described the robber as a male (4 RR 48, WRR 97). Tones is a male
(WRR 17 and PX 2). Wimberly is a male (WRR 57, PX 7).
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2. Race
Gioioso described the robber as black (4 RR 48, WRR 97). Tones is black
(WRR 17 and PX 2). Wimberly is black (WRR 57, PX 7).
3. Age
Gioioso described the robber as early to mid-30s (4 RR 48). Tones was born
on March 11, 1967 (WRR 21). Wimberly was born on September 12, 1967 (WRR
57). Both were 35 years old on the date of the offense, December 23, 2002.
4. Height
Gioioso stated at trial that the robber was six feet tall (4 RR 48). During the
evidentiary hearing, Gioioso testified he is five feet nine inches tall and the robber
was a little taller than him (WRR 97). Wynn stated he is five feet and nine inches
tall and the robber was a few inches taller than him (4 RR 75). Castro testified the
robber was over six feet tall (4 RR 87). On the night of the offense, Sawchak told
the authorities the robber was five feet and seven inches to five feet and nine
inches in height (WRR 103). Tones is five feet and nine inches tall (WRR 21).
Wimberly is six feet and three inches tall (WRR 58).
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5. Weight
Gioioso stated the robber weighed around 200 pounds (4 RR 48). Wynn did
not know the robber’s weight (4 RR 75). Sawchak believed the robber weighed
more than Wynn (WRR 110). Tones weighed 182 pounds at the time of his arrest
(WRR 21). Wimberly weighed 190 pounds at the time of his arrest (WRR 58).
6. Hair
Gioioso stated the hood worn by the robber was pulled tight and only his
mouth to eyes was visible (4 RR 34). Wynn explained that in spite of the hood, he
could see the robber’s face from his eyebrows to his chin (4 RR 74). The booking
photos of both Tones and Wimberly reflect they have head hair (WRR PX 2 and
PX 7).
7. Facial Hair
Gioioso described the robber as having a mustache and additional facial hair
coming toward the mustache (4 RR 49). Wynn stated the robber had some thick
facial hair and appeared not to have shaven in a few days (4 RR 74). Sawchak
testified that the robber had facial hair (WRR 105). The booking photos of both
Tones and Wimberly reflect facial hair (WRR PX 2 and PX 7).
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8. Scars, Marks, Tattoos, or Jewelry
Neither Gioioso nor Wynn noticed any scars, marks, tattoos, or jewelry on
the robber (4 RR 41 and 74). The booking photos of both Tones and Wimberly
reflect no scars, marks, tattoos, or jewelry (WRR PX 2 and PX 7).
9. Accent or Unusual Speech Pattern
Gioioso did not recall the robber having an accent or unusual speech pattern
(WRR 98). During the evidentiary hearing, there was no indication either Tones or
Wimberly have an accent or unusual speech pattern (WRR 16 and 57).
10. The Gloves
All of the witnesses to the robbery reported that the robber wore gloves (4
RR 20). Tones testified he always wore gloves during the robberies and identified
gloves taken from him at the time of his arrest (WRR 18, 21, and PX 4).
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11. The Shotgun
Gioioso testified the robber used a twelve gauge short barrel shotgun during
the offense (4 RR 32). The shotgun had a chrome or silver body, silver barrel,
black pump, and black handle (4 RR 32).8 Wynn described the weapon as a twelve
gauge pump shotgun (4 RR 68). Bales testified the robber used a pump shotgun (4
RR 82). Castro saw the robber wielding a shotgun (4 RR 87). Sawchak described
the shotgun as sawed off or a pistol grip shotgun (WRR 100). At the evidentiary
hearing, Tones identified a picture of the twelve gauge sawed off pump shotgun
with a pistol grip taken from him at the time of his arrest (WRR 17 and PX 2).
Tones always used the same shotgun including the offense for which Wimberly
was convicted (WRR 20).
12. The Jacket
Gioioso described the robber as wearing a heavy black coat, “a feather coat
like they have in Massachusetts”, with a hood (4 RR 33). Wynn testified the
robber wore a dark jacket with a hood (4 RR 71). Castro saw the robber wearing
8 This description matches the photograph of the shotgun taken from Tones as
introduced during the evidentiary hearing (WRR PX 2). It also matches the color
photograph of the shotgun taken from Tones and introduced into evidence during
his trial at 9 RR SX 1. The shotgun depicted in that photograph is sawed off, has a
pistol grip, a black grip and pump, and silver barrel and body. Tones v. State, 2005
WL 723673 (Tex. App.—Austin 2005, pets. dism’d).
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dark clothing including a big jacket with a hood (4 RR 87). Tones testified he
always wore dark clothing and gloves during the robberies (WRR 21). Tones had
multiple robbery outfits (WRR 21). During the offense for which Wimberly was
convicted, Tones wore a bomber jacket with a hood (WRR 22). Tones identified a
mask, gloves, cap, and dark jacket taken from him at the time of his arrest (WRR
18 and PX 3 – 6).
IX. The Trial Court’s Flawed Findings and Conclusions
The trial court’s findings and conclusion are fraught with errors of both fact
and law. This Court is not bound by findings not supported by the record or
conclusions contrary to the law. This Court should reject the trial court’s findings
and conclusions, undertake de novo review, and grant the relief to which Wimberly
which he has shown himself entitled. In particular, Wimberly complains of the
following flawed findings and conclusions by the trial court.
A. The Erroneous Finding of Inconsistencies in Tones’ Affidavits
The trial court finds that when Tones challenged his own aggravated robbery
convictions, he attached an affidavit to his habeas petitions claiming “I would have
told the jury at no time did I help Montgomery commit any robberies, nor did I
know of his criminal acts” (Finding 39). During the evidentiary hearing, Tones
testified the robberies for which he was convicted were not the first robberies he
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committed (WRR 19). He committed a string of 12 to 15 aggravated robberies
with the first on December 23, 2002, and the last on March 3, 2003 at the time of
his arrest (WRR 19). He committed the robberies on his own until the final two
robberies for which he was arrested (WRR 19). Edward Montgomery assisted him
in those two robberies (WRR 19).
Noting the affidavit Tones provided to Wimberly admitting commission of
the offense for which Wimberly was convicted, the trial court finds the two
affidavits inconsistent because in own his habeas affidavits, Tones “denied
committing any robberies” (Finding 42). Based on that finding, the trial court
further finds the affidavits by Tones confusing, contradictory, and unpersuasive
(Finding 95).
Wimberly asserts those findings are not supported by the record and should
be disregarded by this Court. An assertion by Tones that he would have testified
he did not help a co-defendant in the commission of two offenses in March of 2003
for which he was being prosecuted, is not a claim denying the commission of any
robberies including that for which Wimberly was convicted. The trial court errs in
finding otherwise.
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B. The Erroneous Finding Regarding Gerard Gioioso
The trial court finds that during the evidentiary hearing, Gerard Gioioso was
unable to recall the weapon used during the robbery for which Wimberly was
convicted (Finding 62). The record reflects otherwise. After reviewing his trial
testimony describing the shotgun, Gioioso indicated the shotgun taken from Tones
at the time of Tones’ arrest was the type of weapon used during the robbery for
which Wimberly was prosecuted (WRR 90).
C. The Incomplete Findings Regarding David Sawchak
The trial court entered findings concerning Sawchak’s testimony (Findings
68-73). Within those findings, the trial court fails to acknowledge that during the
evidentiary hearing, Sawchak testified that a picture of Wimberly from the time of
the robbery did not match his memory of the robber based on facial hair, eyes, and
height (WRR 105-106). Rather, Sawchak believed the picture of Tones had the
greatest likeness to the robber based on his eyes and facial hair (WRR 105). The
trial court further fails to acknowledge that Sawchak’s estimate of the robber’s
height matched Tones’ height rather than Wimberly’s height (Finding 70, WRR
21, 58, and 103).
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D. The Erroneous Findings Regarding Karl Ortiz
The trial court finds that during the investigation of the offense, Ortiz
showed Gioioso a photospread in which Gioioso picked out Wimberly’s picture as
the robber (Finding 86). The record reflects that upon showing Gioioso the
photospread, he was only 80% sure Wimberly was the robber (WRR 134, 4 RR
46).
The trial court finds that Gioioso described the weapon used during the
robbery as a full length shotgun (Finding 89). The record reflects otherwise. At
trial, Gioioso described the shotgun used in the offense as both sawed off and with
a short stock (4 RR 32, 50). Moreover, during the evidentiary hearing, Gioioso
described the weapon similar as to that taken from Tones as a sawed off pistol grip
shotgun (WRR 90).
E. The Erroneous Finding Regarding the Shotgun
The trial court finds that the full size shotgun introduced into evidence at
Wimberly’s trial was identified as resembling the shotgun used by the robber
(Finding 101). It wasn’t. At trial, Gioioso described the shotgun used in the
offense as both sawed off and with a short stock (4 RR 32, 50). Moreover, during
the evidentiary hearing, Gioioso described the weapon similar as to that taken from
Tones as a sawed off pistol grip shotgun (WRR 90).
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F. The Erroneous Finding on Tones’ Credibility
Based on the above erroneous findings, the trial court finds Tones’
confession and testimony are not credible (Finding 102). As demonstrated above,
those findings are either incomplete or erroneous and not worthy of supporting a
finding of lack of credibility.
G. The Writ Writer Conspiracy Theory
The trial court finds Tones’ confession was simply the product and “theory
of a prison writ writer brought to life” (Finding 106). The finding is not supported
by the record.
Tones first learned in 2008 or 2009 from another inmate, a writ writer, of
Wimberly’s conviction for a crime Tones had committed (WRR 24-25). Tones
contacted several attorneys and the Innocence Project in an effort to find someone
to help Wimberly (WRR 25-26). All of the lawyers wanted a fee up front and it
took the Innocence Project several years to get back to him (WRR 25, 28).
Tones acknowledged he executed the March 3, 2014, affidavit attached to
Wimberly’s habeas application taking responsibility for the aggravated robbery
(WRR 26). He did so freely and voluntarily and the statements in the affidavit are
true and correct (WRR 26). After executing the affidavit, he sent a copy to the
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Innocence Project (WRR 26). It was returned by the Innocence Project to him with
the admonishment not to send materials unless first requested (WRR 26). After the
affidavit was returned to him, Tones gave a copy to Wimberly “for him to do
whatever he needed to do with it” (WRR 26). At the time he gave the affidavit to
Wimberly, they were both housed on the McConnell Unit (WRR 27).
Tones testified he was motivated to help Wimberly in an effort to correct a
wrong which had occurred (WRR 27). Since being in prison, he has become a
Muslim and he attempts to follow the teachings of the Koran calling for making
amends to those he has harmed and doing the right thing in order to reach heaven
(WRR 27). He and Wimberly have no relationship in prison and simply see each
other occasionally at the chow hall or on the sidewalk (WRR 27). Wimberly has
not given him anything or promised him anything in return for Tones accepting
responsibility for his own conduct (WRR 28).
In 2008 or 2009, Wimberly learned from a writ writer on the McConnell
Unit that Tones might have committed the aggravated robbery for which Wimberly
was convicted (WRR 63). The writ writer was suspicious because he knew of
Tones committing a number of aggravated robberies at fast food restaurants in
Killeen at the time Wimberly allegedly committed the aggravated robbery (WRR
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63). The writ writer said he would confer with Tones to see if he was responsible
for Wimberly’s robbery (WRR 64).
Eventually, Wimberly learned from the writ writer that Tones committed the
robbery and was willing to take responsibility for it (WRR 64). Wimberly’s effort
to secure legal assistance on presentation of the claim of actual innocence was
unsuccessful (WRR 64). Wimberly received a hand written affidavit from Tones
taking responsibility for the robbery in February of 2014 (WRR 64-65). Wimberly
had the affidavit typed and it was executed by Tones in March of 2014 (WRR 65).
Wimberly thought the affidavit was critical to his presentation of a claim of actual
innocence and he needed it before he could file the application (WRR 65-66).
Wimberly also made note of a newspaper article concerning Tones attached to his
application as critical to presentation of his actual innocence claim (WRR 66). The
article was secured after he obtained Tones’ affidavit (WRR 66).
Wimberly has never shown Tones the offense report or witness statements
for the offense for which he was convicted (WRR 66-67). He has not given or
promised anything to Tones in return for his affidavit or testimony (WRR 67).
The writ writer conspiracy theory created by the trial court is just that, a
theory. No evidence supports the finding and it should be summarily rejected by
the Court of Criminal Appeals.
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H. The Ignored Newly Discovered and Available Evidence
The trial court erroneously finds the only new evidence in support of
Wimberly’s claim is Tones’ confession (Finding 111). That finding ignores the
evidence presented during the evidentiary hearing ordered by this Court.
The new evidence presented at the hearing consists of Tones’ confession,
testimony, and the corroborative evidence before the trial court indicating Tones
did in fact commit the offense for which Wimberly was convicted.
Tones committed a series of aggravated robberies at fast food restaurants in
Killeen during the relevant time period. He committed five such robberies on the
day of his arrest. His method of operation, including dress, disguise, and weapon
of choice was consistent during the robberies except for the final two which
involved an accomplice.
Gioioso’s descriptions of the shotgun, both at trial and at the evidentiary
hearing, match the shotgun taken from Tones at the time of his arrest. Gioioso’s
description of the robber’s clothing at trial matches the clothing recovered from
Tones at the time of his arrest.
Sawchak’s description of the robber’s shotgun at the evidentiary matches the
shotgun recovered from Tones. At the evidentiary hearing, Sawchak testified that
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after viewing photographs of Wimberly and Tones from the relevant period of
time, Tones most clearly resembled the robber. Sawchak provided a height
estimate to the police after the robbery. That estimate matches Tones rather than
Wimberly.
Tones description of the offense both in his affidavit and testimony at the
evidentiary hearing matches testimony at Wimberly’s trial concerning the manner
in which the robbery took place. Knowing those details could only occur by
someone who was actually present during the robbery.
I. How Dare He Plead Not Guilty Without Proving It
The trial court finds fault with Wimberly denying, without elaboration, his
involvement in the offense for which he was convicted (Finding 112). The record
reflects the protestations of innocence by Wimberly have been ongoing for 13
years.
Wimberly has consistently maintained his innocence of the instant offense.
He entered a plea of not guilty. When the State claimed at trial that guilt had been
shown by the testimonies of Gioioso and Wynn, defense counsel sought to
challenge and discredits that identification testimony (5 RR 17, 22). Counsel had
Wimberly stand before the jury and noted “he is a big man” (5 RR 22).
Wimberly’s explanation for the offense in the presentence report was “I didn’t do
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it” (CR 43). Sufficiency of the evidence to support the conviction was challenged
on direct appeal. Wimberly continued to maintain his innocence during the instant
evidentiary hearing (WRR 67). Finally, the instant proceeding involving a claim
of actual innocence tends to elaborate on Wimberly’s assertion of innocence.
Wimberly has shown by clear and convincing evidence that no rational juror would
have convicted him had the newly available evidence been presented at his trial.
J. The Instant Application is Not a Subsequent Application
The trial court erroneously concludes the instant application should be
dismissed as a subsequent application (Conclusion 4). That conclusion is
contradicted by the trial court’s own findings and TEX. CRIM. PROC. CODE art.
11.07 § 4(a)(1).
The trial court finds Wimberly learned of Tones and his willingness to
confess in 2008 or 2009 and therefore the actual innocence claim could not have
been presented in Wimberly’s third application which was denied on the merits in
2007 (Finding 108). However, the trial court finds the actual innocence claim
could have been presented in Wimberly’s fourth application which was dismissed
as a subsequent application in 2013.
The trial court ignores the writ record. Wimberly testified he received a
hand written affidavit from Tones taking responsibility for the robbery in February
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of 2014 (WRR 64-65). Wimberly had the affidavit typed and it was signed by
Tones in March of 2014 (WRR 65). Wimberly thought the affidavit was critical to
his presentation of a claim of actual innocence and he needed it before he could file
the application (WRR 65-66). Without the evidence secured to support his claim
of actual innocence in 2014, Wimberly could not have presented it in an
application denied in 2013.
Equally important, under art. 11.07, the critical date for determining whether
the instant application is a subsequent application is the filing date for the third
application filed and denied on the merits in 2007. The statute establishes a bright
line date of the filing date of a previously considered application. See art. 11.04 §
4(a)(1). The 2013 application which was dismissed as a subsequent application
was not considered by the Court of Criminal Appeals.
The instant application is not a subsequent application because the factual
basis of the claim was unknown and could not have been presented in the 2007
application which was previously considered and denied on the merits. This Court
should reject the trial court’s conclusion the application is subject to dismissal as a
subsequent application.
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Prayer
Wimberly prays this Court will reject the trial court’s findings and
conclusions, undertake de novo review, and grant the relief to which Wimberly has
shown himself entitled.
Respectfully submitted,
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
1411 West Avenue, Suite 100
Austin, Texas 78701
(512) 469-7943
(512) 474-5594 (fax)
Wetzel_law@1411west.com
Attorney for Applicant
Christopher Eugene Wimberly
Certificate of Compliance
This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the brief
contains 11,314 words excluding the items not to be included within the word
count limit.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
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Certificate of Service
This is to certify a true and correct copy of the foregoing pleading was
emailed to counsel for the State, Assistant District Attorney, Sean Proctor, at his
email address of Sean.Proctor@co.bell.tx.us on this the 24th
day of June, 2016.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300