No. WR-64,017-05 IN THE TEXAS COURT OF CRIMINAL APPEALS …€¦ · December 23, 2002, aggravated robbery of Gerard Gioioso with a firearm (CR 1).1 The charge was tried to a jury

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)

[email protected]

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

JBrown

CCA - filed

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


(Tex. Crim. App. June 7, 2006) . . . . . . . . . . . . . . . . . . . . . . . . .2

Ex parte Wimberly, WR-67,017-03

(Tex. Crim. App. September 12, 2007) . . . . . . . . . . . . . . . . . . . . . . . . .2

https://a.next.westlaw.com/Link/Document/FullText?cite=187+S.W.+3d+458








vii

Ex parte Wimberly, No. WR-67017-04

(Tex. Crim. App. May 8, 2013) . . . . . . . . . . . . . . . . . . . . . . . . .2


(Tex. Crim. App. March 4, 2015) . . . . . . . . . . . . . . . . . . . . . . . . .2


(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

https://a.next.westlaw.com/Link/Document/FullText?FindType=L&pubNum=1000301&cite=TXRRAPR9.4

https://a.next.westlaw.com/Link/Document/FullText?cite=2005+WL+723673


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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.

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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).

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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 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).

- 7 -

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).

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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).

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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).

- 15 -

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

- 16 -

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

- 18 -

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,

- 20 -

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

https://a.next.westlaw.com/Link/Document/FullText?cite=109+S.W.+3d+388&fi=co_pp_sp_4644_392&referencepositiontype=s




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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.




of choice was consistent during the robberies except for the final two involving an

accomplice.



- 23 -







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).

- 28 -

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.





included involvement of an accomplice.








- 29 -



Wimberly.



in which the robbery took place. Knowledge of those details could only occur by


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

- 30 -

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).

- 31 -

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).



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).


weighed 182 pounds when arrested (WRR 21).


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).

- 32 -


(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

- 33 -

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).

- 34 -

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).



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).

- 35 -


weighed 182 pounds when arrested (WRR 21).


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).


(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).

- 36 -

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).

- 37 -

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).

- 39 -

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

- 50 -

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.





involved an accomplice.







- 52 -




Wimberly.



in which the robbery took place. Knowing those details could only occur by


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


1411 West Avenue, Suite 100

Austin, Texas 78701

(512) 469-7943

(512) 474-5594 (fax)

[email protected]

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.


Richard E. Wetzel


https://a.next.westlaw.com/Link/Document/FullText?FindType=L&pubNum=1000301&cite=TXRRAPR9.4

- 56 -

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 [email protected] on this the 24th

day of June, 2016.


Richard E. Wetzel


mailto:[email protected]

Documents

No. WR-64,017-05 IN THE TEXAS COURT OF CRIMINAL APPEALS …€¦ · December 23, 2002, aggravated robbery of Gerard Gioioso with a firearm (CR 1).1 The charge was tried to a jury