1Cause No. 003-86164-04 THE STATE OF TEXAS VS. KEITH D.

ROANE IN THE COUNTY COURT AT LAW NUMBER THREE COLLIN COUNTY, TEXAS

1 APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL MISDOMENOR CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 TO THE HONORABLE JUDGE OF SAID COURT:

Now comes KEITH D. ROANE, Petitioner and Defendant, and files his application for writ of habeas corpus pursuant to Article V, Section 8, Texas Constitution, and Chapter 11, and specifically Articles 11.07 and 11.05, Texas Code of Criminal Procedure, and in support thereof, would show unto the Court the following: I. BACKGROUND FACTS 1. Petitioner is illegally confined or restrained by the conviction for DWI and

corresponding order of community supervision from Collin County by the Respondent, State of Texas. 2. Petitioner was charged and convicted of the offense of Driving While Intoxicated

in the County Court at Law Number Three of Collin County, Texas. A copy of said order is attached hereto as Exhibit A and incorporated herein. Petitioner was never allowed to testify at his trial to give an affirmative defense. 3. Petitioner remains on community supervision in Tarrant County by order of this

Court until February 1, 2013.

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4.

Petitioner is currently pro-se, but has been rendered indigent by this court in

pervious indigency hearings and maintains the same financial capacity today. 5. Petitioners previous application for writ of habeas corpus had been granted for

other reasons and not seeking the relief requested herein. 6. The relief now requested in this instant application for habeas corpus was not

available at the time of previous application by operation of law (applicant was granted the right to appeal which bars any further Habeas relief.).

II. GROUND ONE 7. Applicant Roane was improperly advised by his Attorneys Christopher N. Hoover

and Trial Counsel Darren McDowell that Necessity is not an applicable justification or defense to DWI cases and actively prevented Roane from testifying in his own defense at trial. 8. After State closed, trial counsel immediately closed without objection by the court

and without first conferring with Roane. RR 62. Accordingly, trial counsel further prevented Roane to testify at his trial to present any such defenses. Roane never waved his rights to testify, never consented to closing without testifying, nor was he properly admonished by the court or his attorney of his right to testify. 9. Applicant Roanes first appeal was dismissed in 2006 for want of jurisdiction

because although Roanes November 29, 2005 notice of appeal was filed within the fifteen-day period provided by rule 26.3, appellants attorney did not file an extension motion in this Court within that same fifteen-day period. 10. Applicant Roane later filed a pro-se application for habeas corpus to reinstate his
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appeal rights to which this court granted an out-of-time appeal and eventually appointed indigent

appellate counsel. At this same time of the first application for writ of habeas corpus, Applicant was barred by statute (operation of law) from prosecuting the claims raised now because the right to appeal was then made available to Applicant. 11. The appeal only asserted that the evidence was factually insufficient and legally

insufficient by asserting a post-driving consumption of alcohol hypothesis and not the claims immediately raised now. However, the appeal issues may also have been improperly preserved by trial counsel by not having Applicant testify and not advising him of his rights to do so. 12. In a recent decision the Court of Appeals held that in this case that the evidence

was both legally and factually sufficient to affirm this conviction, but also held that Roanes companion was driving when ejected from the Bronco and his companion was incapable of driving and the videotape supports that the passenger was lying in the back seat. Error was not properly preserved for appeal by trial counsel in order to raise a Necessity issue during his original appeal because Roane was not permitted to testify. 13. Applicant gave notice to this court on February 2, 2012 of the above stated issues

during the third re-sentencing hearing and also again on April 5, 2012 in Roanes Application for court appointed counsel which was denied the same day.

III. VERIFICATION OATH BEFORE A NOTARY PUBLIC: THE STATE OF TEXAS COUNTY OF TARRANT ) ) )

I, Keith D. Roane, Petitioner in the foregoing Application for Writ of Habeas Corpus, CID No.: 0671427, being presently confined or restrained by Collin County, do declare under penalty of perjury that all of the facts set out in the above Application are true and correct. Executed on the __19__ day of _September_, 2012. __________________________ Keith Roane, Applicant 809 Lake Place Azle, TX 76020 SUBSCRIBED AND SWORN TO BEFORE ME THIS _19_ DAY OF _September_, 2012. _________________________________ Signature of Notary Public DECLARATION OF CONFINMENT: I, KEITH D ROANE, am the applicant / petitioner (circle one) and being presently confined or unlawfully restrained in COLLIN COUNTY, declare under penalty of perjury that, according to my belief, the facts stated in the above application are true and correct. Signed on this _19_day of _September__, 2012. __________________________ Keith Roane, Applicant 809 Lake Place Azle, TX 76020
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IV. PRAYER 1WHEREFORE, APPLICANT PRAYS THAT THE COURT GRANT APPLICANT RELIEF TO WHICH HE MAY BE ENTITLED IN THIS PROCEEDING, Petitioner further prays that the court cause the writ of habeas corpus to issue, and that the court conduct a hearing thereon, and the Applicant be discharged from illegal confinement or restraint, and that this court reverse the conviction and order a new trial. Respectfully submitted, _______________________ Keith D. Roane 809 Lake Place Azle, TX 76020 214-497-8315

VI. CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been 1provided by certified mail return receipt requested and by first class mail on this 19th day of September, 2012, to: Greg Willis SBOT 21653500 2100 Bloomdale Road, Ste. 200 McKinney, TX 75071 CERTIFIED NO.: 7011 3500 0003 4756 9193 ________________________ Keith D. Roane 809 Lake Place Azle, TX 76020 214-497-8315

1Cause No. 003-86164-04 THE STATE OF TEXAS VS. KEITH D. ROANE IN THE COUNTY COURT AT LAW NUMBER THREE COLLIN COUNTY, TEXAS

1BRIEF IN SUPPORT OF APPLICATION FOR A WRIT OF HABEAS CORPUS I. INTRODUCTION 1. Applicant Keith D. Roane is currently under confinement by order of this court

for a DWI conviction. Applicant does not have a right to appeal this conviction, because the Court of Appeals already affirmed it in 05-09-00927-CR. This request is made in the interest of justice. Additionally, article 11.072 of the Texas Code of Criminal Procedure allows for this remedy because the relief now requested was not available at the time of the filling of the first Application for Writ of Habeas Corpus by operation of law (Applicant then having a right to appeal). 2. The First habeas writ was only to address Roanes right to appeal in this cause

and was granted by this court. Now since the Court of Appeals recently affirmed Applicants conviction, this court should issue a subsequent writ in order to set aside Roanes final convection, because Applicant was deprived effective assistance of counsel before and during the trial phase of this cause as described in 05-09-00421-CR. II. APPLICABLE LAW A. Defense of Necessity Permitted For DWI: Wright, v. Texas, 05-09-00421-CR 3. Texas law justifies conduct if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm. Tex. Penal Code Ann. 9.22(1) (Vernon 2003).
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Reasonableness is a question of fact and we review reasonableness from the accused's standpoint at the time he acted. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990). The defense of necessity embraces the confession and avoidance doctrine. Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010). Additionally, admitting the offense requires that appellant admit both the act and the requisite mental state. Id. To qualify for a jury issue on necessity, appellant must show by a preponderance of the evidence that he committed the offense and he reasonably believed: (1) the conduct [was] immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. 4. Tex. Penal Code Ann. 9.22 (Vernon 2003). An appellant may raise the defense of necessity only if he admits he engaged in the proscribed conduct as alleged in the indictment. See Shaw, 243 S.W.3d at 659. The defense of necessity does not require that appellant produce evidence of unavailable alternative legal courses of conduct although evidence of available alternative legal courses of conduct may be relevant to the reasonableness of an actor's conduct. Pennington v. State, 54 S.W.3d 852, 859 (Tex. App.-Fort Worth 2001, pet. ref'd). To prosecute appellant for DWI, the State must prove that appellant operated a motor vehicle in a public place while intoxicated. Tex. Penal Code Ann. 49.04 (Vernon 2003). Thus, to admit the proscribed conduct and raise necessity as an affirmative defense, appellant must have admitted that he knowingly operated a motor vehicle in a public place while intoxicated. Wright v. State, No. 05-09-00421-CR (Tex.App. 2010). B. Failure to Raise Necessity Renders Ineffective Assistance of Counsel: Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App.1992) 5. The appellant bears the burden of proving ineffective assistance of counsel claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App.1998). Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Under the first part of the Strickland test, an appellant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The first part presumes that counsel is better positioned than the appellate court to judge the pragmatism of the particular case, and that [counsel] made all significant decisions in the exercise of reasonable professional judgment. Jackson v. State, 877 S.W.2d 768, 771 (1994) (quoting Delrio v. State, 840 S.W.2d 443, 447 (1992)).
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6. Under the second part of the Strickland test, the appellant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In other words, the appellant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052. This part of the test carries a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.] Id. at 689, 104 S.Ct. 2052. 7. In applying this test, an appellate court should not try to second guess trial counsel's tactical decisions which do not fall below the objective standard of reasonableness. Solis v. State, 792 S.W.2d 95, 100 (Tex.Crim.App.1990). This is especially true where the decision in question concerns presentation of a defense: Just because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she should also decide it would be inappropriate to propound such a defense in a given case. Vasquez, 830 S.W.2d at 950-51 n. 3. 8. Chapter nine of the Texas Penal Code is titled Justification Excluding Criminal Responsibility. It includes justifications such as necessity and public duty, and explains the justification aspects of protection of persons and property. Section 9.02 explains that It is a defense to prosecution that the conduct in question is justified under this chapter. 9. Necessity has traditionally been a justification for conduct that would otherwise be criminal. As Professors LaFave and Scott explain, [w]hen the necessity defense applies, it justifies the defendant's conduct in violating the literal language of the criminal law and so the defendant is not guilty of the crime in question. wayne R. LaFave and austin W. Scott, Jr., Criminal Law 5.4(a) (2d ed.1986, supp.1993). As Texas legal scholars have noted, [t]he defense of necessity is a justification for engaging in conduct that otherwise would be criminal conduct. 42 george E. Dix and robert O. Dawson, Texas Practice: Criminal Practice and Procedure 36.47 (1995, supp.1998). Necessity enables the social policy of promoting the greater good; if the harm which will result from compliance with the law is greater than the harm which will result from violation of it then the defendant is justified in his conduct. laFave and scott, supra, at 5.4. III. ARGUMENT 10. Roane is entitled to Habeas Relief because his trial counsel was ineffective before

and during the trial phase. No request for a necessity instruction had been requested before or during trial, After state closed, defense counsel did not give Applicant an opportunity to testify
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so that he could admit that he engaged in the proscribed conduct as alleged. RR62. Furthermore, defense counsel did not communicate with Applicant to see if he wanted to testify. At this same time during the Trial, Defense counsel argued that Applicant had to get her back to this household where this - - where all these people were so that she could get medical attention. At that point, he really didnt have a choice but to drive the car.RR 62. A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence, even if that evidence is weak, impeached or if the trial court finds it not believable. The defendant's testimony alone may be enough to raise a defensive theory requiring a jury charge. Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App. 1992); Thomas v. State, 678 S.W.2d 82, 84 (Tex.Crim.App. 1984). 11. In any criminal trial (judge or jury), In order to raise necessity, a defendant still

must admit violating the statute under which he is charged and then offers necessity as a justification which weighs against imposing a criminal punishment for the act or acts which violated the statute. In this case the judge was barred from accepting any such defense because of counsels deficiency in allowing Applicant to testify. Since there is some evidence here existing to support Roanes entitlement to an affirmative defensive instruction, Counsel should have had Applicant testify and state his defense. Officer Whitman also testified that defendant drove them back to the location, and from there he called 9-1-1. He stated that he was driving because the other person in the vehicle was injured, she would be unable to drive. RR 8. The Fifth Court of Appeals also took notice of this fact when they used it to concluded the temporal link between the time of driving and the intoxication. 12. Roane should be provided indigent counsel because Article 1.051 of the Code of

Criminal Procedure expressly establishes that power. Subsection (d)(3) of article 1.051, in
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particular, expressly grants an entitlement to appointment of counsel to an indigent criminal defendant in a post-conviction "habeas corpus proceeding if the court concludes that the interests of justice require representation." The statutory right to counsel includes the right to the assistance of counsel in making "adequate preparation for the proceeding." Code Crim. Proc. art. 1.051(a); cf. McFarland v. Scott, 114 S. Ct. 2568, 2572 (1994).http://www.legis.state.tx.us/tlodocs/80R/billtext/html/HB01178F.HTM 13. Roane should be provided indigent counsel to prepare a subsequent Application,

to address remedies that were not available or reasonably foreseeable at the time of the original writ application and appeal. Roane filed his first pro-se writ application with this court on May 27, 2009 raising ineffective assistance of counsel to which this court granted on July 7, 2009. Appellate Counsel for Roanes filed his appeal brief on December 28, 2009. Wright v. State, No. 05-09-00421-CR (Tex.App. 2010) was not decided by the Fifth Court of Appeals in Dallas until 06/28/2010. Therefore at the time the first application for habeas corpus was filed no appeals courts had yet decided that necessity can be an affirmative defense to Driving While Intoxication (DWI). Therefore necessity was not addressed with the original writ. Even if Roane made this complaint on appeal, error was not preserved by his attorney during the first trial, Therefore, the appeals court did not have jurisdiction to address this instant issue on necessity. IV. SUMMARY 14. The Applicants, Keith D. Roane, due process rights have been adversely effected

during the pre-trial and trial phase of this DWI case as a consequence from the ineffective assistance of counsel from his attorney(s). Roane is an indigent criminal defendant currently under confinement (community supervision) by order of this court. Accordingly, this court
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should issue writ to set aside his conviction and order a new trial. or to pursue any other legal remedies the Applicant may be entitled

Respectfully Submitted __________________________ DATE: 09/19/2012 Keith D. Roane 809 Lake Place Azle, TX 76020 214-497-8315

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