AFFIRMED and Opinion Filed March 13, 2013.
In The
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No, 05-12-01522-CR
EX PARTE KEITH ft ROANE
On Appeal from the County Court at Law No. 3
Collin County, Texas
Trial Court Cause No. 003-S6164-04
MEMORANDUM OPINION
Before Justices Bridges, O’Neill, and Murphy
Opinion by Justice Murphy
Keith D. Roane appeals the trial court’s order denying his application for writ of habeas
corpus. Appellant has failed to file a brief on appeal. In his application for the writ and his
supporting brief, however, he alleged he received ineffective assistance of counsel during his
trial before the court. We affirm the trial court’s order.
BACKGROUND
Appellant pleaded not guilty to the misdemeanor offense of driving while intoxicated and
elected a trial before the court
1 The trial court found appellant guilty and assessed punishment
at sixty days in the county jail and a $600 fine, but suspended the sentence and placed appellant
on community supervision for one year. After appellant filed a writ of habeas corpus and
‘The trial court’s judgment erroneously reflects appellant entered a plea of guilty or nob contendere.
received permission to file an outof4ime appeal, this Court affirmed appellant’s conviction in
Roane v. State, No, O5’0900927CR, 2010 WL 3399036 (Tex. App.—Dallas Aug. 31, 2010, pet.
ref’d) (not designated for publication).
The State presented evidence that appellant and a female companion decided to go “four
wheeling” in some fields after drinking at a party. During the drive, the female was ejected from
the vehicle. Appellant drove the vehicle to an alley and called 911 to summon help. Appellant
told conflicting stories to the 911 dispatcher and the responding officer about who was driving at
the time of the accident. The officer testified he arrived to find appellant standing outside the
vehicle with the keys in his hand and the injured female lying on either the passenger seat or
backseat. Appellant admitted to the officer that he had driven the vehicle to the alley. The
officer testified appellant exhibited numerous signs of intoxication and failed field sobriety
testing. The officer did not see appellant driving or know how much time had elapsed between
appellant’s drinking and driving.
Appellant alleges in his writ application that counsel failed to advise him that necessity
was an affirmative defense to driving while intoxicated and counsel rested without conferring
with him to determine whether he desired to testify in his own defense. Had he testified,
appellant contends, he could have admitted he drove the vehicle and thus raised the affirmative
defense of necessity for the trial court’s consideration. Appellant presented no evidence in
support of his writ application other than his verification. There also is no record of a hearing or
that counsel was given an opportunity to respond to appellant’s allegations. The trial court, after
reviewing the application, determined appellant was entitled to no relief and denied the
application as frivolous.
—2—
APPLICABLE LAW
An applicant for habeas corpus relief must prove the claim by a preponderance of the
evidence, Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crirn. App. 2006); Ex parte Scott, 190
S,W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam), In reviewing the trial court’s order
denying habeas corpus relief, we view the facts in the light most favorable to the trial Court’s
ruling. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam),
overruled on other grounds by Ev parte Lewis, 219 S.W.3d 335 (Tex. Crirn, App. 2007). We will
uphold the trial court’s ruling absent an abuse of discretion. See id.
To prevail on an ineffective assistance claim, appellant must show (1) counsel’s
performance fell below an objective standard of reasonableness under prevailing professional
norms; and (2) a reasonable probability exists that, but for counsel’s errors, the result would have
been different, Strickland v. Washington, 466 U.S. 668, 687—88 (1984); Ex parte Lane, 303
S.W.3d 702, 707 (Tex. Crim. App. 2009); see also Riley v. State, 378 S.W.3d 453, 456 n.5 (Tex.
Crim. App. 2012). A defendant’s failure to satisfy one prong negates the need to consider the
other prong. Strickland, 466 U.S. at 697; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011).
An allegation of ineffective assistance of counsel will be sustained only if it is firmly
evidenced in the record; the record also must affirmatively demonstrate the alleged
ineffectiveness. See Menefield v. State, 363 S.W.3d 591, 592—93 (Tex. Crim. App. 2012); Lopez,
343 S.W.3d at 142. Without evidence of counsel’s considerations, we will presume sound trial
strategy, and we will not conclude counsel’s performance was deficient unless the conduct was
so outrageous that no competent attorney would have engaged in it. Lopez, 343 S.W.3d at 142;
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
ANAL YSIS
Appellant has not shown counsel’s performance was deficient, The record is silent as to
counsel’s strategy or reasoning related to whether the facts gave rise to a necessity defense and
whether appellant or any other witnesses should have been called to testify. Without a record,
appellant’s trial attorney has not been given an opportunity to explain his trial strategy. See
Menefield, 363 SW.3d at 593 (“Trial counsel ‘should ordinarily he afforded an Opportunity to
explain his actions before being denounced as ineffective,”) (quoting Goodspeed v. State, 187
S.W.3d 390, 392 (Tex, Crim. App. 2005)). Nor has appellant shown that this is one of those
extraordinary situations in which the face of the record shows counsel’s challenged conduct was
so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 440.
Appellant therefore has failed to demonstrate under the first Strickland prong that counsel’s
performance was deficient. Lopez, 343 SW.3d at 144. Accordingly, we conclude the trial court
did not abuse its discretion by denying appellant’s application for writ of habeas corpus.
We affirm the trial court’s order denying appellant the relief sought by his application for
writ of habeas corpus.
MARY
JUSTICE
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JUDGMENT
EX PARTE KEITH D. ROANE On Appeal from the County Court at Law
No. 3, CoHin County. Texas
No, O5-l2Ol522CR Trial Court Cause No. OO386164-O4.
Opinion delivered by Justice Murphy,
Justices Bridges and O’Neill participating.
Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellants application for writ of habeas corpus is AFFIRMED.
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13
Judgment entered this day of March, 2013.
I 1JI
MARY MURPHY’
JUST WE