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

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

DEFENDANTS REQUEST FOR COURT APPOINTED COUNSEL

I, Keith D. Roane, defendant in the above numbered and styled cause, do believe I am indigent and respectfully request the Court appoint counsel to represent me for the purpose of perfecting and prosecuting an Subsequent Application for Writ of Habeas Corpus in accordance with article 1.051(d)(3) and 11.072 of the Texas Code of Criminal Procedure. I understand that if there is a material change in my financial circumstances after a determination of my indigence is made, that I, my counsel, or the county attorney representing the State may ask the judge to reconsider the judges decision. In support of this request I can at the courts request provided personal and financial information and I am giving sworn testimony before the judge about my personal and financial circumstances. I understand this information may not be used for any purpose except to determine my indigency or to impeach any future testimony I may give in this case. I understand that I may be subject to prosecution for the felony offense of aggravated perjury in the event I intentionally or knowingly give false testimony to the Court in this matter." _________________________________ Keith D Roane, Defendant SWORN to and subscribed before me, the undersigned authority, on March ___08___, 2012. By:__________________________________________ (Notary, County Clerk)

BRIEF IN SUPPORT OF REQUEST FOR COURT APPOINTED COUNSEL

I. INTRODUCTION This court should appoint indigent counsel to represent Applicant, Keith D. Roane, to prosecute a Subsequent Application for Writ of Habeas Corpus to which Applicant is justly entitled. Roane is currently under confinement by order of this court for a DWI conviction. Roane Doesnt have a right to appeal his conviction because the Court of Appeals affirmed it. 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 to be requested was not available at the time of the first Application for Writ of Habeas Corpus and Application had a right to appeal. 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 Roanes conviction this court should issue a subsequent writ in order to set aside Roanes convection, because Roane was deprived effective assistance of counsel before and during the trial phase of this cause. II. BACKGROUND 1. Applicant was improperly advised by his Attorneys Christopher N. Hoover and Trial Counsel Darren McDowell that Necessity is not an applicable affirmative defense to DWI cases. 2. Accordingly, Trial Counsel did not have Applicant testify at his trial.

3. Applicant was not properly advised of his right to testify by both the court and trial counsel. RR 62. 4. Applicant filed a pro-se application for habeas corpus to reinstate his appeal rights to which this court granted and eventually appointed indigent appellate counsel. 5. At the time of the first application for writ of habeas corpus, Applicant was barred by statute from prosecuting the claims raised now, because the right to appeal was available to Applicant. 6. Error was not properly preserved for appeal by trial counsel in order to raise a Necessity issue during his original appeal. 7. The appeal was based only on a theory on post-driving consumption of alcohol; however this issue was further improperly preserved by trial counsel by not having Applicant testify. 8. counsel. Applicant advised this court on February 2, 2012 of his issues with his trial

III. APPLICABLE LAW

A. Defense of Necessity Permitted For DWI: 9. 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). 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. 10. 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: 11. 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)).

12. 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. 13. 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. 14. 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. 15. 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.

IV. ARGUMENT

16. 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 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). 17. 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. 18. 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 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 19. 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 20. 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 should grant Applicants request to have indigent counsel assist in preparing an application for Writ of Habeas Corpus to have his conviction set aside or to pursue any other legal remedies the Applicant may be entitled. Or in the alternative, if this court believes that it be more cost effective to issue the writ described in this request for indigent counsel without such a motion or application. This court should invoke is authority in accordance with Article 11.16 of the Texas Code of Criminal Procedure. WRIT MAY ISSUE WITHOUT MOTION. A judge of the district or county court who has knowledge that any person is illegally confined or restrained in his liberty within his district or county may, if the case be one within his jurisdiction, issue the writ of habeas corpus, without any motion being made for the same. Respectfully Submitted __________________________ DATE:03/08/2012 Keith D. Roane 809 Lake Place Azle, TX 76020 214-497-8315 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been provided by electronic services (e-mail) and certified first class mail on this 8th day of march, 2012, to: Greg Willis SBOT 21653500 CERTIFIED No.: 7009 0960 0000 9768 8658 2100 Bloomdale Road, Ste. 20004 McKinney, TX 75071 Jane Roden SBOT 17132050 jroden@co.collin.tx.us __________________________ Keith D. Roane

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

ORDER DETERMINING RIGHT TO APPOINTMENT OF COUNSEL Today the Applicants request for the appointment of counsel was heard in open court and evidence presented concerning the Applicant' financial resources. INDIGENCY WITH REIMBURSEMENT. The Court finds the Applicant is entitled to the appointment of counsel because [ ] Applicant is indigent [ ] it is in the interests of justice. The Court further finds Applicant presently has financial resources to repay [ ] all or [ ] part of the cost of legal services and related expenses. IT IS HEREBY ORDERED that Applicant is appointed counsel and shall contribute to the cost of legal services and related expense as may be ordered by the Court. INDIGENCY WITHOUT REIMBURSEMENT. The Court finds the Applicant is entitled to the appointment of counsel because [ ] Applicant is indigent [ ] it is in the interests of justice. The court further finds Applicant presently has no financial resources to offset the cost of legal services and related expenses. IT IS HEREBY ORDERED that Applicant is appointed counsel in this matter. The Court appoints the attorney named below to represent the Applicant until charges are dismissed, the Applicant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel. Attorney________________________________________________________________ [ ] NO FINANCIAL NEED. The Applicant has the financial resources to employ counsel and the appointment of counsel in the interests of justice is not necessary. The request is DENIED at this time. Signed ________________ ________________________________ HONORABLE PRESIDING JUDGE