[Oral argument reserved upon states request] NO.

05-09-00927-CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS TEXAS ____________________________________________________________________ KEITH DOUGLAS ROANE, Appellant, vs. THE STATE OF TEXAS, Appellee. ____________________________________________________________________ On Appeal from County Court at Law No. 3, Collin County, Texas Trial Court Cause No. 003-86164-04 _____________________________________________________________________ MOTION FOR REHEARING _____________________________________________________________________ Keith Douglas Roane 2856 Meade Drive Grand Prairie, TX. 75052 (214)497-8315 Defendant, Appellant, Pro-Se (in forma pauperis)

NO. 05-09-00927-CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS TEXAS ____________________________________________________________________ KEITH DOUGLAS ROANE, vs. THE STATE OF TEXAS, _____________________________________________________________________ IDENTITY OF PARTIES AND COUNSEL _____________________________________________________________________ The following is a complete list of all parties to the trial courts judgment appealed and motioned from herein, and the names and addresses of all trial and appellate counsel: 1. Keith Douglas Roane, Appellant (in forma pauperis) (Defendant in the court below, Pro-se in this instant motion): 2. Appellants Counsel: Trial (Retained): Darren McDowell, SBOT #24025520 Christopher Hoover, P.C. 520 Central Expressway, Suite 112 Plano, Texas 75074 Phone: 972/422-1800 3. Appellees Counsel Trial: Donnie Perales, SBOT #24046610 John R. Roach, SBOT #16967200 Collin County District Attorneys Office 2100 Bloomdale Road , Suite 20004 McKinney, TX 75071 Phone: 972/548-4323 Facsimile: 214/491-4860 Appeal: John R. Rolater, Jr., SBOT #00791565 John R. Roach, SBOT #16967200 Collin County District Attorneys Office 2100 Bloomdale Road , Suite 20004 McKinney, TX 75071 Phone: 972/548-4323 Facsimile: 214/491-4860 Appeal (Court Appointed): Wm. Randell Johnson, SBOT #10805450 Law Offices of Wm. Randell Johnson 2809 Regal Road, Suite 100 Plano, TX 75075 Phone: 972/769-7200 Facsimile: 972/758.9783

NO. 05-09-00927-CR IN THE COURT OF APPEALS FIFTH SUPREME JUDICIAL DISTRICT DALLAS TEXAS ____________________________________________________________________ KEITH DOUGLAS ROANE, Appellant, vs. THE STATE OF TEXAS, Appellee. _____________________________________________________________________ MOTION FOR REHEARING _____________________________________________________________________ TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: KEITH DOUGLAS ROANE respectfully submits in forma pauperis, and pursuant to TRAP 79.1 this Motion for Rehearing or clarification of the courts opinion dated August 31, 2010 in the above-styled and numbered cause in due time, manner and form.. Pursuant to T.R.A.P. 3.2, KEITH DOUGLAS ROANE is referred to herein as Appellant and the STATE OF TEXAS is referred to as the State. Statement of the Case: 1. This is a misdemeanor DWI case in which, upon appeal, both parties timely filed briefs in this matter and this court affirmed the trial courts (non-jury) conviction on August 31, 2010 and issued the attached opinion. 2. On or about September 14, 2010, Appellant timely filed a first motion for an extension of time to file a motion for rehearing in accordance with TRAP 79.6 & 10.5(b).

4 On September 21, 2010 the rule 79.6 extension motion was granted by this Court giving appellant 30 days of said order (i.e., on or before October 21, 2010) to file his motion for rehearing. 5 On September 23, 2010 Appellants Counsel, Mr. Johnson, notified the Clerk of Court of Appeals that he will no longer represent Appellant for this instant motion or any future action in this case since the trial court would not re-appoint Mr. Johnson as indigent Counsel. 6. Accordingly, This appellants motion for rehearing is timely submitted by appellant and requests reversal of the judgment, sentence and conviction in the trial court below. Request For Oral Argument Pending receipt and review of the States reply, Appellant will wave oral argument in this case; however, respectfully reserves such request contingent on the states request for oral argument. Summary of Argument: This court of appeals August 31, 2010 opinion relies on Kuciemba. However, The Supreme Court, in its opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), decided that "the question `of whether a decision [announcing a new rule should] be given prospective or retroactive effect should be faced at the time of [that] decision.' " Id. at 489 U.S. 288, 300, 109 S.Ct. 1060, 1069, 103 L.Ed.2d 334, 349 (quoting Mishkin, Foreword: the High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L.Rev. 56, 64 (1965)). The Texas Court of Criminal Appeals Doesnt address the issue on how its holding is to be appliedprospectively,

retroactively, or some variation thereof.[13] However even assuming Kuciemba is retroactive, the facts required (or lack of evidence) in this case to ascertain the time of drinking are not; however, there is circumstantial evidence showing the defendants capacity for alcohol consumption after the accident. In Kuciemba the states cites to Zavala v. State, 89 S.W.3d 134, 137-38 (Tex.App.-Corpus Christi 2002, no pet.) In Zavala the court was able to pinpoint the accused's driving to a time between 11:00 p.m., when Zavala admitted to last drinking an alcoholic beverage, and 3:40 a.m., when the officer was dispatched to the accident scene and determined the accused was intoxicated. There is no similar testimony or evidence in this case as to the timing of any drinking by appellant. Therefore, Kuciemba and Zavala are not on point. Argument: In its opinion of August 31, 2010 this court cites: In Kuciemba, the court of criminal appeals retained the requirement of showing a temporal link between the defendant's intoxication and driving to convict for DWI, but held that circumstantial evidence can establish this link and [b]eing intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident... This opinion omits the part in Kuciemba and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object. There is no collision in this instant case. Whitman testified that That she fell out of the drivers seat and then he drove them back. RR 46. This case is set apart from Kuciemba in several ways - in that no person is at the "scene of the accident." Whitman testified that the vehicle was driven back from the

accident. RR 7, 62. The video also showed the vehicle perfectly parked and without body damage. Another aspect of this case that sets it self apart from Kuciemba or Zavala. Another aspect of this instant case is that the accident wasnt cause by the defendant's intoxication or by the defendant at all. The defendant drove the vehicle with injured person back (to the party) after the injury. RR 8, 62. Therefore, is no circumstantial evidence or evidence that the intoxication caused the accident. This courts August 31, 2010 opinion stated that: "Whitman could not determine where appellant and the girl were four- wheeling because appellant, himself, did not know," However, this finding is contradicted in the record by Whitmans testimony He couldn't give me a definite area. He basically said the fields right by here" RR 26-27. It is at no fault to the defendant that Whitman did not pursue a more definitive answer during his initial investigation. This courts August 31, 2010 opinion stated that: "The dispatcher told Whitman that the person on the phone [sic] said he had lost control of the vehicle while driving and the accident had occurred somewhere else." This quotation doesnt exist in the record or for this instant case; however, this is a quote from Kuciemba. This courts opinion also goes on to say That Whitman found no evidence of alcohol consumption in the vehicle could lead a reasonable fact finder to conclude that appellant had nothing to drink between the time he left the party, went four-wheeling in the fields, and Whitman arrived at the scene. This is the logical fallacy called "affirming the consequent." More importantly this court again is implementing facts from Kuciemba or from some other source not relating to this appellants immediate case. Accordingly, the record for

appellants case doesnt substantiate these quotations. They are; however, contradicted by Whitman response By drinking beer at the house he was at. He was at a party. It would defy logic in two ways to assume that a 20 year old male could not consume enough alcoholic beverage in the 20 [sic] minutes it took police and EMS to arrive to the party where the bronco was returned and to also assume that the party was not were the bronco was returned. RR26, States Brief 10 (not supported by record). This court of appeals August 31, 2010 opinion states: Appellant had the vehicles keys in his pocket the following paragraph changes that to Appellant had the keys to the Bronco in his hand and, although there may be no harm caused by the change, said facts are not in appellants record; therefore this idea is probably supplemented by another case that is not appellants instant case. No fact of this exists in the appellants record. The Nexus (Temporal Link) that is to be established ONLY by circumstantial evidence must be proved beyond reasonable doubt or else the "Nexus" is not really a Nexus at all. Instead, it is a fallacious application of the second definition. When the court overruled in part Geesa Vs. State they disagreed that reasonable doubt makes you hesitate to act; therefore, if you hesitate to act, you have a reasonable doubt. That is like saying, "Pneumonia makes you cough; therefore, if you cough, you have pneumonia." This is the logical fallacy called "affirming the consequent." Paulson v. State, 28 SW 3d 570 - Tex : Court of Criminal Appeals 2000. The same logical fallacy is being used to establish a Nexus (if one even exists) to affirm the trial courts judgment that is - If a person doesnt consume alcohol between the

time of an accident and the officers arrival then there will be no evidence of open or empty alcoholic beverage at the seen; therefore if there is no evidence of open or empty alcoholic beverage at the seen, then the drinking occurred before the accident. The even greater problem with this Courts August 31, 2010 decision is that the record doesnt establish any existents or non-existents of alcoholic beverage consumption as it relates to the location. I would site to the record, but you cannot site what doesnt exist, however, the record does reflect that appellant returned to the party that according to Whitman states this party had juveniles that were drinking RR26-27. Now it would further defy logic to ignore where this information came from since it was not told by the appellant to Whitman. Therefore that statement itself is circumstantial evidence that there was more people there than just what the camera showed. The beginning (arrival portion) of the video tape has been erased and this camera is limited to only the area that the camera is positioned. According to Whitman EMS was present along with another officer not shown on the video tape. RR 34. A. No. He was at a party, and there was a lot of juveniles there drinking. And he stated that he had been drinking. Q. You dont know when he had been drinking, do you? A. No I didnt ask him for that exact time frame. Q. You dont know the drinking pattern which he had, do you? A. No. Q. Okay. You dont know if he had one beer right before you made contact with him, or beers earlier in the night or anything like that, do you? A. Correct.

No reasonable fact finder can conclude what the states only witness doesnt even know. RR 26-27. The circumstantial evidence in this case is stronger to show that appellants companion was driving, became injured and could not return the vehicle back to the party. Accordingly, appellant took control of said vehicle and returned it to the same party to get medical help (it defies logic to return the vehicle somewhere else). Its also undisputed that appellant drove in a public place in accomplishing this. Upon appellants return back to the party where juveniles were drinking. RR 8, 26, 46. Only then did appellant became intoxicated or some degree thereof (perhaps to overcome some anxiety) after the driving took place. Defendants reason for drinking is unknown in the record since Whitman did not attempt to investigate that issue at the scene which may also have established the Nexus. Whatever the reason or motive for drinking may be is irrelevant since it happened after the accident and before Whitman arrived at 3:00 AM RR 6, 53. The court was unable to make identification on the 911 call Well no. I dont think you can. I dont think you can make a stretch on identification there. RR 61. Prayer WHEREFORE, PREMISES CONSIDERED, there being reversible error appearing in the record of the trial of this case, Appellant moves the Court to reverse the conviction and remand this cause to the trial court with an order to enter a judgment of acquittal or for further proceedings and/or grant such other relief, both general and specific, at law and in equity, for which Appellant is justly entitled and for which he will ever pray. Respectfully submitted, By: _____________________ Keith Douglas Roane 2856 Meade Drive Grand Prairie, TX. 75052 (214)497-8315 Defendant, Appellant, Pro-Se

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing has been provided by electronic services (email) and first class mail on this 20th day of October, 2010, to: John R. Rolater, Jr., SBOT #00791565 John R. Roach, SBOT #16967200 Collin County District Attorneys Office 2100 Bloomdale Road , Suite 20004 McKinney, TX 75071 Phone: 972/548-4323 Facsimile: 214/491-4860 _________________________ Keith Douglas Roane 2856 Meade Drive Grand Prairie, TX. 75052 (214)497-8315 Defendant, Appellant, Pro-Se

http://www.5thcoa.courts.state.tx.us/cgi-bin/as_web.exe?c05_10.ask+D+13671753 File: 090927F - From documents transmitted: 08/31/2010 AFFIRM; Opinion Issued August 31, 2010

In The Court of Appeals Fifth District of Texas at Dallas ............................ No. 05-09-00927-CR ............................ KEITH DOUGLAS ROANE, Appellant V. THE STATE OF TEXAS, Appellee ............................................................. On Appeal from the County Court at Law No. 3 Collin County, Texas Trial Court Cause No. 003-86164-04 ............................................................. OPINION Before Chief Justice Wright and Justices Richter and Maloney See Opinion By Justice Maloney

Footnote 1

The trial court convicted Keith Douglas Roane of driving while intoxicated (DWI), assessed a sentence of sixty days in the Collin County Jail and a $600 fine, suspended the jail sentence, and placed appellant on community supervision for one year. In two issues, appellant complains the evidence is legally and factually insufficient. We affirm the trial court's judgment.
BACKGROUND

A telephone call to 911 about a major accident sent a police officer to an alley where he found appellant standing outside a vehicle and a female inside the vehicle. After arriving at the scene, the officer arrested appellant for DWI.
SUFFICIENCY OF THE EVIDENCE

Appellant argues that the State did not present legally or factually sufficient evidence to sustain the conviction. He contends that no evidence exists to show appellant operated the vehicle in a public place or he was actually intoxicated at the time he drove the vehicle in a public place. The State responds that appellant's statements to the police officer were sufficient to show that appellant operated a motor vehicle in a public place while intoxicated.
THE EVIDENCE

Darren Whitman, an Allen Police Officer, testified that he is certified as a peace officer, as an intoxilyzer operator, to perform standard field sobriety tests (SFST), as well as an instructor for SFST. At 3:30 a.m., he received a dispatch directing him to a major accident in a public alleyway in Allen, Texas. When Whitman arrived at the scene, he saw appellant standing outside a Ford Bronco See Footnote 2 and a female inside the vehicle. Appellant told Whitman that he and the female were four- wheeling in some

fields in a friend's Bronco when the female was ejected from the Bronco. Because she was unable to drive, he drove back to the alley and telephoned 911. Whitman smelled alcohol and observed other signs of intoxication-poor balance, red, watery eyes, and slightly slurred speech. Whitman began the SFST-the horizontal gaze nystagmus test (HGN), the nine-step walk and turn, and the one-leg-stand test. Whitman stated appellant failed each test he took. The State introduced videotapes of appellant at the scene and at the police station. Appellant objected to the portion of the videotape where Whitman administered the breath test (PBT) and announced its results. The trial court admitted the videotape, announcing it would disregard that portion of the videotape. See Footnote 3 The videotape made at the scene depicted appellant performing the SFST, and the videotape made at the police station showed appellant receiving his admonishments and refusing a breathalyzer test. On cross-examination, appellant established that the girl was either in the passenger seat or the back seat. See Footnote 4 Whitman acknowledged he had no personal knowledge of appellant's driving or where and when he drove. Whitman conceded that all of his information came from appellant's statements and the 911 call. Whitman could not determine where appellant and the girl were four- wheeling because appellant, himself, did not know. Whitman affirmed that appellant admitted he had been at a party and he had been drinking. Whitman also admitted that he had no personal knowledge of appellant's normal speech. When questioned about whether the flashing lights at the scene compromised the HGN test, Whitman established that appellant's eyes did not look at the lights, only Whitman's finger. See Footnote 5 On redirect examination, the State had Whitman explain exactly how appellant reacted to each of the tests administered. Additionally, the State directed Whitman to the videotape where appellant stated that he was a paralegal for a DWI attorney. Although Whitman could not remember appellant's actual occupation, he was not a paralegal, and Whitman believed he clerked at a grocery store. When the trial court reminded the attorneys that the videotapes had not been played in their entirety, both the State and appellant requested that the trial court review the videotapes. The State recalled Whitman and questioned what the police dispatcher relayed to him. The dispatcher told Whitman that the person on the phone [sic] said he had lost control of the vehicle while driving and the accident had occurred somewhere else. After the trial court found appellant guilty, appellant and the State entered into an agreement on punishment.
STANDARD OF REVIEW a. Legal Sufficiency

In evaluating the legal sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The fact finder is the exclusive judge of the witnesses' credibility and of their testimony's weight, and it is within the fact finder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). A claim of legal insufficiency is, in effect, an

argument that the case should never have even been presented to the fact finder. Id. We do not reverse unless we conclude no rational fact finder could have found all of the essential elements of the offense beyond a reasonable doubt. See Villarreal v. State, 286 S.W.3d 321, 327-28 (Tex. Crim. App. 2009).
b. Factual Sufficiency

In reviewing the factual sufficiency of evidence to support a verdict, we review all the evidence in a neutral light. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We determine the factual sufficiency of evidence by considering if the evidence although legally sufficient to support the verdict is (1) too weak to support the jury's verdict, or (2) considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We cannot reverse for factual sufficiency when the greater weight and preponderance of the evidence actually favors conviction. See Watson, 204 S.W.3d at 417. Although we have a limited ability to second-guess the jury, we must defer to the jury's verdict and employ a high level of skepticism before reversing. Roberts, 220 S.W.3d at 524. Additionally, we must defer to the fact finder's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
2. Applicable Law

A person commits a DWI if he operates a motor vehicle while intoxicated in a public place. Tex. Pen. Code Ann. 49.04(a) (Vernon 2003). Extrajudicial confessions alone will not support a conviction. See Rocha v. State, 16 S.W.3d 1, 4 (Tex. Crim. App. 2000). The corroborating evidence need not prove the offense, it must merely make the 'commission of the offense more probable than it would be without the evidence.' Cardenas v. State, 30 S.W.3d 384, 390 (Tex. Crim. App. 2000) (quoting Chambers v. State, 866 S.W.2d 9, 15-16 (Tex. Crim. App. 1993)). We no longer look at what theories are not proven. See Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The critical issue is whether proof exists that will allow a fact finder to conclude that at the time of the driving in question, whenever that might be, the defendant was intoxicated . . . . Zavala v. State, 89 S.W.3d 134, 139 (Tex. App.-Corpus Christi 2002, no pet.). A defendant's refusal to take a breath test is admissible at trial, and the fact finder may infer guilt from that refusal. See Tex. Transp. Code Ann. 724.061 (Vernon 1999); Gaddis v. State, 753 S.W.2d 396, 399-400 (Tex. Crim. App. 1988).
4. Application of Law to the Facts

Appellant limits his appeal on legal sufficiency to contending the State produced no independent evidence of how recently appellant drove the vehicle or how much time elapsed between his driving the vehicle and the police arrival. He contends that the evidence is factually insufficient to show appellant was intoxicated, he operated a vehicle in a public place, or that he was intoxicated at the time he operated a vehicle in a public place. We agree that no one testified to how much time elapsed between when appellant was drinking, the accident occurred, and when the police officer arrived at the scene. Appellant relies on Scillitani v. State, 297 S.W.3d 498 (Tex. App.-Houston [14th

Dist.] 2009), vacated and remanded, No. PD-0069-10, 2010 WL 2606485 (Tex. Crim. App. June 30, 2010)), and First District cases cited therein to argue that the State must establish some nexus between the time appellant drank alcohol and when he drove the Bronco. The Houston court determined that Scillitani's admission was legally sufficient to show he was driving, but not enough to establish the temporal link between his driving and his intoxication. Id. at 501. The Texas Court of Criminal Appeals vacated the Fourteenth Court of Appeals's judgment and remanded Scillitani for reconsideration in light of Kuciemba v. State, 310 S.W.3d 460 (Tex. Crim. App. 2010). In Kuciemba, the court of criminal appeals retained the requirement of showing a temporal link between the defendant's intoxication and driving to convict for DWI, but held that circumstantial evidence can establish this link and [b]eing intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident. Id. at 462. The State presented evidence from which the fact finder could conclude appellant was intoxicated when Whitman arrived at the scene. That Whitman found no evidence of alcohol consumption in the vehicle could lead a reasonable fact finder to conclude that appellant had nothing to drink between the time he left the party, went four-wheeling in the fields, and Whitman arrived at the scene. Appellant was standing next to the driver's door of the Bronco, had the vehicle's keys in his pocket, admitted he had been drinking at a party, and he had called 911. According to appellant, the passenger's injury prohibited her from driving. From this, a reasonable fact finder could conclude that appellant had driven the vehicle. Additionally, appellant refused to submit to the intoxilyzer test when taken into the intoxilyzer room at the police station. Viewing the evidence in the light most favorable to the verdict, we conclude any reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant's point of error number one. In support of appellant's contention that the evidence is factually insufficient to support the judgment, he directs us to State's exhibits one, two, three, and four. We agree that State's exhibit one, Statutory Warnings, and State's exhibit two, appellant's driver's license, are no evidence of intoxication. State's exhibits three and four were admitted and viewed by the fact finder. Appellant maintains because Whitman did not see appellant driving, the evidence is factually insufficient to support the judgment. It is uncontested that Whitman never saw appellant driving. However, when Whitman arrived at the scene, appellant and his companion were the only ones there. Appellant had the keys to the Bronco in his hand and, by his own admission, his companion was incapable of driving and the videotape supports that the passenger was lying in the back seat. The circumstantial evidence supports that appellant drove there. Next, appellant relies on State's exhibit three, videotape of appellant at the scene, and State's exhibit four, videotape of appellant in the intoxilyzer room, to contend appellant's good performance on the SFST tests shows he did not appear intoxicated. The trial court viewed these tapes and, as the fact finder, determined how Whitman administered, and appellant performed, the SFST tests. Appellant contends that Whitman's telling appellant good job and about to release him show Whitman had doubts about his intoxication. Appellant ignores that Whitman testified he said those

things to get appellant to cooperate and to take the PBT. Appellant also points to Whitman's testimony that appellant's companion was driving when ejected from the Bronco. That appellant may have told Whitman that his companion was driving when she was injured does not contradict Whitman's testimony regarding appellant's admitting he drove the Bronco to the alley. Appellant also contends the evidence is factually insufficient to show he drove on a public street. Appellant admitted he drove to the alley. The evidence showed that to reach the alley a vehicle had to drive on public roads and the alley itself was open to the public. Appellant, himself, told Whitman his companion was injured and could not drive. The combination of these facts and our review of the record as a whole shows that the evidence is factually sufficient to support the judgment. We overrule appellant's point of error number two. We affirm the trial court's judgment.

FRANCES MALONEY JUSTICE, ASSIGNED Do Not Publish Tex. R. App. P. 47 0900927F.U05

Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District
of Texas at Dallas, Retired, sitting by assignment. Footnote 2 The Bronco had its top removed. Footnote 3 Appellant objected to a specified portion of the videotape at the scene3:09:14 to 3:09:55. Footnote 4 Our review of the videotape reveals that Whitman directed another officer to the passenger who was lying on the Bronco's back seat. Footnote 5 The videotape shows the intensity and amount of light at the scene. File Date[08/31/2010] File Name[090927F] File Locator[08/31/2010-090927F]

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