AFFIRMED and Opinion Filed March 13, 2013.




                                          In The
                                   (!taurl at Apmi1
                             1fI1 itrirt at axai tt i1at1ai
                                             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
Do Not Publish
TEx. R. APP. P.47

121522F.U05
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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.


                        th
                        13
Judgment entered this        day of March, 2013.



                                                            I    1JI

                                                             MARY MURPHY’
                                                             JUST WE
