Robert James Back v. State

07-07-00436-CR

ROBERT BACK #1465630

POWLEDGE UNIT

1400 FM 3452

PALESTINE TX. 75803

~ ~UL~72~ ~

SEVENTH COURT OF APPEAl.S

VIVIAN LONG, CLERK

NOTICE OF ADDRESS CHANGE

THE ABOVE ADDRESS IS MY NEW ADDRESS.

DEAR CLERK OF THE COURT,

PLEASE ADVISE ME OF THE FILE DATE UPON FILING.

THANKYOU

~d~

SINCERELY

ROBERT BACK #1465630

~ ~UL ~72~ ~

SEVENTH COURT OF APPEALS

VIVIAN bONG. CLERK

IN THE SEVENTH JUDICIAL DISTRICT COURT

OF APPEALS FOR AMARILLO

CAUSE NO. 07-07-00436-CR

IN RE ROBERT BACK,

MOVANT.

IN THE SEVENTH JUDICIAL DISTRICT COURT

~ ~UL~?2~ ~

SEVENTH COURT OF APPEALS

OF APPEALS FOR AMARILLO VIVIAN J.ONG, CLERK

§

IN RE ROBERT BACK1 § APPELLATE COURT NO.

§

MOVANT. 07-07-00 436-CR

§

MOTION FOR LEAVE TO PRESENT ISSUES

FOR RELIEF FROM THIS COURT'S JUDGMENT

TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW1 ROBERT BACK1 PRE SE MOVANT1 IN THE ABOVE ENTITLED

AND NUMEBERED CAUSE1 AND WOULD RESPECTFULLY REQUEST THIS COURT'S

PERMISSION TO PRESENT "MOST EGREGIOUS ISSUES OF COURT ERROR

AND APPELLATE COUNSEL ERROR THAT WOULD FUNDAMENTALLY UNDERMINE

THE FAIRNESS OF THE PROCEEDINGS AND THE INTEGRITY AND REPUTATION

OF THE COURT1 THAT WOULD RENDER THE COURT'S JUDGMENT NULL AND

VOID1 AS A 'MATTER OF LAW AND IN EQUITY1 ' AND IF LEFT UNCORRECTED

WOULD RESULT IN A 'MANIFEST MISCARRIAGE OF JUSTICE .'"

WHEREFORE/ MOVANT PRAYS THIS COURT GRANT HIM PERMISSION TO

PRESENT HIS ISSUES1 SOLELY IN THE INTEREST THAT JUSTICE BE PROPER-

LY SERVED.

/V&L

RESPECTFULLY SUBMITTED

ROBERT BACK #1465630

POWLEDGE UNIT/TDC J

1400 FM 3452

PALESTINE TX. 75803

1

IN THE SEVENTH JUDICIAL DISTRICT COURT

~ ~UL~72~ ~

SEVENTH COURT OF APPEALS

VIVIAN I.,.QNQ, CLERK

OF APPEALS FOR AMARILLO

§

IN RE ROBERT BACK, § APPELLATE COURT NO.

MOVANT. § 07-07-0043 6-CR

§

MOTION FOR LEAVE TO PRESENT ISSUES

FOR RELIEF FROM THIS COURT'S JUDGMENT

WITH MEMORANDUM IN SUPPORT

MEMORANDUM OF LAW

I.

JURISDICTI ON

IN DETERMINING WHETHER THIS COURT CAN INVOKE JURISDICTI ON

TO HEAR AND CONSIDER THE FOLLOWING SUBJECT-MATTER PRESENTED,

THE COURT SHOULD BE PERSUADED BY THE SCHOLARLY AND COGENT OPI:N.ION

OF THE FOLLOWING COURT'S:

THIS COURT HAS INHERENT JURISDICTI ONAL POWER AND DUTY TO VA-

CATE ITS OWN VOID JUDGMENT, WHEN A MANIFEST INJUSTICE CAN BE

SHOWN TO HAVE RESULTED. SEE METROPOLITAIN TRANSIT AUTHORITY

v. JACKSON, 212 S.W.3d 797 (TEX. APP. -HOUSTON [1 DIST.] 2006) .•.

AND A VOID JUDGMENT CAN BE ATTACKED AT ANY PLACE AND AT ANY

TIME DIRECTLY OR COLLATERALLY. SEE RAMSEY v. RAMSEY, 19 S.W.3d

548 (~EX. APP. -AUSTIN 2000). A JUDGMENT IS VOID FOR "ILLEGAL-

ITY." EX PARTE SEIDEL, 39 S.W.3d 221,225 (TEX. CRIM. APP. 2001).

(QUOTING EXPARTE SPAULDING, 687 S.W.2d AT 745, "A VOID JUDGMENT

IS A NULLITY FROM THE BEGINNING, INTENDED BY NONE OF THE CONSE-

QUENCES OF A VALID JUDGMENT, BECAUSE IT DOES NOT IMPAIR, EFFECT

2

OR CREAT LEGAL RIGHTS .")

THE FIFTH CIRCUIT COURT OF APPEALS FOR TEXAS HAS HELD THAT,

"DISTRI CT COURT'S CANNOT ABUSE THEIR DISCRETIONS BY NOT GRANTING

A MOTION FOR REKIEF FROM A JUDGMENT, WHICH IS CLEARLY AT VARIANCE

WITH FEDERAL STATUT E." SEE MEADOWS v. GOBEN, 409 F.2d AT 753

(5th Cir. 1969); AMES v. MILLER, 184 F.SUPP .2d 566,578 (N.D. TEX.

2002). THE LAW OF THE CASE DOCTRINE DOES NOT PREVENT THIS COURT

FROM GRANTING RELIEF . ~HE FACT THAT THE JUDGMENT SOUGHT TO BE

SET ASIDE HAD BEEN AFFORMED ON DIRECT APPEAL DOES NOT IMPAIR

THE COURT'S ABILITY TO GRANT RELIEF . STANDARD OIL CO. v. UNITED

STATES , 429 U.S. 17,97 S.Ct. 31,50 L.Ed.2d 21 (1976).

TaiS COURT IS A COURT OF EOUITY AND LAW, AND COURT'S OF EQUITY

(WHICH COMPELS FAIR DEALINGS) MAY SET ASIDE JUDGMENTS PROCURED

THROUGH "FRAUD ON THE COURT," WHERE THERE IS NO REfviEDY AT LAW. SEE

METCALF v. WILLIAMS, 104 S.Ct. 93,26 L.Ed. 665 (1881).

THE MOVANT WOULD RESPECTFULLY PLEAD THAT, "JUSTIC E MUST BE

ACCOMPLISHED HERE IN HIS CASE, UNDER THE PRESUMPTION OF THIS

COURT'S "PUBLIC SERVICE DUTY AND OATH," IN MAINTAINING THE INTEG-

RITY OF THE LAWS AND THE CONSTITUTION. SEE CANON 3228 (ii),

"PRESU MPTION OF PUBLIC SERVICE DUTY, OATH AND IMMUN ITY" THERULE

60 (b)(6) OF THE FED.R. CIV.P., IS A GRAND RESEVOIR OF "EQUITABLE

POWER." HERRELL v. DCS EQUIP. LEASING CORP., 951 F.2d 1435,14 38

(5th Cir. 1992)(A FFORDI NG THE COURT THE POWER TO VACATE JUDGMENTS

WHENEVER SUCH IS NECESSARY TO ACCOMPLISH JUSTIC E. GONZALEZ,

545 u.s. AT 542,125 s.ct. 2641(2 005).

3

II.

STATEMENT OF CASE

THIS IS A CASE WHERE THE MOVAl~T SOUGHT AN APPEAL FROM A CONVICTION IN

THIS APPELLATE COURT, OUT OF THE 320th JUDICIAL DISTRICT COURT OF POTTER

COUNTY, TEXAS, IN CASE NO. 54,960-D, THE STATE OF TEXAS v. ROBERT JAMES BACK.

AN APPELLANT 1 S BRIEF WAS FILED WITH THIS COURT BY AN APPOINTED COUNSEL "ARl\IOLD

MILLER II I [\lARCH 4, 2008 I IN WHICH WAS AFFIR['.1ED JUNE 16 I 2008. IN THE BRIEF I

"TW0"(2) ISSUES WERE PRESENTED:

1) SUFFICIENCY OF EVIDENCE, Al~D

2) INEFFECTIVE ASSISTfu~CE OF COUNSEL.

THE MOVAl~T BRINGS THIS MOTION BEFORE THIS COURT WITH THE CONCESSION THAT

THE IN'I'EGRITY OF THE PROCEEDINGS AND THE INTEGRITY OF THE JUDGMENTS MERITS WAS

NOT REACHED IN THE I"lANNER PROSCRIBED BY LA~iJ, ; FROM HIS APPELLATE COUNSEL 1 S

FILING OF A , "FRIVOLOUS OR OTHERWISE FRAUDULENT APPELLfu~T

1

S BRIEF~ IN REFER--

ENCE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL ISSUE THAT WAS RAISED BY HIS

APPELLATE ATTORNEY.

III.

STATEMENT OF FACTS

THE MEMORANDUM (MEMO) OPINION OF THE COURT OF APPEALS DELIVERED JUNE

16,2008, IDENTIFIES AT [ISSUE 2-INEFFECTIVE ASSISTANCE OF COUNSEL], THAT,

"APPELLATE CONTENDES THAT HIS COUI\ISEL WAS INEFFECTIVE WHEN FAILING TO OBJECT

TO THE "ADMISSIONS INTO EVIDENCE', OF SEVERAL PRIOR CONVICTIONS." [Ia. AT

p.2, PARA 1]. THE MEMO OPINION, THEN IDENTIFIES THAT THE APPELLATE COURT

"TURNED TO THE TRIAL RECORD BEFORE THEi.\1." [Id. AT p.2, PARA. 21. THE RECORD

SHO~V'S THAT THE COURT THEN ~VENT 'I'HROUGH A THEORY <Id AT, MEMO AT pp. 2-3> OF

4

ADDRESSING THE ISSUE ••• i.e. AS IF THE PRIOR CONVICTIONS WERE SHOvm IN THE

TRIAL RECORD "TO HAVE BEEN IDENTIFIED AS HAVING BEEN ADMITTED INTO EVIDENCE,

DURING THE GUILT/INNOCENCE PHASE OF THE PROCEEEDINGS •• ~ (i.e. AS A COURT

OF COMPETENTS, "ALLEGEDLY REVIEWING THE TRIAL RECORDS").

HOWEVER, THE FACE OF THE TRIAL RECORD INCONTROVERTIVBLY IDENTIFIES THAT,

"NOT ONE SINGLE PRIOR CONVICTION OF THE MOVANT'S WAS EITHER OFFERED AS EVIDEN-

CE OR ADMITTED INTO EVIDENCE." (EMPHASIS ADDED) •.• SO MUCH SO, THAT THE TRIAL

COURT TOOK TIME TO SPEAK ON THE MATTER, ON THE FACE OF THE TRIAL RECORD ON

ITS MERITS. [SEE VOLUME 3]; THE COURT STATING:

THE COURT: ANYBODY THINK THAT FIVE MINUTES IS NOT ENOUGH TIME

FOR PUNISHNENT'?

MR. YONTZ:(PROSECUTOR) NO. THE ONLY THING WE'RE GOING TO HAVE,

YOUR HONOR IS, I'M GOING TO TENDER THE COPIES OF THE JUDGNENTS AND THAT'S

IT.

THE COURT: OKAY. YOU DID NOT ENTER--YOU DID NOT REQUEST ADMISSION

OF THOSE AT THE TIME OF CROSS-EXAMINATION?

MR. YONTZ: I'M SORRY?

THE COURT: WHEN YOU WENT OVER THEM EARLIER, YOU DID NOT OFFER THEM

?

MR. YONTZ: NO ID DIDN'T REQUEST ADfJIISSION [Id AT p. l3l,RR];

;SEE ALSO RR, AT p. 5; REVEALS, "NOT ONE PRIOR CONVICTION (JUDGMENT) OF THE

MOVANT'S WAS OFFERED OR ADMITTED."

IV.

ARGUfvlENTS AND CONCLUSIONS OF LAW

IN A DEfvlOCRATIC SOCIETY, TWO PROPOSITIONS ARE CLEAR. TRUTH IS PROVINCE

OF THE JUDICIARY, AND COURT'S STAFFED WITH FALLIBLE HUMANS INEVITABLY ERR.

5

EXPARTE ELIZONDO,

AS A CONSEQUENCE, SOME MEANS MUST EXIST TO CORRECT SUCH. SEE

Y, GOVERNMENT

947 S.W.2d 202 (TEX. CRIM. APP. 1996). IN A CIVILIZED SOCIET

NMENT: IF THAT

MUST ALWAYS BE ACCOUNTABLE TO THE JUDICIARY FOR A MAN'S IMPRISO

REQUIREMENTS OF

IMPRISONMENT CANNOT BE SHOWN ~0 CONFOR}1 WITH THE RULES AND

THE LAW AND CONSTITUTION. SEE EX PARTE TULEY, 109 S.W.3d 388 (TEX. CRIM.

2002).

APP. 2002); EX PARTE GRAVES, 70 S.W.3d 103,10 9 (TEX. CRIM. APP.

A DEFENDANT HAS A GUARANTEED, FUNDAMENTAL RIGHT UNDER THE SIXTH AMENDMENT

AND FOURTEENTH AMENDMENT, AS WELL-ESTABLISHED RULES OF LAW, TO THE EFFECTIVE

ASSISTANCE OF COUNSEL ON APPEAL, EVEN THOUGH THAT CANNOT BE DEEMED IN ANYWAY

AS PART OF THE TRIAL. SEE HALBERT v. MICHIGAN, 545 U.S. 605 (2005) ; EVITTS

v. LUCEY, 469 U.S. 387 (1985)(CITED IN LAFLER v. COOPER, 566 U.S. - -( 2012).

"HE IS NOT

AS SUCH, THE MOVANT WOULD RESPECTFULLY SUGGEST TO THIS COURT,

APPELLATE COURT'

ATTACKING THE CONVICTION AT THIS POINT, HE SIMPLY ATTACKS THE

MOVANT'S COUNSEL

S JUDGMENTS INTEGRITY, AS NOT REACHING THE MERITS DUE TO THE

ANCE

AT APPEAL BEING INEFFECTIVE OR RATHER HAVING NO COUNSEL AT ALL, IN ACCORD

SE , WITH THE

WITH THE CONTROLLING AUTHORITY OF THE TEXAS CIRCUIT COURT, LIKEWI

OR IGNORANCE IN FACT," WHEN FRAUDULENTLY

APPEALATE COURT'S , "INCOMPETENCE

INDUCED BY MOVANT'S ATTORNEY, INTO RULING ON THE ISSUE, "WHEN THE COURT HAD

ES COMPLETE-

THE TRIAL RECORD BEFORE THEM, AND NOT ONE, BUT RATHER THREE JUSTIC

CONVICTIONS WERE

LY OVERLOOKED THE FACT THAT, "NOT ONE OF THE MOVANT'S PRIOR

ADMITTED INTO EVIDENCE."

THE INCONTROVERTIBLENESS OF THE PRIMA FACIE EVIDENCE BEING CLEAR AS IT

IS UPON THE FACE OF THE RECORD, THAT, "NONE OF THE PRIOR CONVICTIONS HAD

T'S APPEL-

BEEN ADMITTED," WOULD STAND FOR A PRINCIPLE AND FACT THAT THE MOVAN

A FRIVOLOUS

LATE ATTORNEY, DID AS A MATTER OF FACT AND A MATTER OF LAW, "FILE

WHICH INDUCED A FRAUDULENT RULING

AND/OR FRAUDULENT APPELLANT'S BRIEF,"

6

FROM THIS COURT. ("A MANIFEST INJUSTICE, AND FRAUD ON THE COURT, THAT THIS

COURT IS BOUND IN ITS DUTY OF MAINTAINING JUSTICE, TO CORRECT") .. BECAUSE

HAD THEY KNOWN OF THE FACT, THE MOVANT REMAINS CONFIDENT THEY WOULD NOT HAVE

RENDERED A JUDGMENT BASED ON THE FRAUDULENT REPRESENTATIONS OF FACT, NOT

FOUND AT ANYPLACE WITHIN THE TRIAL RECORD AS ALLEGED. THE MOVANT WOULD MERELY

SUGGEST THAT THIS COURT, IN ITS PUBLIC SERVICE DUTY AND OATH OF MAINTAINING

THE LAWS AND THE CONSTITUTION <SEE CANON 3228 (ii) "PRESUMPTION OF PUBLIC

SERVICE DUTY AND OATH">, HAS THE POWER AND DUTY TO RECALL THEIR JUDGMENT

AND CORRCT THE EGREGIOUS ERROR BROUGHT TO THEIR ATTENTION AND CONSERN IN

MAINTAINING THE CONSTITUTION IN VIOLATE, AND TO PREVENT ANY FURTHER ON GOING

MANIFEST, "MISCARRIAGE OF JUSTICES" FROM RESULTING. AND LIKEWISE TO SAVE THE

INTEGRITY OF THE COURT.

THE FIFTH CIRCUIT CASE OF LOMBARD, "WOULD SET PRECEDENTS IN TEXAS, AND

HIS CASE HERE, WHEN THE APPELLATE COUNSEL FILES A FRIVOLOUS APPELLANT'S BRIEF,

IT CONSTITUTES 'NO COUNSEL AT ALL', WHICH ACTUALLY OR CONSTRUCTIVELY DENIED

THE DEFENDANT THE RIGHT TO COUNSEL AT APPEAL, AND THE PREJUDICE PRONG OF

THE STRICKLAND TEST IS NOT REQUIRED." SEE LOMABARD v. LYNAUGH, 868 F.2d 1475

(5th Cir. 1989).

THIS COURT SHOULD REASONABLY CONSTRUE AND HOLD THIS CASE AS A , "CLASSIC

CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL COMPUNDED BY INEFFECTIVE ASSISTANCE

OF COUNSEL." BECAUSE HAD HIS TRIAL COUNSEL MERELY PRESERVED THE PREJUDICE

OF THE STATES PROSECUTOR'S DIRECTLY REFERRING TO OR ELLUDING TO EVIDENCE

DURING SUMMATION, NOT IN RECORD, BASICALLY CALLING THE MOVANT A LIER BASED

ON EVIDENCE OUTSIDE THE RECORD, OF PRIOR CONVICTIONS, PRESERVING SUCH FOR AP-

PEAL, BY MOVING THE COURT FOR A MISTRIAL, IN WHICH THE COURT IN ITS DUTY

WOULD HAVE OBLIGED OR BEEN IN ERROR HIMSELF, THE RESULTS OF THE PROCEEDINGS

7

WOULD HAVE HAD A DIFFERENT OUTCOME ••• HOWEVER, BECAUSE HIS COUNSEL DID NOT

REQUEST A SPECIAL INSTRUCTION FROM THE COURT, "TO ORDER THE JURORS THAT THEY

COULD NOT CONSIDER THE PRIOR CONVICTIONS FOR ANY PURPOSES, TO INCLUDE THE

CREDIBILITY OF THE DEFENDANT, AND MOVING FOR A MISTRIAL TO PRESERVE THE ERROR

ON THE RECORD 1 CAUSED THE NOVANT TO LOSE OR FORFEIT VALUABLE PROTECTIONS

(RIGHTS) HE WOULD HAVE OTHERWISE RECEIVED THE BENEFIT OF, BUT FOR HIS COUNSEL'

S INEFFECTIVE ASSISTANCE," IN WHICH HAS NO RATIONAL OR REASONABLE TRIAL STRAT-

EGY vlliATSOEVER. DUE TO THE FACT THAT ANY COMPETENT ATTORNEY WHO WAS OBJECTIVE-

LY, ADVERSARIALLY TESTING THE STATES CASE IN CRIMINAL LAW, WOULD KNOW THAT

A JURY WOULD FINED THE CREDIBILITY OF THE MOVANT WORTHLESS BASED ON BEING

EXPOSED TO FIVE PRIOR CONVICTIONS, AND WOULD AUTOMATICALLY FIND HIM GUILTY

BASED ON THOSE FACTS.

THE MOVANT WOULD THEREFORE APPLY THE PERFORMANCE PRONG OF THE STRICHLAND

TEST , TO BOTH OF HIS COUNSEL'S REPRESENTATIONS FALLING WELL BELOW A COMPETENT

OR REASONABLY ACCEPTABLE STANDARD, GUARANTEED THROUGH THE SIXTH AND FOURTEENTH

AMENDM,ENTS TO THE UNITED STATES CONSTITUTION. i.e. IN THEIR MERE FAILURES

TO PERFORM EVEN BASIC RESEARCH THAT WOULD HAVE EXPOSED THE DEAD-BANG WINNING

ISSUES (i.e. LEGITIMATE ISSUES THAT WOULD HAVE GUARANTEED A REVERSAL, AS

A MATTER OF LAW) THAT WOULD HAVE RESULTED IN AN AUTOMATIC MISTRIAL AND REVER-

SAL HAD HIS COUNSEL'S BROUGHT SUCH PREJUDICIAL ISSUE TO THE COURT'S ATTENTION.

(APPELLATE AND TRIAL, BASED ON THE CONTOLLING AUTHORITY WHICH PROHIBITS SUCH

PREJUDICE. CERTAINLY RESULTING IN A DIFFERENT OUTCOME OF THE PROCEEDINGS.

SEE STRICKLAND 466 U.S. AT 687-688 (1984).

THE STANDARD OF REVIEW TO DETERMINE WHETHER A DEFENDANT WAS CONSTRUCTIVELY

DENIED HIS RIGHT TO COUNSEL, IS A MIXED QUESTION OF FACT AND LAW, REVIEWED

DENOVOREVIEW. SEE CHILDRESS v. JOHNSON, 103 F.3d 1221 (5th Cir. 1997). A

CRIMINAL DEFENDANT IS GUARANTEED THROUGH THE DUE PROCESS CLAUSE, TO A TRIAL

8

FREE FROM FUNDAMENTAL UNFAIRNESS, ENEN UNFAIRNESS WHICH STEMS FROM BLATANTLY

INCOMPETENT COUNSEL. CLARK v. BLACKBURN, 619 F.2d 431 (5th Cir. lgRO); HEALY

v. CABANA, 764 F.2d 1173 (5th Cir. 1985).

BOTH COUNSEL'S PERFORMANCES IN FAILING TO DO THE BASIC RESEARCH AND KNOW

THE LAWS THAT HE IS EXPECTED TO KNOW TO DICLOSE AND PRESENT TO THE COURT'S

THE FOLLOWING PREJUDICE CAUSED FROM THE PRIOR CONVICTIONS NOT BEING ADMITTED

INTO EVIDENCE, AS LEGITIMATE NON-FRIVOLOUS ISSUE THAT WOULD HAVF. PRODUCED

DIFFERENT RESIJLTS IN THE OUTCOME OF THE JUDGMENTS. C~LL'S HIS COUNSEL'S PERFOR-

MANCES INTO SERIOUS QUESTION. NELSON v. HARGETT, 989 F.2d 847 (5th Cir. 1993)

HAD HIS COUNSEL'S INVESTIGATED ANJ APPLIED THE FOLLOWING LAW TO THE FACTS,

CERTAINLY THIS COURT WOULD HAVE NO DIFFICULTY IN CONCLUDING THAT THE OUTCOMg

OF THE PROCEEDINGS WOULD HAVE BEEN DIFFERENT. HAD THEY INVESTIGATED, TnEY

WOULD HAVE DISCOVERED THE FACT THAT THE PRIOR CO~ICriONS HAD NOT BEEN OFFERED

AS EVIDENCE OR ADMITTED FOR ~t PURPOSES, EVEN TO DETERMINE THE CREDIBILITY

OF THE DEFENDANT, CAUSING A SUBSTANTIAL PREJUDICE TO THE MOVANT WHEN H[S COUN-

SEL ALLOWED THE STATE TO USE EVIDENCE IN HIS SUMMATION THA WAS NOT PART

'

OF THE RECORD , AND THAT NOTHING COULD CURE ONCE THE JUROR'S WERE EXPOSED

TO THE FACTS. HAD HIS COUNSEL AT TRIAL MERELY REQUESTED A SPECIAL INSTRUCriON

TO THE JURY THAT IT MUST DISREGARD THE PRIOR CONVICTIONS FOR ANY PURPOSES

IN THE STATES ATTACKING OF THE MOVANT'S CREDIBILITY OR OTHERWISE, MAY HAVE RE-

ASONABLY LED THE JURY TO BELIEVE THE MOVANT'S VERSION OF WHAT TRANSPIRED

AND NOTED TO ACQUIT HIM. HOWEVER, BEING THE JURY WAS EXPOSED TO SU2H HARMFUL

EVIDENCE DURING SUMMATION OF THE STATES, WOULD BE MOST EGREGIOUSLY PREJUDICIAL

, AND CAUSE THE JURY TO VATE TO FIND GUILT, AT SUCH PIVITOL MOMENTS OF THE

PROCEEDINGS, MUST NOT BE DEEMED AS A REASONABLE TRIAL STRATEGY.

A~ STATES SUMMATION OF EVIDENCE [REFERRING TO PRIOR CONVICTIONSl NOT IN

RECORD:

9

·----~-~---~-~------~·------ ----·------------ -· ------------- ~----------- ·-

(PROSECUTOR'S CLOSING): "BUT LOJK AT IT FURTHER LADIES AND GENTLEMEN.

LOOK WHO HAS THE MOST TO LOSE IN THIS CASE AND CONSIDER IN LIGHT OF THEIR

TESTIMONY BEFORE YOU, AND THAT'S THE DEFENDANT. CONSIDER EVERYTHING HE SAID

AND HIS CREDIBILITY IN 'LIGHT OF HIS FIVE PRIOR CONVICTIONS', AND YOU'LL

FIND OUT HOW HE MADE UP THIS STORY AND WHY HE MADE UP THIS STORY." [Id. AT

VOL. 3, p. 110, AT 20-25,RR].

THE FIFTH CIRCUIT COURT OF APPEALS FOR TEXAS, IN THE NERO CASE, MUST SET A

PRECEDENTS HERE, AS BEING IDENTICAL IN FACTS, TO THE MOVANTS CASE. THE COURT

CONCLUDED: "IT CAN HARDLY BE IMAGINED ANYTHING MORE PREJUDICIAL TO THE DEFEND-

ANT THAN ALLOWING THE JURY IN AN ARMED ROBBERY CASE (MOVANT BACK'S CASE IS

A ROBBERY) TO HEAR THE PROSECUTOR'S COMMENTS DURING CLOSING (SUMMATION OF

THE EVIDENCE, THAT WAS NOT ADMITTED INTO THE RECORD. i.e. THE PRIOR CONVICTI-

ONS), THAT THE DEFENDANT HAD BEEN CONVICTED FOR BURGLARY AN~ DRUG CHARGP.S-

(i.e. AS WAS MOVANT "BACK" CONVICTED OF BURGLARY AND DRUG CHARGES). THE JURY

MAY WELL HAVE CONVICTED THE DEFENDANT OF THE CHARGED OFFENSE BECAUSE OF HIS

PRIOR CONVICTIONS." SEE NERO v. BLACKBURN, 597 F.2d AT 994 (5th Cir. 1979).

HERE IN THE MOVANT'S CASE, HIS COUNSEL'S (APPELLATE AND TRIAL) PERFORMANCES

WERE MOR THAN INCORRECT, THEY WERE UNREASONABLE BECAUSE THE GOVERNMENT'S

FOUL BLOW TACTICS WERE UNFAIR AND PREJUDICIAL TO THE MOVANT .•.• YET, COUNSEL'

S SAT SILENT AT THE MOST PIVITOL MOMENTS, AND SUCH PREJUDICE IS NOT SOUND

STRIAL STRATEGY OR COMPETENT. THE MOVANT MAY AS WELL OF HAD NO COUNSEL AT

ALL. BECAUSE HIS COUNSEL'S LIKE NEROS' COUNSEL ALLOWED THE STATE TO INTRODUCE

EVIDENCE OF PRIOR CONVICTIONS DURING SUMMATION OF THE EVIDENCE THAT WAS

NOT IN THE RE02RD, NOT ADMITTED BY ANY COURT .•. THIS ERROR BY HIS COUNSEL'S

IS CRUCIAL SINCE EVIDENCE OF PRIOR CONVICTIONS, EVEN WHEN USED FOR CEDIBILITY

PURPOSES, IS SO HIGHLY PREJUDICIAL, IT RENDERS THE WHOLE TRIAL FUNDAMENTALLY

10

UNFAIR. NERO, AT 994.

AS SUCH, MOVANT'S COUNSEL'S MISAPPREHENSIONS OF FACT AND LAW IN THIS CASE,

IS A CLASSIC EXAMPLE OF DEFICIENCY OF COUNSEL'S. SEE SMITH v. DRETKE. 417

F.3d AT 442 (5th Cir. 2005)(CITING WILLIAMS v. 'T'AYT.OR, 529 U.S. 362,120 S.Ct.

1495 ( 2000 )).. THIS MISUNDERSTANDING COULD HAVE BEEN PREVENTED OR CORRECTED

WITH MNIMAL RESEARCH OF FACT AND LAW. IT CAN HARDLY BE DOUBTED THAT THE TRIAL

AND APPELLATE COUNSEL'S HAVE A CONSTITUTIONAL OBLIGATION (DUTY) TO INVESTIGATE

AND UNDERSTAND THE LAW SURROUNDING THE CASE. WILLIAMS , 529 u.s. 395,120

s.ct. 1495).

CONVERSELY, "STRUCTURAL ERRORS" HAVE RESULTED IN THE TRIAL PROCEEDINGS

AND THE APPELLATE PROCEEDINGS, THAT FUNDAMENTALLY UNDERMINED THE INTEGRITY,

RELIABILITY AND FAIRNESS OF THE PROCEEEDINGS- AND AS A MATTER OF WELL ESTAB-

LISHED PRINCIPLES OF LAW, REQUIRE AND AUTOMATIC REVERSAL AND REMAND BACK

TO THE APPELLATE COURT AND ARE NOT SUBJECT TO THE HARMLESS ERROR ANALYSIS. SEE

ARIZONA v. FULMINANTE, 499 U.S. 279.303-10 (1991); SATTERWHITE v- TEXAS,

486 u.s. 249,256-57 (1988).

BECAUSE THE RAISING OF THE LEGITIMATE ISSUE HERE IN THE APPELLATE COURT

WOULD ONLY HELP 'rHE MOVANT. ANY ATTORNEY WITH AN ORDINARY COMPETENCE IN

CRIMINAL LAW WOULD KNOW AND RAISE SUCH A SUBSTANTALLY HARMFUL ISSUE IN THIS

SITUATION, HOWEVER, THE FAILURE OF HIS COUNSEL'S TO EVEN PRESERVE AND RAISE

'l'HE ISSUE IS PREJUDICIAL WITHIN ITSELF, AMOUNT i:NG TO "NO COUNSEL AT ALL

, " BECAUSE HIS APPE•:..LATE COUNSEL FAILED TO RAISE THIS LEGITIMATE ISSUE,

BUT RATHER RAISED FRIVOLOUS AND FRAUDULENT ISSUE£.

CONCLUSION

WITH THE FACTS AND THE EVIDENCE BEING SECURED ON THE FACE OF THE RECORD

11

AUTHOR-

AS DISCLOSED HEREIN HIS MOTION, ALONG WITH THE CONTROLLING PRECEDENTED

ITY, BEING CONSIDERABLY IN FAVOR OF THE MOVANT'S PLEADINGS, THIS COURT SHOULD

GRANT HIS MOTION AND VACATE JUDGMENT OF THE APPELLATE COURT AND RETURN HIM

ISSUES,

TO THIS COURT FOR AN OUT OF TIME APPEAL SO HE MAY RAISE HIS LEGITIMATE

THAT WOULD ULTIMATELY ENTITLE HIM TO RELIEF. AND TO PREVENT A FUNDAMENTAL

MISCARRIAGE OF JUSTICE FROM RESULTING.

11 11

RELIEF SOUGHT

1) ACCEPT JURSDICTION OVER THIS CAUSE;

2) HOLD SUCH EVIDENTIARY HEARINGS AS THIS COURT DEEMS APPROPRIATE AND

NECESSARY;

3) ISSUE ORDER THAT THIS COURT WILL GRANT THIS MOTION AND VACATE ITS

JUDGMENT AND ISSUE ORDER FOR AN OUT OF TIME APPEAL, BECAUSE OF THE DEFENDANT

HAVING NO COUNSEL ON APPEAL; AND

4) ISSUE ORDER THAT THE STATE IS TO HOLD A NEW TRIAL OR OFFER HIM

THE ORIGINAL PLEA OFFER OF THE 8 YEARS WITH TIME SERVED, BEING HE HAS OVER

THAT AMOUNT OF FLAT TIME ACCRUED AS OF JANUARY OF 2007-JANUARY OF 2015. 1

OR

5) WHATEVER ELSE THAT LAW AND EQUITY ENTITLE HIM TOO.

SO-

WHEREFORE, THE MOVANT PRAYS THIS COURT GRANT HIS MOTION AND ALL RELIEF

UGHT.

/1 /L J-

RESPECTFULLY SUBMITTED

ROBERT BACK #1465630

POWLEDGE UNIT/TDCJ

1400 FM 3452

PALESTINE TX. 75803

12

.DECLARATION

I, ROBERT BACK #1465630, DO HEREBY DECLARE THAT THE FOREGFOING INFORMA-

TION IS TRUE AND CORRECT UNDER PELALTY OF PERJURY. 29 U.S.C. §1746

JULY ~,2015

#~

DECLARANT

ROBERT BACK #1465630

DECLARATION OF SERVICE

I, HEREBY DECLARE THAT A TRUE AND CORRECT COPY OF THE FOREGOING INFORMATION

HAS BEEN SENT TO ON:

SEVENTH COURT OF APPEALS

FOR AMARILLO

P.O. BOX 9540

AMARILLO TX 79105-954 0

JULY .2tJ I 2015

DECLARANT

ROBERT BACK #1465630

CC FILE

13

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PALESTINE TX. 75803 "'

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THE COURT OF APPEALS

FOR THE SEVENTH JUDICIAL DISTRICT

P.O. BOX 9540

AMARILLO TX. 79105-9540