ROBERT BACK #1465630 

POWLEDGE UNIT 

1400 FM 3452 

PALESTINE TX. 75803 

NOTICE OF ADDRESS CHANGE 

THE ABOVE ADDRESS IS MY NEW ADDRESS. 

DEAR CLERK OF THE COURT, 

~ ~UL~72~ ~ SEVENTH COURT OF APPEAl.S 

VIVIAN LONG, CLERK 

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 

OF APPEALS FOR AMARILLO 

~ ~UL~?2~ ~ SEVENTH COURT OF APPEALS 

VIVIAN J.ONG, CLERK 

IN RE ROBERT BACK1 

MOVANT. 

§ 

§ 

§ 

§ 

APPELLATE COURT NO. 

07-07-00436-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 PROPERLY SERVED. 

1 

/V&L 

RESPECTFULLY SUBMITTED 

ROBERT BACK #1465630 

POWLEDGE UNIT/TDCJ 

1400 FM 3452 

PALESTINE TX. 75803 
IN THE SEVENTH JUDICIAL DISTRICT COURT 

OF APPEALS FOR AMARILLO 

~ ~UL~72~ ~ SEVENTH COURT OF APPEALS 

VIVIAN I.,.QNQ, CLERK 

IN RE ROBERT BACK, 

MOVANT. 

§ 

§ 

§ 

§ 

APPELLATE COURT NO. 

07-07-00436-CR 

MOTION FOR LEAVE TO PRESENT ISSUES 

FOR RELIEF FROM THIS COURT'S JUDGMENT 

WITH MEMORANDUM IN SUPPORT 

MEMORANDUM OF LAW 

I. 

JURISDICTION 

IN DETERMINING WHETHER THIS COURT CAN INVOKE JURISDICTION 

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 JURISDICTIONAL POWER AND DUTY TO VACATE 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 "ILLEGALITY." 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 CONSEQUENCES 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, 

"DISTRICT COURT'S CANNOT ABUSE THEIR DISCRETIONS BY NOT GRANTING 

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

WITH FEDERAL STATUTE." 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, "JUSTICE MUST BE 

ACCOMPLISHED HERE IN HIS CASE, UNDER THE PRESUMPTION OF THIS 

COURT'S "PUBLIC SERVICE DUTY AND OATH," IN MAINTAINING THE INTEGRITY OF THE LAWS AND THE CONSTITUTION. SEE CANON 3228 (ii), 

"PRESUMPTION OF PUBLIC SERVICE DUTY, OATH AND IMMUNITY" 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 1435,1438 

(5th Cir. 1992)(AFFORDING THE COURT THE POWER TO VACATE JUDGMENTS 

WHENEVER SUCH IS NECESSARY TO ACCOMPLISH JUSTICE. GONZALEZ, 

545 u.s. AT 542,125 s.ct. 2641(2005). 

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

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

MUST ALWAYS BE ACCOUNTABLE TO THE JUDICIARY FOR A MAN'S IMPRISONMENT: IF THAT 

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

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

APP. 2002); EX PARTE GRAVES, 70 S.W.3d 103,109 (TEX. CRIM. APP. 2002). 

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). --

AS SUCH, THE MOVANT WOULD RESPECTFULLY SUGGEST TO THIS COURT, "HE IS NOT 

ATTACKING THE CONVICTION AT THIS POINT, HE SIMPLY ATTACKS THE APPELLATE COURT' 

S JUDGMENTS INTEGRITY, AS NOT REACHING THE MERITS DUE TO THE MOVANT'S COUNSEL 

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

WITH THE CONTROLLING AUTHORITY OF THE TEXAS CIRCUIT COURT, LIKEWISE , WITH THE 

APPEALATE COURT'S , "INCOMPETENCE OR IGNORANCE IN FACT," WHEN FRAUDULENTLY 

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

THE TRIAL RECORD BEFORE THEM, AND NOT ONE, BUT RATHER THREE JUSTICES COMPLETELY OVERLOOKED THE FACT THAT, "NOT ONE OF THE MOVANT'S PRIOR CONVICTIONS WERE 

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 

BEEN ADMITTED," WOULD STAND FOR A PRINCIPLE AND FACT THAT THE MOVANT'S APPELLATE ATTORNEY, DID AS A MATTER OF FACT AND A MATTER OF LAW, "FILE A FRIVOLOUS 

AND/OR FRAUDULENT APPELLANT'S BRIEF," WHICH INDUCED A FRAUDULENT RULING 

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 APPEAL, 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 NOV ANT 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 STRATEGY vlliATSOEVER. DUE TO THE FACT THAT ANY COMPETENT ATTORNEY WHO WAS OBJECTIVELY, 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 REVERSAL 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 PERFORMANCES 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 COUNSEL 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 REASONABLY 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 DEFENDANT 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 CONVICTIONS), 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 

s.ct. 1495). 

u.s. 395,120 

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 ESTABLISHED 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 
AS DISCLOSED HEREIN HIS MOTION, ALONG WITH THE CONTROLLING PRECEDENTED AUTHORITY, 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 

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

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

11MISCARRIAGE OF JUSTICE11 FROM RESULTING. 

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. 

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

12 

/1/LJRESPECTFULLY SUBMITTED 

ROBERT BACK #1465630 

POWLEDGE UNIT/TDCJ 

1400 FM 3452 

PALESTINE TX. 75803 
.DECLARATION 

I, ROBERT BACK #1465630, DO HEREBY DECLARE THAT THE FOREGFOING INFORMATION 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 79105-9540 

JULY .2tJ I 2015 

CC FILE 

DECLARANT 

ROBERT BACK #1465630 

13 
~~'"'·~"1'.1!R1"l'!~'"'i1V.!<>,,..._., •. '~·'>''" . ROBERT BACK # 1<±65630 

POWLEDGE UNIT 

1400 FM 3452 

PALESTINE TX. 75803 

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·,_ 

THE COURT OF APPEALS 

FOR THE SEVENTH JUDICIAL DISTRICT 

P.O. BOX 9540 

AMARILLO TX. 79105-9540 

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