                       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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                                                                                      ·,_


. ROBERT BACK #1<±65630
                                                                                                                                                                                                      "'
  POWLEDGE UNIT                                                                                                                                                                                    "'
  1400 FM 3452                                                                                                                                                                                    ""'
                                                                                                                                                                                                 c:
  PALESTINE TX. 75803                                                                                                                                                                            "'
                                                                                                                                                                                                 >




                                                                                                         THE COURT OF APPEALS
                                                                                                  FOR THE SEVENTH JUDICIAL DISTRICT
                                                                                                             P.O. BOX 9540
                                                                                                       AMARILLO TX. 79105-9540
