Robert James Back v. State
07-07-00436-CR
| Tex. Crim. App. | Jul 27, 2015Background
- Movant Robert Back (pro se, TDCJ inmate) filed a motion in the Seventh Court of Appeals (Amarillo) seeking leave to present issues for relief from that court's judgment, and asking that the appellate judgment be vacated and relief granted (out-of-time appeal or new trial).
- Underlying conviction: conviction from Potter County (Cause No. 54,960-D; State v. Robert James Back). Appointed appellate counsel filed an appellant's brief that was affirmed on June 16, 2008. Movant contends appellate counsel filed a frivolous/fraudulent brief.
- Central factual complaint: the appellate brief and the appellate memorandum purportedly treated prior convictions as though admitted into evidence at trial (or asserted their admission), but the trial record shows no prior convictions were offered or admitted during the guilt/innocence phase.
- Movant alleges appellate counsel’s failures (and trial counsel’s failures to preserve/seek curative instructions) amounted to ineffective assistance and effectively denied him appellate counsel (constructive denial), causing prejudice that warrants relief (vacatur/out-of-time appeal/new trial).
- Relief requested: (1) acceptance of jurisdiction; (2) evidentiary hearing as appropriate; (3) vacatur of the appellate judgment and grant of out-of-time appeal; (4) alternatively order a new trial or other equitable relief to prevent a miscarriage of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to reopen/vacate appellate judgment | Back: appellate court has inherent equitable/jurisdictional power to vacate its judgment when fraud, manifest injustice, or denial of counsel occurred | State/Court (implicit): relief from appellate judgment is extraordinary and limited; procedural rules govern post-appeal relief | Motion seeks invocation of court's equitable power; no final ruling in the provided document |
| Ineffective assistance of appellate counsel / constructive denial of counsel | Back: appellate counsel filed a frivolous/fraudulent brief that misrepresented the trial record (claiming prior convictions were admitted), thereby depriving him of effective appellate advocacy; this caused prejudice requiring automatic relief | Respondent would argue no showing of deficient performance or prejudice; issues raised were within counsel's strategy and record-based review | Movant asks application of Strickland/related standards and an out-of-time appeal; no decision included in the record provided |
| Prejudice from prosecutor’s closing (use of prior convictions) and trial counsel’s failure to seek curative instruction | Back: prosecutorial comments about five prior convictions during closing (not part of record) were highly prejudicial; trial counsel should have moved for mistrial or requested an instruction; absence of such preserved error shows ineffective assistance | State would contend prior-conviction evidence was not offered or admitted, so prosecutor’s comments were proper argument or harmless | Movant requests reversal or new trial; no court ruling shown in the motion record |
| Remedy requested (vacatur / out-of-time appeal / new trial) | Back: equitable powers and precedent permit vacatur and an out-of-time appeal or, alternatively, a new trial to prevent miscarriage of justice | State/court would say extraordinary relief must meet strict standards and is not automatic absent demonstrated entitlement | The motion asks the court to grant these remedies; the provided material contains no final adjudication |
Key Cases Cited
- Metropolitan Transit Auth. v. Jackson, 212 S.W.3d 797 (Tex. App. — Houston [1st Dist.] 2006) (courts may void judgments in the face of manifest injustice)
- Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001) (discusses when a judgment may be void for illegality or other extraordinary defects)
- Herrell v. DCSEquip. Leasing Corp., 951 F.2d 1435 (5th Cir. 1992) (discusses equitable power to vacate judgments to accomplish justice)
- Lombard v. Lynaugh, 868 F.2d 1475 (5th Cir. 1989) (constructive denial of counsel and prejudice analysis where appellate counsel’s deficiencies effectively deprived appellant of appeal)
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes the two-prong test for ineffective assistance of counsel: deficient performance and prejudice)