FILED IN COURT OF CRIMINALAPPEALS June 30, 2015 ABELACOSTA, CLERK CASE NO. PD-0290-15 IN THE COURT OF CRIMINAL APPEALS OF TEXAS PD-0290-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/25/2015 5:09:34 PM Accepted 6/30/2015 8:15:59 AM ABEL ACOSTA CLERK



### JOHN DENNIS CLAYTONANTHONY, Appellant VS. 

### THE STATE OF TEXAS, Appellee

APPEAL FROM BAILEY COUNTY

MOTION TO SUPPLEMENT CLERK'S RECORD * «; 'MISSING' EVIDENCE *

TROY BOLLINGER APPELLATE ATTORNEY FOR MR. ANTHONY State Bar ID Number: 24025819 600 Ash Street Plainview, TX, 79072 Telephone: 806-293-2618 Facsimile: 806-293-8802 

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### COMES NOWJOHNDENNIS CLAYTONANTHONY, by and through his appointed attorney on appeal, Troy Bollinger, and respectfully submits this Motion to Supplement the Record in the above entitled and numbered cause. In support ofthis Motion, Appellant would show this Honorable Court the following: L 

### The Defendant, JOHN DENNIS CLAYTONANTHONY, plead Guilty in the 287th District Court ofBailey County. The 7thCourt ofAppeals reversed the conviction in the to be published opinionAnthony v. 

### State, 07-13-00089-CR (Tex. App.

- Amarillo

- 2015). The State requested, and this Honorable Court granted a petition for discretionary review onMay 20, 2015. IL Both a Clerk's Record and a Reporter's Record have been filed in this cause. III. Appellant has raised issues ofprejudice resulting from an 

### involuntary plea and ineffective assistance ofcounsel at the initialplea. This requires thatAppellant request that this Honorable Court ORDERthe supplement to the available Clerk's Record for two very important

reasons. IV, 

### The State, inboth the Court ofAppeals and in its present Petition, has argued: "noevidence waspresented at thepleaproceeding that the child was under sixyears old" [STATE'S BRIEF ON THE MERITS, PP. 5-6]. Appellant would contend that it is clearfrom the existing 

### record that such evidence was presented and available to the Judge for his consideration at the plea. First there was a Pre-Sentence Investigation Report presented to 

### thejudge and SPECIFICALLYconsidered by the Trial Court. The Reporter's Record from the original plea clearly indicates this, including: THE COURT: Thankyou. You may be seated. Do we have a PSI? MR. McEACHERN: Yes, sir. YourHonor, I'vegone over with Bruce that PSI. THE COURT: Soyou're satisfied with the contents? MR. McEACHERN: I am, YourHonor. [Reporter's Record, VI, pi2] ANDTHE COURT: All right. Is there any- are there any other corrections
orobjections to the contents ofthe PSI? MR. McEACHERN: No, YourHonor. 

### [Reporter's Record, VI, pi3] It is obvious that any competent PSI report created for an offense 

### ofAggravated SexualAssault ofa Child underFourteen willinevitably include the age and/or date ofbirth ofthe Complainant in the case. It is equally obvious, from the clear record, that the Trial Court received and 

### consideredthis report in making his decision and ruling. Thus, the Appellantrespectfully requests that the Clerk's recordbe supplemented with this PRE-SENTENCE INVESTIGATION REPORT that the 

### Appellant might effectively counter the State's contention quoted above. Additionally, there are additional sources ofthe age information currently not included in the record. These are anApplication for Protective Order and the Actual Protective Order itselfthat were rendered at the same time as this plea. Appellant argues that these
are specifically incorporatedby reference and MUST be included for a 

### full and complete record. Again, the Reporter's Recordfrom the original plea indicates this and fully supports Appellant's position. It includes the following:MR. McEACHERN: IfI may, it wasn't announced during theplea bargain, also apart ofthisplea is, there is an applicationfor
a protective order that's onfile. We have agreed and

—waive service ofthat and have asreed to the protective order being issued as a final order today, and that's also a part ofthe plea barsain asreement. THE COURT: Okay. Mr. Anthony, it's my understanding thatyou have a plea bargain agreement in this case to beplaced on a deferred adjudication ..." And also as a part ofthis plea barsain asreement. that thisfinal protective order would be sisned and entered today. Is thatyour understanding oftheplea bargain agreement in this case? MR. ANTHONY: Yes, YourHonor. THE COURT: And, Mr. McEachern, is thatyour understanding ofthe plea bargain agreement? MR. McEACHERN: It is, YourHonor. THE COURT: And is that the State's understandingoftheplea bargain agreement? MS. GURLEY: It is, YourHonor. <emphasis added> 

### [Reporter's Record, VI, pp.14-15] ANDTHE COURT: And as wepreviously talked about in a criminal case disposition, there was an asreement as part ofthe disposition ofthe criminal case that this final protective order would be entered in this case. MR. McEACHERN: That's my understanding, YourHonor. THE COURT: And is that the State's understanding? MS. GURLEY.It is, YourHonor. 

### [Reporter's Record, VI, pp.18-19] <emphasis added> AND The Court has signed thisfinalprotective orderhere today. We had a discussion about its approval and agreement earlier this morning. The clerk has now —has nowfile marked it and has made a copy ofit; is that correct? THE CLERK: Yes, sir. THE COURT: And delivered a copy to the respondent, John Dennis Clayton Anthony? THE CLERK: Yes, sir. [Reporter's Record, VI, p 20] 

### Like the PSI report, the application for a protective order and the 

### orderitselfwill, inevitably, reveal the age ofthe child. This was 

### informationbefore the Trial Court and expressly consideredby the TrialCourt. Unfortunately, these two items are included only in the Clerk's 

### Record for Cause Number 8,612 from the 287th District Court ofBailey County. The application and protective order in the "Interestof Harly Zapalac" from this matter was considered, is specifically incorporatedby reference, and is absolutely essential to refute the State's contentions above. Thus, the Appellant also respectfully requests that the Clerk's record be supplemented with the APPLICATION FOR PROTECTIVE 

### ORDER and PROTECTIVE ORDER reference in the above portions of the Reporter's Record (volume 1). These are currently marked and included in the Clerk's Record for Cause Number 8,612 from the 287th District Court ofBailey County entitled "In the Interest ofHarly Zapalac". These are required that the Appellant might effectively counter the State's contention quoted above. WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court will grant his Motion to Supplementthe Clerk's's Record in this Cause. SPECIFICALLY, Appellant would request that the above mentioned PSI report, Application for Protective Order, andgranted Protective Order (all specifically incorporated by reference) be incorporated into the relevant Clerk's Record ofthis case. ADDITIONALLY, Appellant would request that the time deadline 

### for Appellant's briefbeing due be reset to 30 days from when the Clerk complies with this Honorable Court's ORDER.
Respectfully submitted, Laney & Bollinger 600 Ash Street Plainview, TX 79072 Tel: 806-293-2618 Fax: 806-293-8802 trov@laneybollinger.com 

### /s/TroyBollinger By: Troy Bollinger State Bar No. 24025819CERTIFICATE OF SERVICE


### I, TROY BOLLINGER, do hereby certify that a true and correct copy ofthe foregoing Motion to Supplement Clerk's Record was 

### delivered to Lisa C. McMinn, State's ProsecutingAttorney, by fax transmission to (512) 463-5724, on this day, June 25, 2015.



### /s/TroyBollinger By: Troy Bollinger State Bar No. 24025819