CASE NO. PD-0290- 15 IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



### JOHN DENNIS CLAYTON ANTHONY, Appellant VS. THE STATE OF TEXAS, Appellee

APPEAL FROM BAILEY COUNTY

MOTION TO SUPPLEMENT RECORD

* COMPETENCY *

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 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 CLERKCOMES NOW JOHN DENNIS CLAYTON ANTHONY , 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 of this Motion, Appellant would show this Honorable Court the following: I. The Defendant, JOHN DENNIS CLAYTON ANTHONY, plead Guilty in the 287 t h District Court of Bailey County. The 7 th Court of Appeals reversed the conviction in the to be published opinion Anthony v. State , 07

- 13

- 00089

- CR (Tex. App.

– Amarillo

– 2015). The State requested, and this Honorable Court granted a petition for discretionary re view on May 20, 2015. II. Both a Clerk’s Record and a Reporter's Record have been filed in this cause. III. Appellant has raised issues of prejudice resulting from an involuntary plea and ineffective assistance of counsel at the initial plea. The Appellate Court ruled Trial C o unsel Ineffective and passed on ruling as to whether the plea was actually in voluntary . However, theopinion does include specific language upon which Appellant, and this

Honorable C o urt, must assume show that the Appellate Court did consider the voluntariness of the plea in deciding that Mr. Anthony was denied e ffective assistance of Counsel. This requires that Appellan t request that this Honorable Court ORDER the supplement to the available Record ( b oth Cl erk ’ s & Reporter ’ s) for t he following very important reasons. IV
. T he Stat e, in both the Court of Appeals and in its present Petition, has argued: Appellant ’ s “ deferred adjudication was proper, his plea was voluntary and his counsel ineffective ” (sic) [STATE’S BRIEF ON THE MERITS, p3 ]. The State also argues that “ the record does not su pport a finding of either deficient performance or prejudice ” [STATE’S BRIEF ON THE MERITS, p3 ] and that Appellant’s claim “ is forfeited because it was not raised until the appeal from the adjudication of guilt ” [STATE’S BRIEF ON THE MERITS, p4 ]

. Appellant would contend that it is clear from the ex isting record that each of these issues must fail. Wh ile such evidence isavailable within the existing Record, two very pieces of the puzzle were

excluded from the existing Appellate Record. To clearly illustrate what Appellant is requesting , Counsel would direct this Honor able C o urt to the Reporter ’ s Record of the initial plea and a very important page of the Clerk ’ s Record. First, Appellant would request a review of the following passage from the Reporter ’ s Record: THE COURT: And what says the defendant? MR. McEACHERN: Defendant is present and ready, Your Honor, ready to proceed on a plea bargain. I had previously filed a motion to have Mr. Anthony examined . I'm satisfied that he's competent. I'm withdrawing that motion to have him examined. THE COURT: All right. The Court did enter an order for examination back on December 3 of 2008, but that order was for Dr. Robert Morgan

-- MR. McEACHERN: Yes, si r. THE COURT:

-- to examine him. And the matter was set for hearing before January 7th. Dr. Morgan has not examined him ; is that correct? MR. McEACHERN: That's correct, but I'm satisfied that my client is competent
-- THE COURT: All right. MR. McEACHERN:

- - and able to assist me in the trial of this matter. [Reporter ’ s Record, Volume 1, p 4]. <emphasis added>The O rder mentioned above is found in the Clerk ’ s Record . In the

body of the order it specifically states that “ there i s evidence to support a fi nding of incompeten cy and that Defendant should be examined as provided by Article 46 B .021 of the Te xa s Code of Criminal Procedure ” [Clerk ’ s Record, p28]. Unfortunately, the “ previously filed ” Motion for this Order is NOT included in t he Clerk ’ s Record. The Appellants WRITTEN DESIGNATION SPECIFYING MATTERS FOR INCLUSION IN CLERK ’ S RECORD specifically requests both “ All motions and pleadings filed by t he s tat e or the defendant and n o t otherwise required to be included under Rule 34.5(a), Texas Rules of Appellate Procedur e ”
AND “ Those items identifie d in Rule 34. 5(a)(I) through (11 ), Texas Rules of Appellate Procedure, and all other matters required by t he Texa s Code of Crimina l Procedure, or any other law ” [Clerk ’ s Record, p 8 8] . Clearly, this request was broad enough to require the inclusion of one granted Motion. The Certification of the Clerk states: I, ELAINE PARKER, CLERK OF THE DISTRICT COURT OF BAILEY COUNTY , TEXAS DO HERE BY CERTIFY THAT THE DOCUMENTS CONTAINED IN THISRECORD TO WHICH THIS CERTIFICATION IS

ATT ACHED ARE ALL OF THE DOCUMENTS SPECIFIED BY TEXAS RULE OF AP PELLATE PROCEDURE 34. 5 (a) AND AL L OTHER DOCUMENTS TIMELY REQUES T ED BY A PARTY TO THIS PROCEEDING UNDER TEXAS RULE OF APPE

LLATE PROCEDUR E 34.5 ( b)
. [Clerk ’ s Record, p 95 ] And yet, the granted Motion requesting a competency exa mination is NOT a part of the Clerk ’ s Record. T his motion should be part of the Clerk ’ s Record and will hold specific information required to support Appellant ’ s allegations of both involuntary plea and ineffective assistance of counsel. As such, it is absolutely essential to refute the State’s contention s above

. At the moment that Order was granted, the Trial Court was REQUIRED to “ stay all other proceedings in the case ” Texas Rules of Crim inal Procedure, Article 46B.004(d). The statutory language in all these quoted provisions is the non

- discretionary “shall ”. Th e same article REQUIRES that an expert be appointed (as was done) and that that expert ‘ examine the defendant ’ , ‘ report to the court ’ , and ‘ testify as to the issue of competency ’ in any case (none of which was done) where there is “ a determination that evidence exists to support a findingof incompetency to stand trial ” Texas Rules of Crim inal

Procedure, Article 46B. 021

. The Order in this case specifically makes such a determination [Clerk ’ s Record, p28]

. Thus the examination, report, and testimony of a qualified expert

were required by statute. The qualifications for such an expert are included in Texas Rules of Crim inal Procedure, Article 46B. 02 2. Appellant respectfully contends that neither Trial C o unsel nor the Honora ble Judge from Bailey County is qualified as such an expert. Even if they were, neither conducted the REQUIRED examination 1 or created the REQUIRED report 2

. When such statutorily required procedures we re ignored, the plea was rendered involuntary and void. C h ief Justice Quinn of the 7 th Court of Appeals observed in his concurring opinion that “ the course of action undertaken by the trial court was prohibited by statute. Thus, it was void. Being void, it never occurred ” Anthony v. State , 07

- 13

- 00089

- CR (Tex. App.

– Amarillo

– 2015) , ( Quinn, concurring)

. While the Honorable

1 The factors to be considered in such an examination are set out in Texas Rules of Crim inal Procedure, Article 46B. 02 4. 2 The statutory requirement for this is established by Texas Rules of Crim inal Procedure, Article 46B. 02 5, which also includes specifically required contents.Justice was directly discussing the application of Penal Code S ection

22.021(f) , a more fundamental, basic and unavoidable flaw remains. Thus, the Appellant respectfully requests that the Clerk’s record be supplemented with the Mo tion requesting a competency examination that was granted on December 3, 2008. Th is is required to assist the Appellant to effectively counter the State’s arguments that the “ deferred adjudication was proper, his plea was voluntary ” [STATE’S BRIEF ON THE MERITS, p3 ]. Additionally, Appellant would request the Reporter ’ s Record be

su pplemented with any transcript available from December 3, 2008 in the Trial C o urt. According to the D o cket Sheet, the “ Order for Exam RE: Incompetency ” was signed on that date [Clerk ’ s Record, p8]

. Whatever transpired at that hearing will inevitably shed light on the

c ompetency issues raised by Trial C o unsel to the C o urt. The request for this testimony is supported by the existing record. Appellant previously requested that all “ pre - trial , trial and post

- tr ial hearings , objections, rulings, and remarks of the Cour t ” be transcribed and made part of the Reporter ’ s Re cord [Clerk ’ s Record , p 83]. This request was specifically granted [Clerk ’ s Record , p91 ]

.Thus, the Appellant additionally requests that the Reporter ’s

record be supplemented with the transcript of any hearing or discussions held on th is matter on December 3, 2008. Th is is required
to support the above discussed arguments and assist the Appellant to effectively counter the State’s arguments that the “ deferred adjudication was proper, his plea was voluntary ” [STATE’S BRIEF ON THE MERITS, p3 ]. WHEREFORE, PR EMISES CONSIDERED , Appellant prays that this Court will grant his Motion to Supplement the Record in this Cause. SPECIFICALLY, Appellant would request that the above mentioned motion be incorporated into the rel evant Clerk ’ s Record of this case ALSO that any hearings on this matter from December 3, 2008 be transcribed and added to the official Reporter ’ s Record

.ADDITIONALLY, Appellant would request that the time dea d line

for Appellant ’ s brief being due be reset to 30 days from when this Honorable Court ’ s ORDER has been complied with

.

Respectfully submitted,

Laney & Bollinger 600 Ash Street Plainview, TX 79072 Tel: 806

- 293

- 2618 Fax: 806

- 293

- 8802 troy@laneybollinger.com


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

### CERTIFICATE OF SERVICE

I, TROY BOLLINGER , do hereby certify that a true and correct copy of the foregoing Motion to Supplement Clerk’s Record was delivered to Lisa C. McMinn, State’s Prosecuting Attorney, by fax transmission to (512) 463

- 5724 , on this day , June 25, 2015.



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