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

CLERK
COMES 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 287th District Court of Bailey County. The 7th 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 review 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 Counsel Ineffective and passed on 

ruling as to whether the plea was actually involuntary. However, the 
opinion does include specific language upon which Appellant, and this 

Honorable Court, must assume show that the Appellate Court did 

consider the voluntariness of the plea in deciding that Mr. Anthony was 

denied effective assistance of Counsel.

This requires that Appellant request that this Honorable Court 

ORDER the supplement to the available Record (both Clerk’s & 

Reporter’s) for the following very important reasons.

IV.

The State, 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 support 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 existing 

record that each of these issues must fail. While such evidence is 
available 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 Honorable Court 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, sir.

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, p4]. <emphasis added>
The Order mentioned above is found in the Clerk’s Record. In the 

body of the order it specifically states that “there is evidence to support a 

finding of incompetency and that Defendant should be examined as 

provided by Article 46B.021 of the Texas Code of Criminal 

Procedure”[Clerk’s Record, p28]. 

Unfortunately, the “previously filed” Motion for this Order is NOT 

included in the Clerk’s Record. The Appellants WRITTEN 

DESIGNATION SPECIFYING MATTERS FOR INCLUSION IN 

CLERK’S RECORD specifically requests both “All motions and 

pleadings filed by the state or the defendant and not otherwise required 

to be included under Rule 34.5(a), Texas Rules of Appellate Procedure”

AND “Those items identified in Rule 34.5(a)(I) through (11), Texas Rules 

of Appellate Procedure, and all other matters required by the Texas Code 

of Criminal Procedure, or any other law” [Clerk’s Record, p88]. 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 THIS 
RECORD TO WHICH THIS CERTIFICATION IS

ATTACHED ARE ALL OF THE DOCUMENTS SPECIFIED 

BY TEXAS RULE OF APPELLATE PROCEDURE 34.5 (a)

AND ALL OTHER DOCUMENTS TIMELY REQUESTED BY 

A PARTY TO THIS PROCEEDING UNDER TEXAS RULE 

OF APPELLATE PROCEDURE 34.5 (b).

[Clerk’s Record, p95]

And yet, the granted Motion requesting a competency examination is 

NOT a part of the Clerk’s Record.

This 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 contentions above.

At the moment that Order was granted, the Trial Court was 

REQUIRED to “stay all other proceedings in the case” Texas Rules 

of Criminal Procedure, Article 46B.004(d). The statutory language 

in all these quoted provisions is the non-discretionary “shall”. The 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 finding 
of incompetency to stand trial” Texas Rules of Criminal 

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 Criminal Procedure, Article 46B.022. 

Appellant respectfully contends that neither Trial Counsel nor the 

Honorable Judge from Bailey County is qualified as such an expert. 

Even if they were, neither conducted the REQUIRED examination1 or 

created the REQUIRED report2. When such statutorily required 

procedures were ignored, the plea was rendered involuntary and void.

Chief Justice Quinn of the 7th 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 

Criminal Procedure, Article 46B.024.

2 The statutory requirement for this is established by Texas Rules of Criminal 

Procedure, Article 46B.025, which also includes specifically required contents.
Justice was directly discussing the application of Penal Code Section 

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 Motion requesting a competency examination 

that was granted on December 3, 2008. This 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 

supplemented with any transcript available from December 3, 2008 in 

the Trial Court. According to the Docket 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 

competency issues raised by Trial Counsel to the Court.

The request for this testimony is supported by the existing record. 

Appellant previously requested that all “pre-trial, trial and post-trial 

hearings, objections, rulings, and remarks of the Court” be transcribed 

and made part of the Reporter’s Record [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 this matter on December 3, 2008. This 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, PREMISES 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 relevant 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 deadline 

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