PD-0290-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/25/2015 5:09:34 PM
June 30, 2015
Accepted 6/30/2015 8:15:59 AM
ABEL ACOSTA
CASE NO. PD-0290-15 CLERK
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 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
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.
This requires that Appellant request that this Honorable Court ORDER
the supplement to the available Clerk’s Record for two very important
reasons.
IV.
The State, in both the Court of Appeals and in its present Petition,
has argued: “no evidence was presented at the plea proceeding that the
child was under six years old” [STATE’S BRIEF ON THE MERITS, PP.
5-6]. Appellant would contend that it is clear from 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
the judge and SPECIFICALLY considered by the Trial Court. The
Reporter’s Record from the original plea clearly indicates this,
including:
THE COURT: Thank you. You may be seated. Do we have a PSI?
MR. McEACHERN: Yes, sir. Your Honor, I've gone over with Bruce
that PSI.
THE COURT: So you're satisfied with the contents?
MR. McEACHERN: I am, Your Honor.
[Reporter’s Record, V1, p12]
AND
THE COURT: All right. Is there any – are there any other corrections
or objections to the contents of the PSI?
MR. McEACHERN: No, Your Honor.
[Reporter’s Record, V1, p13]
It is obvious that any competent PSI report created for an offense
of Aggravated Sexual Assault of a Child under Fourteen will inevitably
include the age and/or date of birth of the Complainant in the case. It is
equally obvious, from the clear record, that the Trial Court received and
considered this report in making his decision and ruling. Thus, the
Appellant respectfully requests that the Clerk’s record be supplemented
with this PRE-SENTENCE INVESTIGATION REPORT that the
Appellant might effectively counter the State’s contention quoted above.
Additionally, there are additional sources of the age information
currently not included in the record. These are an Application for
Protective Order and the Actual Protective Order itself that were
rendered at the same time as this plea. Appellant argues that these
are specifically incorporated by reference and MUST be included for a
full and complete record. Again, the Reporter’s Record from the original
plea indicates this and fully supports Appellant’s position. It includes
the following:
MR. McEACHERN: If I may, it wasn't announced during the plea
bargain, also a part of this plea is, there is an application for
a protective order that's on file.
We have agreed and -- waive service of that and have agreed to the
protective order being issued as a final order today, and that's
also a part of the plea bargain agreement.
THE COURT: Okay. Mr. Anthony, it's my understanding that you
have a plea bargain agreement in this case to be placed on a
deferred adjudication …”
And also as a part of this plea bargain agreement, that this final
protective order would be signed and entered today.
Is that your understanding of the plea bargain agreement in this
case?
MR. ANTHONY: Yes, Your Honor.
THE COURT: And, Mr. McEachern, is that your understanding of the
plea bargain agreement?
MR. McEACHERN: It is, Your Honor.
THE COURT: And is that the State's understanding of the plea
bargain agreement?
MS. GURLEY: It is, Your Honor.
[Reporter’s Record, V1, pp.14-15]
AND
THE COURT: And as we previously talked about in a criminal case
disposition, there was an agreement as part of the disposition
of the criminal case that this final protective order would be
entered in this case.
MR. McEACHERN: That's my understanding, Your Honor.
THE COURT: And is that the State's understanding?
MS. GURLEY: It is, Your Honor.
[Reporter’s Record, V1, pp.18-19]
AND
The Court has signed this final protective order here today. We had a
discussion about its approval and agreement earlier this
morning. The clerk has now -- has now file marked it and has
made a copy of it; 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, V1, p 20]
Like the PSI report, the application for a protective order and the
order itself will, inevitably, reveal the age of the child. This was
information before the Trial Court and expressly considered by the Trial
Court. Unfortunately, these two items are included only in the Clerk’s
Record for Cause Number 8,612 from the 287th District Court of Bailey
County. The application and protective order in the “Interest of
Harly Zapalac” from this matter was considered, is specifically
incorporated by 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 of Bailey County entitled “In the Interest of Harly
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 Supplement the Clerk’s's Record
in this Cause. SPECIFICALLY, Appellant would request that the
above mentioned PSI report, Application for Protective Order, and
granted Protective Order (all specifically incorporated by
reference) be incorporated into the relevant Clerk’s Record of this case.
ADDITIONALLY, Appellant would request that the time deadline
for Appellant’s brief being 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
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