                                                                     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. <emphasis added>

 [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] <emphasis added>

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
