                                                                    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 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
     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
