                                                                        PD-0290-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 6/19/2015 3:45:24 PM
June 19, 2015                                           Accepted 6/19/2015 4:12:32 PM
                                                                        ABEL ACOSTA
                             No. PD-0290-15                                     CLERK

                  IN THE COURT OF CRIMINAL APPEALS

                        OF THE STATE OF TEXAS



                JOHN DENNIS CLAYTON ANTHONY, Appellant

                                     v.

                      THE STATE OF TEXAS, Appellee


                         Appeal from Bailey County




                               * * * * *

                    STATE’S BRIEF ON THE MERITS

                               * * * * *



                             LISA C. McMINN
                         State Prosecuting Attorney
                           Bar I.D. No.13803300

                               P.O. Box 13046
                            Austin, Texas 78711
                         information@spa.texas.gov
                         512/463-1660 (Telephone)
                             512/463-5724 (Fax)
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

Appellant: John Dennis Clayton Anthony.

Appellee: The State of Texas.

Trial Judge: Hon. Gordon H. Green.

Trial counsel for Appellant: Plea of Guilty: Terry McEachern, Attorney at Law, 700
Broadway, #20, Plainview, Texas 79072. Adjudication of Guilt: Christian Pollard,
Attorney at Law, 700 Broadway, Plainview, Texas 79072.

Appellate Counsel for Appellant: Court of Appeals: Don F. Schofield, Attorney at
Law, 112 W. 8th, Suite 530, Amarillo, Texas 79101. Court of Criminal Appeals:
Troy Bollinger, Laney & Bollinger,600 Ash Street, Plainview, Texas 79072.

Trial counsel for the State: Kathryn Gurley, District Attorney, P.O. Box 729, Friona,
Texas 79035.

Appellate counsel for the State: Court of Appeals: Kathryn Gurley, District
Attorney, P.O. Box 729, Friona, Texas 79035. Court of Criminal Appeals: Lisa C.
McMinn, State Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas
78711.
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1) When Appellant pled guilty to sexual assault of a child under fourteen, did the
court of appeals err by holding that he was ineligible for deferred adjudication
because the child was under six, based on an unexplained finding in the
judgment that was not pled, supported by the record, or orally pronounced?

2) Did the court of appeals err by finding deficient performance and prejudice
due to counsel’s advice that Appellant was eligible for deferred adjudication
when there is no evidence of how counsel advised Appellant, no evidence of how
that advice affected the plea, and Appellant actually received deferred
adjudication?

3) Did the court of appeals err by finding ineffective assistance of counsel based
on an unexplained finding in the judgment without addressing the State’s
threshold arguments about the validity of the judgment entry, preservation, and
estoppel?

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Appellant was not punished under subsection (f). . . . . . . . . . . . . . . . . . . . . . . . 5

There is no evidence to support a finding of deficient performance
or prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The court of appeals failed to address forfeiture, estoppel, or the proper remedy
for the erroneous judgment entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                      i
                                     INDEX OF AUTHORITIES
Cases

Anthony v. State, 457 S.W.3d 548 (Tex. App.– Amarillo 2015). . . . . . . 1, 4, 9, 10n

Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012) .. . . . . . . . . . . . . . . . . . . . 7

Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . 5

Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) .. . . . . . . . . . . . . . . . . . . . . 6

Ford v. State, 305 S.W.3d 530 (Tex. Crim. App. 2009).. . . . . . . . . . . . . . . . . . . . 11

Garland v. State, 170 S.W.3d 107 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . 9n

Manuel v. State, 994 S.W.2d 658 (Tex Crim. App. 1999). . . . . . . . . . . . . . . . . . . 11

Puente v. State, 320 S.W.3d 352 (Tex. Crim. App. 2010) .. . . . . . . . . . . . . . . . . . . 7

Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . 11

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . 8

Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000).. . . . . . . . . . . . . . . . . . . . . 6

Codes and Rules

TEX. CODE CRIM. PROC. art. 42.12 § 5(d)(3)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. CODE CRIM. PROC. art. 42.03 § 1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEX. PENAL CODE ANN. § 22.021(a)(2)(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

TEX. PENAL CODE ANN. § 22.021(e).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7n

TEX. PENAL CODE ANN. § 22.021(f)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. R. APP. P. 47.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


                                                          ii
                                 No. PD-0290-15

                  IN THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS

JOHN DENNIS CLAYTON ANTHONY,                                              Appellant

v.

THE STATE OF TEXAS,                                                        Appellee

                                    * * * * *

                     STATE’S BRIEF ON THE MERITS

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      The State Prosecuting Attorney respectfully presents its brief on the merits.

              STATEMENT REGARDING ORAL ARGUMENT

      The State did not request oral argument, and the Court did not grant it.

                         STATEMENT OF THE CASE

      The court of appeals reversed the conviction in a published opinion. Anthony

v. State, 457 S.W.3d 548 (Tex. App.– Amarillo 2015). This Court granted the State’s

petition for discretionary review on May 20, 2015.




                                         1
                              ISSUES PRESENTED

      1) When Appellant pled guilty to sexual assault of a child under
      fourteen, did the court of appeals err by holding that he was
      ineligible for deferred adjudication because the child was under six,
      based on an unexplained finding in the judgment that was not pled,
      supported by the record, or orally pronounced?

      2) Did the court of appeals err by finding deficient performance and
      prejudice due to counsel’s advice that Appellant was eligible for
      deferred adjudication when there is no evidence of how counsel
      advised Appellant, no evidence of how that advice affected the plea,
      and Appellant actually received deferred adjudication?

      3) Did the court of appeals err by finding ineffective assistance of
      counsel based on an unexplained finding in the judgment without
      addressing the State’s threshold arguments about the validity of the
      judgment entry, preservation, and estoppel?

                            STATEMENT OF FACTS

      Appellant was charged with sexual assault of a child under fourteen. CR: 6.

He was admonished on the range of punishment for a first degree felony, stipulated

to the allegations in the indictment, and pled guilty. RRI: 5-6, 11; CR:30. Trial court

accepted the plea bargain and granted Appellant eight years deferred adjudication.

RRI: 16. The judgment includes a recitation that, “The age of the victim at the time

of the offense was three (3) years.” CR: 43. Four years later, the trial court granted

the State’s third motion to adjudicate and sentenced Appellant to life. RRIII: 31; CR:

71, 78. The judgment of the adjudication also contains a recitation that the victim


                                          2
was three years old. CR: 78. On appeal from the adjudication, Appellant claimed that

the offense for which he was convicted was not eligible for deferred adjudication and,

as a result, his counsel was ineffective and his original guilty plea was involuntary.

                       SUMMARY OF THE ARGUMENT

      The judgment in this case includes a finding that the victim was under six years

of age, a fact that increases the minimum punishment to twenty five years and makes

the defendant ineligible for community supervision under TEX. PENAL CODE ANN. §

22.021(f)(1). That finding was neither alleged as an enhancement, supported by the

evidence, or pronounced in open court. It was not until Appellant’s guilt was

adjudicated that he appealed and challenged the validity of his original plea. Instead

of deleting the improper finding in the judgment, as the State argued in its brief, the

court of appeals held that the original grant of deferred adjudication was illegal and

his counsel was ineffective for failing to so advise Appellant, which rendered his

original plea involuntary. But because nothing in the record shows that State or the

trial judge intended that Appellant be punished under subsection (f), he was not

punished under subsection (f), his deferred adjudication was proper, his plea was

voluntary, and his counsel ineffective. In addition, because there is no evidence of

what advice counsel gave or Appellant’s thought processes, the record does not

support a finding of either deficient performance or prejudice. Furthermore, this

                                          3
claim is forfeited because it was not raised until the appeal from the adjudication of

guilt, and Appellant is estopped from complaining about a supposedly too-lenient

punishment after enjoying its benefits. The remedy in this case is to delete the

improper finding from the judgment.

                                    ARGUMENT

      TEX. CODE CRIM. PROC. art. 42.12, § 5(d)(3)(B) provides, “[T]he judge may

grant deferred adjudication unless...the defendant is charged with an offense

under...Section 22.021, Penal Code, that is punishable under Subsection (f) of that

section....” TEX. PENAL CODE ANN. § 22.021(f)(1) provides, “The minimum term of

imprisonment for an offense under this section is increased to 25 years if... the victim

of the offense is younger than six years of age at the time the offense is committed.”

      Based on the judgment entry regarding the victim’s age, the court of appeals

declared that the victim was under six years old. Anthony, 457 S.W.3d at 550. It then

held, “Because Appellant was charged with an offense punishable under section

22.021(f) and because the minimum term of imprisonment exceeded ten years, the

trial court was never authorized to place Appellant on deferred adjudication

community supervision.” Id. at 551. This statement forms the basis for the court of

appeals’ determination that counsel was ineffective for allowing Appellant to accept

the plea bargain for deferred adjudication, which in turn rendered the plea

                                           4
involuntary.

      When faced with a judgment entry that states the victim is under six years old

and an assessed punishment that does not comply with subsection (f), two mutually

exclusive scenarios are possible: 1) this case was not punished under subsection (f)

and the judgment entry is simply improper, or 2) this case was punished under

subsection (f), but the grant of deferred was illegal because it did not comport with

the twenty-five year minimum sentence required by subsection (f).

Appellant was not punished under subsection (f).

      While the judgment states that the victim was under 6 years of age, this case

was not punished under Penal Code Section 22.021(f). Subsection (f) acts as an

enhancement of punishment. The clearest indication that Appellant’s punishment was

not enhanced in this case is the fact that he was granted deferred adjudication and the

facts required for enhancement were not pled, proven, or pronounced in open court.

      First, the record does not indicate that Appellant was given notice of an

enhancement. Although enhancement allegations need not be pled in the indictment,

the defendant must be given some form of notice of the State’s intent to increase the

applicable range of punishment. Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App.

1997).

      Second, no evidence was presented at the plea proceeding that the child was

                                          5
under six years old; Appellant stipulated that she was under fourteen.1 No other

evidence was offered in support of the plea. The judgment entry stating that the

victim was three years old was improper because it was not supported by the record.

See Young v. State, 14 S.W.3d 748, 750-53 (Tex. Crim. App. 2000) (addressing

sufficiency of the evidence to support drug-free zone punishment enhancement).

       Third, the trial court did not pronounce the finding in open court when it

assessed punishment. A defendant’s sentence must be orally pronounced in his

presence. TEX. CODE CRIM. PROC. art. 42.03 § 1(a); see also Burt v. State, 445

S.W.3d 752, 757 (Tex. Crim. App. 2014) (when there is a conflict between the written

judgment and the oral pronouncement, the oral pronouncement controls).

       As a result, the court of appeals erred by holding that Appellant was “charged

with an offense punishable under section 22.021(f).” He was charged with an offense

under TEX. PENAL CODE ANN. § 22.021(a)(2)(B),2 a first degree felony.3 There is no

mention in the record of subsection (f), and the record does not indicate that the




       1
       The State does not contest that the child was under six years old, only that there was no
evidence presented at the plea proceeding to support it.
       2
        “A person commits an offense...if the person...intentionally or knowingly...causes the
penetration of the anus or sexual organ of a child by any means...and...if...the victim is younger
than 14 years of age.”
       3
           TEX . PENAL CODE ANN . § 22.021(e).

                                                 6
parties ever contemplated it.4

       Even if the evidence showed the victim was under six, this offense was not

punishable under subsection (f), because the State did not prosecute it as such. It is

the State’s prerogative to decide which offense to charge. See Avery v. State, 359

S.W.3d 230, 236 (Tex. Crim. App. 2012) (prosecutors have discretion to charge the

offense that best fits the conduct or has the most appropriate punishment range). And

even if the State initially charges the offense under subsection (f), that provision can

be abandoned. See, e.g., Puente v. State, 320 S.W.3d 352, 354 (Tex. Crim. App.

2010) (State amended indictment to delete under six language to eliminate mandatory

minimum punishment of 25 years from subsection (f)). Because this case was not

punishable under subsection (f), counsel did not render ineffective assistance of

counsel by failing to advise Appellant that it was.

There is no evidence to support a finding of deficient performance or prejudice.

       In addition to assuming this case was punished under subsection (f), the court

of appeals erred by holding that counsel gave Appellant incorrect advice without

       4
         The origin of the judgment entry is not apparent and may have been made without
knowledge that it amounted to an enhancement finding. The State’s brief in the court of appeals
argued that it was a clerical error that should be corrected by a judgment nunc pro tunc. State’s
brief at p. 5, 7-9. There is no evidence that the trial court intended to subject Appellant to
subsection (f) punishment during the original plea or upon adjudication. Even though the
improper finding appears in both judgments, the trial judge advised Appellant of the punishment
range for an unenhanced offense at both the original plea hearing and the adjudication hearing.
RRI: 5-6; RRIII: 5.

                                                7
evidence of what advice he actually gave. A claim of ineffective assistance of

counsel must be “firmly founded in the record.” Thompson v. State, 9 S.W.3d 808,

814 (Tex. Crim. App. 1999). Thus, such claims are normally raised on habeas corpus

or in a motion for new trial, so that a hearing can be held and a record developed. See

id. at 814, n6. (“[I]n the vast majority of cases, the undeveloped record on direct

appeal will be insufficient for an appellant to satisfy the dual prongs of Strickland.”)

Here, the only evidence of counsel’s advice is what was said in open court. There is

no evidence of what counsel advised Appellant off the record about the State’s plea

offer, the strength of its case, or the possibility of a subsection (f) enhancement.

      Just as there is no evidence of what advice counsel gave, there is no showing

that, even if this was a subsection (f) case and counsel advised Appellant incorrectly,

Appellant’s plea was involuntary. The court of appeals held:

      If Appellant would have known he was facing a minimum period of
      twenty-five years confinement instead of deferred adjudication
      community supervision, there is a reasonable probability that he would
      not have stipulated to the evidence against him and entered a plea of
      guilty without the agreed upon recommendation as to punishment. By
      inducing him to enter a plea of guilty through the false promise of
      community supervision, there is a reasonable probability Appellant
      waived valuable rights and entered a plea of guilty.

Anthony, 457 S.W.3d at 553. The court of appeals treated this case as if Appellant

pled guilty without an agreed punishment recommendation, believing he was eligible



                                           8
for deferred adjudication, but was instead sentenced to a term of twenty five years or

more pursuant to subsection (f). Deferred adjudication was not a “false promise.” It

is the punishment Appellant received when the trial court accepted the plea bargain

after fully admonishing him of the consequences. There is no reason to believe that

Appellant, had he been told he was actually ineligible for deferred, would have

declined the State’s plea offer and insisted on a “legal” sentence of twenty-five years

or more.5

The court of appeals failed to address forfeiture, estoppel, or the proper remedy
for the erroneous judgment entry.

       A court of appeals must address every issue that is raised and necessary for the

disposition of the appeal. TEX. R. APP. P. 47.1. The State made three arguments that

would have resulted in a different outcome had the court of appeals addressed them.

These were threshold issues that would have made it unnecessary for the court to

address the merits of the ineffective assistance/involuntary plea claim.

       First, the State argued that the finding in the judgment that the victim was three



       5
          Perhaps the court of appeals believed subsection (f) punishment cannot be waived, and
counsel’s knowledge that Appellant was ineligible for deferred would have led him to notify the
State of the twenty-five-year minimum, causing the State to withdraw its offer of deferred. Of
course, the State can abandon an enhancement paragraph, or, as in this case, never pursue it in
the first case. If this had been an actual subsection (f) case, the State could have abandoned the
enhancement to make the plea bargain for deferred possible. See Garland v. State, 170 S.W.3d
107, 111 (Tex. Crim. App. 2005) (State abandoned enhancement that would have required life
sentence).

                                                 9
years old was not supported by the record and should be deleted. State’s brief at p.

5, 7-9.6 The judgment entry was the lynchpin of the court of appeals’ opinion.

Without it, there would have been no basis for the court to conclude that Appellant’s

offense was “punishable under” subsection (f) and, thus, ineligible for deferred. In

turn, there would have been no grounds for its determination that counsel was

ineffective.

       Second, the State argued that Appellant forfeited any challenge to his original

plea by raising it for the first time on appeal from the adjudication of guilt. State’s

brief at p. 10-11, 16. “[A] defendant placed on deferred adjudication community

supervision may raise issues relating to the original plea proceeding, such as

evidentiary sufficiency, only in appeals taken when deferred adjudication community

supervision is first imposed.” Manuel v. State, 994 S.W.2d 658, 661-62 (Tex Crim.

App. 1999). Preservation of error is systemic and must be addressed by a court of



       6
         The court of appeals partially quoted the State’s brief to make it appear that it conceded
that the punishment was improper in this case, but it did not. According to the court of appeals,
“The State concedes in its brief ‘that Appellant was placed on deferred adjudication community
supervision for a period of eight years, which term of community supervision falls outside the
applicable statutory range of punishment for Aggravated Sexual Assault, child younger than 6
years of age.’” Anthony, 457 S.W.3d at 551. What the State actually said was, “If this court does
not enter an order nunc pro tunc correcting the judgments in question, the State concedes that
Appellant was placed on deferred adjudication community supervision for a period of eight
years, which term of community supervision falls outside the applicable statutory range of
punishment for Aggravated Sexual Assault, child younger than 6 years of age.” State’s brief at
p.17.

                                                10
appeals even if it is not raised by the State. Ford v. State, 305 S.W.3d 530, 532 (Tex.

Crim. App. 2009).

      Third, the State argued that Appellant was estopped from complaining that his

deferred adjudication was improper. State’s brief at p. 18-19. A defendant who has

enjoyed the benefits of an agreed punishment that is too lenient is estopped from

collaterally attacking it. Rhodes v. State, 240 S.W.3d 882, 892 (Tex. Crim. App.

2007). Appellant was on deferred adjudication community supervision for four years

and only challenged its validity upon revocation. Although his appeal did not

challenge the legality of the sentence directly, he should not be able to use an

ineffective assistance of counsel claim as an end-run around the consequences of

estoppel.

      Although normally this Court would remand for the court of appeals to address

threshold issues raised and necessary to the disposition of the appeal in the first

instance, a remand would unnecessarily prolong finality. If the court of appeals were

to dispose of the case on preservation or estoppel grounds, the ineffective assistance

issue could be raised on habeas corpus. Instead, this Court should hold that this case

was not punished under subsection (f) because it was not plead, proved, or

pronounced. That disposition would resolve Appellant’s claims.




                                          11
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that this Court reverse the decision of

the court of appeals and order the notation “the age of the victim at the time of the

offense was three (3) years” be stricken from the judgments.



                                        Respectfully submitted,

                                       /s/ LISA C. McMINN

                                       LISA C. McMINN
                                       State Prosecuting Attorney
                                       Bar I.D. No. 13803300

                                       P.O. Box 13046
                                       Austin, Texas 78711
                                       information@spa.texas.gov
                                       512/463-1660 (Telephone)
                                       512/463-5724 (Fax)




                                         12
                        CERTIFICATE OF COMPLIANCE

       I certify that, according to the WordPerfect word count tool, this document

contain 3476 words.


                                         /s/ LISA C. McMINN
                                         LISA C. McMINN
                                         State Prosecuting Attorney



                            CERTIFICATE OF SERVICE

       I certify that on this 19th day of June, 2015, the State’s Brief on the Merits was

served via certified electronic service provider to:

Kathryn H. Gurley
287th Judicial District Attorney
P.O. Box 729
Friona, Texas 79035
districtattorney@parmercounty.net

Troy Bollinger
LANEY & BOLLINGER
600 Ash Street
Plainview, TX 79072
troy@laneybollinger.com



                                          /s/ LISA C. McMINN
                                          LISA C. McMINN
                                          State Prosecuting Attorney



                                           13
