The opinion
PD-0290-15
FILED IN COURT OF CRIMINAL APPEALS
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
ABEL ACOSTA, 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:
L
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.
IL
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.
IY,
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. Morsan 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)(1) 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:
7, 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
1The factors to be considered in such an examination are set out in Texas Rules of
Criminal Procedure, Article 46B.024.
2The 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
trov@laneybollinger.com
/&/ 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