Anthony, John Dennis Clayton, PD-0290-15

Background

Appellant (John D. C. Anthony) pled guilty to aggravated sexual assault of a child (charged under Tex. Penal Code § 22.021(a)(2)(B)) in 2009 and received an agreed recommendation of eight years deferred adjudication.
The written deferred-adjudication order and later judgment contained a recitation that the victim was three years old, although the indictment and the stipulation of evidence alleged only that the victim was under fourteen.
In 2013 the State moved to adjudicate; the trial court adjudicated guilt and sentenced Appellant to life imprisonment.
On appeal the Seventh Court of Appeals reversed, holding counsel was ineffective for advising Appellant he was eligible for deferred adjudication because the offense was actually punishable under subsection (f) (victim under six), which barred deferred adjudication and carried a 25‑year mandatory minimum.
The State petitioned the Court of Criminal Appeals, arguing the appellate court erred by relying on an unsupported enhancement finding in the judgment, failing to address preservation/estoppel, and without record evidence of counsel’s off‑the‑record advice or prejudice.

Issues

Issue	State (Petitioner) Argument	Anthony (Appellant) Argument	Held by Court of Appeals
1. Whether Appellant was ineligible for deferred adjudication because victim was under six	Judgment’s three‑year‑old finding was unsupported, unpled, not pronounced, and should be corrected; Court of Appeals erred in treating case as punishable under §22.021(f)	Appellant relied on plea colloquy and stipulation; appellate court found victim under six based on judgment and concluded §22.021(f) applied, barring deferred adjudication	Court of Appeals held the victim was younger than six and that §22.021(f) made deferred adjudication unavailable
2. Whether counsel rendered deficient performance by advising eligibility for deferred adjudication	No record shows what counsel told Appellant off the record; counsel’s alleged advice not firmly founded in record; Appellant actually received deferred adjudication	Counsel incorrectly advised on eligibility; court found deficient performance
3. Whether Appellant was prejudiced (involuntariness of plea)	No evidence counsel’s alleged advice affected plea; Appellant accepted and received deferred adjudication; no proof he would have rejected plea facing mandatory minimum	Appellant would not have pleaded guilty or stipulated had he known of the mandatory minimum; plea was involuntary and prejudiced	Court of Appeals held prejudice established and plea involuntary; reversed and allowed withdrawal of plea
4. Whether appellate court should have resolved threshold issues (judgment validity, preservation, estoppel)	Court of Appeals should have corrected/deleted the unsupported age finding, considered forfeiture (Wiley/Manuel) and estoppel (benefit of lenient plea) rather than decide ineffective assistance on unsupported record	Appellant argued claim preserved and that original plea was involuntary despite deferred adjudication	Court of Appeals proceeded to decide ineffective assistance without resolving those threshold State arguments and reversed

Key Cases Cited

Avery v. State, 359 S.W.3d 230 (Tex. Crim. App. 2012) (prosecutorial charging discretion)
Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997) (notice required for punishment‑increasing allegations)
Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014) (oral pronouncement controls over conflicting written judgment)
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999) (limits on raising plea‑proceeding issues after deferred adjudication)
Puente v. State, 320 S.W.3d 352 (Tex. Crim. App. 2010) (state may amend indictment to delete mandatory‑minimum language)
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) (ineffective‑assistance claims require record foundation)
Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007) (estoppel where defendant enjoyed benefit of lenient plea)
Young v. State, 14 S.W.3d 748 (Tex. Crim. App. 2000) (sufficiency of record to support enhancement/recited findings)