in Re the State of Texas Ex Rel. Abelino Reyna, Relator v. Court of Appeals for the Tenth District

WR-83,719-01
RECEIVED
COURT OF CRIMINAL APPEALS
8/11/2015
ABEL ACOSTA, CLERK
Appendix 1
THE STATE OF TEXAS § DOCKET# II d..F1 £- 177
§
COUNTY OF MCLENNAN § COURT: JP COURT PRECINCT 1 PLACE 2
COMPLAINT
{Articles 15.04 & 15.05, Texas Code of Criminal Procedure}
BEFORE ME, THE UNDERSIGNED AUTHORITY, PERSONALLY APPEARED THE
AFFIANT HEREIN, A PEACE OFFICER UNDER THE LAWS OF TEXAS, WHO, BEING
DULY SWORN, ON OATH MADE THE FOLLOWING STATEMENTS AND
ACCUSATIONS:
My name is MANUEL CHAVEZ and I am commissioned as a peace officer with the City of
Waco by The State of Texas. I hereby state upon my oath that I have reason to believe and do
believe th~t heretofore, and before the makin~ and filing of this Complaint, that o~~b~ut May
17,2015, III McLennan County, Texas, the sald {!/e(ld€olVlP-l1.111"dbewllJ.in .:t- i9$dld then
and there, as a member of a criminal street gang, commit or cO!lspire to commit murder, capital
murder, or aggravated assault, against the laws of the State.
My probable cause for said belief and accusation is as follows:
Three or more members and associates of the Cossacks Motorcycle Club (Cossacks) were in the
parking lot of the Twin Peaks restaurant in Waco, McLennan County Texas. Three or more
members and associates of the Bandidos Motorcycle Club (Bandidos) arrived in the parking lot
of the Twin Peaks restaurant and engaged in an altercation with the members and associates of
the Cossacks. During the course of the altercation, members and associates of the Cossacks and
Bandidos brandished and used firearms, knives or other unknown edged weapons, batons, clubs,
brass knuckles, and other weapons. The weapons were used to threaten and/or assault the
opposing factions. Cossacks and Bandidos discharged firearms at one another. Members ofthe
Waco Police Department attempted to stop the altercation and were fired upon by Bandidos
and/or Cossacks. Waco Police Officers returned fire, striking multiple gang members. During
the exchange of gunfire, multiple persons where shot. Nine people died. as a result of the
shooting between the members of the biker gangs. Multiple other people were injured as a result
of the altercation. The members and associates of the Cossacks and Bandidos were wearing
common identifying distinctive signs or symbols and/or had an identifiable leadership and/or
continuously or regularly associate in the commission of criminal activities. The Texas
Department of Public Safety maintains a database containing information identifying the
Cossacks and their associates as a criminal street gang and the Bandidos and their associates as a
criminal street gang.
After the altercation, the subject was apprehended at the scene, while wearing common
identifying distinctive signs or symbols or had an identifiable leadership or continuously or
regularly associate in the commission of criminal activities.
After the altercation, fireanns, knives or other unknown edged weapons, batons, clubs, brass
knuckles, and other weapons were recovered from members and associates of both criminal
street gangs.
Multiple motorcy183 S.W.3d 918, 924-25 (Tex. App. - Eastland 2006, no pet.);
Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.-Waco 1998 , pet. refd).
2.2. A criminal defendant's right to pre-trial discovery is limited by Article 39.14 of the
Texas Code a/Criminal Procedure . See Shpikula v. State, 68 S.W.3d 212, 221-22 (Tex. App.---
Houston [1 51 Dist.] 2002, pet. ref.); Martin v. Darnell, 960 S.W.2d 838, 842 (Tex. App. - Amarillo
1997, orig. proc.). Section 39.14 provides the exclusive means for pre-trial discovery. See Shpikula
v. State, 68 S.W.3d at 222. The limited right to pre-trial discovery does not include the right to use a
subpoena duces tecum for a hearing as a "weapon" of discovery. See Ealoms, 983 S.W.3d at 859;
Luvano, 183 S.W.3d at 924-25. See also See Shpikula v. State, 68 S.W.3d at 222 (court did not
commit error in refusing to allow defendant to discover information via a subpoena duces tecum
under Chapter 24 of the Code 0/ Criminal Procedure) . Nothing in Chapter 24 or the Sixth
Amendment allows a defendant to simply cast a net in the hope that something useful might be
found. See Shpikula v. State, 68 S.W.3d at 221-22; Welch v. State, 2011 W.L. 1364970*7 (Tex.
App.---Texarkana 2011, pet. ref'd). See also 2 Tex. Prac. Guide Crim. Prac. & Proc. at Section
19:29 ("Subpoenas may not be used to enlarge a defendants' right to production as defined by Tex.
Code Crim. Proc. Ann. art. 39.14. A subpoena is not to be used as a ' discovery weapon' but rather
as an 'aid to discovery' and must be based on a showing of materiality and relevance. Reece v.
State, 878 S.W.2d 320, 326 (Tex. App.- Houston [1st Dist.] 1994, no pet.) (quashing subpoena did
not deny the defendant access to 'material' evidence); Cruz v. State, 838 S.W.2d 682, 685 to 686
(Tex. App.-Houston [14th Dist.] 1992, pet. rei'd).").
2.3 On its face the subpoena at issue exceeds the scope of any legitimate purpose under
Chapter 24 and is an obvious attempt to conduct pre-trial discovery. Therefore, it should be
MOTION TO QUASH AND FOR PROTECTION PAGE 2
.;' "' . .:
"j"""", l. ~.
'KO~
~.. r
:.'.~ L. ,':. : •• ,' J , .OUt 'TY, TEXAS
quashed. See Luvano v. State, 183 S.W.3d 918, 924-25 (Tex. App. - Eastland 2006, no pet.);
Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.-Waco 1998, pet. ref' d).
III.
Pending Investigation
3.1 Again, nothing in the Texas Code of Criminal Procedure gives the defendant a
general right of discovery outside of the confines of Art. 39.14. A criminal defendant has no right
to generally peruse the records of law enforcement entities which were or are in any way connected
with the criminal case. The criminal defendant obtains information from the state, and not by virtue
of subpoenaing broad categories of records from third parties.
3.2 Furthermore, the broad and all-encompassing subpoena duces tecum relates to a
pending investigation. There is no right under the Code or the Constitution for a criminal defendant
to interject himself into a pending investigation by law enforcement and obtain records directly .
from law enforcement.
3.3 Allowing such a process would interfere with the investigation of criminal cases and
the duties and functions of law enforcement officers. Should the release of this information be
permitted, the State's investigation would be prejudiced and potentially compromised as witnesses
could be attacked as to whether their recollection is based on actual events or on the events seen on
a video source through Clendennen' s planned release to the media.
MOTION TO QUASH AND FOR PROTECTION PAGE 3
IV.
Materiality and Relevance
4.1 Defendant's application for subpoena contains no indication as to how
the broad
categories of requests are relevant or material. The right to have the
state disclose favorable
evidence does not entitle the defense to conduct his own search to argue
the relevance of particular
information. See Martin v. Darnell, 960 S.W.2d at 840-842. That is, the
specific materiality and
relevance of information must exist before the request, not after the defend
ant has perused through
the information requested. Id.
4.2 Even a cursory review of the multiple categories of requests and their breadth
shows
that the Subpoena Duces Tecum is not a request for material and relevant
information; rather it is a
request for information so that the defense can determine its usefulness. That
is not the purpose of a
subpoena duces tecum under Chapter 24; and a subpoena duces tecum cannot
be used to circumvent
the discovery process . See Ealoms, 983 S.W.2d at 859; Luvano, 183 S.W.3d
at 924-25.
V.
MOTION TO ISSUE "GAG" ORDER FOR ALL PARTIES
5.1 The State further moves that the court impose a gag order on all parties
as the
defend ant, through his attorne y has stated that his intent is not limited
to the legal procee dings. Tn a
KCEN television interview on June 25, 2015, Attorney Clinton Broden
said, "if and when he gets
the video, he will make it public. That' s the plan," said Broden . The State
requests that the Court
order all parties involed in this case to strictly adhere to the letter
and spirit of the Texas
Disciplinary Rules of Professional Conduct governing Trial Publicity. Specifically
all attorneys
shall refrain from making "extrjudicial statements that a reasonable person
would expect to be
disseminated by means of public communication if the lawyer knows or
reasonably should know
MOTION TO QUASH AND FOR PROTECTION
PAGE 4
that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding." Tex.
R. Profl Conduct Rule 3.07.
A copy of said article is attached hereto as "Exhibit B".
WHEREFORE, Movant respectfully requests that the Subpoena and Subpoena Duces
Tecum be QUASHED and that the Court enter an order that Movant is not required to comply
therewith .
Respectfully Submitted;
Abelino "Abel" Reyna
Criminal District Attorney
McLennan County, Texas
219 North Sixth Street, Suite 200
Waco, Texas 76701
Phone (254)757-5084
Fax (254) 757-5021
Mark Parker
---===_..
Assistant Criminal District Attorney
State Bar Number 15494360
MOTION TO QUASH AND FOR PROTECTION PAGES
CERT IFICA TE OF SERVICE
I do hereby certify that on the date set forth next to my signature below, a duplica
te original
or true and correct copy of the document to which this certificate is attache
d was served on
defendant's counsel of record in this case. The names and addresses of the
attorney or attorneys
served, and the manner of service, are indicated below:
Viajax : _____ _____~
Via hand delivery: 1/
Clinton Broden
2600 State Street
Dallas, Texas 75204
Date: June~, 2015 .--
Mark Parker
Assistant Criminal District Attorney
McLennan County, Texas
MOTIO N TO QUASH AND FOR PROTECTION
PAGE 6
EXHIBIT "A"
THE S TAT E 0 F T E X AS
StlBPOENA DUCES TF£lIM
To the Sheriff or any Constable of MCLENNAN COUNTY, TX: GREETING
YOU ARE COMMANDED to Summon :
PATRICK KEATING
MCLENNAN COUNTY, TX
to be and personally appear before the Honorable District Court of Mclennan County,
54th District. to be held in the City of WACO, on
the INSTANTER Ihen and there to give evidence in a certain case pending,
wherein THE STATE OF TEXAS. Is plaintiff, and
MATTHEW ALAN CLENDENNEN is Defendant in cause number 2015-1955-2 at
the instance of the DEFENSE. and that
he bring with him and produce in said Court, at said time and pl~e, ANY AND ALL
VIDEOS OF THE EVENTS TAKING PLACE
AT TWIN PEAKS IN WACO, TEXAS FROM MAY 17, 2015-MAY 26, 20lS
desired as evidence in said above numbered and entitled
cause,
"It is an offense for I peoon to intentionally innumcc or cocn:e a witness to testify
witness or prospective witness in retalilliOll for or OIl ICcool1l of me service of the penon falsely or to elude legal process, It is also a felony 10 harm or thrca1en to harm.
iii I witness or to prevent Of delly the penon's SC1'Yice as a witness
to. crime,"
"Slim penon. intencionolmeme obl isa 0 ejcn:c innuencia sobre un tcstigo PIll1l
que dlerl declaraGlones fIlsas 0 para que evadien el proceso leaaJ, es un delllo,
TlIl1bi$1 cs un crimen llIccr dlllo 0 amenUA! I un tesligo 0 I uno qulen JlOSiblemen
~ podr1a ser un lestigo para vcn8ftJ$e 0 por rv.6n del uso de esa penon.
prcvcnir 0 demorar el uso de esa persona como 1eStigo I un crimen," como teStlgo 0 pant
Herein fail nol, bul have you then and there this Writ, with your ret1.Jm thereon as
the law directs,
Given under my hand, this 21ND clay of JUNE. 201!,
JON R, GfMBLE
Clerk, District Courts.
McLennan County, Texas
ATTORNEY; By: C.o
CLINTON BRODEN, 2600 STATE ST., DALLA ,TX 7Sl04
~tA.N ~C.hLo,d.'JL.
SERVE: PATRICK KEATING, MCLENNAN COUNTY, TX
APPEAR: INSTANTER
(54· DistriC1 Court is 10000ed on the 3'" noor or the McLennan Count)' Courthouse III
500 Washington Ave, In WACO, Texas)
SHER IFF'S RETURN
Came to hand the _ dly of , - - ' 8t _ o'clock _ M, and executed by deliVering to the following within named wiln& In person
in MCLENNAN
COUNTY, rx,. true copy of this subpoenal! the (0IIo",in8 times, to·wit:
PATRICk KEATING at o'clock M.. _ _ _ _--'
NameofWitncss - -
Deputy
Sheriff
, ·-
C C. ,; " , ~)__ 'OCll
'p ' •
... _ '
•
-}~~-N,"
'{-J', 11 0'· (__ _
D. ,. GL ';(i< C:-
L. ,' •...:", ,,,)1 !,.j \ ':. ' ):1\'-
To the CIer1< of the District Court of Mclennan County, Texas.
IN THE CAS~9f THE STATE OF TEXAS VS. M«:r",tW ,lMo.f\Q,eocle& Q.e!\
CausG No. BR \$'- t tit ~u will please Issue subpoena(s) In accordance with thalaw for the following named
witnesses) to appear before the Honorable ~iStrict Court, at the County Courthouse, Waco, Texas on the
__ day of l A ¥ : , \ . 20_ at _ _ o'clock_M.:
1. ~ cYZ Mub "f!J
residing In County, TGxas
wI"Iose avocation Is that of,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
and wI"Iose location Is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
~~~~~~~_-_~_~_~_~_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-__
-~-sl-dl-ng-l-n=============:=:~~-E-o-u~~~T-~-a~ ~ .
- ~
wI"Iose avocation Is that of (ho 5: - ~
and whose location Is _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _sald s bpfimo,..ald
x"::;:
r
r-rt.L'"
witness to bring the follo>Mng: ... '"'0 l'" r'"
o· r- 0':7
~ r:s"" fa" 1"-
_ _ 3.
~ ~ ~
_ _ _ _ _ _ _ _ _ _ _ _ _ residing In _ _ _ _ _ _ _ _ _ ·COUnty. Texas . ~
wI"Iose avocation Is that of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
and wI"Iose location Is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,sald subpoena to order said
\'Atness to bring the fonO'.'Ang: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
The testimony of said witness(s) Is believed to be material to the: Stat~drcle one)
Cl!(1+QO (?..cod. n
~m to and subscribed before me this R day of(~LLn c:
JON R. GIMBLE
CLERK, DISTRICT COURTS
MclENNAN COUNTY, TEXAS
Instructfons for pick-up:
Call 0,",,7, r£ Cec.YcwVl'~t aSt.{--7/7-1hOD (Picked upat _ _ _ _ on _ _ _- . i
or ()
Deliver to _ _ _ _ _ _ _ _ _ _ _ _ _ for service (Delivered al ______on _ _ _ _-'
"c:; n~I~U/.~\l_1
f ,1.t-::nK ( ),'
.. '!.lP~"~ r
EXHIBIT "B"
:~~!~·.:~· 1v 'J~~?~~~~I
" _ r ~i .t.:m{ OF
.' '. :'"'j COUNTY n::xJ..\S
City of Waco Moves to Block Subpoena for Twin Peaks Restaurant S ... http://www.kcentv.com /story/2941 0760Ib ikers-subpoena-quashed
City of Waco Moves to Block Subpoena for Twin Peaks Restaurant
Surveillance Video
Posted: Jun 25,20153:49 PM CST
Updated: Jun 26. 201510.39 AM CST
WACO -- An attorney for a man charged in the May 17th
Twin Peaks shootings filed a subpoena to get
surveillance video from the Waco restaurant during the
"1111 Ntn""'"lV.~T l " shootings .
'-:~, .
• ~"''''PM''','''Vf.H.Y
•
:
I
F. Clinton Broden, who represents Matthew Alan
, """"-"''-'" \,,- ,\)'. "',,'
I
Clendennen, sent a press release late Thursday stating
that the City of Waco moved to quash or block the
.. ). '.:)'Hr.'.,..'·.... "' ........ T _,... . ... ~.l _ , . ., ., '.... ""~ ... ....... . ..,
-. ..... "--,·<:....... - -....... _-w., ... . ,,,""'. ............ _ .•,c.. subpoena . Accord ing to the release, the subpoena was
· ..... ... .,·.. .. 1. 1'0,. ... ......".. ... ,,-~~ . . .-... , • • ;.w, • •·. .. _40)0".. served on Patrick Keating , an attorney with Haynes &
\(' '''' .lI-~ ... ~.....tI. "'"' 1~'1lII~'. "",,,,,,,, ......... _ .... /J.t.., .... _
~,.,...-· ... #-t'!? _ ' 1iIo - ........ "j ·".,..lWI_ "'- • ••. ~ _ r;o.". __
Boone in Dallas and the attomey for the Waco Twin
-.W .....- ................. .. i ....... _ '.rt ....I ...... .. _~_, 'D ....- Peaks franchisee. Mr. Keating had previously agreed to
t."'" •• ,..... 1 ... ..... ,_ , .... , 1" ,....,\1; , .... . . ... ~ ... ,
accept service of the subpoena on behalf of his client
and to produce the video in compliance with the
subpoena by 9:00 am on June 26, 2015.
IV ' , -
.,•..•
J :to.
~ .- ~:
.Io'" .. ~.... ,.,. ..._ .........
........ .•_• •_ ...u.,.._
~...r..,..
..011.., ' .. ..
~' ''''
, v ..... koM'f \oJ_ ~ _
.. til . ....... ~.l. __ .. t \,
The City of Waco moved to quash the subpoena
..... - ..- -w j.. .. _"" ... ~\t004 ~"'''''I .r, :( " . '" , ..... , ... .,
___, ~ .. . r.....
-'~ '~:too --,....n. "'.... .t)..,,,,,,,,, . . . . Thursday afternoon, the reason given in the motion, in
1-*..4_ ... _ . . ......., , . _.,;... , .......... ,« ,..... ...... 1... ,....: , . ....... ... rio;
part, was "release of the information would interfere with
-
I...."..~ :~. ~.,,,. , ~ ~· .. I" IN 1>..Jt n",
the investigation."
. . . ..
·_ ... a ~' _~
According t o Broden' s press rel ea se . the only party that
can move to quash a subpoena is the party to whom the
subpoena is issued , in this case the Waco Twin Peaks
franch isee .
"It is troubling that the City of Waco would go to such lengths to suppress this video ," said Broden . "The Waco
Police have repeatedly given the public contradictory information about the events at Twin Peaks and have said
that the video will support its current version of the facts , yet they have now taken this extraord inary measure to
interfere with the subpoena process," he added .
Broden said if, and when he gets the video, he will make it public.
"That's the plan," said Broden .
Broden said they needed the video to show there was
no probable cause to arrest his client for the shooting ,
and they're hoping to loosen Clendennen's bond
conditions at a hearing August 10th. He said lawyers for
Twin Peaks said the video corroborates Clendennen 's
.,gO~ mqc'I"""wU( ""'tlll>t.P\jI' .~
CERTIFIZ I , DO~~.~"~
10f2
PAGF ' 1'_ 01:
D1ST.11 . I JLERK OF 6/26/2015 I I :31 AM
!Vic U~ ,' i.;·~ rl""l'JNTY, TEXAS
City of Waco Moves to Block Subpoena for Twin Peaks Restaurant S ... http: //www.kcentY.com/story/2941 0760Ibikers-subpoena-quashed
story that he had nothing to do with the incident . n..,...IJ,XOlf) . . O"" •• 4.,.,. ....Wd.-,...( ·_ rl.w4 )....,-.-W'~ .....
"' ... n1n-~ ~. r... ,..., ........ f."_ I f, ;01' n.: ~ •••..., ..
Brooen said he would be at the courthouse in downtown ..... ...... A_C.,.......
~"W n"~ . . . ~ . . _~ I"' ..... j . . . .,, . . .
Waco Friday morning, along with lawyers for Twin
Peaks, to either get a copy of their video as promised, or
to have hearing on the City of Waco's motion to quash
the subpoena for the footage.
KeEN tried reaching the City of Waco's attorney
Thursday evening , but it was after hours. 1'~1~~ ·"' '''~.1)''' "'CW\ . . . ~ 'fiIf."""~ """"'~'" ..... M.U
.,..-...... ""N-'_,'" I ............. ef' i\ II """,.,,,No:: n..·u., __ ,:........ .. ..
Waco Police issued a separate press release Thursday
stating they would not be releasing any additional details
about what happened in the months leading up to the
.........
' WI t.t.....w...,nNI .. ~"'--.<4i:lJoI .............. -.t"- .. ~II..., ....
.. ¥MU.W_ ,... ' ...... ~
shootings between the two biker gangs, the Bandidos
and Cossacks , allegedly involved in the shootings .
The press release also stated that Waco POlice detectives have been completing search warrants for the cell
phones that were confiscated in the incident.
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Appendix 4
t
The State of Texas
v.
Matthew Alan Clendennen
In the 54th District Court
McLennan County,
Texas
Cause No. 2015-1955-2
Order
This Court has a duty to preserve the defendant's right to a fair trial by an
impartial jury and, if possible, to ensure that potential jurors will not be prejudiced by
pretrial pUblicity. The Court is also mindful of the First Amendment rights of the
parties, counsel for the parties, the media, as well as the Open Courts Provision of the
Texas Constitution. In efforts to balance these sometimes competing interests, courts
have found that prior restraint may be imposed only in extraordinary circumstances,
and only if there is the threat of imminent, severe harm. Accordingly, before issuing a
gag order, a court must find that extensive media coverage will harm the judicial
process.
This Court takes judicial notice of
1) the unusually emotional nature of the issues involved in this case;
2) the extensive local and national media coverage this case has already
generated; and
3) the various and numerous media interviews with counsel for the
parties that have been published and broadcast by local and national media.
The Court FINDS that counsels' willingness to give interviews to the media
would only serve to increase the volume of pre-trial pUblicity.
IIIIIII~"" ~11I~11I1111~III'lIIIJ !111111111ll l l l
The Court FURTHER FINDS that if counsel for the parties continue to grant
interviews to the media, the pre-trial publicity will interfere with the defendant's right
to a fair trial by an impartial jury.
The Court FURTHER FINDS that no less restrictive alternative means exists to
treat the specific threat to the judicial process generated by this pre-trial publicity .
The Court FURTHER FINDS that an order restricting extra-judicial
commentary by counsel for the parties is necessary to preserve all venue options and a
delay in proceedings would not lessen the publicity generated by this case.
Accordingly, in its sound discretion and in light of the relevant facts and
circumstances of this particular case, the Court ORDERS, ADJUDGES and
DECREES that prior to and during the trial of this case
1. All attorneys involved in this case shall strictly adhere to the letter
and spirit of the provisions of the Texas Code of Professional
Responsibility governing comments to the media. Specifically, all
attorneys shall refrain from making "extrajudicial statements that a
reasonable person would expect to be disseminated by means of
public communication if the lawyer knows or reasonably should
know that it will have a substantial likelihood of materially
prejudicing an adjudicatory proceeding." TEX. DISCIPLINARY R. PROF'L
CON DUCT 3.07 .
2. All attorneys, their staffs, and law enforcement officers involved in
this case shall not discuss this case with the media.
3. Witnesses shall not discuss this case with the media when they have
previously given statements:
a. to law enforcement personnel,
b. to representatives of the District Attorney ' s Office; or
. • .; ;,'~LfR K OF
'," ,,:.- ~: . :: ~~ COUNTY, TEXAS
c. who have testified in investigative or adjudicative
proceedings.
4. Witnesses who give statements to law enforc ement personnel,
representatives of the District Attorn ey's Office, or who testify in
investigative or adjudicative proceedings after the date of entry of
this order shall not discuss this case with the media.
5. This Order shaH not be interpreted to prohib it attorneys from
communicating with the parties in order to prepar e for trial, nor shall
it be interpreted to prohibit the third parties from attending any live
sessions before the Court or from publishing any information they
have already obtained or may obtain in the future. The term "third
parties" includes any person or organization , not a party, not an
attorney for a party, or not a person employed by the parties or
attorneys for the parties for the purpose of assisting in this litigation.
This Court shall entertain reasonable requests to modify this Order as
the
need arises.
aft Johnso n ,
Judge of the 54 th Dist .
McLennan County, Texas
Appendix 5
Appendix 6
IN THE
TENTH COURT OF APPEALS
No. 10-15-00235-CR
IN RE MATTHEW ALAN CLENDENNEN
Original Proceeding
MEMORANDUM OPINION
Relator’s Petition for Writ of Mandamus was filed on July 1, 2015. Without
recitation of the facts of the case and discussion of the applicable law, of which the
parties are well aware, based on this Court’s opinion in In re Graves, and the authorities
cited therein, Respondent abused its discretion by issuing its June 30, 2015 gag order. In
re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, orig. proceeding). Accordingly, we
conditionally grant Relator’s Petition for Writ of Mandamus. A writ will issue only if
Respondent fails to vacate its gag order issued on June 30, 2015 and notify this Court in
writing that it has done so within 7 days from the date of this opinion. Relator’s motion
for stay is dismissed as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis concurring without an opinion)
Pet. conditionally granted
Motion dismissed as moot
Opinion delivered and filed August 7, 2015
Do not publish
[OT06]
In re Clendennen Page 2
Appendix 7
ACCEPTED
10-15-00235-CR
TENTH COURT OF APPEALS
WACO, TEXAS
7/1/2015 2:18:33 PM
SHARRI ROESSLER
CLERK
COURT OF APPEALS FOR THE
TENTH DISTRICT OF TEXAS FILED IN
10th COURT OF APPEALS
WACO, TEXAS
7/1/2015 2:18:33 PM
CASE NO. SHARRI ROESSLER
Clerk
05-15-00355-CR
IN RE MATTHEW ALAN CLENDENNEN
Relator
Trial Cause No. 2015-1955-2
In the 54 th District Court, McLennan County
Honorable Matt Johnson, Presiding
EMERGENCY PETITION FOR WRIT OF MANDAMUS
F. CLINTON BRODEN
TX Bar No. 24001495
Broden, Mickelsen, Helms & Snipes, LLP
2600 Street
Dallas, Texas 75204
(214) 720-9552
(214) 720-9594(facsimile)
Attorney for Matthew Alan Clendennen
Relator: Matthew Alan "-'''''''u ..... '''''
Trial Counsel for Relator: F. Clinton Broden
Broden, Mickelsen, Snipes, LLP
2600 State
Dallas, Texas
Appellate Counsel for Relator: F. Clinton Broden
Broden, &
2600 State
Dallas,
Respondent: Honorable Matt Johnson
54 th District Court
501 Wash ington 3
Waco, Texas 76701
Real Party in State of Texas
Counsel for in Interest: McLennan County District
219 N. 6th St
Waco, Texas 76701
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. ................................................................. .i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORlTIES ..................................................................... ................... .iv
STATEMENT OF THE CASE ....................................................................................... 1
STATEMENT OF JURISDICTION ................................................. ....... ....................... 3
ISSlJES PRESENTED .................................................................................................... 4
STATEMENT OF F ACTS .............................................................................................. 5
I. The State's Publicity Machine ......................................................................... 5
A. Patrick Swanton .......... ......... ........................................... ...................... 5
B. Abel Reyna .......................... .................................................................. 6
C. Brent Stroman ....................................................................................... 6
II. The Gag Order Motion ........... ............................................................... .......... 7
III. The Gag Order. ................................................................ .................. ............ 7
IV. What the Gag Order Does Not Cover. ........................................................... 8
SUMMARY OF THE ARGUMENT ............. ............................................................... 10
ARGUMENT ................................................................................................................ 11
I. The District Court Did Not Have Jurisdiction Over the Case to Enter the
Gag Order ............... ............................................................................................ 12
11
II. The District Court's Gag Order Violates Article 1, Section 8 of the Texas
ConstitutIon ........................................................................................................ 14
III. The District Court's Gag Order Violates the First Amendment to the
United States Constitution .................................................................................. 14
A. Constitutional Consideration and the Three Key Cases .................... 14
B. Applying the Principles to the Instant Case ....................................... 18
PRA YER....................................................................................................................... 21
VERIFICATION ........................................................................................................... 22
CERTIFICATE OF SERVICE ...................................................................................... 23
CERTIFICATE OF COMPLIANCE ............................................................................ 24
111
TABLE OF AUTHORITIES
Cases
Clendennen v. Chavez, et. aI., No.6: 15-cv-00173 (W.D. Tex.) ..................................... 9
Cookv. State, 902 S.W.2d471 (Tex. Crim. App. 1995) .............................................. 13
Davenport v. Garcia, 837 S.W.2d 73 (Tex. 1992) .................................... 11, 14, 15, 16
DC Waco Restaurant, Inc. D/b/a Don Carlos Restaurant vs. Peaktastic Beverage,
LLC D/B/A Twin Peaks Restaurant, et. al. , No. DC-15-05787 ...................................... 9
Ex Parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978) ........................................... 13
Ex Parte Port, 674 S.W.2d 772 (Tex. Crim. App. 1984) .................. .. ......................... 13
Gentile v. State Bar o/Nev., 501 U.S. 1030 (1991 ) ...................................................... 12
Haskettv.Harris, 567S.W.2d841 (Tex. App. Corpus Christi 1978) ......................... 12
In re Benton, 238 S.W.3d 587 (Tex. App. - Houst. [14th] 2007) ............... 11, 14, 16, 17
In re Graves, 217 S.W.3d 744 (Tex. App. - Waco 2007) ............................... 14, 16, 17
In reHouston Chronicle Pub. Co. , 64 S.W.3d 103 (Tex. App. Houst(l4 th 2001) ...... 16
Orr v. International Bank o/Commerce, 649 S.W.2d 769 (Tex. App. - San Antonio
1983) .............................................................. ........................................................ ........ 12
RichmondNewspapers, Inc. v. Virginia, 448 U.S. 555 (1980) .................................... 14
San Antonio Express-News v. Roman, 861 S.W.2d 265 (Tex. App. San Antonio
1993) ............................................................ ................................................. ................. 14
Statev. Clendennen, No. 2015-1955-2 .... ............. ....... .. ........ .. .......... .. ........ ........ 2, 8,19
IV
United States v. Schroeder, 6:93-0046 (W.D. Tex.) ..................................................... 20
United States v. Tsarnaev, No 1: 13-cr-1 0200 (D. Mass.) ............................................ 20
Other Authorities
Article 1, Section 8 of the Texas Constitution ......................................................passim
First Amendment to the United States Constitution ................................ ..............passim
Louis D. Brandeis, Other People's Money-and How Bankers Use it (1914 ) .............. 11
Tex. R. Profl Conduct Rule 3.07 ............................................................................ 7, 16
Tex. Gov't Code § 22.221 ............................................................................................... 3
v
STATEMENT OF THE CASE
Matthew Alan Clendennen was arrested, along with 176 other motorcyclists,
at Twin Peaks restaurant in Waco, Texas on May 17, 2015. The arrest was based
upon a "fill in the name" criminal complaint where the same complaint was used to
arrest 177 people with only the names being changed. See Appendix 1. I
There has been no indictment in the case. On May 22,2015, Mr. Clendennen
requested an examining trial. The hearing was set for August 10,2015- almost three
months from the date it was requested. Mr. Clendennen later filed his Request to
Reset Examining Trial So That [It] Is Prompt, that request was quickly denied by
Justice of the Peace Walter H. "Pete" Peterson. See Appendix 2.
Mr. Clendennen later sought, via a subpoena duces tecum, to obtain a copy of
Twin Peaks' own surveillance tape. The subpoena was sought, inter. alia., in
connection with motions by Mr. Clendennen to amend his bond conditions. It was
sought under the District Court case number 2015-1955-2 which was assigned in
connection with Mr. Clendennen's original Application for Writ of Habeas Corpus
Seeking Bail Reduction which had previously been granted.
The City of Waco filed a motion to quash the subpoena and the Court set a
IBecause the Appendix requires certified copies and will also contain a DVD, the
Appendix will be filed under separate cover.
hearing on the City's motion for June 30, 2015. On the morning of the hearing, the
McLennan County District Attorney's Office filed its own motion to quash
approximately ten minutes before the start of the hearing and, in that motion,
requested a comprehensive gag order be entered. See Appendix 3. Ultimately, the
District Court found that the City of Waco did not have standing to contest the
subpoena, ordered the video to be produced to the defense, and entered the
comprehensive gag order prepared by the McLennan County District Attorney's
Office in State v. Clendennen, No. 2015-1955-2. See Appendix 4.
2
STATEMENT OF JURISDICTION
The Court has jurisdiction of this Petition pursuant to Tex. Gov't Code §
22.221.
The Petition is also brought under Article 1, Section 8 of the Texas
Constitution and the First Amendment to the United States Constitution.
3
I. Whether District Court had jurisdiction to order.
Whether the District Court's gag order violates Article 1, Section 8 of
the Texas Constitution.
III. Whether the District Court's order violates the Amendment to
the United Constitution.
4
STATEMENT OF FACTS
I. The State's Publicity Machine 2
A. Patrick Swanton
On May 17, 2015-May 18,2015, the Waco Police held at least five different
press conferences before local, national and international media painting the indelible
image that all members of motorcycle clubs were actually members of" biker gangs."
For example, Patrick Swanton, the police spokesperson, told the media:
• If you looked at the motorcyclists on that day "you would know they
were not people you wanted to be around."
• The motorcyclists were not at Twin Peaks to "drink beer and eat
barbeque."
• The motorcyclists all participated one way or the other III what
happened at Twin Peaks.
• The motorcyclists came to Twin Peaks with "violence in mind."
In fact, Officer Swanton repeatedly told the hordes of media that this was the worst
crime scene he and other member oflaw enforcement had witnessed in their careers
that spanned several decades. Also, he described the incident as starting inside the
2Mr. Clendennen acknowledges that the videos described herein were not before the trial
court. The problem, however, is that all the trial court had before it was the one article cited in
the State' s Motion for a Gag Order. Mr. Clendennen submits that this one article was hardly a
sufficient basis on which to impose a wholesale gag order. Nevertheless, to the extent
Respondent argues that he could take "judicial notice" of other unidentified media, so too could
this Court take judicial notice of the media described herein.
5
Twin Peaks, however, that was later shown to be false when the Associated Press
obtained a copy of the Twin Peaks video and reported on its contents. See Appendix
5 (videos B-D).
B. Abel Reyna
Not to be outdone, on May 21,2015, McLennan County District Attorney Abel
Reyna gave an eighteen minute television interview featuring witty sound bites in
which he told the media:
• Based on what he saw, nothing was telling him that all 177
motorcyclists were not guilty.
• The motorcyclists were guilty because they were not "acting like
victims."
• "I'll bet on our own gang before I bet on their gang."
• The motorcyclists were not at Twin Peaks "just to eat lunch."
• The motorcyclists would not get away with what they did "not in this
county, not on my watch."
ld. (Video A).
c. Brent Stroman
On June 12, 2015, Waco Chief of Police Brent Stroman gave a press
conference in which he repeatedly reiterated that the police had probable cause to
arrest the 177 motorcyclist, that he had seen the video of what happened and he
wanted it released to the public because "it would show what happened." Id. (Video
6
E)
II. The Gag Order Motion
As noted above, the State filed its Motion for a Gag Order minutes before a
hearing on the City of Waco's motion to quash Mr. Clendennen's subpoena duces
tecum to Twin Peaks to produce a copy of its surveillance video. The entirety of the
State's argument in that motion was as follows:
The State further moves that the court impose a gag order on all parties
as the defendant, through his attorney has stated that his intent is not
limited to legal proceedings. In a KCEN television interview on June
25,2015, Attorney Clinton Broden said, "ifand when he gets the video,
he will make it public. That's the plan," said Broden. The State
requests that the Court order all parties involved in this case to strictly
adhere to the letter and spirit of the Texas Disciplinary Rules of
Professional Conduct governing Trial Publicity. Specifically all
attorneys shall refrain from making "extrajudicial statements that a
reasonable person would expect to be disseminate by means of public
communication if the lawyer knows or reasonably should know that it
will have a substantial likelihood of materially prejudicing an
adjudicatory proceeding." Tex. R. Profl Conduct Rule 3.07
See Appendix 3. The only media attached to the motion was the KCEN article
referenced in its motion.
III. The Gag Order
The Court's gag order, prepared by the District Attorney ' s Office, takesjudicial
notice of:
1) the usually emotional nature of the issues involved in the case;
7
2) the extensive local and national media coverage the case has already
generated; and
3) the various and numerous media interviews with counsel for the
parties that have been published and broadcast by local and national
media.
See Appendix 4. Based upon this alone the Court ordered a complete gag order on
1) the parties in the Clendennen case; 2) the attorneys in the Clendennen case; 3) law
enforcement as it relates to the Clendennen case; and 4) any witnesses in the
Clendennen case that previously made statements to law enforcement or the District
Attorney's Office.
IV. What the Gag Order Does Not Cover
In the State's haste to get a gag order in place, what the gag order does not
cover is almost important as to what it does cover.
First, it does not cover
1) the parties in the 176 other motorcyclist cases;
2) the attorneys, including the District Attorney's Office, in the 176
other motorcyclist cases;
3) law enforcement as it relates to the 176 other motorcyclist cases; and
4) any witnesses in the 176 other motorcyclist cases that previously
made statements to law enforcement or the District Attorney's Office.
Second, the gag order is not clear ifit covers statements in connection with a
8
civil case Mr. Clendennen filed in federal court against the City of Waco, the County
of McLennan and various officials. See Clendennen v. Chavez, et.al., No.6: 15-cv-
00173 (W.D. Tex.).
Third, the gag order does not cover the parties in the litigation in the 54 th
District Court of Dallas County between Twin Peaks and a neighboring restaurant
over whether the neighboring restaurant loss business as a result of what happened
at Twin Peaks. See DC Waco Restaurant, Inc. D/b/a Don Carlos Restaurant vs.
Peaktastic Beverage, LLC D/B/A Twin Peaks Restaurant, et. al., No. DC-lS-0S787.
9
SUMMARY OF THE ARGUMENT
Because there has yet to be an indictment in this case vesting the district court
with full jurisdiction over this case, the district court was without jurisdiction to
impose a comprehensive gag order in the case.
In any event, the gag order imposed violated Mr. Clendennen's right to free
speech under both the Texas Constitution and the United States Constitution. The
findings made by the District Court in adopting the State's gag order are insufficient
to establish that any unidentified pretrial publicity in this case has risen to the level
that it poses "imminent" and "severe" harm to a "fair and impartial trial. '" More
importantly, given the unique nature of the case, which has 176 identical companion
cases, a gag order is likely to be ineffectual and is not the "lest restrictive means" to
prevent any identified harm. Respondent abused his discretion in entering the gag
order in this case.
10
"Mandamus appropriate method by which to challenge a " In
re Benton, 238 S.W.3d 587, 592 App.-Houst.[14th] 2007).3 Moreover, a
order" will normally a Relator to " Davenport v.
S.W.2d 73 1992).
real or there a noxIOUS odor surrounding the
investigation by the Waco Police the McLennan County District Attorney's
Office with to the . Peaks Shooting" and the wholesale atTest 1
motorcycl ists on identical, "fill-in-the-name" criminal complaints.
Nevertheless, as Justice Brandeis said: "Publicity justly commended as a t"PM""'rIU
for and industrial diseases. is said to best of disinfectants;
electric light most efficient policeman." D. Brandeis, People's
Money-and How Bankers Use It (1914).
This still today by federal and courts.
noted by United States Supreme Court and discussed in Benton, criminal
system exists a larger government ultimately of the who
wish to informed about happenings In criminal justice system, and,
3"To demonstrate the right to mandamus relief, must establish that (a) the trial
court clearly its discretion, (b) the relator no adequate by appeal."
Benton, S.W.3d at 592.
11
sufficiently informed about those happenings, might wish to make changes in
system." Gentilev. State Bar of Nev. , 501 U.S. 1030, 1070(1991).
The judicial system, and in particular our criminal justice courts,
play a vital part in a democratic state, and the public has a
legitimate interest in their operations. "[I]t would be difficult to
out any aspect of government of higher concern importance
to the people than the manner in which trials are conducted."
Public serves us for "[t]he knowledge that criminal
trial is subject contemporaneous in the forum of public
opmlOn an effective restraint on possible abuse of judicial power. ...
Without publicity, all other checks are insufficient: in comparison of
publicity, all checks are of small account." we said in Bridges
v. California, limits upon public comment about pending cases are
"likely to fall not only a crucial time but upon the most important
topics of discussion .... ["]
ld. at 1035 (citations omitted) (emphasis added).
IS this backdrop that Mr. Clendennen urges the to review his
state and federal constitutional challenges to the order urged by McLennan
County District Attorney's Office and Court.
As noted above, this case pending based upon a criminal complaint
4Mr. Clendennen acknowledges he did not object below to District Court's
jurisdiction to enter the of jurisdiction in District Court is
fundamental error and is subject to review first on " Haskett v. 567
841, App. Christi 1978). See also, Orr v. International of
Commerce, 649 S.W.2d 769, 771 App.-San Antonio 1983).
12
by a Justice of the Appendix 1. was in connection
with Mr. Clendennen's attempt to obtain, via a subpoena duces tecum, a copy of Twin
surveillance tape. subpoena was sought, , in connection with
motions by Mr. Clendennen to amend his bond conditions. It was sought under the
Court case number 201 195 which was assigned in connection with Mr.
Clendennen's original Application for Writ of Habeas Corpus Seeking Bail Reduction
which had previously granted.
Mr. Clendennen submits that the District Court's jurisdiction to consider an
Application for Writ of ..u.H/V .... ..., Corpus and to amend bond conditions set
pursuant to that Application does not give the District Court full jurisdiction
impose a gag order in a case pending before a Justice of the Peace. On point Ex
Parte Clear, 5 S.W.2d 224 Crim. App. 1978) the Court of Criminal
Appeals held that, when a criminal complaint is pending before a Justice of the Peace,
a district court does not general jurisdiction to orders in case. Indeed,
the of an indictment essential to a trial court with jurisdiction over a
offense. Cookv. 902 S.W.2d 471,475 Crim. App. 1995);
Port, 674 S.W.2d 772, App. 1984).
no indictment has filed against Mr. Clendennen, the
District Court had jurisdiction only to rule on matters related the Application for
13
Writ of Habeas Corpus such as amounts and bond conditions in this case,
subpoena application connection with
Clendennen's bond conditions.
Constitution.
III. The District Court's Gag Order Violates the First Amendment to the United
States Constitution.
A. Constitutional Consideration and the Three Key Cases
seminal case on in State of Texas is v.
S.WA 1992). a civil case, its
applied to gag orders in criminal cases. See Benton, 8
In re Graves, 217 S.W.3d (Tex. App.-Waco 2007); San Antonio
Express-News v. Roman, 861 S.W.2d , 268 (Tex. App. San Antonio 1
Court has noted that of Criminal Appeals
the Supreme when addressing
5
law." Graves, 217
Supreme Court in H'"'''''''' clear that, despite broad
anything, gag orders should even in criminal cases because "it
difficult to single out any aspect of higher concern and importance to
than the manner in which criminal are conducted." Richmond Newspapers, Inc,
448 U.S. 555,574 (1980).
14
freedom of speech protections gIven United States citizens under the First
Amendment to the United States Constitution, Article 1, Section 8 of the Texas
Constitution gives even greater free speech protections to citizens of our state.
Davenport, 834 S.W.2d at 12 ("When a state court interprets the constitution of its
state merely as a restatement of the Federal Constitution, it both insults the dignity
of the state charter and denies citizens the fullest protection of their rights. "); Id. at
7 ("The history of [Article 1, Section 8 ] provision is a rich one, and its language
demonstrates Texas! strong and longstanding commitment to free speech. By the
plain language of our constitution, this fundamental liberty 'shall forever remain
inviolate. ''').
The Texas Supreme Court held that, to justify a gag order, it must be shown (1)
that, without the gag order, an imminent and irreparable harm to the judicial process
will deprive litigants of a just resolution of their dispute, and (2) the judicial action
represents the least restrictive means to prevent that harm. Id. at 10. In fact, with
regard to the first prong, the Supreme Court made clear that the harm must be
"imminent" and "severe." Ultimately, the Davenport court found that a gag order
providing:
1. Counsel in this case, present and former, are expressly ORDERED
to refrain from discussing or publishing in writing or otherwise, any
matters of this case with any persons other than their clients, agents, or
employees in the necessary course of business in this case.
15
2. Counsel is ORDERED to refrain from any public comment, casual
or otherwise concerning the facts of this case or the conduct of counsel
in this case other than in a court hearing.
violated the right to free expression guaranteed under the Texas Constitution. Id. at
11. (''' [T]he argument of convenience can have no weight as against those safeguards
of the constitution which were intended by our fathers for the preservation of the
rights and liberties of the citizen.'" (citation omitted)).
Following the Texas Supreme Court's Davenport case, there were two cases
where gag orders were challenged by a criminal defendant that are on point. The first
was Benton from the Fourteenth Court of Appeals and the second was Graves from
this Court. These two cases can be immediately distinguished from In re Houston
Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App. Houst (14th 2001), one of the only
cases upholding a gag order, because in that case (the Andrea Yates case) "the prior
restraint on speech was not the subject of a constitutional challenge from any
individual who was the subject of the order." Benton, 238 S.W.3d at 601, n. 25. 6
Benton involved a gang fight in Houston. Benton, 238 S.W.3d at 588. The
State requested a gag order and, much like here, alleged that the defense made "extra
judicial statements to the media" that violated the Texas Disciplinary Rules of
6Nevertheless, as an indication that little reflection was given to the serious free speech
implications of the gag order imposed in the instant case, the instant gag order has identical
findings as the gag order in Houston Chronicle. It stands to reason that the free speech
principles announced in Davenport do not permit "one size fits all" gag orders.
16
Professional Conduct. Jd. at 1. After the District Court entered a comprehensive
the defendant sought mandamus argued the order violated
OJV",'"'' rights the Texas Constitution that the evidence was insufficient
to establish likelihood of the required level of prejudice to the ,,' ""'f;;" of
process or imminence of such Jd. at 592.
The Benton court ultimately detennined that gag was unconstitutional
even under the slightly more lenient Amendment because the trial court's
when imposing the order did not "establish, as a 'constitutional
minimum,' that order was narrowly-tailored to avert a substantial likelihood
udice." Jd. at 597. first that gag "primarily focused on
relator's right to a fair trial and an impartial " Jd. 7 It then noted that the district
court "presumed that publicity inherently prejudicial to a criminal defendant." Jd.
The Benton ultimately detennined that the district court abused discretion
entering the gag order at m case. at 601.
This Court in Graves dealt with the following findings connection with a
order:
1. The prior proceeding in this cause of action, and other related actions
which Court takes judicial
7This is similar to instant order which purports to be concerned
publici ty that interfere with the defendant's to a by an impartial jury."
17
The pre-trial publicity which has already occurred in this case, which
includes local and national newspaper coverage, of which the Court
takes judicial notice;
3. The rulings and opinions which set out the inherent power of the
Court to control its own proceedings, and to assure that a fair trial is
provided for the State and the Defendant in this cause;
4. Whereupon the Court does find that it is necessary to enter this
Restrictive Order to protect and provide for a fair and impartial trial in
this cause of action.
Id. at 746. Like Mr. Clendennen, "Graves at least implicitly dispute[ d] that pretrial
publicity in his case ha[ dJ risen to the level that it pose[ dJ 'imminent and irreparable
harm' to a 'fair and impartial trial. '" Id. at 752 Ultimately, this Court concluded that
the Respondent trial judge "failed to make 'specific findings' detailing the nature or
extent of the pretrial publicity in Graves's case or how the pretrial pUblicity or the
record from his prior prosecution will impact the right to a fair and impartial jury."
Jd. at 752-53.
B. Applying the Principles to the Instant Case
It appears the State believes that it is consistent with constitutional principles
for it to be allowed to give repeated interviews designed to portray 177 member of
motorcycle clubs to be "gang members" who came to Twin Peaks on May 17,2015
only with "violence in mind" and not "just to eat lunch." Then the State believes that
ten minutes before an unrelated hearing it can, for the first time, complain about the
18
publicity that its previous of what at Twin Peaks into serious
doubt. The unvarnished truth of the matter that the State had absolutely nO concern
with Matthew Clendennen's right to a trial when it held its ..a r ' a .... 'rar1 press
earlier in this case and certainly its concern now for "the
right to a fair trial by an impartial is transparently hollow.
It clear that in rushed way State presented its order request,
Respondent was not able make true "specific findings" as to whether pretrial
pUblicity would impact the right to a fair impartial' and whether it was
the restrictive means to prevent harm. That is likely why findings in a
case involving 177 motorcyclist are identical to the findings in a case involving a
mother withe severe psychological problems who murdered her children.
Moreover, in this case, a is simply impossible unworkable given
State's decision 1 motorcyclists in identical criminal complaints.
noted above, order only attorneys and in State v.
Clendennen. It not apply to the attorneys and parties in other 176 cases. 8
Moreover, it does apply to related litigation occurring in other state and federal
courts. Ultimately, the order will collapse under unprecedented action by
8Technically, the District Office and the Waco Police can continue to
conference simply any with "this just to the 176
not Matthew Clendennen."
19
State to 177 with the exact same offense.
In sum, findings by District Court are insufficient to establish that any
unidentified pretrial publicity In case risen to the level that it
"imminent" harm to a "fair and impartial trial.'" More importantly,
the unique nature of 1 a order likely to be ineffectual and
is not the "lest means" to prevent any identified harm. gag In
this case offends Mr. Clendennen's rights under Constitution
United Constitution Respondent abused his discretion in imposing such
an order. 9
9To put gag order in this case, which was only a month Mr.
Clendennen's into a reVIew docket sheets Branch Davidian case
reveals that a "gag order" was not entered until approximately eight months after charges were
filed and just shortly triaL See States v. 6:93-cr-00046 (W.D. Tex).
in "Boston Bomber" case there does not appear to been gag
entered. See United States v. No.1: 13-cr-l 0200 (D.
20
PRAYER
For the reasons, the trial court's gag order should vacated and the
writ of
Respectfully
TX Bar No. 24001
Broden, Mickelsen, & Snipes, LLP
2600 State Street
Dallas, Texas
(214) 720-95
(214) 720-9594(facsimile)
Attorney for
Matthew Alan
21
VERIFICATION
STATE OF TEXAS
COUNTY OF DALLAS
F. Clinton Broden, being duly sworn, under oath says: "I am the petitioner in
this action and know the contents of the above Emergency Petition for Writ of
Mandamus and, according to my belief, the facts stated in the Petition are true."
!
F. Clinton Broden
SUBSCRIBED AND SWORN TO BEFORE ME THIS 1st DAY OF
July, 2015.
SARAH E KLEIN
My Commission Expires
June 7, 2017
22
CERTIFICATE OF SERVICE
I, F. Clinton Broden, do that, on this 1st day July, 2015, I
caused a copy of the ,"''''A
"tn. .. document to be served by overnight mail,
prepaid, on:.
Honorable Matt Johnson
54 th • Court
501 Washington Ave., Suite 305
Waco, 76701
McLennan County District Attorney
219 N 6th
Waco, 76701
F. Clinton Broden
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Tex. R. App. P.9.4
because this brief contains __4,113_______ words, excluding the parts of the brief
exempted by the rule.
/s/ F. Clinton Broden
F. Clinton Broden
24
DECLARATION REGARDING APPENDIX PURSUANT TO TEXAS RULE
OF APPELLATE PROCEDURE 52.3
I, Abelino “Abel” Reyna, do hereby certify that Appendix 1 is a true, correct and
exact copy of the criminal complaint filed in this matter.
I, Abelino “Abel” Reyna, do hereby certify that Appendix 2 is a true, correct and
exact copy of the order received from the Justice of the Peace Court in this matter.
I, Abelino “Abel” Reyna, do hereby certify that Appendix 3 is a true, correct and
exact copy of the motion to quash and motion to issue a gag order and attached
exhibits filed by the State in this matter.
I, Abelino “Abel” Reyna, do hereby certify that Appendix 4 is a true, correct and
exact copy of the gag order issued by Judge Matt Johnson in this matter.
I, Abelino “Abel” Reyna, do hereby certify that Appendix 5 is a true, correct and
exact copy of videos copied from www.kxxv.com and www.kcentv.com. In
particular:
Video A:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11521196&h1
=Full%20interview%20with%20McLennan%20County%20DA%20Abel%20Reyn
a&vt1=v&at1=News&d1=1102100&LaunchPageAdTag=Search%20Results&acti
vePane=info&rnd=47679083
Videos B:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11508009&h
1=Monday%20Biker%20Gang%20Press%20Conference&vt1=v&at1=News&d1=
2070172&LaunchPageAdTag=Search%20Results&activePane=info&rnd=455969
85
Video C:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11511950&h1
=New%20details%20emerge%20of%20what%20started%20biker%20gang%20sh
ootout&vt1=v&at1=News&d1=1481874&LaunchPageAdTag=Search%20Result&
activePane=info&rnd=91422993
Video D:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11505906&h1
=Biker%20Gang%20Shooting%20Presser%204&vt1=v&at1=News&d1=571172&
LaunchPageAdTag=Search %20Results&activePane=info&rnd=76876797
Video E: http://www.kcentv.com/story/29307580/waco-police-release-new-details-
on-twinpeaks-shooting
I, Abelino “Abel” Reyna, do hereby certify that Appendix 6 is a true, correct and
exact copy of the order from the 10th Court of Appeals conditionally granting the
writ of mandamus in this matter.
I, Abelino “Abel” Reyna, do hereby certify that Appendix 7 is a true, correct and
exact copy of the petition for writ of mandamus filed by Matthew Clendennen in
the 10th Court of Appeals under appellate case no. 10-15-00235-CR.
Respectfully Submitted:
ABELINO ‘ABEL’ REYNA
Criminal District Attorney
McLennan County, Texas
/s/ Abelino Reyna
ABELINO ‘ABEL’ REYNA
Criminal District Attorney
219 North 6th Street, Suite 200
Waco, Texas 76701
[Tel.] (254) 757-5084
[Fax] (254) 757-5021
[Email]
abel.reyna@co.mclennan.tx.us
State Bar No. 24000087
CERTIFICATE OF SERVICE
I certify that I caused to be served a true and correct copy of this Appendix
by electronic service or email or hand delivery on:
Respondent, 10th Court of Appeals Waco, Texas by hand delivery per request of
Chief Justice Tom Gray
Attorney, F. Clint Broden, for Real Party in Interest, Matthew Clendennen at
clint@texascrimlaw.com
Real Party in Interest, Judge Matt Johnson, 54th District Court, McLennan County
Texas at matt.johnson@co.mclennan.tx.us
DATE: 8/11/15 /S/ ABELINO ‘ABEL’ REYNA
ABELINO ‘ABEL’ REYNA