TEXAS COURT OF CRIMINAL APPEALS

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CASE NO.

WR-83,719-01

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IN RE STATE OF TEXAS EX REL. MATT JOHNSON Relator Vs. COURT OF APPEALS FOR THE TENTH DISTRICT, REAL PARTY IN

INTEREST MATTHEW ALAN CLENDENNEN

Respondent

_______________________
Trial Cause No. 2015-1955 -2 In the 54 th District Court, McLennan county Honorable Matt Johnson, Presiding
Appellate Cause No. 10-14 -00235

- CR 10 th Court of Appeals Waco, Texas

_______________________ BRIEF OF AMICI CURIAE, 3 3 DEFENDANTS WRONGFULLY ACCUSED OF ENGAGING IN ORGANIZED CRIMINAL ACTIVITY * , IN SUPPORT OF RESPONDENT MATTHEW ALAN CLENDENNE N’S RESPONSE TO THE STATE’S PETITION FOR WRIT OF MANDAMUS

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ROBERT CALLAHAN TX Bar No. 24051641 Callahan & King, PLLC One Liberty Place 100 N. 6 th Street, Suite 902 Waco, TX 76701 (254) 717 -8600 (254) 313 -3200 (fx) Attorney for William Chance Aikin

* A full list of amici is reproduced on the next page WR-83,719-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 9/25/2015 2:57:55 PM Accepted 9/25/2015 3:15:35 PM

ABEL ACOSTA CLERKIDENTITY OF AMICI CURIAE

Susan E. Anderson, Attorney for Dalton Davis 3500 Maple, Suite 400 Dallas, T exas 75219 Ph. 214

- 649

- 4090 Fx. 214

- 845

- 7006 SBN: 00794941
Bobby Dale Barina Attorney for Richard Martin Kreder 455 E. Central Texas Expy, Suite 104 Harker Heights, Texas 76548 Ph. 254

- 699

- 3755 Fx. 254

- 699

- 1074 SBN: 01738480
David Conrad Beyer Attorney for Bill Jason McRee 1203 Buena Vista Suite 201 San Antonio, T exas 78207 Ph. 817

- 307

- 6471 Fx, 866

- 273

- 4786 SBN: 24090657
Monica P. Bishop Attorney for James Michael Devoll 113 East Franklin Waxahachie, Texas 75165 Ph. 972

- 923

- 1900 Fx. 972

- 923

- 0701 SBN: 24040525

Brian Bouffard Attorney for Jorge Salinas 909 W. Magnolia Ave. , Suite 6 Ft. Worth, Texas 76104 Ph. 817

- 921

- 6000 Fx. 817

- 332

- 3108 SBN: 2403857 Clinton Broden, Attorney for Burton Bergman and Richard Luther 2600 State Street Dallas, Texas 75204 Ph. 254

- 720

- 9552 Fx. 214

- 720

- 9594 SBN: 24001495

F. Edward Brown Attorney for Craig Rodahl P.O. Box 1782 Belton, Texas 76513 Ph. 254

- 634

- 2587 Fx. 480

- 772

- 4229 SBN: 03121020
Judge (Ret.) Susan Criss and Rick Rousseau Attorneys for Rolando Reyes, Justin Waddington, Daryle Walker, and Ronald Scott Warren PO Box 17046 Galveston, Texas 77552 Ph. 409

- 515

- 6176 FX. 254

- 699

- 9999 SBN: 06630475 SBN: 24090929
Steven Denny Attorney for Owen Bartlett 2414 Line Ave. Amarillo, TX 79106 Ph. 806

- 379

- 2010 Fx. 806

- 379

- 2012 SBN: 24005798 A. Clay Graham Attorney for Lance Geneva 855 Texas St. Suite 120 Fort Worth, Texas 76117 Ph. 817

- 334

- 0081 Fx. 817

- 887

- 1474 SBN: 24064140Roger Haynes

Attorney for Nathan Champeau 3500 Maple Ave, Ste 400 Dallas, Texas 75219 Ph. 214

- 526

- 3300 Fx. 214

- 845

- 7006 SBN: 00795411
Michelle Latray Attorney for John Craft P.O. Box 122/221 W. Navasota St Groesbeck, Texas 76642 Ph. 254

- 729

- 2059 Fx. 254

- 729

- 5540 SBN: 24029683
Phillip Linder Attorney for Josh Martin 3500 Maple Ave, #400a Dallas, TX 75219 Ph. 214

- 252

- 9900 Fx. 214

- 845

- 7006 SBN: 12363560

Jay Norton A t torney for Martin Lewis 222 Main Plaza San Antonio, Texas 78205 Ph. 210

- 227

- 5103 Fx. 210

- 225

- 2481 SBN: 15105800
Gary D. Peak Attorney for Michael Don Baxley 101 W. Main Eastland Texas Ph. 254

- 629

- 1333 Fx. 254

- 631

- 0093 SBN: 15678670 Adam King Blackwell Reposa Attorney for Thomas Paul Landers, Jimmy Pond
, E liodoro Munguia
, William Redding
, Justin Garcia
, Ares Phoinix , and Gilbert Zamora 1106 San Antonio St. Austin, Texas 78701 Ph. 512

- 476

- 7376 Fx. 512

- 478

- 1114 SBN: 24040163
Daphne Silverman Attorney for Royce Van Vleck 501 N. IH

- 35 Austin, Texas 78702 Ph. 512

- 485

- 3003 Fx. 512

- 531

- 1658 SBN: 06739550
Gary Smart Attorney for Sandra Lynch 4214 Little Rd Arlington, Texas Ph. 817

- 419

- 0023 Fx. 817

- 417

- 6363 SBN: 18521500

John Stickels Attorney for Jeremy King PO Box 121431 Arlington, Texas 76012 Ph. 817

- 330

- 6655 Fx. 817

- 622

- 8071 SBN: 19225300

Joshua S. Tetens Attorney for Roy Covey 3706 Bellmead Dr. Waco, Texas 76705 Ph. 254

- 412

- 2300 Fx. 888

- 317

- 7610 SBN: 24053513John Wiersgalla

Attorney for Narciso Luna and Victor Pizana 100 N. 6 th St., Suite 902 Waco, T exas 76701 Ph. 254

- 717

- 8600 Fx,. 254

- 313

- 3200 SBN: 24059231TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................v

STATEMENT OF INTEREST OF AMICI CURIAE ....................................1

FEE DISCLOSURE STATEMENT ........................................................2

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

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

CONCLUSION ..............................................................................10

CERTIFICATE OF SERVICE

....................................... .......................12

i v.TABLE OF AUTHORITIES

Cases

Davenport v. Garcia , 834 S.W.2d 4 (Tex. 1992)

....................................... .. 9

In re Benton , 238 S.W. 3d 587 (Tex. App.

– Houston [14 th Dist.] 2007, no pet)......9

In re Graves , 217 S.W.3d 744 (Tex. App.

– Waco 2007, no pet.) .......................9

Patton v. Yount , 467 U.S. 1025, 1038 (1984) ..............................................8

Statutes Article I, Section 8 of t he Texas C onstitution ..............................................9

v

.STATEMENT OF INTERST OF AMICI CURIAE

Amici file this brief in support of Respondent, Matthew Alan Clendennen’s
response to the State’ s writ of mandamus. The State is attempting to silence those
they have accused of Engaging in Organized Criminal Activity while simultaneously
attemptin g to deprive the accused to the right to a fair trial.
As the accused, amici have a strong interest in ensuring their right to a fair
trial is maintained. This can only be accomplished by ensuring that any prior restraint
on speech imposed by a court meets constitutional requirements and take into

consideration the motivation of t he State in attempting to restrain the accused’s right
to free speech.
Due to the number of prejudicial public comments being made by the State,
the only way for the accused to ensure that they receive a fair trial is to be able to
exercise their right to free speech

– sanitizing the foul odor of public perception
which has been created by the State in an attempt to influence potential jurors.

Amici submit this brief to emphasize the constitutional interests at stake and

to inform the Court of matters whi ch it may not be aware, which should be

considered in the Court’s review of this matter.

1.FEE DISCLOSURE STATEMENT

Pursuant to Rule 11(c) of the Texas Rules of Appellate Procedure, amici
state that no fee was paid or will be paid for the preparing of this brief.

2

.SUMMARY OF ARGUMENT

The assertion that the state seeks this gag order to preserve the right to a fair
trial is a subterfuge. The gag order which the State seeks to maintain in this case only
comes after the State itself has made statements which are prejudicial in nature.
Those statements have been heralded by local, state, national, and international

outlets.
Moreover, because t his case is so public in nature, there are national, and
international, media outlets which continue to cover the progress of this case. When
so many sources are speaking about the same topic publicly, restraining the speech

of the accused only ensures th at they will not enjoy the right to a fair trial.

Voir Dire has previously been held to be the best tool to root out the prejudices
of the jury regarding extrajudicial statements. This court should only uphold the gag
order if it is willing to hold th at t he statements made by the St ate were so prejudicial

that voir dire will be insufficient to remedy the problem.

3

.ARGUMENT

1. Free Speech is the Only Recourse That the Accused Have in Light of the Fact

That the D istrict A ttorney Has Publicly Invite d Prejudgment of, and
Express ed Opinions A bout, the Guilt of All the Accused
On or about May 20, 2015, McLennan County District Attorney Abel Reyna gave
an exclusive interview to Waco News Channel 25, KXXV 1 regarding the Twin Peaks
situation. This interview aired less than four full days after the incident

– prior to the
conclusion of the investigation by law enforcement, prior to the receipt of any offense reports by many involved agen cies, and at a time wh ere only one of the 177
people arrested had bonded out of jail on the one million dollar bonds set in each

case. During this extended, eighteen minute interview, the District Attorney stated that
he had already investigated the claims of in nocence of the a ccused and that, in his
view, all of the individuals arrested at Twin Peaks were guilty. He further stated that
their guilt was proven by the fact that the accused did not “act like victim[s]” by
waiving their right to remain silent and talking to law enfo rcement:

“ I’ve heard enough about...’most of these people were victims’. Well guess what? If they’re victims, t hey shouldn’t have any problem coming to law
enforcement and cooperating to ensure that justice was done and the

4

.

1 http://www.kxxv.com/story/29120879/da

- defends

- 1m

- bonds

- says

- arrested

- bikers

- not

- cooperating

- with

- policeindividuals solely responsible are brought to justice and, at least the first round

of interviews we ain’t getting that”. This statement was made despite the fact that the District Attorney knew the

accused had been mirandized and informed of their constitutional ri ght to remain

silent. He continues attacking their Fifth Amendment rights by adding:
“I can tell you that, again, if someone is claiming that they were a victim and
they decided to put on their, their jacket or whatever, and they said they’re
going to be a member of this gang or what have you, I can tell you this, that
if you are a victim of this, then I would fully expect that you would act like a
victim and I just say that I’m not seeing that.”

T he District Attorney continues, attacking the right to a fair and impartial trial
, and
the presumption of inno cence, when he states:
“I know this. I know the motto of the Cossacks is to take care of your own. So if you’re showing up with those colors, you’re backing your brother. And if your brother is out there shooting a gun, and you’re taking care of your own, and as many weapons as were found out there, they weren’t out there just to eat lunch, they weren’t out there just to have their little meeting. They meant business and they fall under the definition of criminal street gang. They were engaging in organized criminal activity and at this point, that’s what the evidence to us points

. ”
In making these statements, the District Attorney has (in the public eye) lumped all
177 of the accused together, without ta king into consideration any of the

5

.circumstances of their individual cases. Since making these statements, the State

has done nothing to try to mitigate the damage that was done. Likewise, the State
has not acknowledged that its statements were improper attacks on the constitutional
right to a fair trial. Therefore, it is disingenuous for the State to now assert that its
primary motivation for the proposed gag order is to ensure th at the State can act as
the guardian for the accused ’s right t o a fair trial. See p. 14, State’s Petition to Stay
and Writ of Mandamus

. The best antidote to counteract th e venom of these public
statements is to give each of the accused the option of speaki ng out publicly
regarding their individual circumstances

.
It should also be noted that while the statements made by the State have been
sweeping in nature, working against all of the 177 arrested, the Statements made by

Mr. Clendenne n are narrowly tailored, addressing only his culpability. Therefore,
the State has not shown a particularized need for silencing Mr. Clendenne n.

2. The Fact that the District Attorney Has No Intention of Honoring His
Proposed Gag order i s Evidenced by the Fa ct that he Won’t Stop Talking

As though it were not enough, the District Attorney chooses to make the situation
even worse. Despite the fact that Mr. Reyna has requested the gag order in this case,
he has continues to give statements to the media.

6

.On Friday, September 18, 2015, the Associated Press reported that an unknown

source had leaked police reports to their organization. In response, Mr. Reyna

released a statement to the media:

“The fact that someone violated their ethical and legal obligations and the fact
that the ultra

- liberal AP is printing that material is evidence to me that my office is alone in trying to protect these individual’s constitutional right to a
fair trial...Our focus in the Twin Peaks matter will remain on the facts and the
law and not the ridiculousness occurring all around it. 2 ”
In response to this statement, Mr. Clendenne n updated his filing to this Court stating that Mr. Reyna has appealed to this court with “unclean hands”. Without filing a response, and r efusing to allow th is Court to determine the issue, the District Attorney continues attempting to litigate his case in the media. On Tuesday, September 22, 2015, Mr. Reyna sent a statement to News Channel 25, Waco in response to Mr. Clendenn e n’s supplement. In that statement , News 25 reports that the District Attorney says, “The allegation that I violated the gag order in any form or fashion is just another example of the ridiculousness I referred to in my
statement.” Id

. Clearly, the District attorney has now given numero us harmful statements to the media about the matters at bar while, in the same breath, claiming to champion the need for a fair trial. His statements serve no purpose but to prejudice the accused and ingratiate his office to the potential jury pool. The gr eat irony in all of this is that Mr. Reyna does not seem to realize that if this Court upholds his gag order then t he
trial court must find that he is in contempt for violating it. Thus, even the casual

7

.

2 http://www.kxxv.com/story/30094230/reynaobserver must recognize that Mr. Clendenne n’s inte rest in free speech is intertwined

with Mr. Reyna’s own liberty interest. It would, therefore, seem that the District Attorney only petitions this court as a st all tactic to keep Mr. Clendenne n silent while the State continues to speak.

3. A Gag Order Would Only Be Appropriate If This C ourt is Willing to Find

That the S tatements M ade by the St ate Were So Prejudicial That Voir Dire
and Other Curative Measures to Negate the Effect of Any Prejudicial
Publicity Could Not Fix the P roblem
The United States Supreme Court has previously held that voir dire is a reliable
means for identifying bias in the face of pre

- trial publicity. Patton v. Yount , 467 U.S.
1025, 1038 (1984). In Patton , appellant was granted a new trial due to an illegally

ga ined confession. At the second trial, during voir dire
, appellant moved for a change
of venue due to the publicity the case had created. Appellant asserted that the release
of prejudicial information made it impossible to pick a fair and impartial jury. Th e trial court denied appellant’s request and he was convicted. In denying the requested

relief , Justice Powell noted that voir dire is “the method we have relied on since the
beginning” in order to identify bias. Id

. Because of the ruling of Patton , this court should only grant the State relief if it

believes that the matter has progressed far enough that voir dire is incapable of fixing
the problem.
As a practical matter, t here are only three possibilities when it comes to the

8

.State’s assertion that there is a need for a gag order in this case:

1) The extrajudicial statements made have already tainted the potential jury pool;
2) The extrajudicial statements made may have tainted the potential jury pool; or
3) The extrajudicial statements made have not tainted the potential jury pool.

Addressing the first point, t here is, at this point, no hard data indicating whether the
jury pool has been tainted. As a practical matter, this may not be known until a
hearing can be conducted for that purpose, or until v oir dire commences.

Addressing the remaining possibilities, Article I, Section 8 of the Texas

C onstitution gives greater protection than the First Amendment to the United States

Constitution. Davenport v. Garcia , 834 S.W.2d 4 (Tex. 1992). Therefore , if the
extrajudicial statements made by the State may have tainted the potential jury pool,
or have not tainted the potential jury pool, then the proposed gag order would be an
improper prior restraint on freedom of speech. See In re Benton , 238 S.W. 3d 587
(Tex. App.

– Houston [14 th Dist.] 2007, no pet); In re Graves , 217 S.W.3d 744 (Tex.
App.

– Waco 2007, no pet.). The State cannot have it both ways.

9.CONCLUSION

For all the foregoing reasons, amici curiae respectfully urge this Court to
deny the State’s Petition for Writ of Mandamus and direct the district court to
vacate the gag order imposed.

/s/ Robert G. Callahan, II Robert G. Callahan, II Counsel for Amici Curiae
Dated: September 2 5 , 2015 Waco, Texas

10.CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)(3)

This brief complies with the type

- volume limitation of Texas Rule of Appellate Procedure 9.4(i)(3) because this brief contains 1,984 words, excluding the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4 (i)(1)

.

/s/ Robert G. Callahan, II

__________________________________ Robert G. Callahan, II Counsel for Amici Curiae

Dated: September 25 , 2015

Waco, Texas

11

.CERTIFICATE OF SERVICE

I, Robert G. Callah an, II, certify that, on this 25 th day of September, 2015, I
caused copies of the foregoing Brief of Amici Curiae to be served electronically,

via eFile Texas on:

F. Clinton Broden Broden, Mickelsen, Helms & Snipes, LLP 2600 State Street Dallas, Texas 75204 Counsel for Respondent Matthew Alan Clendennen

Honorable Matt Johnson 54 th District court 501 Washington Ave, Suite 305 Waco, Texas 76701

McLenn an County District Attorney 219 N. 6 th St. Waco, Texas 76701
Tenth Court of Appeals 501 Washington Ave. Waco, Texas 76701

/s/ Robert G. Callahan, II Robert G. Callahan, II

12.