TEXAS COURT OF CRIMINAL APPEALS 

_________________________

CASE NO. 

WR-83,719-01 

________________________ 

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 54th District Court, McLennan county 

Honorable Matt Johnson, Presiding 

Appellate Cause No. 10-14-00235-CR

10th Court of Appeals 

Waco, Texas 

_______________________ 

BRIEF OF AMICI CURIAE, 33 DEFENDANTS WRONGFULLY ACCUSED OF 

ENGAGING IN ORGANIZED CRIMINAL ACTIVITY *, IN SUPPORT OF 

RESPONDENT MATTHEW ALAN CLENDENNEN’S RESPONSE TO THE 

STATE’S PETITION FOR WRIT OF MANDAMUS

________________________ 

ROBERT CALLAHAN 

TX Bar No. 24051641 

Callahan & King, PLLC 

One Liberty Place 

100 N. 6th 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

CLERK
IDENTITY OF AMICI CURIAE

Susan E. Anderson, 

Attorney for Dalton Davis

3500 Maple, Suite 400

Dallas, Texas 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, Texas 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: 24064140
Roger 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

Attorney 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, Eliodoro 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: 24053513
John Wiersgalla

Attorney for Narciso Luna and Victor Pizana

100 N. 6th St., Suite 902

Waco, Texas 76701

Ph. 254-717-8600

Fx,. 254-313-3200

SBN: 24059231
TABLE 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

iv.
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 [14th 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 the Texas Constitution..............................................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 

attempting 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 the 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 which 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 this 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 that 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 that the statements made by the State 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 District Attorney Has Publicly Invited Prejudgment of, and 

Expressed Opinions About, 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, KXXV1regarding 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 agencies, and at a time where 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 innocence of the accused 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 enforcement:

“I’ve heard enough about...’most of these people were victims’. Well guess 

what? If they’re victims, they 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-police
individuals 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 right 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.” 

The District Attorney continues, attacking the right to a fair and impartial trial, and

the presumption of innocence, 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 taking 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 that the State can act as 

the guardian for the accused’s right to a fair trial. See p. 14, State’s Petition to Stay 

and Writ of Mandamus. The best antidote to counteract the venom of these public 

statements is to give each of the accused the option of speaking 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. Clendennen are narrowly tailored, addressing only his culpability. Therefore, 

the State has not shown a particularized need for silencing Mr. Clendennen. 

2. The Fact that the District Attorney Has No Intention of Honoring His 

Proposed Gag order is Evidenced by the Fact 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. Clendennen updated his filing to this Court stating 

that Mr. Reyna has appealed to this court with “unclean hands”. Without filing a 

response, and refusing to allow this 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. Clendennen’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 numerous 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 great irony in all of this is that 

Mr. Reyna does not seem to realize that if this Court upholds his gag order then the 

trial court must find that he is in contempt for violating it. Thus, even the casual

7.

 

2 http://www.kxxv.com/story/30094230/reyna
observer must recognize that Mr. Clendennen’s interest 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 stall tactic to keep Mr. Clendennen silent while 

the State continues to speak. 

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

That the Statements Made by the State Were So Prejudicial That Voir Dire 

and Other Curative Measures to Negate the Effect of Any Prejudicial 

Publicity Could Not Fix the Problem

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 

gained 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. The 

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, there 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, there 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 voir dire commences. 

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

Constitution 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 [14th 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 25, 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. Callahan, II, certify that, on this 25th 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 

54th District court 

501 Washington Ave, Suite 305

Waco, Texas 76701

McLennan County District Attorney

219 N. 6th St.

Waco, Texas 76701

Tenth Court of Appeals

501 Washington Ave. 

Waco, Texas 76701

/s/ Robert G. Callahan, II

Robert G. Callahan, II

12.