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. ABELINO REYNA

Relator

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Trial Cause No. 2015-1955-2

In the 54 District Court, McLennan County th

Honorable Matt Johnson, Presiding

Appellate Cause No. 10-14-00235-CR

10 Court of Appeals th

Waco, Texas

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REPLY BY REAL-PART-IN-INTEREST MATTHEW ALAN

CLENDENNEN

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F. CLINTON BRODEN

TX Bar No. 24001495

Broden, Mickelsen, Helms & Snipes, LLP

2600 State Street

Dallas, Texas 75204

(214) 720-9552

(214) 720-9594(facsimile)

Attorney for Matthew Alan Clendennen

WR-83, 719-01

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 10/12/2015 10:36:17 AM

Accepted 10/13/2015 11:36:01 AM

ABEL ACOSTA

CLERK
TABLE OF CONTENTS

Page

TABLE OF CONTENTS...........................................................................................2

TABLE OF AUTHORITIES.....................................................................................3

REPLY.......................................................................................................................4

CERTIFICATE OF SERVICE..................................................................................9

CERTIFICATE OF COMPLIANCE.......................................................................10

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TABLE OF AUTHORITIES

Page

City of Fredericksburg v. Bopp, 126 S.W.3d 218 (Tex. App. – San Antonio

2003)..........................................................................................................................5

In re Simon Property (Delaware), Inc. 985 S.W.2d 212 (Tex. App .– Corpus

Christi 1999) .............................................................................................................5

Kentucky v. King, 131 S.Ct. 1849 (2011)..................................................................7

Riverfront Associates v. Rivera, 858 S.W.2d 366 (Tex. 1993)................................5

Smith v. Flack, 728 S.W.2d 784 (Tex. Cr. App.1987).............................................5

United States v. Wilson, 925 F.Supp.2d 410 (E.D.N.Y. 2013).................................7

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REPLY

On the eve of submission, an amicus brief was filed purportedly on behalf of

“nineTexas district attorneys.” Nevertheless, only eight district attorneys are actually

identified in the brief. Whether eight or nine, Mr. Clendennen believes a brief reply 1

is necessary in order to address the issues raised by amici. 

While not raised by Relator, amici’s brief discusses the “affirmative

constitutional duty” of trial courts “to minimize the effects of prejudicial pretrial

publicity.” See Amicus Curiae Brief of Nine Texas District Attorneys (“Amicus

Brief”) at 2-3, 10. Nevertheless, amici does not acknowledge that this was not a gag

order entered by the trial court sua sponte. Instead, it was a gag order requested by

Relator minutes before an unrelated hearing with little time for consideration by the

trial court.

Next, while Relator’s brief simply continued his canard that he sought the gag

order in an altruistic effort to preserve the rights of Mr. Clendennen and other

defendants, amici now claims it was actually sought to preserve the “State’s interest

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in a fair trial.” See Amicus Brief at 11. While amici’s argument is admittedly less

Seven are identified on the Identity of Amicus Curiae page in addition to District 1

Attorney Rene Pena, the author of the brief.

Not surprisingly, despite the numerous amicus briefs filed in this matter, not one of the 2

other 176 individuals charged in this matter has filed an amicus brief in support of the gag order.

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disingenuous than Relator’s argument, amici turns a blind eye to the fact that, prior

to seeking the gag order, the State engaged in an unrelenting campaign using world

wide media outlets which was designed to scare the public with pictures of roving

“biker gangs” and only sought the gag order when it concluded that it had sufficiently

accomplished that task. As previously pointed out by Mr. Clendennen, “[a]lthough

mandamus is not an equitable remedy, its issuance is largely controlled by equitable

principles.” Riverfront Associates v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993); Smith

v. Flack, 728 S.W.2d 784, 792 (Tex. Cr. App.1987). Moreover, “a party seeking an

equitable remedy must do equity and come to court with clean hands.” City of

Fredericksburg v. Bopp, 126 S.W.3d 218, 220 (Tex. App. – San Antonio 2003). 

Consequently,“Texas courts have held that, because mandamus is governed to some

extent by equitable principles, a party that comes before the court with unclean hands

is not entitled to issuance of a writ of mandamus.” In re Simon Property

(Delaware), Inc. 985 S.W.2d 212, 215 (Tex. App .– Corpus Christi 1999) (emphasis

added), citing, Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 552 n. 2 (Tex. 1990).

Next, while the eight district attorneys claim that “only the willfully blind

cannot see why” lesser restrictive means do not exist other than to impose the

comprehensive gag order on Mr. Clendennen (Amicus Brief at 10), they point to

nothing to indicate that the trial court actually considered these lesser restrictive

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means. Moreover, like Relator, amici wholly fail to explain how a gag order imposed

in one criminal case- in a circumstances where there are (1) 176 similarly situated

criminal cases(many in other courts), (2) related civil casesin state and federal court,

and (3) judges who make their own comments to the media regarding the case soeffectively offers any of the protections identified by amici.3

The eight or nine district attorneys conclude their amici brief by accusing Mr.

Clendennen and the amici who submitted briefs on his behalf of not proposing a valid

alternative to a gag order. See Amicus Br. at 10-11. Therefore, let Mr. Clendennen

be very clear and restate explicitly what he has previously stated at least implicitly. 

This case should be handled like many other high profile cases. Article I, Section 8

of the Texas Constitution and the First Amendment should be fully respected and the

parties should be strictly bound by the Rules of Professional Conduct governing

Pretrial Publicity. See Tex. R. Prof. Conduct 3.07. If and when it gets closer to trial

(recall Mr. Clendennen has not even been indicted and his trial islikely at least a year

away even assuming a grand jury was to indict him), the district court could revisit

Amici points to the “daunting and costly task’ of selecting 5,665 panelists for the 177 3

“potential trials.” See Amicus Br. at. 10. First, Mr. Clendennen has much more faith in the

citizens of McLennan County than does amici. It is highly likely that no fairly constituted grand

jury of McLennan County citizens will indict many of the 177 since a large majority were mere

witnesses. Second, amici, who write in support of Relator, fail to ask where Relator’s concern

was about this “daunting and costly task” when he gave a television interview only a few days

after the incident in which he announced all 177 were apparently guilty simply because they were

not acting sufficiently like victims in Relator’s mind by cooperating with police. 

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the necessity of a narrow gag order after first fully considering alternatives such as

“a searching voir dire; emphatic jury instructions; emphatic warningsto the press and

parties; an anonymous jury; and sequestration of jurors.” United States v. Wilson,

925 F.Supp.2d 410, 412 (E.D.N.Y. 2013).

On the other hand, what should never be viewed as a viable solution isto allow

this Court to be played as a pawn in Relator’s game. Relator and the State should not

be allowed to engage in the wholesale arrest of numerous innocent individuals using

fill-in-the-name criminal complaints; then give numerous interviews proclaiming

their guilt while, at the same time, scaring the public with images of roving “biker

gangs;” and then go to a court minutes before an unrelated hearing and request a

comprehensive gag order; then seek a type of relief from this Court that is controlled

by equitable principles while also brazenly violating the very gag order Relator

requested. To permit such gamesmanship will create a very dangerous precedent. 

Indeed, courts recognize that parties to the criminal justice system should not be

allowed to manufacture particular circumstances and then rely upon those

circumstances to request relief from the courts.

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Cf. Kentucky v. King, 131 S.Ct. 1849, 1858 (2011) 4

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Respectfully submitted,

/s/F. Clinton Broden

F. CLINTON BRODEN

TX Bar No. 24001495

Broden, Mickelsen, Helms & Snipes, LLP

2600 State Street

Dallas, Texas 75204

(214) 720-9552

(214) 720-9594(facsimile)

Attorney for Matthew Alan Clendennen

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CERTIFICATE OF SERVICE

I, F. Clinton Broden, do hereby certify that, on this 12th day of October, 2015,

I caused a copy of the foregoing document to be served by electronic means, on:

McLennan County District Attorney

219 N 6th St

Waco, Texas 76701

Tenth Court of Appeals

501 Washington Ave.

Waco, Texas 76701

/s/ F. Clinton Broden

F. Clinton Broden

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Tex. R. App. P.9.4

because this brief contains 674 words, excluding the parts of the brief exempted by

the rule.

/s/ F. Clinton Broden

F. Clinton Broden

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