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 motorcyMng: ... '"'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.

Around the Web

16
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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