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

WR-83,719-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 9/14/2015 3:49:15 PM
September 15, 2015 Accepted 9/14/2015 4:05:58 PM
No. WR-83,719-01
ABEL ACOSTA
CLERK

IN THE
TEXAS COURT OF CRIMINAL APPEALS
SITTING AT AUSTIN, TEXAS
_________________________________________________
IN RE STATE OF TEXAS EX REL. ABELINO REYNA,
RELATOR
___________________________________________
A PETITION FOR WRIT OF MANDAMUS
CAUSE NO. 10-15-00235-CR
FROM THE 10TH COURT OF APPEALS DISTRICT
WACO, TEXAS

CAUSE NO. 2015-1955-2
FROM THE 54TH JUDICIAL DISTRICT COURT OF
MCLENNAN COUNTY, TEXAS
____________________________________________

STATE'S BRIEF
____________________________________________

ABELINO "ABEL" REYNA
Criminal District Attorney
McLennan County, Texas
State Bar No. 2400087
Oral argument is not requested 219 North 6th Street, Suite 200
Waco, Texas 76701
[Tel.] (254) 757-5084
[Fax] (254) 757-5021
[Email]
abel.reyna@co.mclennan.tx.us

i
 Identity of Parties and Counsel

Relator Abelino “Abel Reyna,
Criminal District Attorney
McLennan County, Texas

Real Party in Interest Hon. Matt Johnson,
Presiding Judge
54th Judicial District Court of
McLennan County, Texas
501 Washington Avenue, Suite 305
Waco, Texas 76701

Respondent Court of Appeals, Tenth District
501 Washington Avenue, Suite 415
Waco, Texas 76701

Real Party in Interest Matthew Alan Clendennen

Real Party in Interest’ Trial and
Appellate Attorney Mr. F. Clinton Broden
2600 State Street
Dallas, Texas 75204

State’s Trial Attorneys Mr. Mark Parker
Mr. Brandon Luce
Assistant Criminal District
Attorneys
219 North 6th Street, Suite 200
Waco, Texas 76701

State’s Attorneys on Appeal Abelino ‘Abel’ Reyna
Criminal District Attorney

ii
 Sterling Harmon
Appellate Division Chief
219 North 6th Street, Suite 200
Waco, Texas 76701

iii
 Table of Contents

Identity of Parties and Counsel …………………………………………………….. ii

Table of Contents .................................................................................................. iv

TABLE OF AUTHORITIES ................................................................................. vii

Statement of the Case …………………………………………………… viii
Statement of Jurisdiction …………………………………………………… viii
Issues Presented .................................................................................................... ix

Statement of Facts ...................................................................................................1

Summary of Argument ……………………………………………………… 4

Argument: Criminal Applicability of Davenport …………………….… 4

Davenport v. Garcia …………………………………………………………… 4

Decisional Basis of Davenport ……………………………………………….. 5
Limited Applicability of Davenport ………………………………………… 6
A Proper Standard for Criminal Cases …………………………………….. 8
Argument: Sufficiency of Findings and Propriety of the
Tenth Court of Appeals' Grant of Mandamus Relief …………………. 8
Constitutionality of the Gag Order ……………………………………… 9

Narrowly Tailored…………………………………………………………….. 9

Restrictions Imposed by the Gag Order …………………………………… 10
Findings in Support of the Restrictions ……………………………………. 11
Least Restrictive Means …………………………………………………….. 14

iv
Threshold Standard …………………………………………………………. 15
Conclusion …………………………………………………………………… 18

Prayer ………………………………………………………………………… 18
Certificate of Compliance ………………………………………………… 19
Certificate of Service ……………………………………………………….. 20

v
 TABLE OF AUTHORITIES

State Constitutional Provisions
Texas Const. Art. 1, §8 …………………………………………………… 5, 6, 8
Texas Const. Art. 1, §10 …………………………………………………… 6, 15
Texas Const. Art. 5, §5 ……………………………………………………… viii

Federal Constitutional Provisions

United States Const., Amend. 1 ………………………………………………………… 14
United States Const., Amend. 6 ………………………………………………………… 15

Federal Opinions
Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ……………………………….. 9
Gentile v. State Bar of Nevada, 501 U.S. at 1054 (1991) ……………………. 18
Nebraska Press Ass’n v. Stuart, 427 US. 539 (1976) ………………………… 14
Procunier v. Martinez, 416 U.S. 396 (1974) …………………………….. 10, 14
Richmond Newpapers, Inc. v. Virginia, 448 U.S. 555, 576,
110 S.Ct. 2816, 65 L.Ed. 3d 973 (1980) ………………………………….. 12
Sheppard v. Maxwell, 384 US. 333 (1966) ………………………………. 14, 17
United States v. Brown, 218 F. 3d 415 (5th Cir. 2000) ……………… 8, 10, 17
United States v. Carmichael, 326 F. Supp. 2d 1267
(M.D. Ala. 2004) …………………………………………………… 7, 9, 15

State Opinions
Alvarez v. Eighth Court of Appeals of Texas, 977 S.W. 2d 590
(Tex. Crim. App. 1998) …………………………………………………. vii
Ater v. Eighth Court of Appeals, 802 S.W.2d 241
(Tex. Crim. App. 1991) ………………………………………………… vii
Davenport v. Garcia, 834 S.W. 2d 4 (Tex. 1992) ……….viii, 4, 5, 6, 7, 8, 15, 17
In re Benton, 238 S.W. 3d 587 (Tex. App – Houston [14th Dist.] 2007) … 8, 9
In re Graves, 217 S.W. 3d 744 (Tex. App. – Waco 2007) … 3, 8, 15, 16, 17, 18
In re Houston Chronicle Publishing Company, 64 S.W 3d 103
(Tex. App. – Houston [14th Dist.] 2001) ……………………………….. 17

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Statutes
Texas Code Crim. Proc. Art. 4.04 …………………………………………… viii
Tex. R. App. P. 9.4(e) ………………………………………………………….. 19
Tex. R. App. P. 9.4(i) ………………………………………………………… 19
Tex. R. App. P. 9.4(i)(1) …………………………………………………………19

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TO THE HONORABLE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE

This petition for writ of mandamus and arises out of a criminal
prosecution for the offense of Engaging in Organized Criminal Activity,
alleged to have been committed by Matthew Alan Clendennen, the real
party in interest. See Appendix 1. The Respondent in this original
proceeding is the Honorable Court of Appeals, Tenth District of Texas, the
“Court of Appeals.” Abelino “Abel” Reyna, “the Criminal District

Attorney,” who is the Relator herein, seeks relief from the action of the
Court of Appeals’ action below, namely: the conditional grant of a petition
for writ of mandamus directing the Judge of the 54th District Court to

vacate its gag order issued in this cause on June 30, 2015.
STATEMENT OF JURISDICTION
This Court has jurisdiction and authority to issue a writ of mandamus.
See Tex. Const. art V, §5; Tex. Code Crim. Proc. art. 4.04; Alvarez v. Eighth
Court of Appeals of Texas, 977 S.W. 2d 590 (Tex. Crim. App. 1998). Writ of
mandamus to this Court is the exclusive remedy from an adverse ruling in
an original mandamus proceeding in the court of appeals. Ater v. Eighth
Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).

viii
 ISSUES PRESENTED
The Court has designated the following issues to be briefed:

1. Is the Texas Supreme Court’s holding in Davenport v. Garcia, 834
S.W. 2d 4 (Tex. 1992), applicable to gag orders in criminal cases?
2. Are findings supporting the gag order in this case sufficiently
specific?
3. Is the Tenth Court of Appeals’ conditional grant of mandamus relief
supported by the law and facts of this case?

ix
 STATEMENT OF FACTS
On May 17, 2015, a shootout between rival criminal gangs erupted at

the Twin Peaks restaurant in Waco, McLennan County, Texas. Appendix 1.
Nine people died in the shootout and many were wounded. Id.
Clendennen was apprehended at the scene, wearing distinctive signs or
symbols indicating association with a criminal gang. Id. Clendennen was
arrested pursuant to warrant for the felony offense of Engaging in
Organized Criminal Activity. Id. Details of the incident reported in the

press showed that in addition to the nine deaths, eighteen subjects were
wounded. Appendix 5, Video File D. Five identified outlaw biker gangs
participated in the melee. Appendix 5, Video File B. In the wake of the
violence, there was a heavy traffic of outlaw biker gang members traveling
to the Waco area, and law enforcement intelligence had discovered that a
“green light” had been given by certain criminal organizations to take
retribution against law enforcement and/or members of rival gangs. Id.
One hundred seventy-seven persons were charged with Engaging in
Organized Criminal Activity out of the event, and one hundred fifty-one
firearms were recovered from the crime scene. Appendix 5, Video File E.
Clendennen sought an examining trial regarding the charged offense,
as reflected in Appendix 2. On June 22, 2015, Clendennen procured a
subpoena duces tecum under the instant cause number in the 54th District
Court, seeking “any and all videos of the events taking place at Twin Peaks

1
in Waco, Texas from May 17, 2015—May 26, 2015 desired as evidence in
said above numbered and entitled cause.” Appendix 3, Exhibit “A.”

In response to the subpoena, the State filed a Motion to Quash and for
Protection of Evidence and Motion to Issue “Gag” Order for all parties.
Appendix 3. The State attached as an exhibit to its Motion, a copy of a news
report wherein Clendennen’s counsel expressed his intent to publicize the
video if it was released. Appendix 3, Exhibit “B.” Hearing on the State’s
motion was held in the 54th District Court on June 30, 2015. (RR I).

In arguing for the release of the video, Clendennen’s counsel
questioned whether it was “appropriate for [the State] to go on television
and represent what’s on the video, have the police represent what’s on the
video. But for Mr. Clendennen not be able to see the video, that – that
boggles my mind.” (RR I – 20). Clendennen further complained that “the
Associated Press has seen this video. The Associated Press has reported on
this video. So, the DA wants the press to have copies but not the
defendants who have to defend themselves to have copies.” (RR I – 201-
21).

In response, the State pointed out that pretrial public release of the
video could taint witness recollections because, “If everybody gets to see
the video right now, we’ll have no idea of knowing what they’re telling us,

if they remember that, if they saw it, or if they watched the video and
they’re describing what happened on the video.” (RR I – 24). Countering
the State’s argument, Clendennen complained that the Waco Police

2
Department had posted video of an unrelated offense on its Facebook page
the day it happened. (RR I – 26).

The court denied the State’s Motion to Quash, but announced, “I want
to place a protective order on that video. And I do not want it disclosed in
any way to anyone other than counsel for the defense, the defendant, and
any experts ….” (RR I – 26-27).
The State proposed to the court that it issue a gag order binding both
the State and Clendennen. (RR I – 27). The court expressed concern about

“causing a problem with the jury pools in this matter.” (RR I – 27).
Clendennen claimed that due to numerous press conferences and
interviews previously given by State agents, the State had already “tainted
the well,“ and “opened the barn door on this case.” (RR I – 27-28).
Claiming reliance on the Waco Court of Appeals opinion in In re Graves,
217 S.W. 3d 744 (Tex. App. – Waco 2007), Clendennen argued merely that a
gag order would not be appropriate. (RR I – 28).
Citing concerns about ongoing publicity in the matter, the court
announced it would issue the gag order applicable to both the State and the
defense. (RR I – 29-30). A copy of the gag order appears in Appendix 4.
Clendennen filed an action with the Tenth Court of Appeals, seeking a
Writ of Mandamus to vacate the gag order. On August 7, 2015, the Tenth
Court of Appeals issued its opinion conditionally granting a Writ of
Mandamus, directing that the Writ would issue if the Judge of the 54th
District Court did not vacate the gag order within seven days. Appendix 6.

3
Opting not to provide discussion or analysis, the Tenth Court found that
the trial court abused its discretion, based on the Tenth Court’s opinion in

Graves.
Summary of Argument
1. The Texas Supreme Court’s holding in Davenport v. Garcia, 834 S.W.
2d 4 (Tex. 1992) is not applicable to gag orders in criminal cases.
2. The findings supporting the gag order in this case are sufficiently
specific.

3. The Tenth Court of Appeals’ conditional grant of mandamus relief
is not supported by the law and facts of this case.
Argument: Criminal Applicability of Davenport
Davenport v. Garcia
The Court has directed briefing on the issue of whether the Texas
Supreme Court’s holding in Davenport v. Garcia, 834 S.W. 2d 4 (Tex. 1992) is
applicable to gag orders in criminal cases. While Texas courts have
followed Davenport in assessing the propriety of criminal case gag orders,
continued reliance on Davenport is not appropriate.
Davenport was a civil toxic tort case. Davenport at 5. The gag order in
Davenport prohibited any public comment or discussion of the litigation
with anyone not involved in the necessary course of business of the case,
and counsel were directed to advise their clients of the order’s applicability
to each of them. Id. at 6. The trial court’s sole finding made in support of
the gag order was that “conflicts between counsel and the parents of the

4
minor children were resulting in miscommunications with the parents of
the children and with the media and general public. Id. at 6-7.

Decisional Basis of Davenport
In analyzing the propriety of the gag order, the Texas Supreme Court
considered only “whether the court’s gag orders violate the guarantee of
free expression contained in article I, section 8 of the Texas Constitution,
which provides in pertinent part:

Every person shall be at liberty to speak, write or publish his opinions
on any subject, being responsible for the abuse of that privilege….”
Id. at 7.
Reviewing the historical basis for the constitutional provision, the
Supreme Court concluded that “in some aspects” the Texas free speech
provision was broader than the First Amendment. Id. at 8. The
presumption provided a preference that a speaker be sanctioned after,
rather than before, the speech occurs. Id. at 9. The presumption “in all
cases under section eight is that pre-speech sanctions or ‘prior restraints’
are unconstitutional.” Id.
Reiterating previous holdings that a prior restraint would be
permissible only when essential to the avoidance of an impending danger,
the Supreme Court adopted the following test: a gag order in civil judicial
proceedings will withstand constitutional scrutiny only where there are

specific findings supported by evidence that (1) an imminent and
irreparable harm to the judicial process will deprive litigants of a just

5
resolution of their dispute, and (2) the judicial action represents the least
restrictive means to prevent that harm. Id. at 10.

Limited Applicability of Davenport
In reaching its decision, the Texas Supreme Court specifically declined
to consider the applicability of the United States Constitution to the issue.
Id. at 11. As a civil holding, the Davenport decision confines itself to gag
orders issued in civil cases. Id. at 10. It makes no pretensions to resolve
conflicts between free speech rights protected under article I, section 8; and

the rights afforded to the accused under article I, section 10 of the Texas
Constitution and the Sixth Amendment of the Federal Constitution.
Justice Hecht, in his concurring opinion, noted this shortcoming in the
Court’s decisional process:

The second difficulty with the Court’s view that we should define
fundamental constitutional rights without interference from outside
the state is that it is premised on a one-dimensional view of those
rights which is rarely accurate. If relator were constitutionally entitled
to say whatever she pleased, this would be an easy case. But her right
to speak freely is not absolute, under either the First Amendment or
article I, section 8. In this case, relator’s right conflicts with the district
court’s interest in protecting minor litigants, and the issue is whether
the district court’s interest warrants the restriction imposed on
relator’s right. This tension among competing rights and interests
gives constitutional construction a multi-dimensional aspect. Thus,
the Court’s view that federal constitutional rights, which states cannot
diminish, are a “federal safety net” is overly simplistic. Federal
constitutional construction does not merely set minimum standards
for protected rights which the states are free to increase; it strikes a

6
 balance among competing rights and interests that is itself of
constitutional significance. While states have more latitude in
adjusting this balance than they do in reducing guaranteed
protections, that latitude is not unlimited. State courts are not free
from federal constitutional considerations in determining fundamental
rights. The delicate balance among those rights and other interests
must also be maintained.
Id. at 43.
A related consideration not taken into account in Davenport are the
options available to a criminal court in adopting “least restrictive means,”

when the range of those means may be limited by considerations of
constitutionally-guaranteed trial rights of an accused.
In determining the propriety of gag orders, federal circuits have

recognized three different threshold standards for imposing a prior
restraint. These three standards were analyzed in Unites States v.
Carmichael, 326 F. Supp. 1267 (M.D. Ala. 2004). The three standards are (1)
the speech at issue presents a “clear and present danger” or a “serious and
imminent threat” to a fair trial, (2) a “substantial likelihood of material
prejudice,” and (3) a “reasonable likelihood” of prejudice. Carmichael at
1293. The Davenport court opted for the highest and most restrictive of
these standards, requiring that “an imminent and irreparable harm to the
judicial process will deprive litigants of a just resolution of their dispute,”
before a gag order is justified. Davenport at 10.

7
A Proper Standard for Criminal Cases
Davenport should be limited to civil cases because, in reaching its

conclusions, the Davenport court gave no consideration to the constitutional
right of a criminal defendant to a fair and impartial jury. Applying the
“imminent and irreparable harm” standard to criminal cases means that
the jury pool must be tainted before a gag order may issue. The lowest
threshold standard of a “reasonable likelihood” of prejudice is the
minimum countenanced by the First Amendment, and does not take into

consideration Texas precedent regarding article I, section 8. The standard
enunciated by the Fifth Circuit in United States v. Brown, 218 F. 3d 415 (5th
Cir. 2000) of “a substantial likelihood of material prejudice,” takes into
account both constitutional trial rights of defendants as well as free speech
rights. See In re Benton, 238 S.W. 3d 587, 595 (Tex. App. – Houston [14th
Dist.] 2007).
Argument: Sufficiency of Findings and Propriety of the Tenth Court of
Appeals’ Grant of Mandamus Relief
In the case at bar, the Tenth Court of Appeals conditionally granted

mandamus relief, finding that the trial court abused its discretion based on
the Tenth Court’s opinion in In re Graves, 217 S.W. 3d 744 (Tex. App. –
Waco 2007, orig. proceeding). Thus, a determination of whether the trial
court’s findings were sufficiently specific to support the issuance of the gag
order would be dispositive in assessing whether the Tenth Court of

8
Appeals’ conditional grant of mandamus relief was supported by the law
and facts of this case.

Constitutionality of the Gag Order
In his petition to the Tenth Court of Appeals, seeking a Writ of
Mandamus, Clendennen claimed three bases challenging the propriety of
the gag order: 1) The order violated Clendennen’s right to free speech; 2)
The court’s findings in support of the gag order were insufficient to
establish that pretrial publicity had risen to a level posing imminent and

severe harm to a fair and impartial trial; and 3) that the gag order was not
the least restrictive means to prevent any identified harm. Appendix 7.
In considering the propriety of a gag order, three factors are
addressed. First the court must consider whether the order is narrowly
tailored. In re Benton, 238 S.W. 3d 587, 593 (Tex. App – Houston [14th Dist.]
2007) quoting United States v. Carmichael, 326 F. Supp. 2d 1267, 1293 (M.D.
Ala. 2004). Next, it must be determined whether the gag order is the least
restrictive means or if less burdensome alternatives would achieve the
same objective. Id. Finally, the “threshold standard for imposing a prior

restraint” is applied. Id.
Narrowly Tailored
Trial courts have an affirmative constitutional duty to minimize the
effects of prejudicial pretrial publicity. Gannett Co. v. DePasquale, 443 U.S.
368, 99 S. Ct. 2898, 61 L.Ed. 2d 608 (1979). The beneficiaries of this duty
include not only the defendant in a given trial, but other defendants as

9
well, such as co-defendants in the same case or defendants in related cases
whose fair trial rights might be prejudiced by the extrajudicial statements

of other trial participants. United States v. Brown, 218 F. 3d 415, 424 (5th Cir.
2000). The limitation on First Amendment rights must be not greater than
is essential to the protection of the particular governmental interest
involved. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed. 224
(1974).
Restrictions Imposed by the Gag Order

The restrictions imposed by the gag order are quoted as follows:

“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 CONDUCT 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,

10
 b. to representatives of the District Attorney’s Office; or
c. who have testified in investigative or adjudicative
proceedings.
4. Witnesses who give statements to law enforcement personnel,
representatives of the District Attorney’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 shall not be interpreted to prohibit attorneys from
communicating with the parties in order to prepare 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.“ Appendix 4.
Findings in Support of the Restrictions
The court related the facts and circumstances surrounding the case
which justified the gag order restrictions:

“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.

11
 The Court FINDS that counsels’ willingness to give interviews to
the media would only serve to increase the volume of pretrial
publicity.
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 the proceedings would not lessen the
publicity generated by this case.” Appendix 4.
The order did not affect the rights of the press to have access to or
report on proceedings. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 576, 110 S.Ct. 2816, 65 L.Ed. 2d 973 (1980).
In “taking judicial notice of the unusually emotional nature of the
issues involved” and the “extensive local and national media coverage this
case has already generated,” a brief review of what was commonly known
through press reports and legal filings at the time of the hearing would be
appropriate.
On May 17, 2015, a gun battle erupted at the Twin Peaks restaurant in
Waco, Texas. Nine people were killed and eighteen were wounded. The
incident occurred in the early afternoon at an eating establishment located

in a popular shopping center. The participants in the incident were
members and associates of the Bandidos and the Cossacks, two identifiable
12
criminal street gangs. One hundred seventy-seven people were charged
with Engaging in Organized Criminal Activity as a result of the incident.

All the accused were identified on the scene as gang members due to
wearing distinctive symbols consistent with identifiable criminal gangs. A
large number of weapons, including over one hundred firearms, were
recovered at the scene. In the aftermath of the event, law enforcement
intelligence learned that a “green light” had been given by the leadership
element of one or more criminal gangs to engage in criminal acts directed

toward law enforcement or members of rival gangs. These facts are
supported by materials presented in the Appendix.
In support of the court’s finding of “counsels’ willingness to give
interviews to media,” is a copy of a news item wherein Clendennen’s
counsel’s plan to release evidentiary videos to the media is revealed. This
was appended to the State’s Motion to Quash, and is included in the
Appendix. In his Appendix presented with his Mandamus application to
the Tenth Court of Appeals, Clendennen also provided a copy of a lengthy
media interview of the McLennan County Criminal District Attorney.
The enormity of the event at Twin Peaks may be unique in the number
of victims, the number of co-defendants, the level of violence, and its effect
on a local community. In determining the propriety of the gag order, it
would behoove this Court to compare the underlying facts of this case with
those of the cases cited in the parties’ briefs presented to the Tenth Court.
The scale of the Twin Peaks incident dwarfs those of the cited cases. The

13
trial court was justified in imposing all of the restrictions contained in the
gag order.

There was imminent harm shown that Clendennen’s counsel intended
to release evidentiary surveillance videos. It can be gleaned from the
hearing record and Clendennen’s briefs filed in this case and in the Tenth
Court mandamus action that the intent was to counter what Clendennen’s
counsel believed to be biased statements from State agents previously
made to the media. On this basis the court prohibited all counsel from

discussing the case with the media. This provision was tempered by the
provision allowing for modification of the order upon reasonable request.
Least Restrictive Means
In Nebraska Press Ass’n v. Stuart, 427 US. 539, 96 S.Ct. 2791 2791, 49
L.Ed. 2d 683 (1976), the Supreme Court opined that a trial court’s decision
whether to issue a gag order calls for a judgment as to whether other
precautionary steps will suffice. This requirement comports with the First
Amendment principle that restrictions on speech should employ the least
restrictive means possible. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800,
40 L.Ed. 2d 224 (1974). Several alternatives were suggested in Sheppard v.
Maxwell, 384 US. 333, 86 S.Ct. 1507, 16 L.Ed. 2d 600 (1966). These include
change of venue, jury sequestration, “searching” voir dire and “emphatic”
jury instructions. In light of the sheer scale of the Twin Peaks incident, it
seems self-evident why such less-restrictive options would not be
workable. As of this writing, there is a potential of one hundred seventy-

14
seven jury trials being held for the Twin Peaks defendants. Over five
thousand venirepersons would be required to seat juries in these cases

(accounting for 2,124 jurors and 3,540 peremptory strikes). The rights
afforded these accused under article I, section 10 of the Texas Constitution
and the Sixth Amendment of the Federal Constitution stand to be affected
by the pretrial publicity in the instant case. The number of cases wherein
venue might have to be changed, the number panelists who would need to
be screened through voir dire, and the number of jurors who might be

sequestered show the unreasonableness of these options.
Threshold Standard
The third consideration in a gag order analysis is the application of the
“threshold standard for imposing a prior restraint.” Carmichael at 1293.
The Tenth Court of Appeals has adopted the standard enunciated in
Davenport, that a gag order will pass state constitutional scrutiny only if
there are specific findings supported by evidence that (1) 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. In re Graves, 217 S.W 3d 744 (Tex.
App. – Waco 2007).
In Graves, the Tenth Court found that the gag order issued in that case
did not recite sufficiently specific findings to support the order. Graves at
752-753. The findings the trial court judge made in that case were:

15
 1. The prior proceeding in this cause of action, and other related
actions of which the Court takes judicial notice;
2. The pre-trial publicity which has already occurred in this cause,
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.
Graves at 746.

There was no finding of any detriment caused by pretrial publicity, or
that further publicity would affect fundamental rights of the parties. In
short, there was nothing shown that justified a limitation on First
Amendment rights. In comparison with the trial court’s finding in Graves,
the findings in the case at bar are specific as to the effects of prior publicity,
the intrusion on the right to a fair trial made by such publicity, and the

evident intent of the parties and their counsel to continue to make
inflammatory extrajudicial statements and release evidentiary matters to
the media.
It is noteworthy that in Graves the Tenth Court recognized that a trial
court could take judicial notice of pretrial publicity affecting the case.
Graves at 751. However, judicial notice was problematic in the Graves case,

due to the fact that the trial court judge never afforded Graves the
opportunity to be heard on the matter. Graves at 752. This is one of the
factors that differentiates Graves from In re Houston Chronicle Publishing

Company, 64 S.W 3d 103 (Tex. App. – Houston [14th Dist.] 2001). Otherwise,

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the Tenth Court took favorable regard of the Houston Chronicle case
regarding judicial notice of pretrial publicity:
In the Houston Chronicle case, the Court of Appeals observed that the
trial court had taken “judicial notice of the ‘emotional nature’ [of the
case] and ‘extensive local and national media coverage’” and held that
the trial court’s findings were “supported by judicial notice of obvious
circumstances.” Houston Chronical Pub’g, 64 S.W. 3d at 109. The local,
state, and national media storm surrounding the Yates case is well
documented.
Graves at 752.
While the Davenport standard requires specific findings to support a
showing of potential harm and the reasonableness of the gag order
restrictions, it is not required that the court explicitly discuss and reject
each of the Sheppard options before imposing a gag order. See Brown at 431.
The findings in support of the gag order in the instant case track the
findings of the trial court in Houston Chronical, which the Fourteenth Court

of Appeals found to be proper. They are more concise and applicable to
the constitutional issues at play than the findings the Tenth Court was
dealing with in Graves. The Graves decision noted the lack of specificity in
the trial court’s findings. The Houston Chronicle decision found that the
trial court’s findings were sufficient to support a gag order. The trial court
in the instant case issued its order based on findings that were closely akin

to those reviewed in Houston Chronicle, and which would have presumably
passed muster with the Fourteenth Court. These findings, being more
complete and comprehensive than those reviewed in Graves, should also

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presumably have been acceptable to the Tenth Court. This is the position
that the State holds in the case at bar. But at the very least, the lack of

analysis by the Tenth Court leaves trial courts and litigants in the dark as to
whether the standards for a gag order are higher or different in the Tenth
Court of Appeals District than they are in other parts of the state.
Conclusion
It is only the occasional case that presents a danger of prejudice from
pretrial publicity. Gentile v. State Bar of Nevada, 501 U.S. at 1054, 111 S.Ct.

2720, 115 L.Ed. 2d 888 (1991) (Kennedy, J., concurring). The enormity of
the Twin Peaks cases puts them into this category. At stake are fair trials
for one hundred seventy-seven people, and justice for nine dead. As such,
in the event that this Court finds that the trial court’s order is lacking, the
State would reiterate its plea made in its brief below that it heed the advice
of Chief Justice Gray in his dissent in Graves, “to allow the trial court the
opportunity to meet the requirements of their opinion before a fair trial …
is put in jeopardy.” Graves at 754.
Prayer
For the foregoing reasons, the State of Texas prays that this
Honorable Court affirm the trial court’s issuance of the gag order in this
case, issue a Writ of Mandamus directing the Tenth Court of Appeals to
vacate the conditional Writ of Mandamus previously entered by that Court,
and prays for such other and further relief as may be provided by law.

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 Respectfully Submitted:
ABELINO ‘ABEL’ REYNA
Criminal District Attorney
McLennan County, Texas

/s/ Abelino ‘Abel’ Reyna
ABELINO ‘ABEL’ REYNA
McLennan County
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 Compliance
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document

also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 3,451 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).

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 Certificate of Service

I certify that I caused to be served a true and correct copy of this Petition

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: 9/14/15 /S/ ABELINO ‘ABEL’ REYNA
ABELINO ‘ABEL’ REYNA

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