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 9/25/2015 2:57:55 PM
Accepted 9/25/2015 3:15:35 PM
TEXAS COURT OF CRIMINAL APPEALS ABEL ACOSTA
September 25, 2015 CLERK
_________________________

CASE NO.

WR-83,719-01
________________________

IN RE STATE OF TEXAS EX REL. MATT JOHNSON
Relator
Vs.
COURT OF APPEALS FOR THE TENTH DISTRICT, REAL PARTY IN
INTEREST MATTHEW ALAN CLENDENNEN
Respondent
_______________________

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

Appellate Cause No. 10-14-00235-CR
10th Court of Appeals
Waco, Texas
_______________________

BRIEF OF AMICI CURIAE, 33 DEFENDANTS WRONGFULLY ACCUSED OF
ENGAGING IN ORGANIZED CRIMINAL ACTIVITY *, IN SUPPORT OF
RESPONDENT MATTHEW ALAN CLENDENNEN’S RESPONSE TO THE
STATE’S PETITION FOR WRIT OF MANDAMUS
________________________

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

* A full list of amici is reproduced
on the next page
 IDENTITY OF AMICI CURIAE

Susan E. Anderson, Clinton Broden,
Attorney for Dalton Davis Attorney for Burton Bergman
3500 Maple, Suite 400 and Richard Luther
Dallas, Texas 75219 2600 State Street
Ph. 214-649-4090 Dallas, Texas 75204
Fx. 214-845-7006 Ph. 254-720-9552
SBN: 00794941 Fx. 214-720-9594
SBN: 24001495
Bobby Dale Barina
Attorney for Richard Martin Kreder F. Edward Brown
455 E. Central Texas Expy, Suite 104 Attorney for Craig Rodahl
Harker Heights, Texas 76548 P.O. Box 1782
Ph. 254-699-3755 Belton, Texas 76513
Fx. 254-699-1074 Ph. 254-634-2587
SBN: 01738480 Fx. 480-772-4229
SBN: 03121020
David Conrad Beyer
Attorney for Bill Jason McRee Judge (Ret.) Susan Criss and Rick Rousseau
1203 Buena Vista Attorneys for Rolando Reyes, Justin
Suite 201 Waddington, Daryle Walker, and Ronald
San Antonio, Texas 78207 Scott Warren
Ph. 817-307-6471 PO Box 17046
Fx, 866-273-4786 Galveston, Texas 77552
SBN: 24090657 Ph. 409-515-6176
FX. 254-699-9999
Monica P. Bishop SBN: 06630475
Attorney for James Michael Devoll SBN: 24090929
113 East Franklin
Waxahachie, Texas 75165 Steven Denny
Ph. 972-923-1900 Attorney for Owen Bartlett
Fx. 972-923-0701 2414 Line Ave.
SBN: 24040525 Amarillo, TX 79106
Ph. 806-379-2010
Brian Bouffard Fx. 806-379-2012
Attorney for Jorge Salinas SBN: 24005798
909 W. Magnolia Ave., Suite 6
A. Clay Graham
Ft. Worth, Texas 76104
Attorney for Lance Geneva
Ph. 817-921-6000 855 Texas St. Suite 120
Fx. 817-332-3108 Fort Worth, Texas 76117
SBN: 2403857 Ph. 817-334-0081
Fx. 817-887-1474
SBN: 24064140
Roger Haynes
Attorney for Nathan Champeau Adam King Blackwell Reposa
3500 Maple Ave, Ste 400 Attorney for Thomas Paul Landers,
Dallas, Texas 75219 Jimmy Pond, Eliodoro Munguia, William
Ph. 214-526-3300 Redding, Justin Garcia, Ares Phoinix, and
Fx. 214-845-7006 Gilbert Zamora
SBN: 00795411 1106 San Antonio St.
Austin, Texas 78701
Michelle Latray Ph. 512-476-7376
Attorney for John Craft Fx. 512-478-1114
P.O. Box 122/221 W. Navasota St SBN: 24040163
Groesbeck, Texas 76642
Ph. 254-729-2059 Daphne Silverman
Fx. 254-729-5540 Attorney for Royce Van Vleck
SBN: 24029683 501 N. IH-35
Austin, Texas 78702
Phillip Linder Ph. 512-485-3003
Attorney for Josh Martin Fx. 512-531-1658
3500 Maple Ave, #400a SBN: 06739550
Dallas, TX 75219
Ph. 214-252-9900 Gary Smart
Fx. 214-845-7006 Attorney for Sandra Lynch
SBN: 12363560 4214 Little Rd
Arlington, Texas
Jay Norton Ph. 817-419-0023
Attorney for Martin Lewis Fx. 817-417-6363
222 Main Plaza SBN: 18521500
San Antonio, Texas 78205
Ph. 210-227-5103 John Stickels
Fx. 210-225-2481 Attorney for Jeremy King
SBN: 15105800 PO Box 121431
Arlington, Texas 76012
Gary D. Peak Ph. 817-330-6655
Attorney for Michael Don Baxley Fx. 817-622-8071
101 W. Main SBN: 19225300
Eastland Texas
Ph. 254-629-1333 Joshua S. Tetens
Fx. 254-631-0093 Attorney for Roy Covey
SBN: 15678670 3706 Bellmead Dr.
Waco, Texas 76705
Ph. 254-412-2300
Fx. 888-317-7610
SBN: 24053513
John Wiersgalla
Attorney for Narciso Luna and Victor Pizana
100 N. 6th St., Suite 902
Waco, Texas 76701
Ph. 254-717-8600
Fx,. 254-313-3200
SBN: 24059231
 TABLE OF CONTENTS

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

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

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

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

ARGUMENT……………………………………………………………………….4

CONCLUSION…………………………………………………………………...10

CERTIFICATE OF SERVICE………………………………………………........12

iv.
 TABLE OF AUTHORITIES

Cases

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992)…………………………………..9

In re Benton, 238 S.W. 3d 587 (Tex. App. – Houston [14th Dist.] 2007, no pet)……9

In re Graves, 217 S.W.3d 744 (Tex. App. – Waco 2007, no pet.)…………………..9

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

Statutes
Article I, Section 8 of the Texas Constitution……………………………………….9

v.
 STATEMENT OF INTERST OF AMICI CURIAE

Amici file this brief in support of Respondent, Matthew Alan Clendennen’s

response to the State’s writ of mandamus. The State is attempting to silence those

they have accused of Engaging in Organized Criminal Activity while simultaneously

attempting to deprive the accused to the right to a fair trial.

As the accused, amici have a strong interest in ensuring their right to a fair

trial is maintained. This can only be accomplished by ensuring that any prior restraint

on speech imposed by a court meets constitutional requirements and take into

consideration the motivation of the State in attempting to restrain the accused’s right

to free speech.

Due to the number of prejudicial public comments being made by the State,

the only way for the accused to ensure that they receive a fair trial is to be able to

exercise their right to free speech – sanitizing the foul odor of public perception

which has been created by the State in an attempt to influence potential jurors.

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

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

considered in the Court’s review of this matter.

1.
 FEE DISCLOSURE STATEMENT

Pursuant to Rule 11(c) of the Texas Rules of Appellate Procedure, amici

state that no fee was paid or will be paid for the preparing of this brief.

2.
 SUMMARY OF ARGUMENT

The assertion that the state seeks this gag order to preserve the right to a fair

trial is a subterfuge. The gag order which the State seeks to maintain in this case only

comes after the State itself has made statements which are prejudicial in nature.

Those statements have been heralded by local, state, national, and international

outlets.

Moreover, because this case is so public in nature, there are national, and

international, media outlets which continue to cover the progress of this case. When

so many sources are speaking about the same topic publicly, restraining the speech

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

Voir Dire has previously been held to be the best tool to root out the prejudices

of the jury regarding extrajudicial statements. This court should only uphold the gag

order if it is willing to hold that the statements made by the State were so prejudicial

that voir dire will be insufficient to remedy the problem.

3.
 ARGUMENT

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

That the District Attorney Has Publicly Invited Prejudgment of, and

Expressed Opinions About, the Guilt of All the Accused

On or about May 20, 2015, McLennan County District Attorney Abel Reyna gave

an exclusive interview to Waco News Channel 25, KXXV1 regarding the Twin Peaks

situation. This interview aired less than four full days after the incident – prior to the

conclusion of the investigation by law enforcement, prior to the receipt of any

offense reports by many involved agencies, and at a time where only one of the 177

people arrested had bonded out of jail on the one million dollar bonds set in each

case.

During this extended, eighteen minute interview, the District Attorney stated that

he had already investigated the claims of innocence of the accused and that, in his

view, all of the individuals arrested at Twin Peaks were guilty. He further stated that

their guilt was proven by the fact that the accused did not “act like victim[s]” by

waiving their right to remain silent and talking to law enforcement:

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

4.

1
http://www.kxxv.com/story/29120879/da-defends-1m-bonds-says-arrested-bikers-not-cooperating-with-police
 individuals solely responsible are brought to justice and, at least the first round
of interviews we ain’t getting that”.
This statement was made despite the fact that the District Attorney knew the

accused had been mirandized and informed of their constitutional right to remain

silent. He continues attacking their Fifth Amendment rights by adding:

“I can tell you that, again, if someone is claiming that they were a victim and

they decided to put on their, their jacket or whatever, and they said they’re

going to be a member of this gang or what have you, I can tell you this, that

if you are a victim of this, then I would fully expect that you would act like a

victim and I just say that I’m not seeing that.”

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

the presumption of innocence, when he states:

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

In making these statements, the District Attorney has (in the public eye) lumped all

177 of the accused together, without taking into consideration any of the

5.
circumstances of their individual cases. Since making these statements, the State

has done nothing to try to mitigate the damage that was done. Likewise, the State

has not acknowledged that its statements were improper attacks on the constitutional

right to a fair trial. Therefore, it is disingenuous for the State to now assert that its

primary motivation for the proposed gag order is to ensure that the State can act as

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

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

statements is to give each of the accused the option of speaking out publicly

regarding their individual circumstances.

It should also be noted that while the statements made by the State have been

sweeping in nature, working against all of the 177 arrested, the Statements made by

Mr. Clendennen are narrowly tailored, addressing only his culpability. Therefore,

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

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

Proposed Gag order is Evidenced by the Fact that he Won’t Stop Talking

As though it were not enough, the District Attorney chooses to make the situation

even worse. Despite the fact that Mr. Reyna has requested the gag order in this case,

he has continues to give statements to the media.

6.
 On Friday, September 18, 2015, the Associated Press reported that an unknown

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

released a statement to the media:

“The fact that someone violated their ethical and legal obligations and the fact
that the ultra-liberal AP is printing that material is evidence to me that my
office is alone in trying to protect these individual’s constitutional right to a
fair trial…Our focus in the Twin Peaks matter will remain on the facts and the
law and not the ridiculousness occurring all around it.2”

In response to this statement, Mr. Clendennen updated his filing to this Court stating
that Mr. Reyna has appealed to this court with “unclean hands”. Without filing a
response, and refusing to allow this Court to determine the issue, the District
Attorney continues attempting to litigate his case in the media. On Tuesday,
September 22, 2015, Mr. Reyna sent a statement to News Channel 25, Waco in
response to Mr. Clendennen’s supplement. In that statement, News 25 reports that
the District Attorney says, “The allegation that I violated the gag order in any form
or fashion is just another example of the ridiculousness I referred to in my
statement.” Id.

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

7.

2
http://www.kxxv.com/story/30094230/reyna
observer must recognize that Mr. Clendennen’s interest in free speech is intertwined
with Mr. Reyna’s own liberty interest. It would, therefore, seem that the District
Attorney only petitions this court as a stall tactic to keep Mr. Clendennen silent while
the State continues to speak.

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

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

and Other Curative Measures to Negate the Effect of Any Prejudicial

Publicity Could Not Fix the Problem

The United States Supreme Court has previously held that voir dire is a reliable

means for identifying bias in the face of pre-trial publicity. Patton v. Yount, 467 U.S.

1025, 1038 (1984). In Patton, appellant was granted a new trial due to an illegally

gained confession. At the second trial, during voir dire, appellant moved for a change

of venue due to the publicity the case had created. Appellant asserted that the release

of prejudicial information made it impossible to pick a fair and impartial jury. The

trial court denied appellant’s request and he was convicted. In denying the requested

relief, Justice Powell noted that voir dire is “the method we have relied on since the

beginning” in order to identify bias. Id.

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

believes that the matter has progressed far enough that voir dire is incapable of fixing

the problem.

As a practical matter, there are only three possibilities when it comes to the

8.
State’s assertion that there is a need for a gag order in this case:

1) The extrajudicial statements made have already tainted the potential jury pool;

2) The extrajudicial statements made may have tainted the potential jury pool; or

3) The extrajudicial statements made have not tainted the potential jury pool.

Addressing the first point, there is, at this point, no hard data indicating whether the

jury pool has been tainted. As a practical matter, this may not be known until a

hearing can be conducted for that purpose, or until voir dire commences.

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

Constitution gives greater protection than the First Amendment to the United States

Constitution. Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992). Therefore, if the

extrajudicial statements made by the State may have tainted the potential jury pool,

or have not tainted the potential jury pool, then the proposed gag order would be an

improper prior restraint on freedom of speech. See In re Benton, 238 S.W. 3d 587

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

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

9.
 CONCLUSION

For all the foregoing reasons, amici curiae respectfully urge this Court to

deny the State’s Petition for Writ of Mandamus and direct the district court to

vacate the gag order imposed.

/s/ Robert G. Callahan, II
Robert G. Callahan, II
Counsel for Amici Curiae

Dated: September 25, 2015
Waco, Texas

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

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

/s/ Robert G. Callahan, II
__________________________________
Robert G. Callahan, II
Counsel for Amici Curiae

Dated: September 25, 2015
Waco, Texas

11.
 CERTIFICATE OF SERVICE

I, Robert G. Callahan, II, certify that, on this 25th day of September, 2015, I

caused copies of the foregoing Brief of Amici Curiae to be served electronically,

via eFile Texas on:

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

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

McLennan County District Attorney
219 N. 6th St.
Waco, Texas 76701

Tenth Court of Appeals
501 Washington Ave.
Waco, Texas 76701

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

12.