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

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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.