                                                                     WR-83, 719-01
                                                       COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                    Transmitted 10/12/2015 10:36:17 AM
                                                      Accepted 10/13/2015 11:36:01 AM
                                                                        ABEL ACOSTA
                                                                                CLERK
      TEXAS COURT OF CRIMINAL APPEALS
           _________________________

                      CASE NO.
                                                      October 13, 2015
                   WR-83,719-01
             _________________________

 IN RE STATE OF TEXAS EX REL. ABELINO REYNA
                      Relator
         ________________________________

              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
         ________________________________

REPLY BY REAL-PART-IN-INTEREST MATTHEW ALAN
                  CLENDENNEN
         ________________________________


                        F. CLINTON BRODEN
                        TX Bar No. 24001495
                        Broden, Mickelsen, Helms & Snipes, LLP
                        2600 State Street
                        Dallas, Texas 75204
                        (214) 720-9552
                        (214) 720-9594(facsimile)

                        Attorney for Matthew Alan Clendennen
                                          TABLE OF CONTENTS

                                                                                                                     Page

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

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

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

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

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




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                                        TABLE OF AUTHORITIES

                                                                                                                         Page

City of Fredericksburg v. Bopp, 126 S.W.3d 218 (Tex. App. – San Antonio
2003)..........................................................................................................................5

In re Simon Property (Delaware), Inc. 985 S.W.2d 212 (Tex. App .– Corpus
Christi 1999) .............................................................................................................5

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

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

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

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




                                                               3
                                            REPLY

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

“nine Texas district attorneys.” Nevertheless, only eight district attorneys are actually

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

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

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

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

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

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

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

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

trial court.

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

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

defendants,2 amici now claims it was actually sought to preserve the “State’s interest

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


       1
       Seven are identified on the Identity of Amicus Curiae page in addition to District
Attorney Rene Pena, the author of the brief.
       2
        Not surprisingly, despite the numerous amicus briefs filed in this matter, not one of the
other 176 individuals charged in this matter has filed an amicus brief in support of the gag order.

                                                 4
disingenuous than Relator’s argument, amici turns a blind eye to the fact that, prior

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                          5
means. Moreover, like Relator, amici wholly fail to explain how a gag order imposed

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

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

and (3) judges who make their own comments to the media regarding the case so-

effectively offers any of the protections identified by amici.3

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

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

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

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

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

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

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

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

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

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


       3
         Amici points to the “daunting and costly task’ of selecting 5,665 panelists for the 177
“potential trials.” See Amicus Br. at. 10. First, Mr. Clendennen has much more faith in the
citizens of McLennan County than does amici. It is highly likely that no fairly constituted grand
jury of McLennan County citizens will indict many of the 177 since a large majority were mere
witnesses. Second, amici, who write in support of Relator, fail to ask where Relator’s concern
was about this “daunting and costly task” when he gave a television interview only a few days
after the incident in which he announced all 177 were apparently guilty simply because they were
not acting sufficiently like victims in Relator’s mind by cooperating with police.

                                               6
the necessity of a narrow gag order after first fully considering alternatives such as

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

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

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

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

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

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

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

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

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

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

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

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

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

allowed to manufacture particular circumstances and then rely upon those

circumstances to request relief from the courts.4




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

                                                7
Respectfully submitted,



/s/F. Clinton Broden
F. CLINTON BRODEN
TX Bar No. 24001495
Broden, Mickelsen, Helms & Snipes, LLP
2600 State Street
Dallas, Texas 75204
(214) 720-9552
(214) 720-9594(facsimile)

Attorney for Matthew Alan Clendennen




  8
                         CERTIFICATE OF SERVICE

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

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

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

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


                                       /s/ F. Clinton Broden
                                       F. Clinton Broden




                                          9
                      CERTIFICATE OF COMPLIANCE

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

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

the rule.



                                             /s/ F. Clinton Broden
                                             F. Clinton Broden




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