                                                                                          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.
