                                                                        WR-83, 719-01
                                                          COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                        Transmitted 8/12/2015 10:56:07 AM
                                                          Accepted 8/12/2015 11:08:43 AM
                                                                           ABEL ACOSTA
                                                                                   CLERK
          TEXAS COURT OF CRIMINAL APPEALS
               _________________________                  RECEIVED
                                                   COURT OF CRIMINAL APPEALS
                                                          8/12/2015
                          CASE NO.                   ABEL ACOSTA, CLERK


                       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
             ________________________________

 RESPONSE TO STATE’S PETITION FOR WRIT OF MANDAMUS
            ________________________________


                            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
                                     INTRODUCTION

       The Tenth Court of Appeals did not “clearly abuse its discretion.” 1 This Court

should reject the State’s attempt to delay transparency.

       It almost appears that the First Amendment to the United States Constitution

has been abandoned in McLennan County. First, 177 motorcyclists are rounded up

based on “fill-in-the-name complaints” where the alleged probable cause was based

almost exclusively on the exercise of their right of freedom of association. Then,

after the Waco Police and the McLennan County District Attorney’s Office held

multiple press conferences before local, national and international media in order to

scare the public with horror stories of roving “biker gangs,” the District Attorney’s

office requested a gag order limiting the right to free speech. Moreover, it did so by

filing its motion for such an order ten minutes before a totally unrelated hearing so

that its statements to the same media that they had no problem speaking to for

several weeks about “biker gangs” could go unchallenged.2

       It is only through the strong protection of free speech rights and the “sunlight”

provided by the media that Waco and McLennan County citizens can fully evaluate


       1
           Dickens v. Second Court of Appeals, 727 S.W.2d 542, 549-50 (Tex.Crim.App.1987)
       2
         See Texas Disciplinary Rules of Professional Conduct 3.07, Comment 3 recognizing the
possible necessity of making public comments to “counter the unfair prejudicial effect of another
public statement.”

                                                2
what occurred at Twin Peaks, the tax dollars it cost, and the actions of their elected

officials. Likewise, it is only through robust debate that these citizens can determine

whether, in light of the across the board $1,000,000 bonds set in this case in order to

“send a message,”3 they are satisfied with the current state of the law, providing that

justices of the peace need not have any formal legal training or whether they believe

the legislature should be lobbied to require justices of the peace to have law degrees.

Regardless of a taxpayer’s ultimate conclusion on the myriad of important societal

issues that this case presents, only the strong protection of free speech and a strong

media will provide citizens with the background to make these types of evaluations

that are imperative to democracy. Simply put, unlike the State which believes the

enormity of this case, albeit one of its own making, justifies keeping the public in the

dark (except for the “facts” it wanted the public to hear in the days following the

incident), Mr. Clendennen believes that the enormity of this case and the issues4


       3
           See Appendix 7
       4
        Wholesale arrests of 177 people based on “fill-in-the name” warrants, the “unarresting of
people arrested, $1,000,000 bonds set in all cases to “send a message” by a lay Justice of the
Peace, comments by the District Attorney equating silence with guilt, civil lawsuits, a grand jury
headed by a Waco Police detective who apparently participated in the investigation, public
comment by a district judge lauding the selection of the police detective to the grand jury, the
attempt by the Waco City Attorney’s Office to interject itself in criminal proceedings, the
concept that third-party evidence (such as Twin Peaks’ own copy of its surveillance video)
“belongs” to the State, a protective order, a gag order, examining trials that are apparently a rarity
to McLennan County, the recusal of a judge, the appointment of a lawyer to represent a judge,
group protests by motorcyclists, the cost of the entire incident, etc....

                                                  3
involved counseled against the gag order. The Tenth Court of Appeal agreed.

       Although the irony seems to be lost on the State, it argues that it sought the gag

order in the first place over its concern about the release of the Twin Peaks

surveillance video because it feared that, when they talked to witnesses, “we’ll have

no idea of knowing what they’re telling us [is accurate], if they remember that, if they

saw it, or if they watched it [on the Twin Peaks surveillance video].” See State’s

Petition at 2.

       What is lost on the State is the fact that, because the police gave almost

constant press conferences when these events initially unfolded and because the

McLennan County District Attorney went on television to describe “gangs” and

explaining to the public that the 177 arrested must be guilty because they were not

speaking to the police, the defense will now have no idea whether witnesses are

simply parroting what they heard during one of the State’s numerous press

conferences about “biker gangs.”

       In sum, it should be obvious to even the casual observer (and was likely

apparent to the Court of Appeals) that what the State sought to do was fill the public’s

mind with pictures of “outlaw biker gangs” and misinformation and when it believed

that it sufficiently accomplished that task it sought a gag order.




                                           4
                                       TABLE OF CONTENTS
                                                                                                            Page

INTRODUCTION......................................................................................................2

TABLE OF CONTENTS...........................................................................................5

TABLE OF AUTHORITIES.....................................................................................7

STATEMENT OF THE CASE..................................................................................9

STATEMENT OF JURISDICTION........................................................................11

ISSUES PRESENTED.............................................................................................13

STATEMENT OF FACTS......................................................................................14

         I. The State’s Publicity Machine..................................................................14

         II. The Gag Order Motion.............................................................................15

         III. The Gag Order........................................................................................16

         IV. What the Gag Order Does Not Cover....................................................17

         V. State Actors Keep Right on Speaking Despite the Gag Order so Only
         Mr. Clendennen is Effectively Silenced by Judge Johnson’s Gag Order.....17

         VI. The State’s “Statement of Fact” Presented to this Court.......................19

SUMMARY OF ARGUMENT...............................................................................22

STANDARD OF REVIEW.....................................................................................23

ARGUMENT...........................................................................................................24

         I. The District Court’s Gag Order Violated Article 1, Section 8 of the Texas

                                                         5
         Constitution and the First Amendment to the United States Constitution...25

                  A. Constitutional Consideration and the Three Key Cases...............25

                  B. Applying the Principles to the Instant Case..................................29

                  C. State’s Argument...........................................................................31

PRAYER..................................................................................................................34

CERTIFICATE OF SERVICE................................................................................35

CERTIFICATE OF COMPLIANCE.......................................................................36




                                                            6
                                         TABLE OF AUTHORITIES

                                                                                                                          Page
                                                             Cases

Cook v. State, 902 S.W.2d 471 (Tex. Crim. App. 1995).......................................11, 12

Davenport v. Garcia, 837 S.W.2d 73 (Tex. 1992)....................................25, 26, 27, 31

DC Waco Restaurant, Inc. D/b/a Don Carlos Restaurant vs. Peaktastic Beverage,
LLC D/B/A Twin Peaks Restaurant, et. al., No. DC-15-05787....................................17

Dickens v. Second Court of Appeals, 727 S.W.2d 542 (Tex.Crim.App.1987).......2, 23

Ex Parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978)...........................................11

Ex Parte Port, 674 S.W.2d 772 (Tex. Crim. App. 1984).............................................12

Gentile v. State Bar of Nev., 501 U.S. 1030 (1991)..............................................24, 33

In re Benton, 238 S.W.3d 587 (Tex. App. - Houst. [14th] 2007)........24, 25, 27, 28, 31

In re Graves, 217 S.W.3d 744 (Tex. App. - Waco 2007).........................25, 27, 28, 31

In re Houston Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App. Houst (14th
2001)......................................................................................................................27, 31

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)....................................25

San Antonio Express-News v. Roman, 861 S.W.2d 265 (Tex. App. San Antonio
1993)..............................................................................................................................25

State v. Clendennen, No. 2015-1955-2..................................................................10, 30

United States v. Irvin, 87 F.3d 860, 865-66 (7th Cir. 1996)......................................20

United States v. Schroeder, 6:93-0046 (W.D. Tex.).....................................................30


                                                                 7
United States v. Tsarnaev, No 1:13-cr-10200 (D. Mass.)............................................30

                                           Other Authorities

Article 1, Section 8 of the Texas Constitution......................................................passim

First Amendment to the United States Constitution..............................................passim

Louis D. Brandeis, Other People’s Money-and How Bankers Use it (1914)..............24

Tex. R. Prof’l Conduct Rule 3.07............................................................................2, 16




                                                       8
                             STATEMENT OF THE CASE

       Matthew Alan Clendennen was arrested, along with 176 other motorcyclists,

at Twin Peaks restaurant in Waco, Texas on May 17, 2015. The arrest was based

upon a “fill in the name” criminal complaint where the same complaint was used to

arrest 177 people with only the names being changed. See Appendix 1.5

       Mr. Clendennen later sought, via a subpoena duces tecum, to obtain a copy of

Twin Peaks’ own surveillance tape. The subpoena was sought, inter. alia., in

connection with motions by Mr. Clendennen to amend his bond conditions. It was

sought under the District Court case number 2015-1955-2 which was assigned in

connection with Mr. Clendennen’s original Application for Writ of Habeas Corpus

Seeking Bail Reduction which had previously been granted.

       The City of Waco filed a motion to quash the subpoena and the Court set a

hearing on the City’s motion for June 30, 2015. On the morning of the hearing, the

McLennan County District Attorney’s Office filed its own motion to quash

approximately ten minutes before the start of the hearing and, in that motion,

requested a comprehensive gag order be entered. See Appendix 3. Ultimately, the

District Court found that the City of Waco did not have standing to contest the

subpoena, ordered the video to be produced to the defense, and entered the

       5
        Except where noted references to the “Appendix” are to the State’s Appendix filed in
this Court.

                                               9
comprehensive gag order prepared by the McLennan County District Attorney’s

Office in State v. Clendennen, No. 2015-1955-2. See Appendix 4.

      On August 7, 2015, the Tenth Court of Appeals entered its unanimous opinion

conditionally granting a Writ of Mandamus in this case in the event the District Court

did not withdraw the unconstitutional gag order by August 14, 2015 and give written

notice to the Court of Appeals that it was doing so.




                                         10
                       STATEMENT OF JURISDICTION

      Mr. Clendennen first notes that the District Court did not have jurisdiction to

enter the “gag” order in the first place.

      This case is pending based upon a criminal complaint signed by a Justice of the

Peace. See Appendix 1. The gag order was entered in connection with Mr.

Clendennen’s attempt to obtain, via a subpoena duces tecum, a copy of Twin Peaks’

surveillance tape. The subpoena was sought, inter. alia., in connection with motions

by Mr. Clendennen to amend his bond conditions. It was sought under the District

Court case number 2015-1955-2 which was assigned in connection with Mr.

Clendennen’s original Application for Writ of Habeas Corpus Seeking Bail Reduction

which had previously been granted.

      The District Court’s jurisdiction to consider an Application for Writ of Habeas

Corpus and later to amend bond conditions set pursuant to that Application did not

give the District Court full jurisdiction to impose a gag order in a case pending before

a Justice of the Peace. On point is Ex Parte Clear, 573 S.W.2d 224 (Tex. Crim. App.

1978) where the this Court held that, when a criminal complaint is pending before a

Justice of the Peace, a district court does not have general jurisdiction to enter orders

in the case. Indeed, the filing of an indictment is essential to vest a trial court with

jurisdiction over a felony offense. See Cook v. State, 902 S.W.2d 471, 475 (Tex.


                                            11
Crim. App. 1995); Ex Parte Port, 674 S.W.2d 772, 779 (Tex. Crim. App. 1984).

      The simple fact of the matter is that the District Court in this case was only

allowed to rule on matters related to Mr. Clendennen’s bond conditions pursuant to

the Application for Writ of Habeas Corpus he filed. No indictment has been filed

against Mr. Clendennen even as of today. Thus, under both Cook and Port, the

District Court was not vested with the authority to enter a wholesale gag order

completely unrelated to the bond conditions that were the only proper subject matter

of its Writ jurisdiction.




                                        12
                            ISSUES PRESENTED

      Whether the Court of Appeals “clearly abused its discretion” in entering its

conditional order of mandamus.




                                       13
                            STATEMENT OF FACTS

I. The State’s Publicity Machine

      A. Patrick Swanton

      On May 17, 2015-May 18, 2015, the Waco Police held at least five different

press conferences before local, national and international media painting the indelible

image that all members of motorcycle clubs were actually members of “ biker gangs.”

For example, Patrick Swanton, the police spokesperson, told the media:

      • If you looked at the motorcyclists on that day “you would know they
      were not people you wanted to be around.”

      • The motorcyclists were not at Twin Peaks to “drink beer and eat
      barbeque.”

      • The motorcyclists all participated one way or the other in what
      happened at Twin Peaks.

      • The motorcyclists came to Twin Peaks with “violence in mind.”

In fact, Officer Swanton repeatedly told the hordes of media that this was the worst

crime scene he and other member of law enforcement had witnessed in their careers

that spanned several decades. Also, he described the incident as starting inside the

Twin Peaks, however, that was later shown to be false when the Associated Press

obtained a copy of the Twin Peaks video and reported on its contents. See Appendix

5 (videos B-D).

      B. Abel Reyna

                                          14
      Not to be outdone, on May 21, 2015, McLennan County District Attorney Abel

Reyna gave an eighteen minute television interview featuring witty sound bites in

which he told the media:

      • Based on what he saw, nothing was telling him that all 177
      motorcyclists were not guilty.

      • The motorcyclists were guilty because they were not “acting like
      victims.”

      • “I'll bet on our own gang before I bet on their gang."

      • The motorcyclists were not at Twin Peaks “just to eat lunch.”

      • The motorcyclists would not get away with what they did “not in this
      county, not on my watch.”

Id. (Video A).

      C. Brent Stroman

      On June 12, 2015, Waco Chief of Police Brent Stroman gave a press

conference in which he repeatedly reiterated that the police had probable cause to

arrest the 177 motorcyclist, that he had seen the video of what happened and he

wanted it released to the public because “it would show what happened.” Id. (Video

E).

II. The Gag Order Motion

      As noted above, the State filed its Motion for a Gag Order minutes before a

hearing on the City of Waco’s motion to quash Mr. Clendennen’s subpoena duces

                                         15
tecum to Twin Peaks to produce a copy of its surveillance video. The entirety of the

State’s argument in that motion was as follows:

      The State further moves that the court impose a gag order on all parties
      as the defendant, through his attorney has stated that his intent is not
      limited to legal proceedings. In a KCEN television interview on June
      25, 2015, Attorney Clinton Broden said, “if and when he gets the video,
      he will make it public. That’s the plan,” said Broden. The State
      requests that the Court order all parties involved in this case to strictly
      adhere to the letter and spirit of the Texas Disciplinary Rules of
      Professional Conduct governing Trial Publicity. Specifically all
      attorneys shall refrain from making “extrajudicial statements that a
      reasonable person would expect to be disseminate 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. R. Prof’l Conduct Rule 3.07

See Appendix 3. The only media attached to the motion was the KCEN article

referenced in its motion.

III. The Gag Order

      The District Court’s gag order, prepared by the District Attorney’s Office, took

judicial notice of:

      1) the usually emotional nature of the issues involved in the case;

      2) the extensive local and national media coverage the 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.

See Appendix 4. Based upon this alone the District Court ordered a complete gag

                                          16
order on 1) the parties in the Clendennen case; 2) the attorneys in the Clendennen

case; 3) law enforcement as it relates to the Clendennen case; and 4) any witnesses

in the Clendennen case that previously made statements to law enforcement or the

District Attorney’s Office.

IV. What the Gag Order Does Not Cover

      In the State’s haste to get a gag order in place, what the gag order did not cover

is almost important as to what it did cover.

      First, it did not cover

      1) the parties in the 176 other motorcyclist cases;

      2) the attorneys, including the District Attorney’s Office, in the 176
      other motorcyclist cases;

      3) law enforcement as it relates to the 176 other motorcyclist cases; and

      4) any witnesses in the 176 other motorcyclist cases that previously
      made statements to law enforcement or the District Attorney’s Office.

      Next, the gag order did not cover the parties in the litigation in the 54th District

Court of Dallas County between Twin Peaks and a neighboring restaurant over

whether the neighboring restaurant loss business as a result of what happened at Twin

Peaks. See DC Waco Restaurant, Inc. D/b/a Don Carlos Restaurant vs. Peaktastic

Beverage, LLC D/B/A Twin Peaks Restaurant, et. al., No. DC-15-05787.

V. State Actors Keep Right on Speaking Despite the Gag Order So Only Mr.
Clendennen Is Effectively Silenced by Judge Johnson’s Gag Order

                                           17
       After the entry of the gag order, McLennan County sat its grand jury that could

consider Mr. Clendennen’s case. See Appendix 6 to Supplement to Emergency

Petition for Writ of Mandamus. The foreperson of that grand jury is Waco Police

Detective James Head who claimed he was “‘not really’” involved in the investigation

including Mr. Clendennen’s case. Id At the time of the seating of this grand jury,

Mr. Clendennen and his counsel were subject to the gag order entered by the Judge

Matt Johnson and could publicly speak to this matter of grave public concern to our

justice system. Nevertheless, the Judge of the 19th District Court, Ralph Strother,

gave media interviews in which he basically lauded Detective Head’s selection. See

Appendix 6 (“Who is better qualified in criminal law than somebody who practices

it all the time?”).

       In that same news article District Attorney Abelino Reyna also went right

on speaking despite having requested the gag order. He told the media: “That’s

the system. He was chosen totally at random, like the law says.” Id.6

       On or about July 28, 2015, an attorney hired by McLennan County to represent

Justice of the Peace W.H. “Pete Peterson” made extensive comments to the Waco

Tribune Herald regarding the possible appointment of an out-of-county judge for Mr.

Clendennen’s examining trial following a finding that Judge Peterson must be


       6
           Certainly the District Attorney’s Office does not come to this Court with “clean hands.”

                                                  18
recused. See Appendix 7 to Second Supplement to Emergency Petition for Writ of

Mandamus. So again, while Mr. Clendennen and his counsel were subject to the gag

order entered by the Judge Johnson, the agent for Judge Peterson was permitted to

give statements to the press at will.

VI. The State’s “Statement of Fact” Presented to this Court

       The State’s Petition to this Court (“State’s Pet.”) actually highlights almost

everything that was wrong with the “gag order” in this case. Indeed, it purports to

give this Court “facts” of the case that it claims are “facts” because these “facts are

“what [is] “commonly known through press reports....” See State’s Pet. at 7. The

State then cites to press conferences held by state actors that are contained in Mr.

Clendennen’s Appendix to support these alleged “facts.”

       For example, despite the fact that Mr. Clendennen belongs to the Scimitars

Motorcycle Club, the State cites its own repeated press conferences in order to allow

it to repeatedly refer to these “clubs” as “five outlaw biker gangs.” See State’s Br. at

1. Indeed, the word “gang” appears in the State’s Petition ten times in an apparent

attempt to prejudice this Court, just as the State initially attempted to prejudice the

public against Mr. Clendennen. 7

       7
       This tactic was strongly condemned by the United States Court of Appeals for the
Seventh Circuit.

       Gangs generally arouse negative connotations and often invoke images of criminal

                                             19
       Not content to simply label the “clubs” to be “gangs,” the State also tells the

Court that it is a “fact” that “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.” See State’s Pet. at 1, 8.

What evidence does the State cite for this damning “fact?”                        Its own press

conferences!

       Similarly, the State also cites its own press conference reciting the number of

weapons secured from motorcyclists at Twin Peaks (see State’s Pet. at 8) without also

       activity and deviant behavior. There is therefore always the possibility that a jury
       will attach a propensity for committing crimes to defendants who are affiliated with
       gangs or that a jury's negative feelings toward gangs will influence its verdict. Guilt
       by association is a genuine concern whenever gang evidence is admitted....

                                              ****

       This is especially true given the prosecutor's statements during the trial and closing
       argument. The prosecutor consistently used the term “motorcycle gang,”
       specifically choosing it over the far less prejudicial term “motorcycle club,” even
       after the judge instructed him to refrain from using the term “gang.” In addition, he
       openly mocked the use of the term “club” in his questions, clearly suggesting to the
       jury that the term was a total misnomer for the group. Most importantly, the
       prosecutor essentially asked the jury to associate criminal activity with the gang and
       to draw the improper inference of guilt by association. He argued in closing that
       there was plenty of evidence that Pastor was guilty, as Pastor was a member of a
       motorcycle gang that wears “dirty, nasty colors and do[es] things,” and further that
       it denies common sense that the Diablos are “an upstanding social group” or “club.”
       This argument was allowed to stand over the objection of the defendants. The
       prosecutor's obvious attempt to exploit the prejudicial quality of the motorcycle
       gang evidence almost certainly heightened any impact the improper gang
       testimony had on the jury's verdict against Pastor.

United States v. Irvin, 87 F.3d 860, 865-66 (7th Cir. 1996) (emphasis added).


                                                20
mentioning that this number was a moving target ripe with police hyperbole as to the

number of weapons and whether things such as wallet chains could actually credibly

be called weapons. This was evidenced by the different numbers given at the

different press conference held by the State.




                                         21
                       SUMMARY OF THE ARGUMENT

      The gag order imposed in this case violated Mr. Clendennen’s right to free

speech under both the Texas Constitution and the United States Constitution. The

findings made by the District Court in adopting the State’s gag order were insufficient

to establish that any unidentified pretrial publicity in this case had risen to the level

that it posed “imminent” and “severe” harm to a “fair and impartial trial.’” More

importantly, given the unique nature of the case, which has 176 identical companion

cases, a gag order was likely to be ineffectual and was not the “lest restrictive means”

to prevent any identified harm.

      The Tenth Court of Appeals did not abuse its clearly abuse its discretion in

granting the conditional Writ of Mandamus in this case.




                                           22
                           STANDARD OF REVIEW

      While not discussed in the State’s Petition for Writ of Mandamus and Motion

to Stay Writ of Mandamus, it must be noted that this Court applies “the clear abuse

of discretion” standard for reviewing the mandamus action of a court of appeals.

Dickens 727 S.W.2d at549-50 (Tex.Crim.App.1987)




                                        23
                                   ARGUMENT

      Whether real or perceived, there is a noxious odor surrounding the

investigation by the Waco Police and the McLennan County District Attorney’s

Office with regard to the “Twin Peaks Shooting” and the wholesale arrest of 177

motorcyclists based on identical, “fill-in-the-name” criminal complaints.

Nevertheless, as Justice Brandeis said: “Publicity is justly commended as a remedy

for social and industrial diseases. Sunlight is said to be the best of disinfectants;

electric light the most efficient policeman.” Louis D. Brandeis, Other People’s

Money-and How Bankers Use It (1914).

      This sentiment is still recognized today by both federal and state courts. As

noted by the United States Supreme Court and discussed in Benton, “the criminal

justice system exists in a larger context of a government ultimately of the people, who

wish to be informed about happenings in the criminal justice system, and, if

sufficiently informed about those happenings, might wish to make changes in the

system.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1070 (1991).

      The judicial system, and in particular our criminal justice courts,
      play a vital part in a democratic state, and the public has a
      legitimate interest in their operations. “[I]t would be difficult to
      single out any aspect of government of higher concern and importance
      to the people than the manner in which criminal trials are conducted.”
      Public vigilance serves us well, for “[t]he knowledge that every criminal
      trial is subject to contemporaneous review in the forum of public
      opinion is an effective restraint on possible abuse of judicial power....

                                          24
       Without publicity, all other checks are insufficient: in comparison of
       publicity, all other checks are of small account.” As we said in Bridges
       v. California, limits upon public comment about pending cases are
       “likely to fall not only at a crucial time but upon the most important
       topics of discussion....[“]

Id. at 1035 (citations omitted) (emphasis added).

       It is against this backdrop that the State asks this Court to grant a Writ of

Mandamus against the Tenth Court of Appeals.

I. The District Court’s Gag Order Violated Article 1, Section 8 of the Texas
Constitution and the First Amendment to the United States Constitution.

       A. Constitutional Consideration and the Three Key Cases

       The seminal case on gag orders in the State of Texas is Davenport v. Garcia,

834 S.W.4 (Tex. 1992). Although that is a civil case, its holdings have been

repeatedly applied to gag orders imposed in criminal cases. See Benton, 238 S.W.3d

at 594; In re Graves, 217 S.W.3d 744, 753 (Tex. App.-Waco 2007); San Antonio

Express-News v. Roman, 861 S.W.2d 265, 268 (Tex. App. San Antonio 1993).

Indeed, as noted in Graves, this Court “often relies on the decisions of the Supreme

Court of Texas when addressing matters of state constitutional law.” Graves, 217

S.W.3d at 749.8


       8
         If anything, gag orders should face even stricter scrutiny in criminal cases because “it
would be difficult to single out any aspect of government of higher concern and importance to
the people than the manner in which criminal trials are conducted.” Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 574 (1980).

                                               25
      The Texas Supreme Court in Davenport made clear that, despite the broad

freedom of speech protections given United States citizens under the First

Amendment to the United States Constitution, Article 1, Section 8 of the Texas

Constitution gives even greater free speech protections to citizens of our state.

Davenport, 834 S.W.2d at 12 (“When a state court interprets the constitution of its

state merely as a restatement of the Federal Constitution, it both insults the dignity

of the state charter and denies citizens the fullest protection of their rights.”); Id. at

7 (“The history of [Article 1, Section 8 ] provision is a rich one, and its language

demonstrates Texas' strong and longstanding commitment to free speech. By the

plain language of our constitution, this fundamental liberty ‘shall forever remain

inviolate.’”).

      The Texas Supreme Court held that, to justify a gag order, it must be shown (1)

that, without the gag order, 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. Id. at 10. In fact, with

regard to the first prong, the Supreme Court made clear that the harm must be

“imminent” and “severe.” Ultimately, the Davenport court found that a gag order

providing:

      1. Counsel in this case, present and former, are expressly ORDERED
      to refrain from discussing or publishing in writing or otherwise, any

                                           26
       matters of this case with any persons other than their clients, agents, or
       employees in the necessary course of business in this case.

       2. Counsel is ORDERED to refrain from any public comment, casual
       or otherwise concerning the facts of this case or the conduct of counsel
       in this case other than in a court hearing.

violated the right to free expression guaranteed under the Texas Constitution. Id. at

11. (“‘[T]he argument of convenience can have no weight as against those safeguards

of the constitution which were intended by our fathers for the preservation of the

rights and liberties of the citizen.’” (citation omitted)).

       Following the Texas Supreme Court’s Davenport case, there were two cases

where gag orders were challenged by a criminal defendant that are on point. The first

was Benton from the Fourteenth Court of Appeals and the second was Graves from

this Court. These two cases can be immediately distinguished from In re Houston

Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App. Houst (14th 2001), one of the only

cases upholding a gag order, because in that case (the Andrea Yates case) “the prior

restraint on speech was not the subject of a constitutional challenge from any

individual who was the subject of the order.” Benton, 238 S.W.3d at 601, n. 25.9

       Benton involved a gang fight in Houston. Benton, 238 S.W.3d at 588. The


       9
        Nevertheless, as an indication that little reflection was given to the serious free speech
implications of the gag order imposed in the instant case, the instant gag order has identical
findings as the gag order in Houston Chronicle. It stands to reason that the free speech
principles announced in Davenport do not permit “one size fits all” gag orders.

                                                 27
State requested a gag order and, much like here, alleged that the defense made “extra

judicial statements to the media” that violated the Texas Disciplinary Rules of

Professional Conduct. Id. at 951. After the District Court entered a comprehensive

gag order, the defendant sought mandamus and argued that the gag order violated her

free speech rights under the Texas Constitution and that the evidence was insufficient

to establish the likelihood of the required level of prejudice to the integrity of the

judicial process or the imminence of any such harm. Id. at 592.

       The Benton court ultimately determined that the gag order was unconstitutional

even under the slightly more lenient First Amendment test because the trial court’s

findings when imposing the gag order did not “establish, as a ‘constitutional

minimum,’ that the order was narrowly-tailored to avert a substantial likelihood of

material prejudice.” Id. at 597. It first noted that the gag order “primarily focused on

relator's right to a fair trial and an impartial jury.” Id.10 It then noted that the district

court “presumed that publicity is inherently prejudicial to a criminal defendant.” Id.

The Benton court ultimately determined that the district court abused its discretion

in entering the gag order at issue in that case. Id. at 601.

       Graves dealt with the following findings in connection with a gag order:

       1. The prior proceeding in this cause of action, and other related actions

       10
         This is similar to the instant gag order which purports to be concerned with “pre-trial
publicity that will interfere with the defendant’s right to a fair trial by an impartial jury.”

                                                28
      of which the Court takes judicial notice;

      2. The pre-trial publicity which has already occurred in this case, 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;

      4. Whereupon the Court does find that it is necessary to enter this
      Restrictive Order to protect and provide for a fair and impartial trial in
      this cause of action.

Id. at 746. Like Mr. Clendennen, “Graves at least implicitly dispute[d] that pretrial

publicity in his case ha[d] risen to the level that it pose[d] ‘imminent and irreparable

harm’ to a ‘fair and impartial trial.’” Id. at 752 Ultimately, this Court concluded that

the Respondent trial judge “ failed to make ‘specific findings’ detailing the nature or

extent of the pretrial publicity in Graves's case or how the pretrial publicity or the

record from his prior prosecution will impact the right to a fair and impartial jury.”

Id. at 752-53.

      B. Applying the Principles to the Instant Case

      It appears the State believes that it is consistent with constitutional principles

for it to be allowed to give repeated interviews designed to portray 177 member of

motorcycle clubs to be “gang members” who came to Twin Peaks on May 17, 2015

only with “violence in mind” and not “just to eat lunch.” Then the State believes that


                                          29
ten minutes before an unrelated hearing it can, for the first time, complain about the

publicity that casts its previous accounts of what occurred at Twin Peaks into serious

doubt. The unvarnished truth of the matter is that the State had absolutely no

concern with “the paramount importance of the trial rights of Mr. Clendennen”

(see State’s Br. at 13) when it held its repeated press conferences earlier in this

case and certainly its concern now for “the defendant’s right to a fair trial by an

impartial jury” is transparently hollow.

       Moreover, in this case, a gag order was simply impossible and unworkable

given the State’s decision to charge 177 motorcyclists in identical criminal

complaints. As noted above, the gag order only applied to attorneys and parties in

State v. Clendennen. It did not apply to the attorneys and parties in the other 176

cases.11 Moreover, it did not apply to related litigation occurring in other state and

federal courts. Ultimately, the gag order would collapse under the unprecedented

action by the State to charge 177 with the exact same offense.12


       11
         Technically, the District Attorney’s Office and the Waco Police could continue to have
press conference and simply preface any remarks with “this just applies to the other 176 bikers
and not Matthew Alan Clendennen.”
       12
          To put the gag order in this case, which was entered only a month after Mr.
Clendennen’s arrest, into perspective, a review of the docket sheets in the Branch Davidian case
reveals that a “gag order” was not entered until approximately eight months after charges were
filed and just shortly before trial. See United States v. Schroeder, 6:93-cr-00046 (W.D. Tex).
Moreover, in the “Boston Bomber” case there does not appear to have been any gag order
entered. See United States v. Tsarnaev, No. 1:13-cr-10200 (D. Mass.).

                                               30
       C. State’s Argument

       Despite the fact that there are three important gag order cases,1 the State’s

Petition to this Court only addresses the gag order in Graves.2 The State also

discusses In re Houston Chronicle Pub. Co. As noted above, in Houston Chronicle,

“the prior restraint on speech was not the subject of a constitutional challenge from

any individual who was the subject of the order.” Benton, 238 S.W.3d at 601, n. 25.

Thus, Houston Chronicle is immediately distinguishable.

       Second, in discussing whether the gag order in this case was “narrowly

tailored” and whether it met the “least restrictive means” test, the State simply tells

the Court that it “seems self-evident” at to why the gag order is the least restrictive

means to accomplish the goals sought by the gag order. See State’s Br. at 10.

       Pretrial publicity rarely is so unfairly and incurably prejudicial to a particular

defendant as to deny to him the right to an impartial jury. In many high-profile

criminal cases—including those involving the Watergate defendants, the platoon

leader in the My Lai massacre in Vietnam, and Enron executive Jeffrey Skilling—voir

dire of prospective jurors sufficiently guarded against prejudice Indeed, as a realistic



       1
           See Davenport v. Garcia, supra.; In re Benton, supra.; In re Graves, supra.
       2
        To be sure, the State discusses the standard of review announced in Davenport and
makes a passing reference to Benton, but it never discussed the ultimate holding in those cases
overturning gag orders.

                                                 31
matter, Mr. Clendennen’s trial, if he is even indicted, is at least a year a way. It is not

at all “self evident” why a gag order is needed to protect a case not even indicted and

which would not go to trial in the near future and why “searching” voir dire and

“emphatic’ jury instructions are not constitutionally preferable alternatives.

       Third, the State does not address the efficacy of a gag order at all given that the

District Court’s gag order did not apply to the 176 other defendants, the State in the

other 176 cases, any of the litigants in the related civil cases, nor the McLennan

County judges such as Judge Strother and Justice of the Peace Peterson who made

comments to the press after the entry of Judge Johnson’s gag order.

       Fourth, the State’s Petition almost proves the point at to why this gag order was

unworkable and failed to provide proper notice. The State appears to recognize a

distinction in the gag order between “discussion with the media” and “statements to

the media.” See State’s Br. at 9. Under the State’s reading of the gag order, the

parties could make statements to the media as long as did not violate the Texas

Disciplinary Rules of Professional Conduct but they couldn’t have discussions with

the media. Apparently, under the State’s reading, it was free to call members of the

media and tell them, “Don’t ask me any questions because I can’t have

discussions with you, but I can make statements so listen closely.”

       Fifth, the State tells the Court that “it would behoove the Court” to recognize


                                            32
what the State perceives to be the uniqueness and enormity of this case. See State’s

Pet. at 9. Again, the irony is lost on the State. There have, of course, been other

situations like this with mass deaths and injuries (for a recent example one need only

look to the Boston Marathon bombings where it does not appear a gag order was

imposed). Nevertheless, in those other situations the police did not overreact and

arrest almost everybody at the scene of the crime whether or not they were simply

innocent witnesses such as Mr. Clendennen. The unprecedented overreaction and

civil rights violations using “fill-in-the-name” arrest warrants to arrest and detain

numerous innocent individuals is a mess of the State’s own making and the enormity

of it is one of the very reasons that a gag order infringes on important free speech

rights. Gentile 501 U.S. at 1070 (1991) (“The judicial system, and in particular our

criminal justice courts, play a vital part in a democratic state, and the public has a

legitimate interest in their operations.”).

      Finally, the State expresses concern regarding the “lack of analysis by the

Tenth Court.” See State’s Br. at 13. Mr. Clendennen submits that the terseness of the

Tenth Court of Appeals’ opinion can be attributed to the fact that the precedent

supporting its granting of the conditional writ was so clear as to make “reinventing

the wheel” unnecessary and can also be attributed to the need to act with alacrity

given the important free speech rights at stake.


                                              33
                                   PRAYER

      The Waco Court of Appeals did not “clearly abuse its discretion” in granting

its Conditional Writ of Mandamus and, therefore, the States Petition and Motion to

Stay should be denied.   .



                                     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




                                       34
                         CERTIFICATE OF SERVICE

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

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

      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/ F. Clinton Broden
                         F. Clinton Broden




                                        35
                        CERTIFICATE OF COMPLIANCE

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

because this brief contains __6,050__ words, excluding the parts of the brief

exempted by the rule.




                                           /s/ F. Clinton Broden
                                           F. Clinton Broden




                                      36
