                        WR-83,719-01




                    RECEIVED
             COURT OF CRIMINAL APPEALS
                    8/11/2015
               ABEL ACOSTA, CLERK




Appendix 1
THE STATE OF TEXAS                    §      DOCKET#        II d..F1 £- 177
                                      §
COUNTY OF MCLENNAN                    §      COURT: JP COURT PRECINCT 1 PLACE 2

                                        COMPLAINT
                 {Articles 15.04 & 15.05, Texas Code of Criminal Procedure}

BEFORE ME, THE UNDERSIGNED AUTHORITY, PERSONALLY APPEARED THE
AFFIANT HEREIN, A PEACE OFFICER UNDER THE LAWS OF TEXAS, WHO, BEING
DULY SWORN, ON OATH MADE THE FOLLOWING STATEMENTS AND
ACCUSATIONS:

My name is MANUEL CHAVEZ and I am commissioned as a peace officer with the City of
Waco by The State of Texas. I hereby state upon my oath that I have reason to believe and do
believe th~t heretofore, and before the makin~ and filing of this Complaint, that o~~b~ut May
17,2015, III McLennan County, Texas, the sald {!/e(ld€olVlP-l1.111"dbewllJ.in .:t- i9$dld then
and there, as a member of a criminal street gang, commit or cO!lspire to commit murder, capital
murder, or aggravated assault, against the laws of the State.

My probable cause for said belief and accusation is as follows:

Three or more members and associates of the Cossacks Motorcycle Club (Cossacks) were in the
parking lot of the Twin Peaks restaurant in Waco, McLennan County Texas. Three or more
members and associates of the Bandidos Motorcycle Club (Bandidos) arrived in the parking lot
of the Twin Peaks restaurant and engaged in an altercation with the members and associates of
the Cossacks. During the course of the altercation, members and associates of the Cossacks and
Bandidos brandished and used firearms, knives or other unknown edged weapons, batons, clubs,
brass knuckles, and other weapons. The weapons were used to threaten and/or assault the
opposing factions. Cossacks and Bandidos discharged firearms at one another. Members ofthe
Waco Police Department attempted to stop the altercation and were fired upon by Bandidos
and/or Cossacks. Waco Police Officers returned fire, striking multiple gang members. During
the exchange of gunfire, multiple persons where shot. Nine people died. as a result of the
shooting between the members of the biker gangs. Multiple other people were injured as a result
of the altercation. The members and associates of the Cossacks and Bandidos were wearing
common identifying distinctive signs or symbols and/or had an identifiable leadership and/or
continuously or regularly associate in the commission of criminal activities. The Texas
Department of Public Safety maintains a database containing information identifying the
Cossacks and their associates as a criminal street gang and the Bandidos and their associates as a
criminal street gang.
After the altercation, the subject was apprehended at the scene, while wearing common
identifying distinctive signs or symbols or had an identifiable leadership or continuously or
regularly associate in the commission of criminal activities.

After the altercation, fireanns, knives or other unknown edged weapons, batons, clubs, brass
knuckles, and other weapons were recovered from members and associates of both criminal
street gangs.

Multiple motorcy<?les with common identifying signs or symbols ofthe Cossacks and Bandidos
and their associates were recovered at the scene. Additional weapons including: firearms,
ammunition, knives, brass knuckles, and other weapons were found on the motorcycles.

Y:?/~~35
SWORN TO AND SUBSCRlBED BEFORE ME BY SAID AFFIANT/COMPLAINANT ON
THIS THE '~l'                      ¢ate.            ,
 ~~A
JUSTIC'g OF THE PEACE
MCLENNAN COUNTY, TEXAS
Appendix 2
                                                                                                                    FILED
                                                                                                                .JUN 1. 6 2015
                                     No. J12FlS-177                                                         J .P. COURT, MCLENNAN CO
                                                                                                                 PRECINCT 1, PLACE 2 •




THE STATE OF TEXAS                          *             JUSTICE COURT

VS                                          *             PRENCINCT 1 PLACE 2

MATTHEW ALAN CLENDENNEN                     *             MCLENNAN COUNTY, TX



     ORDER ON REQUEST TO RESET EXAMINING TRIAL SO THAT IS PROMPT
                th
       On the 16 day of June, 2015, the Court, after review and consideration of the

Defendant's Request to Request Examining Trial, Denies said request.

       Examining Trial remains set on, Monday, August 10,2015 at 2:00 p.m. in Judge

W.H. Peterson's Court at 501 Washington Ave. Room 108, Waco, IX.



                             SIGNED AND ENTERED THIS 16th day of June, 2015




                                                   W.H. PET.ER'30N ····· . "l                      "-:;..
                                                   JUSTIC:I;f oF THE~EA"CE \.
                                                   PRECIN_CT 1, PLACE 2 ::' ~
                                                   MCLE~AN COUNTY, 'TEXAS
                                                            -::;',. --        .~...           \(
                                                                ":,,,,, /r.j ,   I    .   })

                                                                         111111'r~1~' \'\'"
Appendix 3
                                         No. 2015-1955-2

ST ATE OF TEXAS                                    §
                                                   §
                                                   §
v.                                                  §    54 TH JUDICIAL DISTRICT
                                                    §
MATTHEW ALAN CLENDENENN                             §
                                                    §   MCLENNAN COUNTY, TEXAS

     MOTION TO QUASH AND FOR PROTECTION OF EVIDENCE and MOTION TO
                  ISSUE "GAG" ORDER FOR ALL PARTIES

       COMES NOW The State of Texas, by and through her Criminal District Attorney of

McLennan County, Texas, Abelino "Abel" Reyna and files this Motion to Quash and for Protection,

and and Motion to Issue "Gag" Order for all Parties and shows unto the Court as follows:

                                                I.
                                            Background

       On June 23 , 2015 Matthew Alan Clendennan herinafter styled Defendant, through his

attorney of record Clinton Broden, served a subpoena duces tecum on Patrick Keating commanding

any and all videos of the events taking place at Twin Peaks in Waco, Texas from May 17,2015 to

May 24, 2015 to be produced June 26, 2015 in the 54th District Court of McLennan County, Texas

at 9 A.M .. The subpoena commands that Patrick Keating is to bring the following to the hearing:

        I.     Any and a ll videos o f the events taking place at the Tv.ri.n Peaks location at
               4671 S. Jack Kultgen Expressway Waco, TX 76706 taken from May 17,
               2015 to May 24, 2015;


A copy of the subpoena and application is attached hereto as Exhibit "A."

                                                 II.
                     Improper and Prohibited Use of Subpoena Duces Tecum

        2.1    As can be seen from the foregoing, the Subpoena Duces Tecum is nothing more than

a broad and all-encompassing fishing expedition, and is an attempt to conduct pre-trial discoverv

                                                                                   IInl\I\I\11 ~11\~\11 t\IIIJII\I~111 1111~ ~\I\~\II 1111


MOTION TO QUASH AND FOR PROTECTION
under the guise of a subpoena for a hearing. Using a subpoena duces tecum for such purposes is

improper. See Luvano v. Stale, 183 S.W.3d 918, 924-25 (Tex. App. - Eastland 2006, no pet.);

Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.-Waco 1998 , pet. refd).

       2.2.     A criminal defendant's right to pre-trial discovery is limited by Article 39.14 of the

Texas Code a/Criminal Procedure . See Shpikula v. State, 68 S.W. 3d 212, 221-22 (Tex. App.---

Houston [1 51 Dist.] 2002, pet. ref.); Martin v. Darnell, 960 S.W.2d 838, 842 (Tex. App. - Amarillo

1997, orig. proc.). Section 39.14 provides the exclusive means for pre-trial discovery. See Shpikula

v. State, 68 S.W. 3d at 222. The limited right to pre-trial discovery does not include the right to use a

subpoena duces tecum for a hearing as a "weapon" of discovery. See Ealoms, 983 S.W.3d at 859;

Luvano, 183 S.W.3d at 924-25. See also See Shpikula v. State, 68 S.W. 3d at 222 (court did not

commit error in refusing to allow defendant to discover information via a subpoena duces tecum

under Chapter 24 of the Code        0/ Criminal   Procedure) . Nothing in Chapter 24 or the Sixth

Amendment allows a defendant to simply cast a net in the hope that something useful might be

found. See Shpikula v. State, 68 S.W. 3d at 221-22; Welch v. State, 2011 W.L. 1364970*7 (Tex.

App.---Texarkana 2011, pet. ref'd). See also 2 Tex. Prac. Guide Crim. Prac. & Proc. at Section

19:29 ("Subpoenas may not be used to enlarge a defendants' right to production as defined by Tex.

Code Crim. Proc. Ann. art. 39.14. A subpoena is not to be used as a ' discovery weapon' but rather

as an 'aid to discovery' and must be based on a showing of materiality and relevance. Reece v.

State, 878 S.W.2d 320, 326 (Tex. App.- Houston [1st Dist.] 1994, no pet.) (quashing subpoena did

not deny the defendant access to 'material' evidence); Cruz v. State, 838 S.W.2d 682, 685 to 686

(Tex. App.-Houston [14th Dist.] 1992, pet. rei'd).").

        2.3     On its face the subpoena at issue exceeds the scope of any legitimate purpose under

Chapter 24 and is an obvious attempt to conduct pre-trial discovery. Therefore, it should be




MOTION TO QUASH AND FOR PROTECTION                                                                       PAGE 2
                                                             .;'       "' . .:
                                                                    "j"""",    l.     ~.
                                                                                           'KO~
                                                                                           ~..   r
                                                           :.'.~ L. ,':. : •• ,' J   , .OUt 'TY, TEXAS
quashed. See Luvano v. State, 183 S.W.3d 918, 924-25 (Tex. App. - Eastland 2006, no pet.);

Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.-Waco 1998, pet. ref' d).

                                                III.
                                       Pending Investigation

       3.1     Again, nothing in the Texas Code of Criminal Procedure gives the defendant a

general right of discovery outside of the confines of Art. 39.14. A criminal defendant has no right

to generally peruse the records of law enforcement entities which were or are in any way connected

with the criminal case. The criminal defendant obtains information from the state, and not by virtue

of subpoenaing broad categories of records from third parties.

       3.2     Furthermore, the broad and all-encompassing subpoena duces tecum relates to a

pending investigation. There is no right under the Code or the Constitution for a criminal defendant

to interject himself into a pending investigation by law enforcement and obtain records directly .

from law enforcement.

        3.3    Allowing such a process would interfere with the investigation of criminal cases and

the duties and functions of law enforcement officers. Should the release of this information be

permitted, the State's investigation would be prejudiced and potentially compromised as witnesses

could be attacked as to whether their recollection is based on actual events or on the events seen on

a video source through Clendennen' s planned release to the media.




MOTION TO QUASH AND FOR PROTECTION                                                           PAGE 3
                                                     IV.
                                        Materiality and Relevance

         4.1     Defendant's application for subpoena contains no indication as to how
                                                                                       the broad
 categories of requests are relevant or material. The right to have the
                                                                        state disclose favorable
 evidence does not entitle the defense to conduct his own search to argue
                                                                          the relevance of particular
 information. See Martin v. Darnell, 960 S.W.2d at 840-842. That is, the
                                                                         specific materiality and
 relevance of information must exist before the request, not after the defend
                                                                             ant has perused through
 the information requested. Id.

        4.2      Even a cursory review of the multiple categories of requests and their breadth
                                                                                                shows
that the Subpoena Duces Tecum is not a request for material and relevant
                                                                         information; rather it is a
request for information so that the defense can determine its usefulness. That
                                                                               is not the purpose of a
subpoena duces tecum under Chapter 24; and a subpoena duces tecum cannot
                                                                         be used to circumvent
the discovery process . See Ealoms, 983 S.W.2d at 859; Luvano, 183 S.W.3d
                                                                          at 924-25.

                                                    V.
                     MOTION TO ISSUE "GAG" ORDER FOR ALL PARTIES

        5.1     The State further moves that the court impose a gag order on all parties
                                                                                         as the
defend ant, through his attorne y has stated that his intent is not limited
                                                                            to the legal procee dings. Tn 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 involed 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 "extrjudicial statements that a reasonable person
                                                                            would expect to be
disseminated by means of public communication if the lawyer knows or
                                                                     reasonably should know



MOTION TO QUASH AND FOR PROTECTION
                                                                                                  PAGE 4
that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding." Tex.

R. Profl Conduct Rule 3.07.

A copy of said article is attached hereto as "Exhibit B".




        WHEREFORE, Movant respectfully requests that the Subpoena and Subpoena Duces

Tecum be QUASHED and that the Court enter an order that Movant is not required to comply

therewith .




                                                Respectfully Submitted;

                                                Abelino "Abel" Reyna
                                                Criminal District Attorney
                                                McLennan County, Texas
                                                219 North Sixth Street, Suite 200
                                                Waco, Texas 76701
                                                Phone (254)757-5084
                                                Fax (254) 757-5021



                                                Mark Parker
                                                                             ---===_..
                                                Assistant Criminal District Attorney
                                                State Bar Number 15494360




MOTION TO QUASH AND FOR PROTECTION                                                             PAGES
                                  CERT IFICA TE OF SERVICE
        I do hereby certify that on the date set forth next to my signature below, a duplica
                                                                                            te original
 or true and correct copy of the document to which this certificate is attache
                                                                                d was served on
 defendant's counsel of record in this case. The names and addresses of the
                                                                            attorney or attorneys
 served, and the manner of service, are indicated below:

        Viajax : _____ _____~
        Via hand delivery:  1/
        Clinton Broden
        2600 State Street
        Dallas, Texas 75204


 Date: June~, 2015                                                          .--
                                              Mark Parker
                                              Assistant Criminal District Attorney
                                              McLennan County, Texas




MOTIO N TO QUASH AND FOR PROTECTION
                                                                                             PAGE 6
EXHIBIT "A"
                                                        THE S TAT E 0 F T E X AS
                                                                             StlBPOENA DUCES TF£lIM

  To the Sheriff or any Constable of MCLENNAN COUNTY, TX: GREETING

  YOU ARE COMMANDED to Summon :

                                                                           PATRICK KEATING
                                                                          MCLENNAN COUNTY, TX
  to be and personally appear before the Honorable District Court of Mclennan County,
                                                                                      54th District. to be held in the City of WACO, on
  the INSTANTER Ihen and there to give evidence in a certain case pending,
                                                                               wherein THE STATE OF TEXAS. Is plaintiff, and
  MATTHEW ALAN CLENDENNEN is Defendant in cause number 2015-1955-2 at
                                                                      the instance of the DEFENSE. and that
 he bring with him and produce in said Court, at said time and pl~e, ANY AND ALL
                                                                                  VIDEOS OF THE EVENTS TAKING PLACE
 AT TWIN PEAKS IN WACO, TEXAS FROM MAY 17, 2015-MAY 26, 20lS
                                                                             desired as evidence in said above numbered and entitled
 cause,

             "It is an offense for I peoon to intentionally innumcc or cocn:e a witness to testify
 witness or prospective witness in retalilliOll for or OIl ICcool1l of me service of the penon          falsely or to elude legal process, It is also a felony 10 harm or thrca1en to harm.
                                                                                                iii I witness or to prevent Of delly the penon's SC1'Yice as a witness
                                                                                                                                                                        to. crime,"
             "Slim penon. intencionolmeme obl isa 0 ejcn:c innuencia sobre un tcstigo PIll1l
                                                                                                       que dlerl declaraGlones fIlsas 0 para que evadien el proceso leaaJ, es un delllo,
 TlIl1bi$1 cs un crimen llIccr dlllo 0 amenUA! I un tesligo 0 I uno qulen JlOSiblemen
                                                                                           ~ podr1a ser un lestigo para vcn8ftJ$e 0 por rv.6n del uso de esa penon.
 prcvcnir 0 demorar el uso de esa persona como 1eStigo I un crimen,"                                                                                                    como teStlgo 0 pant

             Herein fail nol, bul have you then and there this Writ, with your ret1.Jm thereon as
                                                                                                  the law directs,
             Given under my hand, this 21ND clay of JUNE. 201!,

                                                                                      JON R, GfMBLE
                                                                                      Clerk, District Courts.
                                                                                      McLennan County, Texas

ATTORNEY;                                                 By:         C.o
                         CLINTON BRODEN, 2600 STATE ST., DALLA ,TX 7Sl04
                                                                                                 ~tA.N                ~C.hLo,d.'JL.
SERVE:                   PATRICK KEATING, MCLENNAN COUNTY, TX

APPEAR:                  INSTANTER
            (54· DistriC1 Court is 10000ed on the 3'" noor or the McLennan Count)' Courthouse III
                                                                                                     500 Washington Ave, In WACO, Texas)


                                                                               SHER IFF'S RETURN
Came to hand the _ dly of                      , - - ' 8t _     o'clock _        M, and executed by deliVering to the following within named wiln& In person
                                                                                                                                                             in MCLENNAN
COUNTY,    rx,. true copy of this subpoenal! the (0IIo",in8 times, to·wit:

PATRICk KEATING at               o'clock       M.. _ _ _ _--'
NameofWitncss              -               -

Deputy
                                                                                       Sheriff




                                                                                                          , ·-
                                                                                                          C  C. ,; " , ~)__ 'OCll
                                                                                                                    'p '   •
                                                                                                                              ... _ '
                                                                                                                               •
                                                                                                                                    -}~~-N,"
                                                                                                           '{-J',      11    0'· (__ _
                                                                                                          D. ,.           GL ';(i< C:-
                                                                                                          L.       ,' •...:",           ,,,)1 !,.j \ ':. ' ):1\'-
To the CIer1< of the District Court of Mclennan County, Texas.
         IN THE CAS~9f THE STATE OF TEXAS VS. M«:r",tW                              ,lMo.f\Q,eocle& Q.e!\
CausG No.  BR   \$'- t tit ~u will please Issue subpoena(s) In accordance with thalaw for the following named
witnesses) to appear before the Honorable ~iStrict Court, at the County Courthouse, Waco, Texas on the
__ day of l A ¥ : , \ . 20_ at _ _ o'clock_M.:
          1.        ~ cYZ Mub                   "f!J
                                                   residing In              County, TGxas
wI"Iose avocation Is that of,_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
and wI"Iose location Is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __




~~~~~~~_-_~_~_~_~_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-__
                                                       -~-sl-dl-ng-l-n=============:=:~~-E-o-u~~~T-~-a~ ~ .
                                                                                                                       -          ~

wI"Iose avocation Is that of                                                                                    (ho    5:     -   ~
and whose location Is _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _sald s                                   bpfimo,..ald
                                                                                                         x"::;:
                                                                                                                              r
                                                                                                                              r-rt.L'"
witness to bring the follo>Mng:                                                                                  ...   '"'0   l'" r'"
                                                                                                       o·         r-          0':7
                                                                                                       ~   r:s""       fa"        1"-

_ _ 3.
                                                                      ~          ~          ~
                   _ _ _ _ _ _ _ _ _ _ _ _ _ residing In _ _ _ _ _ _ _ _ _ ·COUnty. Texas . ~
wI"Iose avocation Is that of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
and wI"Iose location Is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,sald subpoena to order said
\'Atness to bring the fonO'.'Ang: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __




         The testimony of said witness(s) Is believed to be material to the:    Stat~drcle one)
                                                                               Cl!(1+QO              (?..cod. n




~m to and subscribed before me this R            day   of(~LLn c:
                                                                                      JON R. GIMBLE
                                                                                      CLERK, DISTRICT COURTS
                                                                                      MclENNAN COUNTY, TEXAS




Instructfons for pick-up:
Call   0,",,7, r£ Cec.YcwVl'~t aSt.{--7/7-1hOD                          (Picked upat _ _ _ _ on _ _ _- . i
or                                     ()
Deliver to _ _ _ _ _ _ _ _ _ _ _ _ _ for                   service     (Delivered   al ______on _ _ _ _-'




                                                                                      "c:; n~I~U/.~\l_1
                                                                                         f    ,1.t-::nK ( ),'
                                                                                                ..   '!.lP~"~   r
EXHIBIT "B"




         :~~!~·.:~· 1v 'J~~?~~~~I
          "      _ r ~i .t.:m{ OF
              .' '. :'"'j COUNTY n::xJ..\S
City of Waco Moves to Block Subpoena for Twin Peaks Restaurant S ...                                                                                                              http://www.kcentv.com /story/2941 0760Ib ikers-subpoena-quashed




                   City of Waco Moves to Block Subpoena for Twin Peaks Restaurant
                   Surveillance Video
                   Posted: Jun 25,20153:49 PM CST
                   Updated: Jun 26. 201510.39 AM CST

                                                                                                                                                                           WACO -- An attorney for a man charged in the May 17th
                                                                                                                                                                           Twin Peaks shootings filed a subpoena to get
                                                                                                                                                                           surveillance video from the Waco restaurant during the
                                                                                                                    "1111 Ntn""'"lV.~T l "                                 shootings .
                                                                  '-:~,      .
                                                                                                              • ~"''''PM''','''Vf.H.Y
                                                                                                              •


                                                                                                              :
                                                                                                              I
                                                                                                                                                                           F. Clinton Broden, who represents Matthew Alan
                                                                                                              , """"-"''-'" \,,- ,\)'. "',,'
                                                                                                              I

                                                                                                                                                                           Clendennen, sent a press release late Thursday stating
                                                                                                                                                                           that the City of Waco moved to quash or block the
                                           .. ). '.:)'Hr.'.,..'·.... "' ........                T _,... . ... ~.l _ , . ., ., '.... ""~ ... ....... . ..,

                              -. ..... "--,·<:....... - -....... _-w., ... . ,,,""'. ............ _ .•,c..                                                                 subpoena . Accord ing to the release, the subpoena was
                              · ..... ... .,·.. .. 1. 1'0,. ... ......".. ... ,,-~~ . . .-... , • • ;.w, • •·. .. _40)0"..                                                 served on Patrick Keating , an attorney with Haynes &
                              \(' '''' .lI-~               ... ~.....tI.         "'"'   1~'1lII~'. "",,,,,,,, ......... _                          ....   /J.t.., .... _

                              ~,.,...-·        ... #-t'!? _         ' 1iIo - ........ "j ·".,..lWI_                  "'- • ••. ~ _ r;o.". __
                                                                                                                                                                           Boone in Dallas and the attomey for the Waco Twin
                              -.W .....-            ................. .. i .......      _ '.rt ....I ...... .. _~_, 'D ....-                                               Peaks franchisee. Mr. Keating had previously agreed to
                              t."'" •• ,.....        1 ... ..... ,_ , .... , 1" ,....,\1; , .... . .   ... ~ ... ,
                                                                                                                                                                           accept service of the subpoena on behalf of his client
                                                                                                                                                                           and to produce the video in compliance with the
                                                                                                                                                                           subpoena by 9:00 am on June 26, 2015.
                             IV ' , -


                            .,•..•
                                         J :to.

                                        ~ .-   ~:
                                                  .Io'" .. ~.... ,.,. ..._ .........
                                                  ........      .•_• •_ ...u.,.._
                                                           ~...r..,..
                                                                                                   ..011..,       ' .. ..

                                                                                                                  ~' ''''
                                                                                                                            , v ..... koM'f \oJ_ ~ _
                                                                                                                                  ..   til . ....... ~.l.  __  .. t \,



                                                                                                                                                                           The City of Waco moved to quash the subpoena
                            ..... - ..-           -w            j.. .. _"" ...           ~\t004 ~"'''''I .r, :( " . '" , ..... , ... .,
                            ___,               ~          .. . r.....
                                                                   -'~                    '~:too                   --,....n. "'.... .t)..,,,,,,,,, . . . .                 Thursday afternoon, the reason given in the motion, in
                            1-*..4_ ... _                 . . ......., , . _.,;... , ..........        ,« ,..... ...... 1... ,....: , . ....... ...                rio;
                                                                                                                                                                           part, was "release of the information would interfere with

                           -
                            I...."..~ :~. ~.,,,. , ~ ~· .. I" IN 1>..Jt n",

                                                                                                                                                                           the investigation."
                                   . . . ..
                           ·_ ... a ~' _~

                                                                                                                                                                           According t o Broden' s press rel ea se . the only party that
                                                                                                                                                                           can move to quash a subpoena is the party to whom the
                                                                                                                                                                           subpoena is issued , in this case the Waco Twin Peaks
                   franch isee .

                   "It is troubling that the City of Waco would go to such lengths to suppress this video ," said Broden . "The Waco
                   Police have repeatedly given the public contradictory information about the events at Twin Peaks and have said
                   that the video will support its current version of the facts , yet they have now taken this extraord inary measure to
                   interfere with the subpoena process," he added .

                   Broden said if, and when he gets the video, he will make it public.

                   "That's the plan," said Broden .

                   Broden said they needed the video to show there was
                   no probable cause to arrest his client for the shooting ,
                   and they're hoping to loosen Clendennen's bond
                   conditions at a hearing August 10th. He said lawyers for
                   Twin Peaks said the video corroborates Clendennen 's
                                                                                                                                                                                              .,gO~   mqc'I"""wU( ""'tlll>t.P\jI' .~

                                                                                                                                                                                             CERTIFIZ I , DO~~.~"~
10f2
                                                                                                                                                                                             PAGF ' 1'_ 01:
                                                                                                                                                                                             D1ST.11 . I JLERK OF           6/26/2015      I I :31 AM
                                                                                                                                                                                             !Vic U~ ,' i.;·~ rl""l'JNTY, TEXAS
City of Waco Moves to Block Subpoena for Twin Peaks Restaurant S ...                          http: //www.kcentY.com/story/2941 0760Ibikers-subpoena-quashed



                   story that he had nothing to do with the incident .                               n..,...IJ,XOlf) . . O"" •• 4.,.,. ....Wd.-,...( ·_ rl.w4 )....,-.-W'~ .....

                                                                                               "' ... n1n-~ ~.          r... ,..., ........    f."_ I f, ;01' n.:    ~        •••..., ..
                   Brooen said he would be at the courthouse in downtown                       ..... ...... A_C.,.......
                                                                                                     ~"W                            n"~             . . . ~ . . _~ I"'      .....   j . . . .,, . . .




                   Waco Friday morning, along with lawyers for Twin
                   Peaks, to either get a copy of their video as promised, or
                   to have hearing on the City of Waco's motion to quash
                   the subpoena for the footage.

                   KeEN tried reaching the City of Waco's attorney
                   Thursday evening , but it was after hours.                                         1'~1~~ ·"' '''~.1)''' "'CW\ . . . ~ 'fiIf."""~ """"'~'"                         .....   M.U
                                                                                               .,..-...... ""N-'_,'" I ............. ef' i\ II """,.,,,No::   n..·u., __ ,:........ .. ..
                   Waco Police issued a separate press release Thursday
                   stating they would not be releasing any additional details
                   about what happened in the months leading up to the
                                                                                               .........
                                                                                                      ' WI t.t.....w...,nNI .. ~"'--.<4i:lJoI .............. -.t"- ..     ~II..., ....



                                                                                               .. ¥MU.W_ ,... ' ...... ~

                   shootings between the two biker gangs, the Bandidos
                   and Cossacks , allegedly involved in the shootings .

                   The press release also stated that Waco POlice detectives have been completing search warrants for the cell
                   phones that were confiscated in the incident.




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Appendix 4
t




                                     The State of Texas

                                                 v.

                                 Matthew Alan Clendennen


                                  In the 54th District Court
                                     McLennan County,
                                            Texas
                                    Cause No. 2015-1955-2


                                              Order

           This Court has a duty to preserve the defendant's right to a fair trial by an
    impartial jury and, if possible, to ensure that potential jurors will not be prejudiced by
    pretrial pUblicity. The Court is also mindful of the First Amendment rights of the
    parties, counsel for the parties, the media, as well as the Open Courts Provision of the
    Texas Constitution. In efforts to balance these sometimes competing interests, courts
    have found that prior restraint may be imposed only in extraordinary circumstances,
    and only if there is the threat of imminent, severe harm. Accordingly, before issuing a
    gag order, a court must find that extensive media coverage will harm the judicial
    process.
           This Court takes judicial notice of
                   1) the unusually emotional nature of the issues involved in this case;
                  2) the extensive local and national media coverage this 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.
           The Court FINDS that counsels' willingness to give interviews to the media
    would only serve to increase the volume of pre-trial pUblicity.



                                                                              IIIIIII~"" ~11I~11I1111~III'lIIIJ !111111111ll l l l
       The Court FURTHER FINDS that if counsel for the parties continue to grant
interviews to the media, the pre-trial publicity will interfere with the defendant's right
to a fair trial by an impartial jury.
       The Court FURTHER FINDS that no less restrictive alternative means exists to

treat the specific threat to the judicial process generated by this pre-trial publicity .
       The Court FURTHER FINDS that an order restricting extra-judicial
commentary by counsel for the parties is necessary to preserve all venue options and a
delay in proceedings would not lessen the publicity generated by this case.
       Accordingly, in its sound discretion and in light of the relevant facts and
circumstances of this particular case, the Court ORDERS, ADJUDGES and
DECREES that prior to and during the trial of this case


               1. All attorneys involved in this case shall strictly adhere to the letter
                   and spirit of the provisions of the Texas Code of Professional
                   Responsibility governing comments to the media. Specifically, all
                   attorneys shall refrain from making "extrajudicial statements that a
                   reasonable person would expect to be disseminated 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.               DISCIPLINARY        R. PROF'L
                   CON DUCT   3.07 .
               2. All attorneys, their staffs, and law enforcement officers involved in
                   this case shall not discuss this case with the media.
                3. Witnesses shall not discuss this case with the media when they have
                   previously given statements:
                       a. to law enforcement personnel,
                       b. to representatives of the District Attorney ' s Office; or




                                                                   . • .;              ;,'~LfR K   OF
                                                              '," ,,:.-   ~:    . ::   ~~   COUNTY, TEXAS
               c.   who have testified in investigative or adjudicative
                    proceedings.
       4. Witnesses who give statements to law enforc ement personnel,
           representatives of the District Attorn ey's Office, or who testify in
           investigative or adjudicative proceedings after the date of entry of
           this order shall not discuss this case with the media.
       5. This Order shaH not be interpreted to prohib it attorneys from
          communicating with the parties in order to prepar e for trial, nor shall
           it be interpreted to prohibit the third parties from attending any live
           sessions before the Court or from publishing any information they
           have already obtained or may obtain in the future. The term "third
          parties" includes any person or organization , not a party, not an
          attorney for a party, or not a person employed by the parties or
          attorneys for the parties for the purpose of assisting in this litigation.


       This Court shall entertain reasonable requests to modify this Order as
                                                                              the
need arises.




                                      aft Johnso n ,
                                   Judge of the 54 th Dist .
                                   McLennan County, Texas
Appendix 5
Appendix 6
                                  IN THE
                          TENTH COURT OF APPEALS




                                 No. 10-15-00235-CR

                  IN RE MATTHEW ALAN CLENDENNEN



                                Original Proceeding


                           MEMORANDUM OPINION


      Relator’s Petition for Writ of Mandamus was filed on July 1, 2015. Without

recitation of the facts of the case and discussion of the applicable law, of which the

parties are well aware, based on this Court’s opinion in In re Graves, and the authorities

cited therein, Respondent abused its discretion by issuing its June 30, 2015 gag order. In

re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007, orig. proceeding). Accordingly, we

conditionally grant Relator’s Petition for Writ of Mandamus. A writ will issue only if

Respondent fails to vacate its gag order issued on June 30, 2015 and notify this Court in
writing that it has done so within 7 days from the date of this opinion. Relator’s motion

for stay is dismissed as moot.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
        Justice Davis, and
        Justice Scoggins
(Justice Davis concurring without an opinion)
Pet. conditionally granted
Motion dismissed as moot
Opinion delivered and filed August 7, 2015
Do not publish
[OT06]




In re Clendennen                                                                   Page 2
Appendix 7
                                                                         ACCEPTED
                                                                     10-15-00235-CR
                                                          TENTH COURT OF APPEALS
                                                                      WACO, TEXAS
                                                                 7/1/2015 2:18:33 PM
                                                                 SHARRI ROESSLER
                                                                              CLERK




        COURT OF APPEALS FOR THE
         TENTH DISTRICT OF TEXAS                     FILED IN
                                              10th COURT OF APPEALS
                                                    WACO, TEXAS
                                               7/1/2015 2:18:33 PM
                    CASE NO.                     SHARRI ROESSLER
                                                       Clerk

                 05-15-00355-CR


    IN RE MATTHEW ALAN CLENDENNEN
                Relator


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


EMERGENCY PETITION FOR WRIT OF MANDAMUS




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

                       Attorney for Matthew Alan Clendennen
Relator:                           Matthew Alan     "-'''''''u ..... '''''




Trial Counsel for Relator:         F. Clinton Broden
                                   Broden, Mickelsen,                            Snipes, LLP
                                   2600 State
                                   Dallas, Texas

Appellate Counsel for Relator:     F. Clinton Broden
                                   Broden,                                   &
                                   2600 State
                                   Dallas,


Respondent:                        Honorable Matt Johnson
                                   54 th District Court
                                   501 Wash ington                           3
                                   Waco, Texas 76701


Real Party in                      State of Texas

Counsel for            in Interest: McLennan County District
                                   219 N. 6th St
                                   Waco, Texas 76701
                                          TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL. ................................................................. .i

TABLE OF CONTENTS ................................................................................................ ii

TABLE OF AUTHORlTIES ..................................................................... ................... .iv

STATEMENT OF THE CASE ....................................................................................... 1

STATEMENT OF JURISDICTION ................................................. ....... ....................... 3

ISSlJES PRESENTED .................................................................................................... 4

STATEMENT OF F ACTS .............................................................................................. 5

         I. The State's Publicity Machine ......................................................................... 5

                  A. Patrick Swanton .......... ......... ........................................... ...................... 5

                  B. Abel Reyna .......................... .................................................................. 6

                   C. Brent Stroman ....................................................................................... 6

         II. The Gag Order Motion ........... ............................................................... .......... 7

         III. The Gag Order. ................................................................ .................. ............ 7

         IV. What the Gag Order Does Not Cover. ........................................................... 8

SUMMARY OF THE ARGUMENT ............. ............................................................... 10

ARGUMENT ................................................................................................................ 11

         I. The District Court Did Not Have Jurisdiction Over the Case to Enter the
         Gag Order ............... ............................................................................................ 12


                                                               11
         II. The District Court's Gag Order Violates Article 1, Section 8 of the Texas
         ConstitutIon ........................................................................................................ 14

         III. The District Court's Gag Order Violates the First Amendment to the
         United States Constitution .................................................................................. 14

                   A. Constitutional Consideration and the Three Key Cases .................... 14

                   B. Applying the Principles to the Instant Case ....................................... 18

PRA YER....................................................................................................................... 21

VERIFICATION ........................................................................................................... 22

CERTIFICATE OF SERVICE ...................................................................................... 23

CERTIFICATE OF COMPLIANCE ............................................................................ 24




                                                                111
                                          TABLE OF AUTHORITIES


                                                               Cases

Clendennen v. Chavez, et. aI., No.6: 15-cv-00173 (W.D. Tex.) ..................................... 9

Cookv. State, 902 S.W.2d471 (Tex. Crim. App. 1995) .............................................. 13

Davenport v. Garcia, 837 S.W.2d 73 (Tex. 1992) .................................... 11, 14, 15, 16

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 ...................................... 9

Ex Parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978) ........................................... 13

Ex Parte Port, 674 S.W.2d 772 (Tex. Crim. App. 1984) .................. .. ......................... 13

Gentile v. State Bar o/Nev., 501 U.S. 1030 (1991 ) ...................................................... 12

Haskettv.Harris, 567S.W.2d841 (Tex. App. Corpus Christi 1978) ......................... 12

In re Benton, 238 S.W.3d 587 (Tex. App. - Houst. [14th] 2007) ............... 11, 14, 16, 17

In re Graves, 217 S.W.3d 744 (Tex. App. - Waco 2007) ............................... 14, 16, 17

In reHouston Chronicle Pub. Co. , 64 S.W.3d 103 (Tex. App. Houst(l4 th 2001) ...... 16

Orr v. International Bank o/Commerce, 649 S.W.2d 769 (Tex. App. - San Antonio
1983) .............................................................. ........................................................ ........ 12

RichmondNewspapers, Inc. v. Virginia, 448 U.S. 555 (1980) .................................... 14

San Antonio Express-News v. Roman, 861 S.W.2d 265 (Tex. App. San Antonio
1993) ............................................................ ................................................. ................. 14

Statev. Clendennen, No. 2015-1955-2 .... ............. ....... .. ........ .. .......... .. ........ ........ 2, 8,19

                                                                   IV
United States v. Schroeder, 6:93-0046 (W.D. Tex.) ..................................................... 20

United States v. Tsarnaev, No 1: 13-cr-1 0200 (D. Mass.) ............................................ 20

                                               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 ) .............. 11

Tex. R. Profl Conduct Rule 3.07 ............................................................................ 7, 16

Tex. Gov't Code § 22.221 ............................................................................................... 3




                                                            v
                            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. I

       There has been no indictment in the case. On May 22,2015, Mr. Clendennen

requested an examining trial. The hearing was set for August 10,2015- almost three

months from the date it was requested. Mr. Clendennen later filed his Request to

Reset Examining Trial So That [It] Is Prompt, that request was quickly denied by

Justice of the Peace Walter H. "Pete" Peterson. See Appendix 2.

       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




      IBecause the Appendix requires certified copies and will also contain a DVD, the
Appendix will be filed under separate cover.
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

comprehensive gag order prepared by the McLennan County District Attorney's

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




                                        2
                     STATEMENT OF JURISDICTION

      The Court has jurisdiction of this Petition pursuant to Tex. Gov't Code §

22.221.

      The Petition is also brought under Article 1, Section 8 of the Texas

Constitution and the First Amendment to the United States Constitution.




                                        3
      I.     Whether      District Court had jurisdiction to             order.

             Whether the District Court's gag order violates Article 1, Section 8 of

the Texas Constitution.

      III.   Whether the District Court's       order violates the   Amendment to

the United        Constitution.




                                            4
                                STATEMENT OF FACTS

I. The State's Publicity Machine 2

       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                   III   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 oflaw enforcement had witnessed in their careers

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



        2Mr. Clendennen acknowledges that the videos described herein were not before the trial
court. The problem, however, is that all the trial court had before it was the one article cited in
the State' s Motion for a Gag Order. Mr. Clendennen submits that this one article was hardly a
sufficient basis on which to impose a wholesale gag order. Nevertheless, to the extent
Respondent argues that he could take "judicial notice" of other unidentified media, so too could
this Court take judicial notice of the media described herein.

                                                 5
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

      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."

ld. (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

                                          6
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

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, "ifand 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. Profl 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 Court's gag order, prepared by the District Attorney ' s Office, takesjudicial

notice of:

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


                                           7
      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 Court ordered a complete gag 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 does not

cover is almost important as to what it does cover.

      First, it does 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.

      Second, the gag order is not clear ifit covers statements in connection with a

                                          8
civil case Mr. Clendennen filed in federal court against the City of Waco, the County

of McLennan and various officials. See Clendennen v. Chavez, et.al., No.6: 15-cv-

00173 (W.D. Tex.).

      Third, the gag order does not cover the parties in the litigation in the 54 th

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-lS-0S787.




                                          9
                       SUMMARY OF THE ARGUMENT

      Because there has yet to be an indictment in this case vesting the district court

with full jurisdiction over this case, the district court was without jurisdiction to

impose a comprehensive gag order in the case.

      In any event, the gag order imposed 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 are insufficient

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

that it poses "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 is likely to be ineffectual and is not the "lest restrictive means" to

prevent any identified harm. Respondent abused his discretion in entering the gag

order in this case.




                                           10
       "Mandamus              appropriate method by which to challenge a                            " In

re Benton, 238 S.W.3d 587, 592                     App.-Houst.[14th] 2007).3 Moreover, a

order" will normally                  a Relator to                          " Davenport v.

      S.W.2d 73           1992).

                    real or                     there          a noxIOUS odor surrounding the

investigation by the Waco Police                     the McLennan County District Attorney's

Office with             to the          . Peaks Shooting" and the wholesale atTest                    1

motorcycl ists               on       identical,     "fill-in-the-name"       criminal     complaints.

Nevertheless, as Justice Brandeis said: "Publicity                  justly commended as a        t"PM""'rIU




for         and industrial diseases.                       is said to           best of disinfectants;

electric light        most efficient policeman."                     D. Brandeis,              People's

Money-and How Bankers Use It (1914).

       This                   still                  today by           federal and         courts.

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

        system exists       a larger                   government ultimately of the                   who

wish to        informed about happenings                  In     criminal justice system, and,



       3"To demonstrate the right to mandamus relief,                   must establish that (a) the trial
court clearly        its discretion,       (b) the relator      no adequate         by appeal."
Benton,       S.W.3d at 592.

                                                     11
sufficiently informed about those happenings, might wish to make changes in

system." Gentilev. 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
               out any aspect of government of higher concern           importance
       to the people than the manner in which               trials are conducted."
       Public            serves us        for "[t]he knowledge that       criminal
       trial is subject     contemporaneous              in the forum of public
       opmlOn an effective restraint on possible abuse of judicial power. ...
       Without publicity, all other checks are insufficient: in comparison of
       publicity, all      checks are of small account."        we said in Bridges
       v. California, limits upon public comment about pending cases are
       "likely to fall not only      a crucial time but upon the most important
       topics of discussion .... ["]

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

          IS          this backdrop that Mr. Clendennen urges the                   to review his

state and federal constitutional challenges to the              order urged by         McLennan

County District Attorney's Office and                                     Court.




       As noted above, this case         pending based upon a criminal complaint


        4Mr. Clendennen acknowledges          he did not object below to     District Court's
jurisdiction to enter the                                 of jurisdiction in   District Court is
fundamental error and is subject to review          first      on        " Haskett v.         567
         841,             App.        Christi 1978). See also, Orr v. International       of
Commerce, 649 S.W.2d 769, 771            App.-San Antonio 1983).



                                                 12
by a Justice of the                   Appendix 1.                        was          in connection

with Mr. Clendennen's attempt to obtain, via a subpoena duces tecum, a copy of Twin

       surveillance tape.               subpoena was sought,                    , in connection with

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

        Court case number 201                     195   which was assigned in connection with Mr.

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

which had previously            granted.

      Mr. Clendennen submits that the District Court's jurisdiction to consider an

Application for Writ of       ..u.H/V .... ...,   Corpus and        to amend bond conditions set

pursuant to that Application does not give the District Court full jurisdiction

impose a gag order in a case pending before a Justice of the Peace. On point                       Ex

Parte Clear, 5        S.W.2d 224                    Crim. App. 1978)           the Court of Criminal

Appeals held that, when a criminal complaint is pending before a Justice of the Peace,

a district court does not           general jurisdiction to              orders in     case. Indeed,

the        of an indictment            essential to            a trial court with jurisdiction over a

       offense.        Cookv.                      902 S.W.2d 471,475          Crim. App. 1995);

      Port, 674 S.W.2d 772,                                    App. 1984).

                            no indictment has                    filed against Mr. Clendennen, the

District Court had jurisdiction only to rule on matters related                  the Application for


                                                        13
Writ of Habeas Corpus such as             amounts and bond conditions                    in this case,

    subpoena application                     connection with

Clendennen's bond conditions.


Constitution.

III. The District Court's Gag Order Violates the First Amendment to the United
States Constitution.

      A. Constitutional Consideration and the Three Key Cases

          seminal case on                   in        State of Texas is                       v.

    S.WA            1992).                             a civil case, its

          applied to gag orders                    in criminal cases. See Benton,              8

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

Express-News v. Roman, 861 S.W.2d                     , 268 (Tex. App. San Antonio 1

            Court has noted that                      of Criminal Appeals

                the Supreme                              when addressing

                                                           5
                law." Graves, 217

                   Supreme Court in                       H'"''''''''   clear that, despite        broad


        anything, gag orders should         even                   in criminal cases because "it
        difficult to single out any aspect of                 higher concern and importance to
         than the manner in which criminal            are conducted." Richmond Newspapers, Inc,
          448 U.S. 555,574 (1980).



                                                 14
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
        matters of this case with any persons other than their clients, agents, or
        employees in the necessary course of business in this case.

                                            15
       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. 6

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

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


        6Nevertheless, 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.

                                                  16
Professional Conduct. Jd. at             1. After the District Court entered a comprehensive

              the defendant sought mandamus               argued         the      order violated

      OJV",'"''   rights        the Texas Constitution          that the evidence was insufficient

to establish          likelihood of the required level of prejudice to the ,,'        ""'f;;"      of

          process or           imminence of        such            Jd. at 592.

         The Benton court ultimately detennined that               gag          was unconstitutional

even under the slightly more lenient                Amendment             because the trial court's

            when imposing the                 order did not "establish, as a 'constitutional

minimum,' that              order was narrowly-tailored to avert a substantial likelihood

                   udice." Jd. at 597.    first        that       gag          "primarily focused on

relator's right to a fair trial and an impartial              " Jd. 7 It then noted that the district

court "presumed that publicity            inherently prejudicial to a criminal defendant." Jd.

The Benton                 ultimately detennined that the district court abused                 discretion

   entering the gag order at              m       case.        at 601.

         This Court in Graves dealt with the following findings                connection with a

order:

         1. The prior proceeding in this cause of action, and other related actions
            which      Court takes judicial


         7This is similar to    instant     order which purports to be concerned
publici ty that      interfere with the defendant's     to a          by an impartial jury."

                                                  17
         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[ dJ risen to the level that it pose[ dJ '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."

Jd. 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

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


                                            18
publicity that          its previous           of what                 at Twin Peaks into serious

doubt. The unvarnished truth of the matter           that the State had absolutely nO concern

with Matthew Clendennen's right to a                    trial when it held its ..a r ' a ....   'rar1   press

                 earlier in this case and certainly its concern now for "the

right to a fair trial by an impartial          is transparently hollow.

        It      clear that in      rushed way        State presented its               order request,

Respondent was not able              make true "specific findings" as to whether pretrial

pUblicity would            impact the right to a fair         impartial'        and whether it was

the          restrictive means to prevent       harm. That is likely why                findings in a

case involving 177 motorcyclist are identical to the findings in a case involving a

mother withe severe psychological problems who murdered her children.

         Moreover, in this case, a              is simply impossible              unworkable given

      State's decision              1   motorcyclists in identical criminal complaints.

noted above,                    order only                 attorneys and                  in State v.

Clendennen. It            not apply to the attorneys and parties in                other 176 cases. 8

Moreover, it does          apply to related litigation occurring in other state and federal

courts. Ultimately, the           order will collapse under          unprecedented action by



         8Technically, the District          Office and the Waco Police can continue to
       conference      simply         any         with "this just      to the      176
      not Matthew        Clendennen."

                                                19
State to           177 with the exact same offense.

       In sum,       findings by         District Court are insufficient to establish that any

unidentified pretrial publicity       In        case        risen to the level that it

"imminent"                     harm to a "fair and impartial trial.'" More importantly,

       the unique nature of          1           a       order     likely to be ineffectual and

is not the "lest              means" to prevent any identified harm.                 gag         In


this case offends Mr. Clendennen's                      rights under           Constitution

   United           Constitution         Respondent abused his discretion in imposing such

an order. 9




        9To put      gag order in this case, which was           only a month      Mr.
Clendennen's           into              a reVIew         docket sheets       Branch Davidian case
reveals that a "gag order" was not entered until approximately eight months after charges were
filed and just shortly        triaL See         States v.             6:93-cr-00046 (W.D. Tex).
            in    "Boston Bomber" case there does not appear to           been     gag
entered. See United States v.              No.1: 13-cr-l 0200 (D.

                                                20
                             PRAYER

      For the   reasons, the trial court's gag order should   vacated and the

writ of



                               Respectfully




                               TX Bar No. 24001
                               Broden, Mickelsen,        & Snipes, LLP
                               2600 State Street
                               Dallas, Texas
                               (214) 720-95
                               (214) 720-9594(facsimile)

                               Attorney for
                               Matthew Alan




                                 21
                                      VERIFICATION




STATE OF TEXAS

COUNTY OF DALLAS

      F. Clinton Broden, being duly sworn, under oath says: "I am the petitioner in

this action and know the contents of the above Emergency Petition for Writ of

Mandamus and, according to my belief, the facts stated in the Petition are true."




                                                 !
                                          F. Clinton Broden



          SUBSCRIBED AND SWORN TO BEFORE ME THIS 1st DAY OF

July, 2015.




                 SARAH E KLEIN
              My Commission Expires
                  June 7, 2017




                                            22
                                 CERTIFICATE OF SERVICE

      I, F. Clinton Broden, do                      that, on this 1st day   July, 2015, I

caused a copy of the         ,"''''A
                       "tn. ..         document to be served by overnight mail,

prepaid, on:.

      Honorable Matt Johnson
      54 th   •  Court
      501 Washington Ave., Suite 305
      Waco,       76701

      McLennan County District Attorney
      219 N 6th
      Waco,     76701



                                                  F. Clinton Broden
                        CERTIFICATE OF COMPLIANCE

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

because this brief contains __4,113_______ words, excluding the parts of the brief

exempted by the rule.




                                            /s/ F. Clinton Broden
                                            F. Clinton Broden




                                       24
DECLARATION REGARDING APPENDIX PURSUANT TO TEXAS RULE
             OF APPELLATE PROCEDURE 52.3



 I, Abelino “Abel” Reyna, do hereby certify that Appendix 1 is a true, correct and
exact copy of the criminal complaint filed in this matter.

 I, Abelino “Abel” Reyna, do hereby certify that Appendix 2 is a true, correct and
exact copy of the order received from the Justice of the Peace Court in this matter.

I, Abelino “Abel” Reyna, do hereby certify that Appendix 3 is a true, correct and
exact copy of the motion to quash and motion to issue a gag order and attached
exhibits filed by the State in this matter.

I, Abelino “Abel” Reyna, do hereby certify that Appendix 4 is a true, correct and
exact copy of the gag order issued by Judge Matt Johnson in this matter.

 I, Abelino “Abel” Reyna, do hereby certify that Appendix 5 is a true, correct and
exact copy of videos copied from www.kxxv.com and www.kcentv.com. In
particular:

Video A:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11521196&h1
=Full%20interview%20with%20McLennan%20County%20DA%20Abel%20Reyn
a&vt1=v&at1=News&d1=1102100&LaunchPageAdTag=Search%20Results&acti
vePane=info&rnd=47679083

Videos B:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11508009&h
1=Monday%20Biker%20Gang%20Press%20Conference&vt1=v&at1=News&d1=
2070172&LaunchPageAdTag=Search%20Results&activePane=info&rnd=455969
85

Video C:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11511950&h1
=New%20details%20emerge%20of%20what%20started%20biker%20gang%20sh
ootout&vt1=v&at1=News&d1=1481874&LaunchPageAdTag=Search%20Result&
activePane=info&rnd=91422993
Video D:
http://www.kxxv.com/global/video/flash/popupplayer.asp?ClipID1=11505906&h1
=Biker%20Gang%20Shooting%20Presser%204&vt1=v&at1=News&d1=571172&
LaunchPageAdTag=Search %20Results&activePane=info&rnd=76876797

Video E: http://www.kcentv.com/story/29307580/waco-police-release-new-details-
on-twinpeaks-shooting

I, Abelino “Abel” Reyna, do hereby certify that Appendix 6 is a true, correct and
exact copy of the order from the 10th Court of Appeals conditionally granting the
writ of mandamus in this matter.

I, Abelino “Abel” Reyna, do hereby certify that Appendix 7 is a true, correct and
exact copy of the petition for writ of mandamus filed by Matthew Clendennen in
the 10th Court of Appeals under appellate case no. 10-15-00235-CR.



Respectfully Submitted:
                                             ABELINO ‘ABEL’ REYNA
                                             Criminal District Attorney
                                             McLennan County, Texas


                                             /s/ Abelino Reyna
                                             ABELINO ‘ABEL’ REYNA
                                             Criminal District Attorney
                                             219 North 6th Street, Suite 200
                                             Waco, Texas 76701
                                             [Tel.] (254) 757-5084
                                             [Fax] (254) 757-5021
                                             [Email]
                                             abel.reyna@co.mclennan.tx.us
                                             State Bar No. 24000087

                           CERTIFICATE OF SERVICE
      I certify that I caused to be served a true and correct copy of this Appendix
by electronic service or email or hand delivery on:
Respondent, 10th Court of Appeals Waco, Texas by hand delivery per request of
Chief Justice Tom Gray

Attorney, F. Clint Broden, for Real Party in Interest, Matthew Clendennen at
clint@texascrimlaw.com

Real Party in Interest, Judge Matt Johnson, 54th District Court, McLennan County
Texas at matt.johnson@co.mclennan.tx.us

DATE: 8/11/15                               /S/ ABELINO ‘ABEL’ REYNA
                                            ABELINO ‘ABEL’ REYNA
