                                                                       WR-83,719-01



                       No. _______________________

                                                           RECEIVED
                                IN THE              COURT OF CRIMINAL APPEALS
                   TEXAS COURT OF CRIMINAL APPEALS         8/11/2015
                                                      ABEL ACOSTA, CLERK
                       SITTING AT AUSTIN, TEXAS
          _________________________________________________
               IN RE STATE OF TEXAS EX REL. MATT JOHNSON,
                                             RELATOR
                                    V.

                 COURT OF APPEALS FOR THE TENTH DISTRICT,
                                            RESPONDENT
              ___________________________________________
                    A PETITION FOR WRIT OF MANDAMUS
                        CAUSE NO. 10-15-00235-CR
                 FROM THE 10TH COURT OF APPEALS DISTRICT
                              WACO, TEXAS

                         CAUSE NO. 2015-1955-2
                 FROM THE 54TH JUDICIAL DISTRICT COURT OF
                       MCLENNAN COUNTY, TEXAS
             ____________________________________________

              STATE'S PETITION FOR WRIT OF MANDAMUS AND

                MOTION FOR STAY OF WRIT OF MANDAMUS
             ____________________________________________

                                         ABELINO "ABEL" REYNA
                                         Criminal District Attorney
                                         McLennan County, Texas
                                         State Bar No. 2400087
Oral argument is not requested           219 North 6th Street, Suite 200
                                         Waco, Texas 76701

                                    i
     [Tel.] (254) 757-5084
     [Fax] (254) 757-5021
     [Email]
     abel.reyna@co.mclennan.tx.us




ii
                      Identity of Parties and Counsel

Relator                                   Abelino “Abel Reyna,
                                          Criminal District Attorney
                                          McLennan County, Texas

Real Party in Interest                    Hon. Matt Johnson,
                                          Presiding Judge
                                          54th Judicial District Court of
                                          McLennan County, Texas
                                          501 Washington Avenue, Suite 305
                                          Waco, Texas 76701

Respondent                                Court of Appeals, Tenth District
                                          501 Washington Avenue, Suite 415
                                          Waco, Texas 76701

Real Party in Interest                    Matthew Alan Clendennen

Real Party in Interest’ Trial and
Appellate Attorney                        Mr. F. Clinton Broden
                                          2600 State Street
                                          Dallas, Texas 75204

State’s Trial Attorneys                   Mr. Mark Parker
                                          Mr. Brandon Luce
                                          Assistant Criminal District
                                          Attorneys
                                          219 North 6th Street, Suite 200
                                          Waco, Texas 76701

State’s Attorneys on Appeal               Abelino ‘Abel’ Reyna
                                          Criminal District Attorney

                                    iii
     Sterling Harmon
     Appellate Division Chief
     219 North 6th Street, Suite 200
     Waco, Texas 76701




iv
                                             Table of Contents


Identity of Parties and Counsel ……………………………………………………..                                                               iii

Table of Contents ................................................................................................... v

TABLE OF AUTHORITIES .................................................................................. vi

Statement of the Case ……………………………………………………                                                                         viii
Statement of Jurisdiction …………………………………………………… viii
Issue Presented ...................................................................................................... ix

Statement of Facts ...................................................................................................1

Summary of Argument ……………………………………………………… 4

Argument ………………………………………………………………….…                                                                                   4

Constitutionality of the Gag Order ………………………………………                                                                    4

Narrowly Tailored…………………………………………………………….. 5
Restrictions Imposed by the Gag Order ……………………………………. 5
Findings in Support of the Gag Order …………………………………….. 6
Least Restrictive Means …………………………………………………….. 10

Threshold Standard …………………………………………………………. 10
Motion for Stay ……………………………………………………………… 13
Conclusion …………………………………………………………………… 14

Prayer ………………………………………………………………………… 14
Certificate of Compliance …………………………………………………                                                                       15
Certificate of Service ……………………………………………………….. 16

                                                           v
                       TABLE OF AUTHORITIES

State Constitutional Provisions
Texas Const. Art. 1, §8 …………………………………………………… viii, 4
Texas Const. Art. 1, §10 ……………………………………………………… 10
8 Texas Const. Art. 5, §5 ………………………………………………………viii

State Constitutional Provisions

United States Const., Amend. 1 ……………………………………………………. viii, 4
United States Const., Amend. 6 ………………………………………………………… 10

Federal Opinions
Gannett Co. v. DePasquale, 443 U.S. 368 (1979) …………………………… 5, 14
Gentile v. State Bar of Nevada, 501 U.S. at 1054 (1991) …………………… 14
Nebraska Press Ass’n v. Stuart, 427 US. 539 (1976) ………………………… 10
Procunier v. Martinez, 416 U.S. 396 (1974) ………………………………. 5, 10
Sheppard v. Maxwell, 384 US. 333 (1966) ………………………………. 10, 13
United States v. Brown, 218 F. 3d 415 (5th Cir. 2000) …………………… 5, 13
United States v. Carmichael, 326 F. Supp. 2d 1267
   (M.D. Ala. 2004) …………………………………………………….. 4, 5, 10

State Opinions
Alvarez v. Eighth Court of Appeals of Texas, 977 S.W. 2d 590
   (Tex. Crim. App. 1998) …………………………………………………. viii
Ater v. Eighth Court of Appeals, 802 S.W.2d 241
   (Tex. Crim. App. 1991) ………………………………………………… viii
Davenport v. Garcia, 834 S.W. 2d 4 (Tex. 1992) ……………………………. 11
In re Benton, 238 S.W. 3d 587 (Tex. App – Houston [14th Dist.] 2007) …… 4
In re Graves, 217 S.W. 3d 744 (Tex. App. – Waco 2007) ……. 3, 11,12, 13, 14
In re Houston Chronicle Publishing Company, 64 S.W 3d 103
   (Tex. App. – Houston [14th Dist.] 2001) …………………………… 12, 13
Statutes
Texas Code Crim. Proc. Art. 4.04 …………………………………………… viii


                                    vi
Rules
Tex. R. App. P. 9.4(e) ………………………………………………………….. 15
Tex. R. App. P. 9.4(i) ………………………………………………………… 16
Tex. R. App. P. 9.4(i)(1) …………………………………………………………15




                        vii
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
                         STATEMENT OF THE CASE

    This petition for writ of mandamus and for stay of writ of mandamus
arises out of a criminal prosecution for the offense of Engaging in
Organized Criminal Activity, alleged to have been committed by Matthew
Alan Clendennen, the real party in interest. See Appendix 1. The
Respondent in this original proceeding is the Honorable Court of Appeals,
Tenth District of Texas, the “Court of Appeals.” Abelino “Abel” Reyna,

“the Criminal District Attorney,” who is the Relator herein, seeks relief
from the action of the Court of Appeals’ action below, namely: the
conditional grant of a petition for writ of mandamus directing the Judge of
the 54th District Court to vacate its gag order issued in this cause on June
30, 2015.
                     STATEMENT OF JURISDICTION
    This Court has jurisdiction and authority to issue a writ of mandamus.
See Tex. Const. art V, §5; Tex. Code Crim. Proc. art. 4.04; Alvarez v. Eighth
Court of Appeals of Texas, 977 S.W. 2d 590 (Tex. Crim. App. 1998). Writ of

mandamus to this Court is the exclusive remedy from an adverse ruling in
an original mandamus proceeding in the court of appeals. Ater v. Eighth
Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991).




                                        viii
                             ISSUE PRESENTED
         Whether the gag order entered by the District Court violates

Article 1, §8 of the Texas Constitution or the First Amendment of the United
States Constitution.




                                       ix
                         STATEMENT OF FACTS
     On May 17, 2015, a shootout between rival criminal gangs erupted at

the Twin Peaks restaurant in Waco, McLennan County, Texas. Appendix 1.
Nine people died in the shootout and many were wounded. Id.
Clendennen was apprehended at the scene, wearing distinctive signs or
symbols indicating association with a criminal gang. Id. Clendennen was
arrested pursuant to warrant for the felony offense of Engaging in
Organized Criminal Activity. Id. Details of the incident reported in the

press showed that in addition to the nine deaths, eighteen subjects were
wounded. Appendix 5, Video File D. Five identified outlaw biker gangs
participated in the melee. Appendix 5, Video File B. In the wake of the
violence, there was a heavy traffic of outlaw biker gang members traveling
to the Waco area, and 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. Id.
One hundred seventy-seven persons were charged with Engaging in
Organized Criminal Activity out of the event, and one hundred fifty-one
firearms were recovered from the crime scene. Appendix 5, Video File E.
    Clendennen sought an examining trial regarding the charged offense,
as reflected in Appendix 2. On June 22, 2015, Clendennen procured a
subpoena duces tecum under the instant cause number in the 54th District
Court, seeking “any and all videos of the events taking place at Twin Peaks



                                      1
in Waco, Texas from May 17, 2015—May 26, 2015 desired as evidence in
said above numbered and entitled cause.” Appendix 3, Exhibit “A.”

       In response to the subpoena, the State filed a Motion to Quash and for
Protection of Evidence and Motion to Issue “Gag” Order for all parties.
Appendix 3. The State attached as an exhibit to its Motion, a copy of a news
report wherein Clendennen’s counsel expressed his intent to publicize the
video if it was released. Appendix 3, Exhibit “B.” Hearing on the State’s
motion was held in the 54th District Court on June 30, 2015. (RR I).

       In arguing for the release of the video, Clendennen’s counsel
questioned whether it was “appropriate for [the State] to go on television
and represent what’s on the video, have the police represent what’s on the
video. But for Mr. Clendennen not be able to see the video, that – that
boggles my mind.” (RR I – 20). Clendennen further complained that “the
Associated Press has seen this video. The Associated Press has reported on
this video. So, the DA wants the press to have copies but not the
defendants who have to defend themselves to have copies.” (RR I – 201-
21).

       In response, the State pointed out that pretrial public release of the
video could taint witness recollections because, “If everybody gets to see
the video right now, we’ll have no idea of knowing what they’re telling us,

if they remember that, if they saw it, or if they watched the video and
they’re describing what happened on the video.” (RR I – 24). Countering
the State’s argument, Clendennen complained that the Waco Police

                                         2
Department had posted video of an unrelated offense on its Facebook page
the day it happened. (RR I – 26).

    The court denied the State’s Motion to Quash, but announced, “I want
to place a protective order on that video. And I do not want it disclosed in
any way to anyone other than counsel for the defense, the defendant, and
any experts ….” (RR I – 26-27).
    The State proposed to the court that it issue a gag order binding both
the State and the Clendennen. (RR I – 27). The court expressed concern

about “causing a problem with the jury pools in this matter.” (RR I – 27).
Clendennen claimed that due to numerous press conferences and
interviews previously given by State agents, the State had already “tainted
the well,“ and “opened the barn door on this case.” (RR I – 27-28).
Claiming reliance on this Court’s opinion in In re Graves, 217 S.W. 3d 744
(Tex. App. – Waco 2007), Clendennen argued merely that a gag order
would not be appropriate. (RR I – 28).
    Citing concerns about ongoing publicity in the matter, the court
announced it would issue the gag order applicable to both the State and the
defense. (RR I – 29-30). A copy of the gag order appears in Appendix 4.
    Clendennen filed an action with the Tenth Court of Appeals, seeking a
Writ of Mandamus to vacate the gag order. On August 7, 2015, the Tenth
Court of Appeals issued its opinion conditionally granting a Writ of
Mandamus, directing that the Writ would issue if the Judge of the 54th
District Court did not vacate the gag order within seven days. Appendix 6.

                                      3
Opting not to provide discussion or analysis, the Tenth Court found that
the trial court abused its discretion, based on the Tenth Court’s opinion in

Graves.
                           Summary of Argument
          The gag order entered by the District Court was appropriate in the
case at bar, and does not violate Article 1, §8 of the Texas Constitution or
the First Amendment of the United States Constitution.
                                  Argument

Constitutionality of the Gag Order
      In his petition to the Tenth Court of Appeals, seeking a Writ of
Mandamus, Clendennen claimed three bases challenging the propriety of
the gag order: 1) The order violates Clendennen’’s right to free speech; 2)
The court’s findings in support of the gag order were insufficient to
establish that pretrial publicity had risen to a level posing imminent and
severe harm to a fair and impartial trial, and; 3) that the gag order is not the
least restrictive means to prevent any identified harm. Appendix 7.
      In considering the propriety of a gag order, three factors are
addressed. First the court must consider whether the order is narrowly
tailored. In re Benton, 238 S.W. 3d 587, 593 (Tex. App – Houston [14th Dist.]
2007) quoting United States v. Carmichael, 326 F. Supp. 2d 1267, 1293 (M.D.
Ala. 2004). Next, it must be determined whether the gag order is the least
restrictive means or if less burdensome alternatives would achieve the



                                       4
same objective. Id. Finally, the “threshold standard for imposing a prior
restraint” is applied. Id.

Narrowly Tailored
      Trial courts have an affirmative constitutional duty to minimize the
effects of prejudicial pretrial publicity. Gannett Co. v. DePasquale, 443 U.S.
368, 99 S. Ct. 2898, 61 L.Ed. 2d 608 (1979). The beneficiaries of this duty
include not only the defendant in a given trial, but other defendants as
well, such as co-defendants in the same case or defendants in related cases

whose fair trial rights might be prejudiced by the extrajudicial statements
of other trial participants. United States v. Brown, 218 F. 3d 415, 424 (5th Cir.
2000). The limitation on First Amendment rights must be not greater than
is essential to the protection of the particular governmental interest
involved. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed. 224
(1974).

Restrictions Imposed by the Gag Order
      The restrictions imposed by the gag order are quoted as follows:

       “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

                                         5
            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 CONDUCT 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
            c. who have testified in investigative or adjudicative
               proceedings.
       4.   Witnesses who give statements to law enforcement personnel,
            representatives of the District Attorney’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 shall not be interpreted to prohibit attorneys from
            communicating with the parties in order to prepare 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.“ Appendix 4.
Findings in Support of the Restrictions
    The court related the facts and circumstances surrounding the case
which justified the gag order restrictions:

                                        6
       “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 pretrial
    publicity.

       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 the proceedings would not lessen the
    publicity generated by this case.” Appendix 4.


    In “taking judicial notice of the unusually emotional nature of the
issues involved” and the “extensive local and national media coverage this
case has already generated,” a brief review of what was commonly known




                                     7
through press reports and legal filings at the time of the hearing would be
appropriate.

    On May 17, 2015, a gun battle erupted at the Twin Peaks restaurant in
Waco, Texas. Nine people were killed and eighteen were wounded. The
incident occurred in the early afternoon at an eating establishment located
in a popular shopping center. The participants in the incident were
members and associates of the Bandidos and the Cossacks, two identifiable
criminal street gangs. One hundred seventy-seven people were charged

with Engaging in Organized Criminal Activity as a result of the incident.
All the accused were identified on the scene as gang members due to
wearing distinctive symbols consistent with identifiable criminal gangs. A
large number of weapons, including over one hundred firearms, were
recovered at the scene. In the aftermath of the event, law enforcement
intelligence learned that a “green light” had been given by the leadership
element of one or more criminal gangs to engage in criminal acts directed
toward law enforcement or members of rival gangs. These facts are
supported by materials presented in the Appendix.
    In support of the court’s finding of “counsels’ willingness to give
interviews to media,” is a copy of a news item wherein Clendennen’s
counsel’s plan to release evidentiary videos to the media is revealed. This
was appended to the State’s Motion to Quash, and is included in the
Appendix. In his Appendix presented with his Mandamus application to



                                     8
the Tenth Court of Appeals, Clendennen also provided a copy of a lengthy
media interview of the McLennan County Criminal District Attorney.

    The enormity of the event at Twin Peaks may be unique in the number
of victims, the number of co-defendants, the level of violence, and its effect
on a local community. In determining the propriety of the gag order, it
would behoove this Court to compare the underlying facts of this case with
those of the cases cited in the parties’ briefs presented to the Tenth Court.
The scale of the Twin Peaks incident dwarfs those of the cited cases. The

trial court was justified in imposing all of the restrictions contained in the
gag order.
    There was imminent harm shown that Clendennen’s counsel intended
to release evidentiary surveillance videos. It can be gleaned from the
hearing record and Clendennen’s brief below that the intent of that action
was to counter what Clendennen believed to be biased statements from
State agents previously made to the media. On this basis the court
prohibited all counsel from discussing the case with the media. This
provision was tempered by the provision allowing for modification of the
order upon reasonable request. The gag order contemplated that, while
discussion with the media was prohibited, statements to the media would be
strictly construed under the Texas Disciplinary Rules of Professional
Conduct.




                                       9
Least Restrictive Means
    In Nebraska Press Ass’n v. Stuart, 427 US. 539, 96 S.Ct. 2791 2791, 49

L.Ed. 2d 683 (1976), the Supreme Court opined that a trial court’s decision
whether to issue a gag order calls for a judgment as to whether other
precautionary steps will suffice. This requirement comports with the First
Amendment principle that restrictions on speech should employ the least
restrictive means possible. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800,
40 L.Ed. 2d 224 (1974). Several alternatives were suggested in Sheppard v.

Maxwell, 384 US. 333, 86 S.Ct. 1507, 16 L.Ed. 2d 600 (1966). These include
change of venue, jury sequestration, “searching” voir dire and “emphatic”
jury instructions. In light of the sheer scale of the Twin Peaks incident, it
seems self-evident why such less-restrictive options would not be
workable. As of this writing, there is a potential of one hundred seventy-
seven jury trials being held for the Twin Peaks defendants. The rights
afforded these accused under Article I, §10 of the Texas Constitution and
the Sixth Amendment of the Federal Constitution stands to be affected by
the pretrial publicity in the instant case. The number of cases wherein
venue might have to be changed, the number panelists who would need to
be screened through voir dire, and the number of jurors who might be
sequestered show the unreasonableness of these options.
Threshold Standard
    The third consideration in a gag order analysis is the application of the
“threshold standard for imposing a prior restraint.” Carmichael at 1293.

                                       10
While there is a split of authority regarding what this standard is in
criminal cases, the Tenth Court of Appeals has adopted the standard

enunciated in Davenport v. Garcia, 834 S.W. 2d 4, 10 (Tex. 1992). See In re
Graves, 217 S.W 3d 744 (Tex. App. – Waco 2007). Under Davenport, a gag
order will pass state constitutional scrutiny if there are specific findings
supported by evidence that (1) 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. Davenport at 10.
    In Graves, the Tenth Court found that the gag order issued in that case
did not recite sufficiently specific findings to support the order. Graves at
752-753. The findings in that case were that the judge considered:

    1. The prior proceeding in this cause of action, and other related
       actions of which the Court takes judicial notice;
    2. The pre-trial publicity which has already occurred in this cause,
       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.
Graves at 746.
    There was no finding of any detriment caused by pretrial publicity, or
that further publicity would affect fundamental rights of the parties. In

short, there was nothing shown that justified a limitation on First
Amendment rights. In comparison with the trial court’s finding in Graves,
                                       11
the finding in the case at bar are specific as to the effects of prior publicity,
the intrusion on the right to a fair trial made by such publicity, and the

evident intent of the parties and their counsel to continue to make
inflammatory extrajudicial statements and release evidentiary matters to
the media.
    It is noteworthy that the Tenth Court recognized that a trial court
could take judicial notice of pretrial publicity affecting the case. Graves at
751. However, judicial notice was problematic in the Graves case, due to

the fact that the trial court judge never afforded Graves the opportunity to
be heard on the matter. Graves at 752. This is one of the factors that
differentiates Graves from In re Houston Chronicle Publishing Company, 64
S.W 3d 103 (Tex. App. – Houston [14th Dist.] 2001). Otherwise, this Court
took favorable regard of the Houston Chronicle case regarding judicial notice
of pretrial publicity:

    In the Houston Chronicle case, the Court of Appeals observed that the
    trial court had taken “judicial notice of the ‘emotional nature’ [of the
    case] and ‘extensive local and national media coverage’” and held that
    the trial court’s findings were “supported by judicial notice of obvious
    circumstances.” Houston Chronical Pub’g, 64 S.W. 3d at 109. The local,
    state, and national media storm surrounding the Yates case is well
    documented.
Graves at 752.
    While the Davenport standard requires specific findings to support a
showing of potential harm and the reasonableness of the gag order


                                        12
restrictions, it is not required that the court explicitly discuss and reject
each of the Sheppard options before imposing a gag order. See Brown at 431.

    The findings in support of the gag order in the instant case track the
findings of the trial court in Houston Chronical, which the Fourteenth Court
of Appeals found to be proper. They are more concise and applicable to
the constitutional issues at play than the findings the Tenth Court was
dealing with in Graves. The Graves decision noted the lack of specificity in
the trial court’s findings. The Houston Chronicle decision found that the

trial court’s findings were sufficient to support a gag order. The trial court
in the instant case issued its order based on findings that were closely akin
to those reviewed in Houston Chronicle, and which would have presumably
passed muster with the Fourteenth Court. These findings, being more
complete and comprehensive than those reviewed in Graves, would also
have presumably been acceptable to the Tenth Court. This is the position
that the State holds in the case at bar. But at the very least, the lack of
analysis by the Tenth Court leaves trial courts and litigants in the dark as to
whether the standards for a gag order are higher or different in the Tenth
Court of Appeals District than they are in other parts of the state.
Motion for Stay
    In its conditional grant of Clendennen’s Writ of Mandamus, the Tenth
Court of Appeals set a deadline of August 14, 2015 for the trial court to
vacate its gag order. Given the paramount importance to the trial rights of
Mr. Clendennen and those similarly situated, guaranteed by the Fifth and

                                        13
Sixth Amendments and Article 1, §10 of the Texas Constitution; the trial
court’s affirmative constitutional duty to minimize the effects of prejudicial

pretrial publicity enunciated in Gannett; and the seeming divergence of
opinion between the Tenth and Fourteen Courts of Appeal, this Court
should stay the conditional Writ of Mandamus issued by the Tenth Court
of Appeals issued in this case on August 7, 2015, or grant such other
emergency relief as requested in this petition.
Conclusion

    It is only the occasional case that presents a danger of prejudice from
pretrial publicity. Gentile v. State Bar of Nevada, 501 U.S. at 1054, 111 S.Ct.
2720, 115 L.Ed. 2d 888 (1991) (Kennedy, J., concurring). The enormity of
the Twin Peaks cases puts them into this category. At stake are fair trials
for one hundred seventy-seven people, and justice for nine dead. As such,
in the event that this Court finds that the trial court’s order is lacking, the
State would reiterate its plea made in its brief below that it heed the advice
of Chief Justice Gray in his dissent in Graves, “to allow the trial court the
opportunity to meet the requirements of their opinion before a fair trial …
is put in jeopardy.” Graves at 754.
                                      Prayer
      For the foregoing reasons, the State of Texas prays that this
Honorable Court affirm the trial court’s issuance of the gag order in this
case, issue a Writ of Mandamus directing the Tenth Court of Appeals to
vacate the conditional Writ of Mandamus previously entered by that Court,

                                        14
and to issue a stay of the conditional Writ of Mandamus previously entered
by the Tenth Court of Appeals, and prays for such other and further relief

as may be provided by law.
                                           Respectfully Submitted:
                                           ABELINO ‘ABEL’ REYNA
                                           Criminal District Attorney
                                           McLennan County, Texas

                                           /s/ Abelino ‘Abel’ Reyna
                                           ABELINO ‘ABEL’ REYNA
                                           McLennan County
                                           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 Compliance

      This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 3,451 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).




                                      15
                                Certificate of Service
      I certify that I caused to be served a true and correct copy of this Petition
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




                                          16
