                                                                   WR-83,719-01
                                                   COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                   Transmitted 10/6/2015 2:36:27 PM
                                                     Accepted 10/6/2015 2:40:06 PM
                                                                     ABEL ACOSTA
                 No. WR-83,719-01                                            CLERK


                      IN THE
         TEXAS COURT OF CRIMINAL APPEALS                   October 6, 2015

             SITTING AT AUSTIN, TEXAS
_________________________________________________
     IN RE STATE OF TEXAS EX REL. ABELINO REYNA,
                                  RELATOR
   ___________________________________________

AMICUS CURIAE BRIEF OF NINE TEXAS DISTRICT ATTORNEYS

        ON MOTION 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
   ____________________________________________

                              RENE M. PENA
                              District Attorney
                              81st Judicial District
                              State Bar No. 00792752
                              1327 Third St.
                              Floresville, Texas 78114
                              [Tel.] (830) 393-2200
                              [Fax] (830) 393-2205
                              [Email]
                              renepena@81stda.org


                          i
                     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’sTrial 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

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




iii
                    IDENTITY OF AMICUS CURIAE

Dustin Hugh “Dusty” Boyd                Jo’Shea Ferguson-Worley
Coryell County District Attorney       Terry County District Attorney
P.O. Box 919                           500 West Main, Room 208E
Gatesville, Texas 76528                 Brownfield, Texas 79316
(254) 865-5911, ext. 2267              (806) 637-4984
(254) 865-5147 (fax)                   (806) 637-4874 (fax)
Email: dusty.boyd@coryellcounty.org    Email: jworley@terrycounty.org
SBN: 24050317                           SBN: 24058993

Robert Thomas “Rob” Christian
Hood County District Attorney
1200 West Pearl Street
Granbury, Texas 76048
(817) 579-3245
(817) 579-3247 (fax)
Email: rchristian@co.hood.tx.us
SBN: 00798106

Laurie English
112 Judicial District Attorney         M. Alan Nash
P.O. Box 1187                          Erath County District Attorney
Ozona, Texas 76942                     P.O. Box 30
(325) 392-2025                         Stephenville, Texas 76401
(325) 392-8415 (fax)                    (254) 965-1462
Email: lke112da@gmail.com              (254) 965-5543
SBN: 24025349                          Email: da@co.erath.tx.us
                                       SBN: 24027680




                                  iv
Julie Renken
Washington and Burleson County District Attorney
100 South Park
Brenham, Texas 77833
(979) 277-6247
(979) 277-6237 (fax)
Email: jrenken@wacounty.com
SBN: 00794696

B.J. Shepherd
220th Judicial District Attorney
P.O. Box 368
Meridian, Texas 76665-0368
(254) 435-2994
(254) 435-2952 (fax)
Email: bjshepherd4@gmail.com
SBN: 18219500




                                   v
DISCLOSURE REGARDING FEES

Pursuant to Rule 11(c) of the Texas Rules of Appellate Procedure, counsel
for amicus curiae represents that no fee has been or will be paid to counsel
for preparation of this brief.




                                      vi
                                              Table of Contents

Identity of Parties and Counsel ......................................................................... ii

Identity of Amicus Curiae ………………………………………………….. iv

Disclosure Regarding Fees …………………………………………………. vi

Table of Contents .............................................................................................. vii

TABLE OF AUTHORITIES ............................................................................... ix

STATEMENT OF THE CASE ........................................................................... xi

STATEMENT OF FACTS .................................................................................. xi

ISSUES PRESENTED ......................................................................................... xi

Summary of Argument ...................................................................................... 1

Argument ............................................................................................................. 1

   Does Davenport v. Garcia control criminal gag orders?................................ 1

   Davenport fails to consider competing constitutional guarantees .............. 1

   Davenport limits itself to considerations of Texas law ................................. 4

   Findings Sufficient to Support a Gag Order................................................. 6

   Least Restrictive Means .................................................................................. 9

   Options Proposed by the Defense Bar .........................................................10

Conclusion ..........................................................................................................12

Prayer ..................................................................................................................12

Certificate of Compliance ..................................................................................14

                                                            vii
Certificate of Service ..........................................................................................14




                                                        viii
                                     TABLE OF AUTHORITIES
United State Constitution
U.S. Const. amend. VI ……………………………………………………… 2, 4
State Constitution

Tex. Const. Art. I, §8 ……………………………………………………… 1, 2, 4
Tex. Const. Art. I, §10 .......................................................................................... 2
Federal Cases

Gannett Co., Inc. v. DePasquale, 443 U.S. 368 (1979) .....................................3, 10
Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ........................................3, 5
Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976) ..........................................10
Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) .............................. 5
Pell v. Procunier, 417 U.S. 817(1974) ................................................................... 5
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ............................... 5
Sheppard v. Maxwell, 384 U.S. 333 (1966) .................................................. 3-4, 10
United States v. Brown, 218 F.3d 415 (5th Cir. 2000) ....................................5, 10
United States v. Carmichael, 326 F. Supp. 2d 1267 (M.D. Ala. 2004) ................ 5
State Cases

Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) ......................................... passim
In re Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th Dist.] 2007) ........... 5
In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007) .......................... 5, 6, 7, 9
In re Houston Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App.—Houston [14th
  Dist.] 2001) ........................................................................................................ 5
State v. Redus, 445 S.W.3d 151 (Tex. Crim. App. 2014) ...................................11

Statutes

Tex. Code Crim. Proc., Art. 44.01 ……………………………………………. 11
Tex. Penal Code, Ch. 37 ………………………………………………………. 2


                                                           ix
State Rules

Tex. R. App. P. 11(c) ............................................................................................ vi
Tex. R. App. P. 9.4(e) ...........................................................................................13
Tex. R. App. P. 9.4(i) ............................................................................................13
Tex. R. App. P. 9.4(i)(1) .......................................................................................13
Tex. R. Evid. 105 ................................................................................................... 2
Tex. R. Evid. 402 ................................................................................................... 2
Tex. R. Evid. 403 ................................................................................................... 2
Tex. R. Evid. 404 ................................................................................................... 2
Tex. R. Evid. 802 ................................................................................................... 2




                                                          x
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW RENE M. PENA, District Attorney for the 81 st Judicial

District of Texas, and on behalf of eight Texas District Attorneys, and files

this Amicus Curiae Brief in Cause Number 83,719-01, In re State of Texas ex

rel. Abelino Reyna.

     The purpose of this amicus curiae brief is to provide the Court with

the perspective of Texas prosecutors, particularly in regard to the proper

standards which should apply to gag orders in criminal cases, and why the

gag order in the case at bar should be upheld.

                       STATEMENT OF THE CASE

     Counsel for amicus adopts the statement of the case presented in

Relator’s brief.

                         STATEMENT OF FACTS

     Counsel for amicus adopts the statement of facts presented in Relator’s

brief.

                           ISSUES PRESENTED

     The Court has designated the following issues to be briefed:

     1. Is the Texas Supreme Court’s holding in Davenport v. Garcia, 834

S.W.2d 4 (Tex. 1992), applicable to gag orders in criminal cases?

     2. Are findings supporting the gag order in this case sufficiently

specific?

     3. Is the Tenth Court of Appeals’ conditional grant of mandamus relief

supported by the law and facts of this case?

                                      xi
                            Summary of Argument

     1. The Texas Supreme Court’s holding in Davenport v. Garcia, 834

S.W.2d 4 (Tex. 1992), 834 S.W.2d 4 (Tex. 1992) is not applicable to gag

orders in criminal cases.

     2. The findings supporting the gag order in this case are sufficiently

specific.

     3. The Tenth Court of Appeals’ conditional grant of mandamus relief

is not supported by the law and facts of this case.

                                 Argument

DOES DAVENPORT V. GARCIA CONTROL CRIMINAL GAG ORDERS?

     The Court has raised the question whether the Texas Supreme Court’s

holding in Davenport, 834 S.W.2d 4 applies to criminal gag orders. Without

a definitive standard from this Court, the lower courts of this state have

used Davenport as a template for analyzing criminal gag orders, but the

integral shortcomings of Davenport make it inappropriate for criminal

cases.

DAVENPORT FAILS TO CONSIDER COMPETING CONSTITUTIONAL GUARANTEES

     The sole issue the Texas Supreme Court addressed in Davenport was

“whether the court’s gag orders violate the guarantee of free expression

contained in article I, section 8 of the Texas Constitution, which provides in

pertinent part:

     Every person shall be at liberty to speak, write or publish his opinions
     on any subject, being responsible for the abuse of that privilege….”
                                      1
Id. at 7.

     As a civil decision, Davenport takes no account of issues that

differentiate civil cases from criminal cases. Davenport makes no attempt to

balance conflicts between free speech rights protected under article I,

section 8 and the trial rights of an accused recognized under the Sixth

Amendment and article I, section 10 of the Texas Constitution.

     A courtroom is a forum for finding truth. To reach that goal, a

millennium of Anglo-American law has established proper manners and

means for getting at the truth. Those manners and means are explicitly

stated in the rules of evidence and procedure. Primarily, only relevant

evidence is to be admitted. Tex. R. Evid. 402. Even if relevant, evidence can

be excluded if it is overly prejudicial. Tex. R. Evid. 403. Certain evidence

may be admitted for only a limited purpose. Tex. R. Evid. 105. Some types

of relevant evidence may be kept out entirely. See, e.g. Tex. R. Evid. 404,

Tex. R. Evid. 802. When evidence is relevant and admissible, its sponsor is

subject to cross-examination and impeachment. If a witness provides false

testimony, they face criminal punishment. Tex. Penal Code, Ch. 37. Outside

the courtroom speech is free from constraint, regardless of its relevance,

prejudicial bias or truth. In short, justice requires that speech in the

courtroom be subject to certain limits and controls. Because the pursuit of

justice is paramount in a criminal trial court, the judges of those courts

have the duty not only of assuring that the rules are followed inside the

courtroom, but also the affirmative constitutional duty to minimize the

                                       2
effects of prejudicial pretrial publicity. Gannett Co., Inc. v. DePasquale, 443

U.S. 368 (1979).

     None of these factors as they apply in a criminal context are taken into

account in the Davenport decision. Specifically, the trial rights of a criminal

accused are absent from the equation. In Gentile v. State Bar of Nevada, 501

U.S. 1030 (1991), the United States Supreme Court recognized the

distinction between a restriction on the press and a restriction on the

litigants to a case:

     We think that the quoted statements from our opinions in In re Sawyer
     and Sheppard v. Maxwell, rather plainly indicate that the speech of
     lawyers representing clients in pending cases may be regulated under
     a less demanding standard than that established for regulation of the
     press in Nebraska Press Assn. and the cases which preceded it. Lawyers
     representing clients in pending cases are key participants in the
     criminal justice system, and the State may demand some adherence to
     the precepts of that system in regulating their speech as well as their
     conduct.
Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074 (1991)(internal citations

omitted). Also, the United States Supreme Court recognized in Sheppard

that it is incumbent on the court to limit prejudicial outside interferences
from influencing the fairness of a criminal trial:

     The courts must take such steps by rule and regulation that will
     protect their processes from prejudicial outside interferences. Neither
     prosecutors, counsel for defense, the accused, witnesses, court staff nor
     enforcement officers coming under the jurisdiction of the court should
     be permitted to frustrate its function. Collaboration between counsel

                                        3
    and the press as to information affecting the fairness of a criminal trial
    is not only subject to regulation, but is highly censurable and worthy
    of disciplinary measures.
Sheppard v. Maxwell, 384 U.S. 333, 363 (1966).

DAVENPORT LIMITS ITSELF TO CONSIDERATIONS OF TEXAS LAW
    In considering only the requirements of Texas law, the shortcomings of

Davenport become particularly glaring in the context of criminal cases.

Without even referencing Sixth Amendment requirements, Justice Hecht
was critical of the majority in not consulting federal precedent in reaching

its decision:

    The second difficulty with the Court’s view that we should define
    fundamental constitutional rights without interference from outside
    the state is that it is premised on a one-dimensional view of those
    rights which is rarely accurate. If relator were constitutionally entitled
    to say whatever she pleased, this would be an easy case. But her right
    to speak freely is not absolute, under either the First Amendment or
    article I, section 8. In this case, relator’s right conflicts with the district
    court’s interest in protecting minor litigants, and the issue is whether
    the district court’s interest warrants the restriction imposed on
    relator’s right. This tension among competing rights and interests
    gives constitutional construction a multi-dimensional aspect. Thus,
    the Court’s view that federal constitutional rights, which states cannot
    diminish, are a “federal safety net” is overly simplistic. Federal
    constitutional construction does not merely set minimum standards
    for protected rights which the states are free to increase; it strikes a
    balance among competing rights and interests that is itself of
    constitutional significance. While states have more latitude in
    adjusting this balance than they do in reducing guaranteed
    protections, that latitude is not unlimited. State courts are not free

                                        4
    from federal constitutional considerations in determining fundamental
    rights. The delicate balance among those rights and other interests
    must also be maintained.
Davenport, 834 S.W.2d 4.

    The briefs submitted in this case overwhelmingly rely on federal case
law to analyze the questions posed by the Court. The three Texas decisions

primarily cited are In re Graves, 217 S.W.3d 744 (Tex. App.—Waco 2007); In

re Houston Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App.—Houston [14th
Dist.] 2001); and In re Benton, 238 S.W.3d 587 (Tex. App.—Houston [14th

Dist.] 2007). The Benton decision draws deeply from federal opinions in

analyzing the propriety of gag orders, citing primarily to United States v.

Carmichael, 326 F. Supp. 2d 1267 (M.D. Ala. 2004); United States v. Brown,

218 F.3d 415 (5th Cir. 2000); and Gentile, 501 U.S. at 1054. The Houston

Chronicle decision also placed a strong emphasis on federal interpretation,

citing to Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Nixon v.

Warner Communications, Inc., 435 U.S. 589 (1978); and Pell v. Procunier, 417

U.S. 817 (1974). While not directly reliant on federal interpretations, the
Graves decision takes pains to analyze and distinguish Houston Chronicle,

which did have a significant federal reliance.

    There is a limited body of interpretive case law on Texas criminal gag
orders. The competing standards addressed in the briefs filed in this case

are all based on federal cases. It would be a practical impossibility for this

Court to attempt analysis of the question without reference to federal



                                       5
interpretations, much less to possibly craft a new standard. This in itself is

a powerful reason to abandon Davenport and its progeny.

FINDINGS SUFFICIENT TO SUPPORT A GAG ORDER

    Because Davenport considered only free speech rights, violation of its

proscriptions has resulted in an all-or-nothing approach which is

dangerous in a criminal context. Presuming that the primary purpose of a

criminal gag order is to balance free speech rights against the constitutional

rights of the accused, as opposed to merely minimizing the effects of

pretrial publicity on a civil trial, the Davenport approach provides for no

middle ground range of reasonableness wherein this end may be

accomplished.

    Davenport held that:

    The first requirement of our standard advances from the prior
    holdings of Texas courts that only an imminent, severe harm can
    justify prior restraint, and in the context of gag orders, that harm must
    be to the judicial process. (internal citations omitted) The mandate
    that findings of irreparable harm be made is based on our state
    constitutional preference for post-speech remedies. Only when no
    such meaningful remedies exist will prior restraints be tolerated in this
    context.
Davenport, 834 S.W.2d 4.

    In Graves, the Waco Court of Appeals did not hold that the

circumstances of the case would not support the issuance of a gag order.

“Rather, we hold that (1) there is no evidence in the record supporting the

findings necessary for a gag order, (2) the limited record in this case does
                                       6
not support Respondent’s decision to take judicial notice regarding pretrial

publicity, and (3) Respondent’s order does not contain sufficiently specific

findings for such an order.” Graves at 753. The result was that the gag

order was killed by the granting of mandamus. Justice Gray took

exception to this “no middle ground” approach, saying “I would expect a

delayed imposition of the holding to allow the trial court the opportunity

to meet the requirements of their opinion before a fair trial for Graves is

put in jeopardy. It is especially troubling that the majority would impose

so restrictive of a schedule without the opportunity to cure the perceived

problems when the right of the defendant to a fair trial is what weighs in

the balance.” Graves at 753-754 (Gray, C.J., dissenting).

    The Graves decision indicates that the problem with upholding the gag

order lay not so much in the lack of specific findings as the lack of the

record to support such findings. Justice Gray’s dissent certainly suggests a

belief on his part that the record did contain sufficient facts to support the

kind of findings required under Davenport. But since Davenport considered

only free speech rights and not the balance between competing

constitutional rights, the Graves court was compelled to kill the trial court’s

gag order.

    It has been argued by Respondent and his amici that the trial court’s

findings in the instant case were insufficient to support a gag order. These

are the findings the court made on this point:



                                       7
       “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.” Relator’s Appendix 4.
    It is clear from these findings that the trial court perceived that the pre-

trial publicity and the public statements of the parties were highly

prejudicial and posed a threat to the proceedings. These matters are
apparent from the record. The State presented a news report quoting

Respondent’s counsel’s complaint that, “The Waco Police have repeatedly


                                       8
given the public contradictory information about the events at Twin

Peaks.” Relator’s Appendix 3, Exhibit B. In addressing the court,

Respondent’s counsel complained that “the State has already poisoned the

well …. I couldn’t even count on two hands, the amount of press

conferences he gave purporting to describe what happened, calling them

biker gangs, when he knows they’re motorcycle clubs.” (RR I – 27). In

briefings and motions made in this case, Respondent and his amici have

continued to excoriate the State for making supposedly prejudicial

statements. Aside from the record, it is appropriate for a trial court to take

judicial notice of prejudicial press coverage, as the Waco Court of Appeals

acknowledged in Graves. Graves at 751.

    It appears that the difficulty the Waco Court of Appeals has with the

gag order in the instant case is the same one it had in Graves, a lack of

formulaic “magical words” in the trial court’s findings. This is a result of

the draconian remedy required under Davenport, which looks only to free

speech rights and fails to take into consideration the threat posed to an

accused’s trial rights.

LEAST RESTRICTIVE MEANS

      The case at bar is about a shoot-out where nine people died. This

happened during the Sunday lunch hour in the heart of one of the state’s

major cities. One hundred seventy-seven people have been arrested.

Surrounding these events are reporting and editorial comment by

traditional and non-traditional news sources and social media, complete

                                       9
with audio and visual content, available instantaneously to anyone in the

world who has a computer or a cell phone.

    Balanced against these factors are the courts’ affirmative constitutional

duty to minimize the effects of prejudicial pretrial publicity. Gannett Co.,

443 U.S. 368. This duty extends not only to Respondent, but to all 176 co-

defendants. Brown, 218 F.3d at 424. As the State has pointed out, a bare

minimum of 5,664 panelists would be required to conduct voir dire for the

one hundred seventy-seven potential trials in this case. Meeting this

challenge, while maintaining McLennan County as a venue option, will be

a daunting and costly task not only for the court system but for the entire

Waco area community.

    The United States Supreme Court has determined that before a trial

court issues a gag order, it must first determine whether other

precautionary steps will suffice. Nebraska Press Ass'n v. Stuart, 427 U.S. 539

(1976). Possible alternative precautions, including change of venue, jury

sequestration, “searching” voir dire and “emphatic” jury instructions were

set out in Sheppard, 384 U.S. 333. Under the circumstances of Twin Peaks,

only the willfully blind cannot see why these lesser options are not

reasonable means to protect the trial rights of all one hundred seventy-

seven accused.

OPTIONS PROPOSED BY THE DEFENSE BAR

    Throughout this case Respondent’s counsel has complained mightily

about public statements made by State agents. But rather than propose any

                                      10
one of the less-restrictive means analyzed under Sheppard, the defense bar’s

solution is to allow all the parties to say whatever they want. Respondent’s

Brief, p. 4; Amicus Brief of Robert Callahan, p. 6; Amicus Brief of Texas Criminal

Defense Lawyers Association, p. 6. It is even proposed that defense counsel

has an affirmative duty under the Sixth Amendment to try a client’s case in

the court of public opinion. Amicus Brief of Texas Criminal Defense Lawyers

Association, p. 3. Adding a further twist, Respondent has proposed that this

Court lift its stay of the gag order due to a perceived violation by the

Relator.

     The solution proposed by the defense bar is no solution at all. In fact it

is the opposite. It proposes that when the trial court determines that

prejudicial pre-trial publicity threatens the rights of the parties and the

judicial process, that it do nothing, allow the problem to build, and

abdicate its constitutional responsibility to minimize the effects of the

prejudicial pretrial publicity.

     The defense bar even advances the idea that the issuing of a gag order

should be dependent on the defense lawyer’s preferences. Amicus Brief of

Texas Criminal Defense Lawyers Association, p. 5. Again, this idea asks a trial

court to abdicate its constitutional responsibilities. And not only that, it

ignores the State’s interest in a fair trial. Tex. Code Crim. Proc., Art. 44.01;

State v. Redus, 445 S.W.3d 151, 153 (Tex. Crim. App. 2014).




                                        11
                                   Conclusion

     Gag orders in criminal cases, while rare, are appropriate measures that

trial courts may use to ensure a fair trial. In an atmosphere of

instantaneous media saturation, the threat of prejudicial pretrial publicity

in high-profile cases is real. It is in the interest of ensuring fair trials that

this Court establish workable standards for gag orders which takes into

account not only the rights of free speech and a free press, but also balances

those rights with the constitutionally guaranteed trial rights of the accused.

                                      Prayer

      For the foregoing reasons, Amicus 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, and prays for such

other and further relief as may be provided by law.


                                              Respectfully Submitted:
                                              RENE M. PENA

                                              /s/ Rene M. Pena
                                              RENE M. PENA
                                              District Attorney
                                              81st Judicial District
                                              1327 Third St.
                                              Floresville, Texas 78114
                                              [Tel.] (830) 393-2200
                                              [Fax] (830) 393-2205
                                              [Email]
                                         12
     renepena@81stda.org
     State Bar No. 00792752




13
                           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 4,487 words, excluding any parts exempted

by Tex. R. App. P. 9.4(i)(1).



                                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:

Relator, Abelino ‘Abel’ Reyna, McLennan County Criminal District Attorney at
abel.reyna@co.mclennan.tx.us.

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: 10/6/15                                  /S/ RENE M. PENA
                                               RENE M. PENA




                                          14
