         i^rva<?C wtfo c*A*J%£aj 6\c*(eA                                 WR-83, 719-01
                                                   '      COURT OF CRIMINAL APPEALS
                CIAsa, /
                       ZvL^L   )                                           AUSTIN, TEXAS
                WttW" jM*Ula*~J                          Transmitted 9/21/2015 10:12:28 AM
                      ^      ^^     /        /             Accepted 9/21/201510:51:49 AM
                                  Wc3 3 / /^~                               ABEL ACOSTA
                                         '                                         CLERK
         TEXAS COURT OF CRIMINAL APPEALS


                                                                 FILED IN
                           r . c r X7~                 COURT OF CRIMINALAPPEALS
                           CASE NO.
                                                             September 21, 2015

                          WR-83,719-01
                               '                           ABEL ACOSTA, CLERK


     IN RE STATE OF TEXAS EX REL. ABELINO REYNA
                            Relator




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

            Appellate Cause No. 10-14-00235-CR
                    10th Court of Appeals
                          Waco, Texas



EMERGENT MOTION BY REAL-PART-IN-INTEREST MATTHEW
ALAN CLENDENNEN TO VACATE STAY BASED ON RELATOR'S
                    UNCLEAN HANDS




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

                             Attorney for Matthew Alan Clendennen
      On August 7,2015, the Tenth Court of Appeals entered its unanimous opinion

conditionally granting a Writ ofMandamus in this case in the event the District Court

did not withdraw its unconstitutional gag order by August 14, 2015.

      On August 13,2015 and upon Relator's opposed motion, this Court stayed the

Court of Appeals' Writ of Mandamus and ordered the parties to brief three questions.

      After the filing of the briefs in this case, Relator has continued to violate the

very gag order he requested this Court to consider in his Petition for Writ of

Mandamus to this Court.


                                          II


      "Mandamus is an extraordinary remedy, not issued as a matter of right, but at

the discretion of the court. Although mandamus is not an equitable remedy, its

issuance is largely controlled by equitable principles." Riverfront Associates v.

Rivera, 858 S.W.2d 366, 367 (Tex. 1993).         Indeed, this Court has noted that

"equitable principles are necessarily involved when we consider whether mandamus

should issue." Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Cr. App.1987).

      Ofcourse, it is also well settled that "a party seeking an equitable remedy must

do equity and come to court with clean hands." City ofFredericksburg v. Bopp, 126

S.W.3d 218, 220 (Tex. App. - San Antonio 2003). In fact, the law recognizes that
"the doctrine of unclean hands applies to a litigant whose own conduct in connection

with the same matter or transaction has been unconscientious, unjust, marked by a

want of good faith or violates the principles of equity and righteous dealing." Id. at

221.'

        In sum, "Texas courts have held that, because mandamus is governed to some

extent by equitable principles, a party that comes before the court with unclean hands

is not entitled to issuance of a writ of mandamus." In re Simon Property

(Delaware), Inc. 985 S.W.2d212, 215 (Tex. App .-Corpus Christi 1999) (emphasis

added), citing, Axelson, Inc. v. Mcllhany, 798 S.W.2d 550, 552 n. 2 (Tex.1990).

                                              Ill


        It appears that, on September 18,2015, Relator, Abelino Reyna, again violated

the very gag order he is asking this Court to uphold. Indeed, KWTX News in Waco,

Texas reported:

        McLennan County District Attorney Abel Reyna, in a brief statement,
        said "someone violated their ethical and legal obligations" in making the
        material available to AP.


        "Our focus in the Twin Peaks matter will remain on the facts and the law
        and not it," he said.




        'See also Olmsteadv. United States, 277 U.S. 438, 483-484 (1928) (Brandeis, J.
dissenting) (Regarding unclean hands: "The court's aid is denied only when he who seeks it has
violated the law in connection with the very transaction as to which he seeks legal redress").

                                               3
Attachment A hereto (emphasis added).2

        Mr. Clendennen agrees that, ifit was a defense attorney who released discovery

materials to the AP, that attorney may very well have violated his/her "ethical and

legal obligations."3 On the other hand, Mr. Clendennen strongly disagrees that

Relator Reyna's focus has been on the "facts and the law" of this case and submits

that Relator has fully contributed to "the ridiculousness that is occurring all around"

the case.


                                                IV


        Mr. Clendennen continues to submit that what has occurred and what is


occurring in relation to the gag order is very transparent to even the casual observer.

Immediately after the May 17, 2015 incident, Relator, personally, along with other

state actors sought to fill the public's mind with pictures of roving "outlaw biker

gangs" and, only when they believed that they sufficiently accomplished that task,

Relator requested a gag order. But it seems like even that is not enough for Relator.



        2This is not the first time Relator Reyna has violated the gag order he seeks this Court to
enforce using equitable principles. On or about July 8, 2015, Mr. Reyna gave a press interview
discussing the selection of the grand jury foreperson for the grand jury that could possibly
consider Mr. Clendennen's case. See Appendix 1 to Mr. Clendennen's September 14, 2015
brief. During that interview, Mr. Ryna told the media: "That's the system. He was chosen totally
at random, like, the law says."

        3Ofcourse, the person who released the material may very well be a conscientious
whistleblower from Relator's own office or from a law enforcement agency associated with the
case.
Relator apparently believed he was creating a situation where Mr. Clendennen and

his attorneys were denied their free speech rights under the United States and Texas

Constitutions but he was free to continue to make statements to the press.

      As explained in Mr. Clendennen's September 14, 2015 brief, the ruling by the

Waco Court of Appeals was not an abuse of discretion for several reasons. First, the

district court did not have jurisdiction to enter the gag order. Second, there was no

"imminent or irreparable harm" or even a "substantial likelihood of prejudice" to

justify the extraordinary broad gag order. Third, there was no indication that the

District Court in this case considered any less restrictive means of preserving the

rights to a fair trial- a trial that would be at least a year in the future- instead of

imposing blanket restrictions on free speech rights. Fourth, a gag order in a case

involving 177 defendants in different courts, involving related civil litigation in state

and federal court, and involving judges who give their own press interviews is

unworkable as a practical matter.

      To compound all of this, it is now abundantly clear that Relator comes to this

Court with unclean hands. Mr. Clendennen has been denied his free speech rights for

more than two months and Relator has succeeded in persuading this Court to issue

a stay and thereby continue the denial of such rights while, at the same time, Relator

goes right on making statements to the media. For that reason alone, Mr. Clendennen
submits that the stay issued by this Court was improvidently granted and requests the

Court to dissolve the stay as soon as practical.


                                        Respectfully submitted,

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

                                        Attorney for Matthew Alan Clendennen
ATTACHMENT A
                                                                                                                77°F




Waco Officers Shot Bikers In Deadly Twin Peaks Gun Battle

By: Staff And Wire Reports




                                                             (File)

WACO (September 18, 2015) Waco police shot bikers with their rifles in the deadly May shootout that erupted
outside of a restaurant, according to information in a 724-page incident report that was included in more than 8,800
pages of evidence reviewed exclusively by The Associated Press.

The material has not been made available to local media and Waco police have consistently said they would not
release any details until the investigation is completed.

The Waco Police Department did not supply the material to AP, Sgt. W. Patrick Swanton said.

McLennan County District Attorney Abel Reyna, in a brief statement, said "someone violated their ethical and legal
obligations" in making the material available to AP.

"Our focus in the Twin Peaks matter will remain on the facts and the law and not the ridiculousness that is occurring
all around it," he said.

The evidence AP reviewed includes video footage of people fleeing the scene while shots ring out, and audio of police
threatening to shoot people who rise from the ground.

It still isn't clear whose bullets caused the nine deaths.

At least 20 people were injured in the May 17 melee.

Waco Police Chief Brent Stroman said in June that three officers fired a total of 12 shots, but declined to say whether
the shots struck anyone.

One of the officers assigned to stand by during the bikers' meeting on May 17 at the restaurant wrote in the incident
report reviews by AP that during the shootout he saw two officers who "had multiple suspects down on the ground.
(An officer) informed me they were engaged by gunfire as they exited their marked police unit. (The officer) said they
both returned fire and struck multiple suspects with their patrol rifles."

In another account in the report, another officer wrote that one of the officers at the scene spotted a man firing into a
crowd and fired one round "to stop the individual from shooting anyone else," AP reported.
' AP reported that after the shooting ceased, an officer asked everyone with a weapon to raise a hand, according to the
incident report.

Nearly everyone did, the report said,   share
The incident report also shows Waco police have a separate investigation.




         KWTX-TV News 10 6700 American Plaza Waco, Texas 76712 (254) 776-1330 Fax (254) 751-1088
     Copyright © 2002-2015 - Designed by Gray Digital Media - Powered by Clickability 328200821 - kwtx.com/a?
                                                     a=328200821
      I, F. Clinton Broden, do hereby certify that Attachment A is a true, correct and

exact copy of an article downloaded from:

      http.V/www.kwtx.com/home/headlines/Waco-Officers-Shot-Bikers-In
      -Deadly-Twin-Peaks-Gun-Battle-328200821 .html?ref=821 &device=p
      hone&c=y

                                       /s/F. Clinton Broden
                                       F. CLINTON BRODEN
                        CERTIFICATE OF SERVICE


      I, F. Clinton Broden, do hereby certify that, on this 21st day of September,

2015,1 caused a copy of the foregoing document to be served by electronic means,

on:



      McLennan County District Attorney
      219 N 6th St
      Waco, Texas 76701

      Tenth Court of Appeals
      501 Washington Ave.
      Waco, Texas 76701



                                     /s/ F. Clinton Broden
                                     F. Clinton Broden
