in Re the State of Texas Ex Rel. Abelino Reyna, Relator v. Court of Appeals for the Tenth District
WR-83,719-01
Tex. App.Aug 11, 2015Background
- May 17, 2015 Twin Peaks shootout in Waco: nine killed, 18 wounded, ~177 persons charged with Engaging in Organized Criminal Activity; many weapons recovered.
- Matthew Clendennen is one of the defendants; he subpoenaed surveillance video and signaled intent to publicize it.
- State moved to quash the subpoena and sought protective/gag order; hearing held June 30, 2015.
- Trial court denied the State’s motion to quash but entered a protective gag order prohibiting extrajudicial media comments by attorneys, staff, certain witnesses, and law enforcement, with limited exceptions and a provision allowing modification.
- Clendennen sought mandamus relief in the Tenth Court of Appeals; that court conditionally granted mandamus directing the trial court to vacate the gag order.
- McLennan County DA (Relator) petitioned this Court of Criminal Appeals to reinstate the gag order and stay the Tenth Court’s conditional writ.
Issues
| Issue | Plaintiff's Argument (State/Relator) | Defendant's Argument (Clendennen/Real Party) | Held (Tenth Court of Appeals) |
|---|---|---|---|
| Whether the gag order violates First Amendment/Art. I, §8 | Gag order is narrowly tailored, necessary to protect fair trials given extreme publicity and threats; least-restrictive alternatives impractical | Gag order unlawfully restricts free speech and defendant’s access to evidence; findings insufficient and order overbroad | Tenth Court conditionally granted mandamus, finding trial court abused discretion (ordered vacatur unless trial court rescinded order) |
| Whether trial court made sufficient specific findings to support prior restraint | Trial court made specific findings about intense local/national publicity, counsel’s willingness to publicize evidence, and imminent harm to jury impartiality | Findings are insufficiently specific under precedents like Graves; order fails threshold requirements for prior restraint | Tenth Court concluded findings insufficient in Graves-like analysis (conditional mandamus) |
| Whether gag order is least restrictive means | State: alternatives (venue change, sequestration, voir dire) are impractical given scale (177 defendants) and would not mitigate ongoing publicity; order allows modification | Defense: less-restrictive measures available; broad ban on counsel media contact unnecessary | Tenth Court treated least-restrictive-means requirement as unmet by trial court |
| Whether judicial notice of pretrial publicity justified the findings | State: court may take judicial notice of extensive publicity and emotional nature of case, supporting order | Defense: judicial notice improper without adequate hearing or specificity (citing Graves) | Tenth Court found the trial court’s reliance on judicial notice and the form of its findings inadequate |
Key Cases Cited
- Gannett Co. v. DePasquale, 443 U.S. 368 (trial courts must minimize effects of prejudicial pretrial publicity)
- Procunier v. Martinez, 416 U.S. 396 (restraints on speech must be no greater than essential to protect governmental interest)
- Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (prior restraint requires consideration of whether less-restrictive means suffice)
- Sheppard v. Maxwell, 384 U.S. 333 (remedies for prejudicial publicity include venue change, sequestration, searching voir dire)
- United States v. Brown, 218 F.3d 415 (5th Cir.) (trial court duty to protect fair trial rights of multiple defendants)
- Davenport v. Garcia, 834 S.W.2d 4 (Tex.) (state constitutional standard: imminent/irreparable harm plus least restrictive means)
- In re Graves, 217 S.W.3d 744 (Tex. App.—Waco) (Tenth Court case finding insufficient findings for gag order)
- In re Houston Chronicle Pub. Co., 64 S.W.3d 103 (Tex. App.—Houston) (upholding gag-order findings where judicial notice of extensive publicity supported restrictions)