Case Information

*0 RECEIVED COURT OF CRIMINAL APPEALS 8/11/2015 ABEL ACOSTA, CLERK *1 No. _______________________ I N THE

T EXAS C OURT OF C RIMINAL A PPEALS S ITTING AT A USTIN , T EXAS _________________________________________________ I N RE S TATE OF T EXAS EX REL . M ATT J OHNSON , R ELATOR V .

C OURT OF A PPEALS FOR THE T ENTH D ISTRICT , R ESPONDENT ___________________________________________ A P ETITION FOR W RIT OF M ANDAMUS C AUSE N O . 10-15-00235-CR F ROM THE 10 TH C OURT OF A PPEALS D ISTRICT W ACO , T EXAS

C AUSE N O . 2015-1955-2 F ROM THE 54 TH J UDICIAL D ISTRICT C OURT OF M C L ENNAN C OUNTY , T EXAS ____________________________________________ S TATE ' S P ETITION FOR W RIT OF M ANDAMUS AND M OTION FOR S TAY OF W RIT OF M ANDAMUS ____________________________________________ 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

54 th 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 6 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 6 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 *6 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 (5 th 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 [14 th 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 [14 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 54 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 *9 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 *10 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 54 District

Court, seeking “any and all videos of the events taking place at Twin Peaks

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 54 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

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 54

District Court did not vacate the gag order within seven days. Appendix 6.

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 [14 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

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 (5 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 *15 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:

“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

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

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.

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.

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 ,

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 [14 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

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

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,

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: A BELINO ‘A BEL ’ R EYNA Criminal District Attorney McLennan County, Texas /s/ Abelino ‘Abel’ Reyna A BELINO ‘A BEL ’ R EYNA McLennan County Criminal District Attorney 219 North 6 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).

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, 10 th 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, 54 District Court, McLennan County

Texas at matt.johnson@co.mclennan.tx.us

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

ABELINO ‘ABEL’ REYNA