ACCEPTED

10-15-00235-CR
TENTH COURT OF APPEALS
WACO, TEXAS
8/6/2015 8:31:39 PM
SHARRI ROESSLER
CLERK

NO. 10-15-00235-CR
IN THE COURT OF APPEALS
FOR THE TENTH SUPREME JUDICIAL DISTRICT
AT WACO

In Re Matthew Alan Clendennen,

Relator
TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION

AMICUS CURIAE BRIEF

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

KEITH S. HAMPTON
Attorney at Law
State Bar No. 08873230
1103 Nueces Street
Austin, Texas 78701
512-576-8484 (office)
512-762-6170 (cell)
512-477-3580 (fax)
keithshampton@gmail.com

ANGELA MOORE
Attorney At Law
State Bar No. 14320110
310 South St. Marys Street
Suite 1830
San Antonio, Texas 78205
210.227.4450 (office)
210.364.0013 (cell)
210.855.1040 (fax)
amoorelaw2014@gmail.com

ATTORNEYS FOR AMICUS CURIAE

IDENTITIES OF ALL PARTIES

Pursuant to the provisions of Rules 38.1(a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action are as follows:
Relator:

Matthew Alan Clendennen

Respondent:

Honorable Matt Johnson

54th District Court
501 Washington Avenue, Suite 305
Waco, Texas 76701

Real Party in Interest:

State of Texas

Trial Counsel for Relator:

F. Clinton Broden
Broden, Mickelsen, Helms & Snipes, LLP
2600 State Street
Dallas, Texas 75204

Appellate Counsel for Relator:

F. Clinton Broden
Broden, Mickelsen, Helms & Snipes, LLP
2600 State Street
Dallas, Texas 75204

Counsel for Real Party in Interest: Abelino Reyna

McLennan County District Attorney
Sterling Haron, Assistant District Attorney
219 N. 6th Street
Waco, Texas 76701

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.
ii

TABLE OF CONTENTS
IDENTITIES OF ALL PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
DISCLOSURE REGARDING FEES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-6
I. The district court had no jurisdiction to issue the gag order.. . . . . . . . . . . . 3
II. The gag order defeats Relators right to the effective assistance of counsel
and endangers his right to a fair trial... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iii

INDEX OF AUTHORITIES
Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959). . . . . . . . . . . . . . . . . . . . . . 1
In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013).. . . . . . . . . . . . . 1
San Antonio ExpressNews v. Roman, 861 S.W.2d 265 (Tex.App. San Antonio
1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CODES, RULES, AND CONSTITUTIONAL PROVISIONS

Tex. Const. art. V 12(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX.R.APP.PRO. 11(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TEX.R.APP.PRO. 38.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TEX.R.APP.PRO. 9.4(i)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
TEX.R.APP.PRO. 11(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

iv

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW the Texas Criminal Defense Lawyers Association, a non-profit
membership organization composed of thousands of lawyers who practice and
support criminal defense, a membership dedicated to the protection of individual
rights guaranteed by the state and federal constitutions, and the constant improvement
of the administration of criminal justice in this state, and files this Brief Amicus
Curiae in Ex parte Alan Clendennen.
The purpose of this amicus curiae brief is to provide the Court with the
perspective of the state criminal defense bar, specifically why the gag order is void
and why its existence impacts not only Mr. Clendennens right to a fair trial, but his
right to effective assistance of counsel as well.

STATEMENT OF THE CASE

Counsel for amicus adopts the statement of the case as stated in Relators and
States briefs.

SUMMARY OF FACTS
Counsel for amicus adopts the statement of facts as stated in Relators and
States briefs.

ISSUES PRESENTED
1. Whether the district court was ever invested with jurisdiction to issue a gag order
regarding a case which has not yet reached the district court.
2. Whether the gag order in this case protects Relators right to a fair trial or
undermines that right.

SUMMARY OF ARGUMENT
The district court never obtained jurisdiction to act at all and the judge
therefore had no authority to gag Relator. Even if the district court had jurisdiction,
its gag order does not protect Relators right to a fair trial, but endangers his right to
a fair trial.

ARGUMENT AND AUTHORITIES

A writ of mandamus may issue to correct a clear abuse of discretion. Crane
v. Tunks, 160 Tex. 182, 328 S.W.2d 434, 440 (1959). Stated differently, the
ministerial-act requirement ordinarily required for mandamus actions is satisfied if
the relator can show a clear right to the relief sought. A clear right to relief is shown
when the facts and circumstances dictate but one rational decision under unequivocal,
well-settled (i.e., from extant statutory, constitutional, or case law sources), and
2

clearly controlling legal principles. In re State ex rel. Weeks, 391 S.W.3d 117, 122
(Tex.Crim.App. 2013)(citations omitted). Mandamus is therefore the appropriate
method by which to challenge a gag order. San Antonio ExpressNews v. Roman,
861 S.W.2d 265, 266 (Tex.App. San Antonio 1993).

I. The district court had no jurisdiction to issue the gag order.

[J]urisdiction should generally be viewed as vested in courts, not judges[.].
Carrillo v. State, 2 S.W.3d 275,277 (Tex.Crim.App. 1999). Before the judge in this
case may exercise his judicial authority, his court must first obtain jurisdiction. The
district court is invested with jurisdiction when an indictment has been presented.
Tex. Const. art. V, Sec. 12(b) (indictment invests court with jurisdiction). Because
there has been no indictment in this cause, the court lacked jurisdiction and
consequently, the judge lacked any authority to enter the gag order.
The State argues that because a complaint filed in the justice of the peace
alleged a felony, the district court somehow obtained jurisdiction. No authority is
cited for this proposition. Nor does the State make any effort to square its assertion
with the plain language of the Texas Constitution. There is no support in law for the
States claim that felony complaints filed in another court automatically invest district
courts of jurisdiction.
3

The State also argues that because the justice of the peace has jurisdiction to
act as a magistrate over felony complaints, and because the district judge was acting
as a magistrate when he issued the gag order, he therefore had jurisdiction to do so.
This confusing argument seeks to reverse the order by which a judge exercises his
judicial authority and proposes that judges may give their courts jurisdiction merely
through the exercise of the same powers as a justice of peace. Not surprisingly, no
authority is cited for this contention. Finally, the State argues more extensively
about the jurisdiction of the justice of the peace. Its argument is a red herring. There
is no issue regarding the justice of the peaces jurisdiction, authority or action. This
Court should not be distracted by the States arguments regarding concurrent or
exclusive jurisdiction. The only issue is whether the district court ever obtained
jurisdiction. Because no indictment has been presented, the district court lacked
jurisdiction to issue its gag order.

II. The gag order defeats Relators right to the effective assistance of counsel
and endangers his right to a fair trial.
The district courts order was sought to ensure the defendant is afforded a fair
trial. This aspiration is laudable and every criminal defense lawyer shares the same
goal. As well-stated by Judge Cochran:

[I]f the criminal justice system-even when its procedures were fairly
followed-reaches a patently inaccurate result which has caused an
innocent person to be wrongly imprisoned for a crime he did not
commit, the judicial system has an obligation to set things straight. Our
criminal justice system makes two promises to its citizens; a
fundamentally fair trial and an accurate result. If either of those two
promises are not met, the criminal justice system itself falls into
disrepute and will eventually be disregarded.
Ex parte Thompson, 153 S.W.3d 416, 421 (Tex.Crim.App. 2005) (Cochran, J.,
concurring). But for the following reasons, the gag order in this case does not fulfill
either promise. As explained infra, it actually defeats the ultimate aims of our
criminal justice system. It should be immediately vacated.
The Sixth Amendment to the Constitution of the United States guarantees the
effective assistance of counsel. TCDLA regularly seeks its vindication. First
Amendment interests have been well-detailed in the other amici. Accordingly, this
brief will confine its discussion to the Sixth Amendment interests at stake in this case.
The gag order issued in this case did not arise from Relators concerns for a fair
trial for himself.1 Relator sought no such order. On the contrary, Relator strenuously
opposes the gag order, as this mandamus action underscores.
The gag order does not further its stated goal of ensuring Relator has a fair

The district court adopted and used the gag order in In re Houston Chronicle Publ. Co., 64
S.W.3d 103 (Tex.App. Houston [14th] 2001). It has already been pointed out to this Court that it
was not the defendant (Andrea Yates), but a newspaper that challenged the order. The real parties
of interest in that case the defense and the prosecution expressed no complaint against the order.

trial. His discussion through his counsel of his case publicly does not endanger a fair
trial. On the contrary, Relators interest in a fair trial is only furthered by counsels
ability to counter the speech already afforded the State and which prejudices his
client.
The prosecution and law enforcement have already generated extensive
publicity, first through their botched handling of their investigation by arresting
suspects, witnesses, and bystanders alike, then through their repeated news
conferences, interviews and public announcements. Long before Relators voice
could even be heard, the prosecution and law enforcement have shaped and
substantially controlled a narrative that is false and prejudicial to Relator. Publicity
in this case counters the harm already inflicted. Accurate public reporting only
advances the interests of a fair trial.
Effective assistance of counsel is not limited to the trial itself. Accused
persons are entitled to effective counsel to give advice, conduct investigations, and
research the law. In cases of notoriety, effective assistance includes countermeasures
against widespread presumption of guilt, inaccurate reports damaging to the client,
and attacks against the client. In short, it means defending the client in the same
public forum in which he was maligned. It is the gag order, not publicity, which is
undermining Relators right to a fair trial.
6

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Amicus prays that this Court
ensure Relators right to a fair trial by vindicating his First and Sixth Amendment
rights and vacate the district courts gag order.
/s/ Keith S. Hampton
KEITH S. HAMPTON
Attorney at Law
State Bar No. 08873230
1103 Nueces Street
Austin, Texas 78701
512-576-8484 (office)
512-762-6170 (cell)
512-477-3580 (fax)
keithshampton@gmail.com

/s/ Angela Moore

ANGELA MOORE
Attorney At Law
State Bar No. 14320110
Tower Life Building
310 South St. Marys Street
Suite 1830
San Antonio, Texas 78205
210.227.4450 (office)
210.364.0013 (cell)
210.855.1040 (fax)
amoorelaw2014@gmail.com

ATTORNEYS FOR AMICUS

CERTIFICATE OF COMPLIANCE: By affixing our signatures above we hereby
certify that this document contains a word count of 1022 and therefore complies with
Tex.R.App.Pro. 9.4(i)(3).

CERTIFICATE OF SERVICE:
By affixing our signatures above, we hereby
certify that a true and correct copy of the foregoing Amicus Curiae Brief was
delivered electronically to all the parties, in compliance with Rule 11 (d) of the Texas
Rules of Appellate Procedure: Mr. Sterling Harmon,
sterling.harmon@co.mclennan.tx.us and the Honorable Matt Johnson by fax at (254)
757-5002, on this day, August 6, 2015.