NO CR IN THE COURT OF APPEALS FOR THE TENTH SUPREME JUDICIAL DISTRICT AT WACO. In Re Matthew Alan Clendennen, Relator

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1 NO CR ACCEPTED CR TENTH COURT OF APPEALS WACO, TEXAS 8/6/2015 8:31:39 PM SHARRI ROESSLER CLERK 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 th District Court, McLennan County, Honorable Matt Johnson, Presiding KEITH S. HAMPTON ANGELA MOORE Attorney at Law Attorney At Law State Bar No State Bar No Nueces Street 310 South St. Mary s Street Austin, Texas Suite (office) San Antonio, Texas (cell) (office) (fax) (cell) (fax) ATTORNEYS FOR AMICUS CURIAE

2 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: Respondent: Real Party in Interest: Trial Counsel for Relator: Appellate Counsel for Relator: Matthew Alan Clendennen Honorable Matt Johnson 54 th District Court 501 Washington Avenue, Suite 305 Waco, Texas State of Texas F. Clinton Broden Broden, Mickelsen, Helms & Snipes, LLP 2600 State Street Dallas, Texas F. Clinton Broden Broden, Mickelsen, Helms & Snipes, LLP 2600 State Street Dallas, Texas Counsel for Real Party in Interest: Abelino Reyna McLennan County District Attorney Sterling Haron, Assistant District Attorney 219 N. 6 th Street Waco, Texas 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

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

4 INDEX OF AUTHORITIES Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959) In re State ex rel. Weeks, 391 S.W.3d 117 (Tex.Crim.App. 2013) San Antonio Express News v. Roman, 861 S.W.2d 265 (Tex.App. San Antonio 1993) CODES, RULES, AND CONSTITUTIONAL PROVISIONS Tex. Const. art. V 12(b) TEX.R.APP.PRO. 11(c) ii TEX.R.APP.PRO ii TEX.R.APP.PRO. 9.4(i)(3) TEX.R.APP.PRO. 11(d) iv

5 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. Clendennen s 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 Relator s and State s briefs. SUMMARY OF FACTS Counsel for amicus adopts the statement of facts as stated in Relator s and State s briefs. 1

6 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 Relator s 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 Relator s 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

7 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 Express News 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 State s claim that felony complaints filed in another court automatically invest district courts of jurisdiction. 3

8 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 peace s jurisdiction, authority or action. This Court should not be distracted by the State s 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 Relator s right to the effective assistance of counsel and endangers his right to a fair trial. The district court s 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: 4

9 [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 Relator s 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 1 The district court adopted and used the gag order in In re Houston Chronicle Publ. Co., 64 S.W.3d 103 (Tex.App. Houston [14 th ] 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. 5

10 trial. His discussion through his counsel of his case publicly does not endanger a fair trial. On the contrary, Relator s interest in a fair trial is only furthered by counsel s 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 Relator s 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 Relator s right to a fair trial. 6

11 PRAYER FOR RELIEF WHEREFORE, PREMISES CONSIDERED, Amicus prays that this Court ensure Relator s right to a fair trial by vindicating his First and Sixth Amendment rights and vacate the district court s gag order. /s/ Keith S. Hampton /s/ Angela Moore KEITH S. HAMPTON ANGELA MOORE Attorney at Law Attorney At Law State Bar No State Bar No Nueces Street Tower Life Building Austin, Texas South St. Mary s Street (office) Suite (cell) San Antonio, Texas (fax) (office) (cell) (fax) 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 R u l e s o f A p p e l l a t e P r o c e d u r e : M r. S t e r l i n g H a r m o n, and the Honorable Matt Johnson by fax at (254) , on this day, August 6,

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