Update 8/11/2015- McLennan County District Attorney Abel Reyna has asked the Texas Court of Criminal Appeals to overturn Waco's 10th appeals court ruling that lifted the gag order, below. (Waco Tribune)

I'm really glad to see this. I wondered at the time why the district judge in Waco put a gag order on the case.If I am reading the case documents correctly, the charge against Clendeman originated at the JP and the circuit court took over without any indictment first. At any rate, the more sunlight shone on this the better. 

Waco Tribune

An intermediate appellate court ruled Friday that a judge abused his discretion by imposing a media blackout on parties involved the case of a Hewitt man arrested after the Twin Peaks shootout and ordered him to lift the gag order.

In an opinion written by 10th Court of Appeals Chief Justice Tom Gray, the court granted a petition for writ of mandamus filed by Matthew Alan Clendennen and gave 54th State District Judge Matt Johnson seven days to vacate the gag order he imposed in Clendennen’s case on June 30.

I found a great site called Waco Biker Justice that has all the court pleadings.  Here's  few parts I liked

From the Reply to the States Response to Mandamus Petition on Gag Order

Regardless of a taxpayer’s ultimate conclusion on the myriad of important societal issues that this case presents, only the strong protection of free speech and a strong media will provide citizens with the background to make these type of evaluations that are imperative to democracy. Simply put, unlike the State which believes the enormity of this case, albeit one of its own making, justifies keeping the public in the dark (except for the “facts” it wanted the public to hear in the days following the incident), Mr. Clendennen believes that the enormity of this case and the issues involved counsel against the gag order.

From the News Media Amicus Brief

The gag order imposed in this case places unconstitutional restrictions on speech and prevents members of the media from gathering the news and reporting on matters of significant public interest. The trial court failed to apply the correct legal standard for determining whether and to what extent the constitutional rights of the press and the public under the First and Fourteenth Amendments and Article I, Section 8 of the Texas Constitution must yield to preserve Relator’s ability to receive a fair trial by an impartial jury. The record in this case does not include any findings of inflammatory or prejudicial media coverage that would support a determination that Relator’s fair trial rights would be threatened in any way by public access to information about his case—let alone findings of prejudice to the extent required to justify curtailing the exercise of state and federal constitutional rights. For that reason alone, the trial court’s gag order must be vacated. Moreover, the gag order is unconstitutionally vague and overbroad. Not only does it purport to restrain the speech of too many individuals, including witnesses and law enforcement officers who do not possess information that could jeopardize Relator’s fair trial rights, but the order also restricts too much speech and is of unlimited duration. The order prevents any gagged individual from making any comment whatsoever to the media, without regard to whether the information is innocuous, purely factual, or already a matter of public record.

Unlike gag orders that have passed constitutional muster, the gag order’s “nocomment” rule does not preserve for Relator or his counsel the right to assert his innocence, the right to generally discuss legal claims and defenses, or the right to communicate with the media about the status of the proceedings against him. The trial court made no attempt to narrowly tailor the gag order to prevent dissemination only of prejudicial material, or even to limit the order’s duration. It is unclear from the language of the gag order what speech—if any—concerning Relator’s case or the underlying incident falls safely outside its ambit. In addition, the trial court failed to give proper consideration to alternatives designed to safeguard the integrity and impartiality of a jury, including voir dire, which is normally sufficient to root out prejudice, even in the most high-profile and publicized of criminal trials. For these reasons, amici urge this Court to grant Relator’s petition and issue a writ of mandate directing the trial court to vacate its gag order.

ARGUMENT I. Gag orders impinge on constitutionally protected newsgathering activities and restrict the flow of accurate, newsworthy information about matters of public interest and concern. Media access to criminal proceedings, court records, and trial participants is essential to the public’s understanding and oversight of the judicial system. For centuries, the press has played a critical role in facilitating public oversight of the courts. “A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field.” Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. . . . And where there was no threat or menace to the integrity of the trial, we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism. Id. (internal quotation marks and citations omitted). Both the First Amendment and the Texas Constitution protect newsgathering activities, including the right of a reporter to receive information from a willing speaker. See Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App.— San Antonio 1991, no writ) (emphasizing that “news gathering” activities are protected by both the state and federal constitutions); CBS Inc. v. Young, 522 F.2d 234, 237–38 (6th Cir. 1975) (gag order “directly impaired or curtailed” the media’s “constitutionally guaranteed right” to gather the news); Levine v. U.S. Dist. Court,

764 F.2d 590, 594 (9th Cir. 1985) (“By effectively denying the media access to litigants, the district court’s order raises an issue under the first amendment by impairing the media’s ability to gather news.”) (citation omitted). Gag orders curtail the exercise of that right, and restrict the flow of accurate, newsworthy information to the public about matters of public interest. They prevent the media and, by extension, the public, from obtaining information about a case from the most knowledgeable individuals, verifying information obtained elsewhere, and clarifying or contextualizing arguments asserted in court documents or proceedings. The effect of such orders is to reduce both the quantity and quality of information flowing to the public about matters vital to self-governance, such as the administration of justice, public safety, and law enforcement activities. A. To justify a gag order, a trial court must make specific judicial findings, consider less drastic alternatives, and narrowly tailor the order to address the identified harm. 1. The First Amendment requires a finding of “substantial likelihood” of prejudice to the defendant’s fair trial rights. Gag orders are presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992) (orig. proceeding); Young, 522 F.2d at 238; see also Journal Publ’g Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986) (“any inhibitions against news coverage of a trial carry a heavy presumption of an unconstitutional prior restraint”). A gag order that restricts the speech of lawyers and parties may issue only when a court makes specific findings showing that extrajudicial commentary by those individuals presents a “substantial likelihood of material prejudice” to the court’s ability to conduct a fair trial, and the order must be narrowly tailored and the least restrictive means available to preserve the fairness of the trial. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1063 (1991); United States v. Brown, 218 F.3d 415, 427–28 (5th Cir. 2000). 1 Ordinary news coverage of a criminal trial cannot justify a restrictive order. As the U.S. Supreme Court has made clear, the criminal justice system both anticipates and tolerates jurors who have been exposed to pretrial publicity as an inevitable consequence of an informed citizenry. See Reynolds v. United States, 98 U.S. 145, 155–56 (1878) (“[E]very case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits.”); Murphy v. Florida, 421 U.S. 794, 800 n.4 (1975) (“We must distinguish between mere familiarity with petitioner or his past and an actual predisposition 

against him, just as we have in the past distinguished largely factual publicity from that which is invidious or inflammatory.”). To satisfy the Sixth Amendment’s requirement of an impartial jury, “[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence in court.” Murphy, 421 U.S. at 800 (quotation marks omitted). For pretrial publicity to reach the point of interfering with a defendant’s right to a fair trial by an impartial jury, the publicity must be so inflammatory that any juror exposed to it could not be expected to render an impartial verdict. See Skilling v. United States, 561 U.S. 358, 382–83 (2010) (discussing that publicity must be “the kind of vivid, unforgettable information” that is “particularly likely to produce prejudice”); United States v. Lipscomb, 299 F.3d 303, 344 (5th Cir. 2002) (stating that the fair trial right “is violated only if . . . the trial atmosphere [is] utterly corrupted by press coverage”) (quotation marks omitted). To determine whether the nature of pretrial publicity has risen to this level, district courts must consider the circumstances of each case, including, for example: (1) the time elapsed between the coverage and the trial2 ; (2) whether the coverage contains “confessions or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight”3 ; and (3) whether the coverage invites prejudgment of, or expresses opinions about, a particular defendant’s guilt. 4 Any restrictive order must be narrowly tailored, and restrictions on speech must be no greater than essential to prevent the specific harm identified. See Brown, 218 F.3d at 427–28; United States v. Ford, 830 F.2d 596, 600 (6th Cir. 1987). Because large quantities of speech about a given case carry no risk of prejudicial effect, gag orders that impose a blanket “no comment” rule, without exceptions, are unlikely to satisfy constitutional mandates. See id. (concluding that a “no comment” gag order was not narrowly tailored). For a gag order to be constitutional, it also must be the least restrictive means of preserving the defendant’s rights. The power of voir dire and other curative measures to negate the effect of any prejudicial publicity should not be understated. See Patton v. Yount, 467 U.S. 1025, 1038 (1984) (“It is fair to assume that the method we have relied on since the beginning [voir dire], usually identifies bias.”) (citation omitted); In re Charlotte Observer, 882 F.2d 850, 855–56 (4th Cir. 1989) (“Increasingly the courts are expressing confidence that voir dire can serve in almost all cases as a reliable protection against juror bias however induced.”). 2. Article I, Section 8 of the Texas Constitution provides even greater protection than the First Amendment. The Texas Constitution provides “greater rights of free expression than its federal equivalent.” Davenport, 834 S.W.2d at 10. And the Texas Supreme Court has formulated an exacting standard to evaluate gag orders, holding that they: will withstand constitutional scrutiny only where 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. Id. at 10. The Texas Supreme Court has criticized federal precedent as insufficiently protective of “the rights of free expression that we believe that the fundamental law of our state secures.” Id. at 36. While Davenport involved a gag order imposed in a civil case, this Court has made clear that the same standard is fully applicable to criminal cases. See In re Graves, 217 S.W.3d 744, 749 (Tex. App.—Waco 2007, no pet.); see also San Antonio Express-News v. Roman, 861 S.W.2d 265, 268 (Tex. App.—San Antonio 1993, no writ). As the Court of Appeals in San Antonio Express-News explained, “[t]he application of Davenport to a criminal proceeding is appropriate as a means of protecting the public’s right of access to criminal trials and proceedings and free speech through the dissemination of public information—especially when, as in this case, the criminal defendant has raised no challenge that without the gag order he will be deprived of a fair trial.” 861 S.W.2d. at 268 (citations omitted).5 By requiring the risk of prejudice to the defendant to be “imminent and irreparable,” rather than just substantially likely, the Davenport standard reflects the robust protections afforded freedom of expression by Texas law, and its recognition that, in all but the most extreme cases, any risk of prejudice from pretrial publicity may be cured by less drastic remedial measures. See Davenport, 834 S.W.2d at 10–11 (placing more faith in remedial measures than federal case law); see also Benton, 238 S.W.3d at 600 (“it is only the occasional case that presents a danger of prejudice from pretrial publicity”). In sum, the Texas Constitution provides even more protection for free expression than the First Amendment, and Article I, Section 8 sets an even higher bar for the issuance of a gag order in criminal cases than the federal constitution. See Davenport, 834 S.W.2d at 10; Benton, 238 S.W.3d at 597 (“Texas courts have consistently applied a higher standard when reviewing prior restraints of speech”).Texas law requires that publicity be “pervasive, prejudicial, and inflammatory” before it poses a risk to a defendant’s right to an impartial jury. Bell v. State, 938 S.W.2d 35, 46 (Tex. Crim. App. 1996) (en banc), cert. denied, 516 U.S. 946 (1997) (“The mere fact of media attention and publicity do not, however, automatically establish prejudice”). And, for a gag order to survive scrutiny under Texas law, the trial court “must make ‘specific findings supported by evidence’” to that effect that detail “the nature or extent of the pretrial publicity,” and how the publicity “will impact the right to a fair and impartial jury.” Graves, 217 S.W.3d at 752–53. 

B. Even widespread, adverse publicity does not violate the fair trial rights of criminal defendants. Pretrial publicity rarely is so unfairly and incurably prejudicial to a particular defendant as to deny to him the right to an impartial jury. In many high-profile criminal cases—including those involving the Watergate defendants, the platoon leader in the My Lai massacre in Vietnam, and Enron executive Jeffrey Skilling— voir dire of prospective jurors sufficiently guarded against prejudice. 6 It is well-settled that even when prospective jurors have been exposed to pervasive, emotional media coverage about a heinous crime, remedial measures normally provide sufficient safeguards of defendant’s rights. Perhaps the best example of this principle is Calley v. Callaway, in which Lieutenant Calley, leader of the platoon responsible for the My Lai massacre in Vietnam, was convicted in a military court. 519 F.2d 184, 190–191 (5th Cir. 1975), cert. denied 425 U.S. 911 (1976). The massacre, and Lt. Calley’s involvement in it, had received “massive” amounts of “intense” publicity. Id. at 205. The record contained “volumes of clippings, reports and extracts from written reports on the case, as well as video tapes” of news coverage. Id. at 204. The federal district court that reviewed Lt. Calley’s conviction found that he “had been persecuted and pilloried by the news media so intent on making prejudicial revelations about the incident” that it was “not humanly possible for the jurors not to be improperly influenced by” the news coverage, which had “lasting emotional impact.” Id. at 205. The court concluded “it would be sheer fantasy to believe that the jurors did not see, hear and read (the publicity) or that they were not influenced by it,” and held that Lt. Calley’s Sixth Amendment right had been violated. Id. The Fifth Circuit reversed, holding that the publicity was not prejudicial, and that Lt. Calley had not been deprived of his right to a fair trial by an impartial jury. Stating that it could not “accept the position that ‘prominence brings prejudice,’” the Fifth Circuit closely examined the publicity in the record before it and determined that while some of the coverage contained “virulent and oppressive. attacks on Calley,” “a good deal of the extensive publicity” contained “objective statements of the facts known and discovered about the My Lai incident.” Id. at 206. The federal court of appeals distinguished “‘straight news stories’” from “‘invidious articles which would tend to arouse ill will and vindictiveness,’” and concluded that “there appears to have been no single sentiment regarding the case held by a vast segment of the American public.” Id. (quoting Beck v. Washington, 369 U.S. 541, 556 (1962)). The Fifth Circuit also found that a “searching and sensitively conducted voir dire” eliminated the likelihood that the jurors selected “were other than fair and impartial individuals who would determine Calley’s guilt or innocence based solely on the evidence developed before the court.” Id. at 208–09. As the court explained, “[t]he law does not prohibit the informed citizen from participating in the affairs of justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to paralyze our system of justice.” Id. at 210. 

. The gag order violates both the First Amendment and Article I Section 8 of the Texas Constitution because it is vague, overbroad, and unsupported by findings of a sufficient likelihood of prejudice. This case arises out of a gang-related shootout that resulted in nine deaths, 18 injuries and more than 170 arrests. See Dane Schiller, Waco Twin Peaks says it’s working with police after biker brawl, Houston Chron. (May 20, 2015, 8:48 A.M.), archived at http://perma.cc/J5Q4-ETNW. The incident received both local and national media coverage when it occurred, because the shooting raised issues of public safety, law enforcement, and gang violence. The nature of the media coverage was immediately praised by law enforcement. See Relator’s App’x 5, Video File B at 11:15 7 ( “the media assistance that we had here yesterday was very good in getting information out quickly to our public”); App’x 5, Video File C at 24:30 (“the media is doing a phenomenal job as well providing information and getting that out”). Indeed, law enforcement described news coverage of the incident as “responsible,” and encouraged members of the media to continue to verify facts with police. See App’x 5, Video File C at 2:44 (“I would ask you to continue responsible reporting. If you don’t know that it’s a fact, please come to me and I will give you that information if I can.”). On June 30, 2015, the McLennan County District Attorney’s Office filed a motion for a gag order approximately 10 minutes before the trial court was to hear a motion to quash Relator’s subpoena for surveillance video of the shootout. (Pet. at 2). As a result, neither Relator nor members of the news media had any meaningful opportunity to oppose the gag order prior to its entry