No. 2015-2207-C2 THE STATE OF TEXAS, ) 54 TH DISTRICT COURT ) Plaintiff, ) McLENNAN COUNTY, ) TEXAS v. ) ) MATTHEW ALAN CLENDENNEN, ) ) Defendant. ) ) MOTION TO QUASH INDICTMENT Defendant, Matthew Alan Clendennen, hereby moves this Court to quash the indictment (attached hereto as Attachment A) filed against him in this case on or about November 10, 2015. In support of this motion, Mr. Clendennen sets forth the following facts and argument. I. THE STATE SOMEHOW CONVINCED THE GRAND JURY TO INDICT FOR A DEATH THAT NEVER OCCURRED Most involved in the criminal justice system are familiar with the colloquialism that prosecutors can get a grand jury to indict a ham sandwich. As explained by one court:
By the twentieth century, dramatic confrontations between prosecutors and jurors in grand jury proceedings had become rare. Currently, grand jurors no longer perform any other function but to investigate crimes and screen indictments, and they tend to indict in the overwhelming number of cases brought by prosecutors. Because of this, many criticize the modern grand jury as no more than a rubber stamp for the prosecutor. Day in and day out, the grand jury affirms what the prosecutor calls upon it to affirm investigating as it is led, ignoring what it is never advised to notice, failing to indict or indicting as the prosecutor submits' that it should. Or, as the Supreme Court of New York so colorfully put it: [M]any lawyers and judges have expressed skepticism concerning the power of the Grand Jury. This skepticism was best summarized by the Chief Judge of this state in 1985 when he publicly stated that a Grand Jury would indict a ham sandwich. United States v. Navarro Vargas, 408 F.3d 1184, 1195 (9 th Cir. 2005) (citations and footnotes omitted). For unknown reasons, the McLennan County District Attorney s Office apparently sought to even outdo a ham sandwich indictment. Indeed, on or about November 10, 2015, the McLennan County District Attorney s Office convinced a grand jury to return indictments against 106 motorcyclists in approximately 540 minutes. Even assuming absolutely no lunch breaks or bathroom breaks, each motorcyclist s case received approximately five minutes and six seconds of consideration. Moreover, the grand jury indicted Mr. Clendennen despite video evidence that he was not involved in any way in the violence that occurred at Twin Peaks on May 17, 2015. 2
Nevertheless, in its haste to give credence to the saying that a grand jury will indict a ham sandwich, the grand jury in the instant case did something truly remarkable thereby making clear that it really gave no consideration to the charges against Mr. Clendennen and the other motorcyclists. The grand jury actually indicted Mr. Clendennen, and many of the other motorcyclists indicted on November 10, 2015, for causing the death of William Anderson despite the fact that Mr. Anderson was not killed at Twin Peaks! Mr. Anderson actually died in a motorcycle accident in the State of Nebraska several months after the Twin Peaks incident. 1 In short, there was no more evidence that Mr. Clendennen was involved in the death of William Anderson than there was evidence that he was involved in the death of John Fitzgerald Kennedy. Yet, despite this, the McLennan County District Attorney s Office cajoled the grand jury into charging him in connection with Mr. Anderson s death. Given that even the State has now conceded that Mr. Anderson s death had nothing to do with the Twin Peaks incident despite Mr. Anderson s name being included in the indictment, the indictment should be quashed on this basis. 1 Just in case it is needed, Mr. Clendennen has witnesses who can place him in the State of Texas on the date Mr. Anderson died in the accident in Nebraska. It is safe to say that most of the other indicted motorcyclists could provide similar alibis. 3
II. THE INDICTMENT DOES NOT INCLUDE ALL OF THE ELEMENTS TO ESTABLISH A VIOLATION OF TEXAS PENAL CODE 71.02 It is axiomatic that an indictment should contain all that the State is required to prove. Texas Code Crim. P. Art. 21.03.; Ex parte Charles, 582 S.W.2d 836 (Tex. Cr. App. 1979); Benoit v. State, 561 S.W.2d 810 (Tex. Crim. App. 1977). Remarkably, despite the fact that the indictment in this case managed to charge Mr. Clendennen with Mr. Anderson s death despite the fact that Mr. Anderson died in a motorcycle accident in the State of Nebraska several months after the Twin Peaks incident, the indictment somehow managed to fail to allege all of the elements necessary to establish a violation of Tex. Penal Code 71.02. The indictment simply charges that Mr. Clendennen committed the violation of 71.02 as a member of a criminal street gang. Despite case law clearly on point, however, the indictment fails to charge the necessary mens rea associated with the actus reus of being a member of a criminal street gang. As explained in Curiel v. State, 243 S.W.3d 10, 15-16 (Tex. App. Houst. [1 st ] 2007), an indictment for Engaging in Organized Crime that simply charges that a defendant committed the underlying offense as a member of a criminal street gang is insufficient. Under the plain language of section 71.02(a), the State may establish that a defendant is guilty of engaging in organized criminal activity if the defendant commits the underlying criminal offense with the intent to establish, maintain or participate (1) in a combination, or (2) in the profits of a combination, or (3) as a member of a criminal street gang. 4
The word or precedes each of these two phrases, indicating that they may be alternatively proven. The State's proof, therefore, must show that appellant had the intent to establish, maintain or participate as a member of a criminal street gang... Id. at 15 (citations and footnotes omitted). See also, Licerio v. State, 2013 WL 414239 (Tex. App. Tyler Jan. 31, 2013) (same). Cf. Samaripas v. State, 2010 WL 376949, *5 (Tex. App. Waco Feb. 3, 2010) ( While the evidence that Samaripas committed the offense of deadly conduct was overwhelming, the evidence as to whether the offense was committed with the intent to establish, maintain, or participate as a member of a gang, although legally sufficient, was less strong. (emphasis added)). In light of the fact that the indictment filed against Mr. Clendennen in this case fails to charge all the elements to establish a violation of Tex. Penal Code 71.02, it must be quashed on that basis as well. III. THE INDICTMENT FAILS TO PROVIDE MR. CLENDENNEN WITH PROPER NOTICE As noted above, a video exists which clearly established that Mr. Clendennen did not take place in any of the violence at Twin Peaks on May 17, 2015. Nevertheless, the State apparently has some novel theory of criminal liability related to the motorcyclists who did not participate in any of the violence. In light of this, Mr. Clendennen s defense is in a particular quandry when trying to 5
guess as to what criminal actions or inactions the State believes he engaged in order to support its unannounced theory of liability. Article I, Section 10 of the Texas Constitution requires that a charging instrument convey adequate notice of the act or omission alleged so a defense may be prepared in advance of trial. State v. Carter, 810 S.W.2d 197, 199 (Tex. Crim. App. 1991). A court must consider whether the face of the indictment sets forth enough information, in plain and intelligible terms, to enable a defendant to prepare his defense. Castillo v. State, 689 S.W.2d 443, 447 (Tex. Crim. App. 1984). The indictment in the instant case provides absolutely no suggestion of what Mr. Clendennen allegedly did or did not do personally in order to commit the offense of Engaging in Organized Crime. The defects in the indictment severely prejudice Mr. Clendennen s ability to prepare his defense. In short, the indictment fails to charge the commission of an offense with sufficient certainty to enable Mr. Clendennen to prepare to meet the charge against him. It is unreasonable to expect Mr. Clendennen to prepare a defense lacking even these most basic facts that allegedly support the State s unique theory of criminal liability in the case. The State should not be permitted to turn the case into a guessing game and the indictment should be quashed for failing to give Mr. Clendennen adequate notice 6
of the act or omission he personally committed or failed to commit in order for him to prepare his defense. Respectfully submitted, F. Clinton Broden TX Bar 24001495 Broden & Mickelsen 2600 State Street Dallas, Texas 75204 214-720-9552 214-720-9594 (facsimile) clint@texascrimlaw.com Attorney for Defendant Matthew Alan Clendennen 7
CERTIFICATE OF SERVICE I, F. Clinton Broden, do hereby certify that, on this 17 th day of April, 2017, I caused a copy of the foregoing document to be served on McLennan County District Attorney, 219 N 6 th St., Waco, TX 76701 by overnight mail. F. Clinton Broden 8