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A judge Thursday denied a motion to throw out the indictment against Tom Modesto Mendez and indicated that Mendez should be the second Twin Peaks biker to go to trial in McLennan County.
After arguing for two hours over language in the first-degree felony riot indictment and the state's theories in the case, prosecutors agreed to amend language in the indictment 11 days before the scheduled Sept. 10 trial. After the amendments, the judge denied the motion to quash the indictment.
Barring any last-second motions from Mendez's attorney, Jaime Peña, it appears Mendez will be the second biker charged in the May 2015 Twin Peaks melee to stand trial. Peña, who had indicated he might file a motion seeking to recuse 19th State District Judge Ralph Strother, declined to say if he will file more motions.
If for some reason the Mendez trial is postponed, former Baylor football player Shawn Oakman is set for trial as the backup case.
One of Mendez's attorneys, Mark Metzger, of Galveston, renewed his request Thursday to withdraw from the case. Strother asked Mendez and Pe a if they objected to Metzger being allowed to withdraw and both said they were fine with Metzger dropping out.
However, prosecutor Gabe Price said the state objected to Metzger withdrawing, saying he has been on the case for two years and could provide valuable information to the defense. Also, if he stayed on, it would lessen a potential claim of ineffective assistance of counsel by Mendez on appeal.
Strother ordered Metzger to remain part of the defense team but said he didn't have to attend the trial, which is expected to last about two weeks. Metzger expressed hardships being away from his family and practice.
Peña asked Strother to quash the indictment against Mendez as “unconstitutional for vagueness and overbreadth.”
Peña's motion objected that the language in the new indictment against Mendez, issued Aug. 13, did not track the language in the rioting statute. It was Strother who brought up the matter first, saying he had noticed the potential problem while reading the indictment earlier in the week.
A two-hour debate ensued, during which prosecutors Price, Robert Moody, Gabrielle Massey, Hilary LaBorde and Staci Scaman defended the legality of the document by saying they used the Texas District and County Attorneys Association charging manual as a guide.
"Well, let's assume I'm right," Strother said. "Does this even allege a proper offense?"
A portion of the dispute centered around whether prosecutors improperly substituted the word "riot" for "assembly" in the final sentences of paragraphs in the three-paragraph indictment.
The indictment charges that Mendez knowingly participated in a riot, "an assemblage of seven or more persons resulting in conduct that created an immediate danger of damage to property and/or injury to person."
"The defendant discharged a firearm repeatedly, and while engaged in said riot, one of those person engaged in the riot, namely, Glenn Walker, committed the offense of murder, and said offense should have been anticipated as a result of said assembly, or said offense was committed in the furtherance of the purpose of the riot," the indictment states.
Peña and Strother noted that the statute uses the word "riot" instead of "assembly" for the last word in the paragraph. The other two paragraphs are identical, except they name others who reportedly committed murder, Richard Cantu and Jacob Rhyne, during the riot.
Because nine people were killed in the incident, Mendez is charged with riot resulting in death. That bumps riot, normally a Class B misdemeanor, up to first-degree felony, punishable by up to life in prison.
"What troubles me is that you are trying to convict him of murder without charging him with murder," Strother said. "Does it bother anybody that you are taking what usually is a Class B misdemeanor and making it where someone is facing life in prison?"
Strother asked if prosecutors are prepared to prove beyond a reasonable doubt that Walker, Cantu and Rhyne committed murder while trying to prove Mendez guilty of riot. They said yes.
Peña expressed concern that he also will have to defend the murder allegations and that the burden of proof would shift to the defense.
The prosecution team assured the judge that they are well within the statutes in charging the case. Price complained that the focus of the pretrial hearing was "getting off in the weeds," saying Peña's arguments and the judge's concerns were more appropriate for post-trial matters, not pretrial issues.
"This case has been off in the weeds for 3 1/2 years now," the judge said.
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