Waco: Hearing on motion to quash Twin Peaks indictment delayed
WACO, Texas (KWTX) A hearing scheduled Friday in Waco on a motion to quash the indictment of one of the men re-indicted in May in connection with the Twin Peaks shooting was delayed.
Marcus Pilkington was named in a new indictment on May 9 charging riot.
State District Judge Matt Johnson granted the delay at the request attorneys who wanted more time to prepare a case law brief.
Pilkington was one of those bikers re-indicted in the last flurry of indictments in the case, but Paul Looney, his attorney, filed paperwork with the court in June asking the judge to throw the new indictment out.
The issue is the fact, according to Looney, that each of the newly-indicted cases was re-indicted on the same case number as the original case, which Looney says is improper.
“A felony case in Texas must proceed by indictment, but cannot proceed under two indictments,” Looney said in his pleading.
“An indictment cannot be supplemented or superseded by way of a new indictment,” Looney said.
The second indictment naming Pilkington charges a completely different offense “involving certain different facts than the original indictment,” Looney said.
State, Carrizal seek delay in Twin Peaks shootout retrial
Prosecutors and an attorney for Jacob Carrizal have agreed to postpone the retrial of the Twin Peaks biker shootout defendant, which had been set for Sept. 10.
In a joint motion for a continuance, Robert Moody, McLennan County first assistant district attorney, and Chris Lewis, Carrizal’s attorney, cite the volume of evidence Lewis needs more time to review, plus evidence federal prosecutors have agreed to share from the trial of two former Bandidos national leaders that both sides want to see.
Lewis signed on to represent Carrizal, the Dallas Bandidos chapter president, shortly after Carrizal’s first trial ended in a hung jury and mistrial in November. Carrizal is the first and only Twin Peaks defendant to stand trial so far in the May 2015 shootout that left nine dead and 20 wounded. He initially was represented by Casie Gotro, of Houston, who withdrew from the case after the mistrial.
Besides McLennan County prosecutors, attorneys representing defendants in federal civil rights lawsuits filed over the mass arrests of 193 bikers after the Twin Peaks incident also have cited the need to see federal evidence from a Bandidos racketeering case in San Antonio as a reason for postponing proceedings in the civil cases.
Defendants in the civil rights lawsuits include McLennan County District Attorney Abel Reyna, former Waco Police Chief Brent Stroman, McLennan County, the city of Waco and other local and state officials. Those lawsuits remain pending in an Austin federal court.
U.S. District Judge Sam Sparks recently extended a moratorium delaying discovery in those cases for an additional two months while authorities wait to receive the evidence from the federal racketeering cases.
The motion for continuance, filed in Waco’s 54th State District Court, states members of the U.S. Attorney’s Office in San Antonio are making copies of evidence used in the prosecution of Bandidos Jeffrey Pike and John Portillo, including wiretaps, and are expected to turn it over to the DA’s office within a month.
“At that time, the DA’s office will then turn the evidence over to defense counsel in discovery,” the motion states. “The U.S. Attorney’s Office for San Antonio has previously stated the evidence they have is potentially inculpatory and exculpatory.”
Pike, former national Bandidos president, and Portillo, former national Bandidos vice president, were convicted on multiple federal racketeering counts in May.
Judge Matt Johnson has not ruled on the motion for continuance, but court officials said Friday that Moody and Lewis will confer to try to reach a date for Carrizal’s retrial.
As things stand now, it appears biker Tom Mendez, a Bandido from San Antonio, will be the next Twin Peaks defendant to stand trial, unless he accepts a plea bargain prosecutors offered Thursday. His trial is set to start Aug. 27 in 19th State District Court, and he has a pretrial hearing set for Friday.
Mendez’s attorney, Mark Metzger, declined to disclose the terms of the plea offer, as did Moody. However, he said he will discuss the offer with Mendez and let the court know his answer Friday.
Prosecutors reindicted Carrizal and 23 other Twin Peaks defendants on riot charges and have said they do not intend to pursue the identical engaging in organized criminal activity charges on which 155 bikers were indicted three years ago. Of those 155 cases, all but 27 have been dismissed. Three of the cases are being handled by special prosecutors appointed after District Attorney Abel Reyna recused his office.
On Friday, Houston attorney Paul Looney, who represents Twin Peaks defendant Marcus Pilkington, a Bandido from Mexia, asked Johnson to quash the reindictment against Pilkington that charges him with first-degree felony riot.
Looney alleges the manner in which the state sought the riot indictment violates accepted procedures and asked Johnson to throw it out. Looney charged that prosecutors should have dismissed the original indictment and then sought a new indictment under a new cause number. Instead, Looney argued, prosecutors improperly obtained the new indictment under the same cause number and have not indicated which charge they intend to pursue.
Prosecutors Gabe Price, Sterling Harmon and Moody argued that prosecutors in this county have followed the same procedures for at least the past seven years and that court precedents have said the practice is proper.
Johnson, a former prosecutor, said in his days in the district attorney’s office, they dismissed the first case before seeking another indictment with a separate cause number if they needed to reindict a defendant.
Johnson said he will rule on the defense motion within three weeks.
Pilkington, who is serving a two-year prison term on narcotics and evidence tampering charges out of Limestone County, has a Nov. 26 trial date in Johnson’s court.