Attorneys for Don Carlos Mexican Restaurant in Waco are seeking to block a subpoena that would require restaurant officials to turn over security camera videos from the May 17 shootout in advance of a biker’s examining trial.

Attorney Clint Broden, who represents Hewitt biker Matthew Clendennen, subpoenaed the video from Don Carlos, whose business is adjacent to the former Twin Peaks restaurant, where nine bikers were killed and 20 others were wounded.

Bret Griffin, a Houston attorney who represents Don Carlos, said in a motion to quash the subpoena that Broden is on a “fishing expedition for nonparty’s surveillance footage and is threatening the nonparty with orders of contempt and arrest. Such conduct is improper and must be stopped.”

Justice of the Peace W.H. “Pete” Peterson has scheduled an examining trial in Clendennen’s case for Aug. 10. Those seeking examining trials hope to prove there is insufficient evidence to indict them.

Peterson has not set other hearings in the case, including one to consider the motion to quash the subpoena.

Griffin alleges in the motion to quash that the subpoena will unduly burden Don Carlos’ officials, whom he said would have to review hundreds of hours of surveillance footage from 16 different positions in order to comply.

Also, he alleges, the manager of the Waco Don Carlos is no longer in possession of the hard drives containing the surveillance because Waco police officials took them as part of their ongoing investigation.

The motion suggests that Broden ask prosecutors to turn over the video.

“Finally, this surveillance footage is evidence in an ongoing criminal investigation and in an unrelated civil proceeding to which a gag order has been placed,” the motion to quash says. “To require a nonparty to disseminate this information would be unfair and prejudicial and potentially be in conflict with the gag order.”

Protective order

If the subpoena is not quashed, Don Carlos officials ask that the video to be placed under a protective order, barring its public release.

In a response to the motion to quash, Broden called Don Carlos’ arguments “gobbledygook.”

He notes that 54th State District Judge Matt Johnson last week ordered Twin Peaks to comply with an almost identical subpoena on a Twin Peaks franchisee. The judge placed the video under a protective order, preventing Broden from releasing it publicly.

“Twin Peaks has offered transparency to the citizens of McLennan County while, at the same time, recognizing the importance of due process rights of those charged with criminal offenses by agreeing to produce its surveillance videos pursuant to a subpoena,” Broden’s response says.

“On the other hand, Don Carlos seeks to keep McLennan County citizens in the dark and to deny citizens an opportunity to fully prepare their defense. Thus, it should hardly surprise Don Carlos that McLennan County citizens might choose not to patronize a restaurant that acts with such disdain toward public transparency and basic constitutional rights.”

Don Carlos is suing Twin Peaks in Dallas for loss of business as a result of the May 17 shootout.

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