A biker arrested at Twin Peaks in 2015, who failed last month to get the riot indictment against him thrown out, is asking an appellate court to reverse the decision and order a judge to dismiss the new charge.

Houston attorney Paul Looney, who represents Marcus Pilkington, a Bandido from Mexia, recently filed a petition asking Waco’s 10th Court of Appeals to order 54th State District Judge Matt Johnson to quash the indictment against his client.

Johnson denied a motion to quash the riot indictment after a hearing last month.

Looney charged in his motion the manner in which the state sought the riot indictment violates accepted procedures. Looney said prosecutors should have dismissed the original indictment before seeking a new indictment under a new cause number. Instead, Looney argued, prosecutors improperly obtained the new indictment under the same cause number and did not indicate which charge they intended to pursue.

Prosecutors countered that they have followed the same procedures in this county for at least the past seven years and that higher courts have affirmed the practice. Johnson agreed.

If the appeals court grants the motion, it could have far-reaching implications on the other riot indictments, court officials said. The statute of limitations on seeking an indictment for rioting has expired, so that option would be out.

McLennan County District Attorney Abel Reyna’s office indicted 155 bikers in the shootout at Twin Peaks on identical charges of engaging in organized criminal activity. Reyna’s office dismissed all but 27 of those cases and sought the first-degree felony riot charges against the majority of those in May. Nine bikers were killed and more than 20 others were injured on May 17, 2015, in a clash between Bandidos and Cossacks and their support clubs at the former Waco restaurant.

Some also are indicted on murder, tampering with evidence and weapons charges.

Three of the pending cases are being handled by special prosecutors from Houston because Reyna recused his office in those cases.

While the new indictments were returned, prosecutors have not dismissed the engaging in organized crime charges, one of the points that confounds Looney.

“I was very encouraged by the (Tribune-Herald) interview I read with the incoming DA that he is actually going to try to narrow down the prosecution to people who really did commit a crime,” Looney said. “I really don’t want to wait until January if the court of appeals would just follow the rule of law.”

Looney said last month he didn’t expect to sway Johnson and he isn’t confident the appeals court will see it his way, either.

“Where we expect to win is in the Court of Criminal Appeals in Austin,” Looney said last month. “We didn’t expect that it would get the ruling it deserves in Waco. We always expected we would have to get it in Austin.”

Looney said Wednesday that most of the remaining Twin Peaks cases also should be dismissed.

“Given the reluctance of the local judiciary to control this thing over the last three and a half years, I wondered what would have happened if the defense lawyers wouldn’t have put up such a tenacious fight?” Looney said. “I wonder if a lot of these innocent people would have been railroaded by now.

“Not one soul on the defense side ever said people who committed murder need to walk away from this. If they have got some people who they can prosecute for murder, good for them. Nobody is rooting against that. The only thing we are rooting against is the manipulation of the rules and laws of the state of Texas to try to include a lot of people who had no business being arrested,” he said.

One Twin Peaks defendant, Jacob Carrizal, has gone to trial, which ended in a hung jury and mistrial in November.

Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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