Attorneys for Twin Peaks defendant Marcus Pilkington are asking a judge on procedural grounds to throw out last month’s indictment charging Pilkington with riot.

Pilkington was among 155 bikers initially indicted on “engaging in organized criminal activity” charges in the May 2015 shootout that left nine bikers dead and 20 injured.

Prosecutors sought re-indictments May 9 against 24 bikers on new charges, including murder, riot, tampering with evidence and weapons charges.

In a motion filed Monday, the Houston attorneys representing Pilkington, a 40-year-old Bandido club member from Mexia, ask that the re-indictment be quashed because of the way it was obtained.

“A felony case in Texas must proceed by indictment, but cannot proceed by two indictments,” the motion by attorneys Paul Looney and Mark Thiessen states. “Yet that is what the state has apparently attempted to do herein, although it is not entirely clear whether the state intends the new indictment to supplant or to merely supplement the prior indictment, which has not formally been dismissed.”

In seeking the new charges, prosecutors won new indictments but filed them under the original cause numbers. They did not dismiss the charges of engaging in criminal activity but have said those charges will not proceed.

Looney and Thiessen claim such methods violate the Texas Code of Criminal Procedure.

“An indictment cannot be ‘supplemented’ or superseded by way of a new indictment,” the motion claims. “There is nothing in statute, rule or law that allows the state to do what they have attempted to do herein. New charges require a new indictment, proceeding under a new cause number.

“Once a case has been initiated by indictment, the indictment can be amended, but such amendments can only be made pursuant to Tex. Code Crim. Proc. Arts 28.10 and 28.11. These procedures were wholly ignored by the state, and therefore the indictment issued on May 9, 2018, in this case is improper as a matter of law and must be quashed and dismissed,” the motion states.

Of the 192 bikers arrested after the melee, the DA’s office has dismissed or declined to prosecute all but those who were re-indicted May 9.

The attorneys argue that those charged with riot now cannot be tried on that charge. They cite a three-year statute of limitations on riot charges that expired last month and say the indictments were not returned properly.

“We are of the opinion that the second indictment was unlawfully obtained and cannot now be lawfully obtained,” Looney said Monday. “Just when it was beginning to look like the McLennan County District Attorney’s office had discarded the ‘Book of Waco’ and chosen to follow the Code of Criminal Procedure, we found that they are still making their own rules and have now made an inexcusable blunder.”

McLennan County District Attorney Abel Reyna did not return phone messages Monday. His first assistant, Robert Moody, said he had not seen the motion to quash the indictment and declined comment.

No hearing date has been set on the motion.

The Texas Penal Code defines a riot as the assemblage of seven or more persons resulting in conduct which creates an immediate danger of damage to property or injury to persons; substantially obstructs law enforcement or other governmental functions or services; or by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.

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

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