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Click here for the full text of this decision FACTS:Relator Ashley Paige Benton seeks a writ of mandamus ordering respondent, the Honorable Devon Anderson, to vacate the gag order entered against relator, the trial attorneys, and the attorneys’ agents and employees in the underlying criminal case. On June 6, 2006, members of two gangs known as MS-13 and Crazy Crew clashed in a Houston Park. During the ensuing fight, relator, who was then 16, stabbed 15-year-old Gabriel Granillo. Granillo died at the scene; relator was indicted for murder and certified to be tried as an adult. On June 13, 2007, the state filed a motion for entry of a gag order. The State asked the respondent to take judicial notice of “(1) the unusually emotional nature of the issues involved in this case; (2) the extensive local media coverage this case has already generated; and (3) the various and numerous media interviews with the defendant and counsel for the defendant that have been published and broadcast by local media.” Respondent did not grant the motion at that time. The case went to trial, and on June 29, 2007, respondent declared a mistrial after the jury was unable to reach a verdict. Relator and the state then entered plea bargain negotiations. More than six weeks later, the trial court held a hearing on the state’s motion for entry of a gag order. The state presented videotapes of television news reports and newspaper articles concerning Granillo’s death, the charges against relator, relator’s first trial and the plea bargain negotiations. Relator presented five affidavits from attorneys who had represented defendants in other highly-publicized criminal trials. Respondent excluded six additional affidavits that originally had been offered by the Harris County District Attorney’s Office in an unrelated criminal trial as evidence in opposition to the accused’s request for a change of venue. Among the items excluded was the affidavit of Karen Richards, program administrator for voter registration, who stated that in 2005, the list of potential jurors in Harris County included the names of 2,807,640 people. Respondent granted the state’s request for a gag order. HOLDING:Conditionally granted. Relator contends that the trial court’s gag order violates the free speech guarantees of the Texas Constitution. She argues that respondent improperly based the gag order on the quantity of extrajudicial statements rather than on the content of those statements. Relator further asserts that respondent’s findings and the evidence are insufficient to establish the likelihood of the required level of prejudice to the integrity of the judicial process or the imminence of any such harm. Moreover, relator contends that respondent’s findings reflect a failure to adequately consider less restrictive alternatives. Relator also challenges the exclusion of several affidavits offered as evidence in opposition to the state’s motion. In reviewing proposed standards for reviewing gag orders under the Texas Constitution, the court does not determine whether the higher standard articulated in the Texas Supreme Court’s 1992 decision in Davenport v. Garcia applies in this criminal case, because the record and the findings do not support the imposition of a gag order even under the lower standards articulated in the U.S. Supreme Court’s 1991 plurality opinion in Gentile v. State Bar of Nevada and the 5th U.S. Circuit Court of Appeals’ 2000 decision in United States v. Brown. The findings and the evidence do not establish as a constitutional minimum that the order was narrowly tailored to avert a substantial likelihood of material prejudice. Respondent emphasized the quantity of publicity over its content or even its effects. With the exception of the disclosure of one plea bargain negotiation purportedly made by defense counsel, the news articles and broadcasts reveal nothing more than defense counsels’ assertions of relator’s innocence based on self-defense, reports of trial proceedings and reasonable inferences from witness testimony. A number of newspaper articles are merely reports of the trial proceedings and contain no extrajudicial comments attributed to counsel. The material does not present a substantial likelihood of material prejudice. Although there may be cases in which the record shows that material prejudice from extrajudicial statements is so likely that the trial court could act within its discretion in imposing prior restraint on the speech of trial participants, this is not such a case. OPINION:Guzman, J.; Fowler, Guzman and Hudson, J.J.

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