No. STATE OF TEXAS § INTHE DISTRICT COURT § ws § 19th JUDICIAL DISTRICT § (CODY LEDBETTER § MCLENNAN COUNTY, TEXAS MOTION TO QUASH Al EXCEPTION TO SUBSTANCE OF INDICTMENT. 10 THE HONORABLE JUDGE OF SAID COURT: Now comes CODY LEDBETTER, Defendant, pursuant 0 Ar. 27.08 (3) and Aa. 21,02 (Tex, Code Crim_Proe, and brings this Motion to Quash and Exception to Substance of the Indictment and in support thereof shows: 1. CODY LEDBETTER was charge by indictment on November 10, 2015 with the offenses of Murder, Attempted Murder and Aggravated Assault by using and exhibiting a deadly ‘weapon, and all offenses were charged by alleging Cody Ledbetter engaged in organized criminal activity as @ member ofa criminal street yang, ‘The offenses, which are alleged to have been committed on or about May 17, 2015 in MCLENNAN County, Texas, are First Degree Felonies punishable by LIFE in prison, 3. ‘These exceptions are brousht pursuant to the grounds specitied in Anicle 27.08 (3) and Anticle 21.02(7) ofthe Texas Code of Criminal Procedure 4. Defendant, CODY LEDBETTER, alleges that it does not appear from the indictment that an offense ayainst the law was committed by CODY LEDBETTER as charged in the indictment, noes Cody Ledbetter placed on suficent notice of what he sto defend against FACTS ‘The prosecution theory inthis ease is that Cody Ledbetter’s mere presence on May 17, 2015 was sufficient standing alone to constitute the requisite culpable mental state to support himbeing charged with the offenses stemming from alleged criminal conduct during the eriminal episode. The grand jury indictment alleges no over act committed by Cody Ledbetter. However ‘Cody Ledbetter is charged with having engaged in organized criminal activity as a member of a ‘criminal steet wang Cody Ledbetter is affiliated with the “Cossacks Motoreycle Club.” In afiliating with the Cossacks Cody Ledbetter was not on notice from any source that the Cossacks motoreycle club ‘was considered by law enforcement as a ‘criminal street wang,” The Cossacks have never been listed as a “criminal street gang” on the law enforcement watch list. The Cossacks have never been found to have engaged continuously or regularly engaging in criminal gang activity as defined by Texas law. Tex. Penal Code see. 71.01. The Cossacks have never been certified in the stare decisis of any Texas state court as a criminal street gang, nor in any federal district or circuit court have the Cossacks been certified as a criminal steet gang. Cody Ledbetter has been charged variously as a member ofa criminal street gang. The indictment fails to state in plain and intelligible language a single act by Cody Ledbetter connecting him to the violence at Twin Peaks on May 17,2015, All chat is charged is his mere presence atthe scene, and nothing more. The prosecution theory of Cody Ledbetter’s criminal ‘conduet results from his mere presence atthe scene of the crimes as a “show of force."" 1m Countey” motoreyele club members Robert “Snake” Douglas, Tery “T-Bone Gott, Gerald ‘Rocket Man” Lowery Rodney “Hot Rod” Nash and Keith Rodgers wore present and not yt indicted: ‘Viee Grips” motoreycle club members Ryan Craft, Jonathan Lopez and Theron Rhoten were preseat and not yet indicted: “Valeros” motoreycle chib members Jose Valle, Andrew Sandoval, Gregory Salizar, James Rosas, Diego Oblede. Jason Moreno, Edward Kelle, Jr, Jaron Hernandez, Maio Ganzaler, Je Grexory Corrales and Andreas Ramirez were present and not vet indicted, "Los Caballeros” motoreyele club memipers Renaldo Reyes, Justin Waddington and Dastell Walker were present and not yet indicted: ‘Booze Fighters” motorscle club momber Masco DeLong. was present and not et indicted: “Grim Guardians” motoreyelo club members Bohar Crump, Juan Garcia, Drew King and fim Harris were resent and not set indicted: “Escondidos” motorescie club members Eliodoro Munguia, Sr, William Reading and Philip Smith were present and not yet indicted although “Escondido” motoresele club ‘member Thomas Paul Landers vats present and has bsen indicted: and "Rebel Riders” motoreysle clubMEMORANDUM OF ARGUMENTS & AUTHORI PPORT L It is axiomatic that if an indictment contains matter which i legal defense or bar to the prosecution an objection tothe substance ofthe indictment is cognizable under Texas law. Art 27.08 3) Tex. Code Crim, Proc. Texas law requires that an indictment must charge an oFense in plain and itligible languaze. Art. 21.02 (7) Tex. Code Crim, Proc. In either event, and ithe ‘Court should find any such defect, the indictment is to be quashed for such defect as to substance Cody Ledbetter was a vietim. He was injured, and he witnessed his step-lather being murdered. He did nothing other than see his step-father murdered in front of him and then run for He cannot be a vietim and be responsible as criminally culpable in the same offense, His conduct was either justified, oF not, and the State has filed to plead specitically in clear and ineligible language what Cody Ledbetter did suiciently to either plead a crime or to put Cody LLedbeter on notice of what he is to defend against, See Graves. State, 452 $.W.3d 907 (Tex App. 6 Dist 2014, pet. red), See also Morales v. Stare, 387 SW.34 1 (Tex. Cr App. 2011) ‘members Don Fowler and James Devoll were present and not yo indited Interestingly, “Bandids,” are members of a recognized “eriminal ste gang,” yet Timothy Bagless, Richard Canm, Je, Kenny Carlisle, Mathews Foss. Aes Phoenix, Siam Pond. Soh Smith and Matthew Yoeum were present as members of the Bandidos and have not yet hon indict Members of “Legacy,” "American Legion,” "Christian Ministries,” “Gypsies,” “Texas 1V" and Ae “Veterans” motoreyee clubs were also present and neither arrested nor indicted ‘Cory Ledbetter” has boon listed in other indictments as being a victim of assaultve condoct at ‘Twin Peaks. "Con is presumed a misspelling of “Cody” because “Cory” isthe same as “Gods in that ‘Cody” was injured and treated at the hospital alongwith other presumed victims as Philip White, Steven Dudley, Richard Lockhart, Narciso Luna, Willa Richardson, Robert Ortiz, Travis Boes and Nicholas ator All of these named persons have in common that they were actually injured at Twin Peaks and ‘weatod atthe hospital0. Cody Ledbetter as charged as being criminally culpable because he was merely present as «4 member of criminal street gang. Not once in the indicts docs the State of Texas allege the particular criminal street gang Cody Ledbetter was @ member All allegations against Cody Ledbetter are premised on the sinle claim that he was present as a member of «criminal street ‘gang and on that allegation alone Cody Ledbetter was a member ofthe Cossack Motoreycle Club, a motoreyele club that hhas never been referred in Texas j isprudence as a criminal street gang, The Cossacks Motorcycle Club appears in the jurisprudence of the State of Texas. Ex Parte Pilkington, 2015 Tex. App. LEXIS 8754 (Tex. App. 10" Dist. Waco, 2015)(a ease arising out of a Bandido inthis very case attempting to reduce the bond set} unpublished); Sionev, State, 658 S.W.2d 648 (Tex App.-I2" Dist, 1983, pet. red). Likewise, Cossacks Motoreycle Club has been used in cases in United States courts. U.S. - Roberson, 1995 US. App. LEXIS 19307 (CA9 1995)(unpublished) referred twice to Cossacks Motoreycle Club vests. In Brunner v. U.S), 70 Fed, Claims 623 (Ct Fed. Claims 2006) the federal ayents infiltrated the Cossacks Motoreyele Club to use as @ home base for investigating the Great Falls Montana biker com ity. The only reference to a Cossacks Motoreyele “gang” was by a paid confidential informant complaining in a Court of Claims case that he was secking damages for not being paid sufficiently pursuant to bis confidential informant contact with DEA. Stevens, U.S, 2009 U.S. Claims LEXIS 367 (Ct Claims 2009) The indictment fils to place Cody Ledbetter on notice as to why being a Cossack established his involvement with ac al street wang. In ONE HUNDRED FOURTEEN cases located where the name Cossacks was used, only an informant seeking payment for his services referred to the Cossacks Motorcycle Club as a “wang” “Cossacks” are only referred 10 as“gang” when discussing a Russian mob working in this countey, and that is ly inapplicable to this case. The indictment fils to place Cody Ledbetter on sulficient notice of what he isto defend against (On the other hand the “Bandidos” are clearly a criminal street gang. “Bandidos” have been recognized in the jurisprudence of this country &s @ combination of three or more persons having a common identifying sign or symbol and an identifiable leadership who continuously or ‘regularly associate inthe commission of criminal acts” The effort exhibited in Cody Ledbetter’s indictment to compare membership in the Cossacks a indistinguishable from membership in the ‘By comparison, the ~Bandidos” are clearly an “organized street gang.” “Bandidos” are reforencod inthe stare decisis in Tess, oer states and federal courts as being a recognized “organized stict wan, US v FLORES. 149 13D 1272 (CA10 1098) (a methamphetamine prosccution), STATE y SURRATT No, 0S-1406 (La “App. 3" Cir 2006)2" degree murder): US! YAZZIE, 188 Fd L178 (CALO [e9y(nvoluntary manslaughter). US v CROSS, 638 F2d 1375 (CAS 198 attempted assassination) GILLES v STATE, 1999 Tex. App. 7" Dist, 1999) (controlled substances), US v STRAHAN, O84 F2d 15S (CAG 1995){eapons possesion). US y KANE. 2018 US. Dist. LEXIS 81570 (DC Nevada 2013){¢omparson 19 "Hells Angels"), US s MAASS, 199% US App. LEXIS 17822 (CAL 1998) onueder ‘ofa police informant): DICARLO v STATE. 1998 Tex. App. LEXIS 7181 (Tex. App. 3° Dist 1998) (oliciation of murder): STROUD v STATE, $6 Ala App. 692 (Ala. Cr App. 1975) (mur) GOODWIN v STATE, 2012 Tex App. LEXIS 6018 (Tex App. 13" Dist 2012) (sual miscondoet. US ‘SMITH. 37 FSupp. 806 (MDLa 2014) (controlled substances, CRUMPTON v STATE, 2009 Tes. App. LEXIS 6783 (Tex. App. 9” Dist. 2009) (Foving fiom Bands), US v STREET, SUS F3d 61% (CAs 3008} violomy, lawless tendencies); CLAXTON v STATE, 1248 W.3d 761 (Tex. App. 7 Dist. 20083)(-motoreycle gang”): GORDON v STATE, 640 SW.2d 743 (Tex. App. 4° Dist. 19X2\"gun carrying Bandidos"). HANCOCK STATE, 2007 OK Cr9 (OK Ct. App. 2007 fae of retaliation from Bandidos), JAYCON v STATE, 651 S\W.2 803 (Tex. Cr. App. 1983Maccomplice to murder, JONES "THROCKMORTON, 2004 US Dist. LEXIS 399 (ND. Tex. 2004): MeMILLAN y STATE. $73 S W 2d 62 (Tex.App 12" Dist. 1993)(reat to killa juror). PEREZ v TEAMSTERS, 2004 U.S, Dist, LEXIS 16109 ($.DNY 2004); US v JONES, 24 FED APPX. 968 (CA1O 2001), US v PASCIUTI, 803 F. Supp 499 (DC NH 1992) Coutlas motoreyele gang’), WHITE x QUARTERMAN, 2007 US. Dist. LEXIS {87819 (SD Tex. 2007) (Bandido stout gang"); BARBO \ STATE, 1997 Tex. App. LEXIS 4690 (Tes. App. 9 Dist 1997) (sale ofa human fo-@ Bandido). CRUMPTON v TDCI-ID. 2014 US. Dist LEXIS 129901 (CD Tex. 2014)\Bandido “wang” pursuit). DIETZ v SPAGENBERG, 2013 US. Dist LEXIS 123601 {DC Minn. 2013), HANCOCK v TRAMMEL, 798 F3d 1002 (CA10 2013\Bandilo “gang"), KINSEY v US, 2015 US. Dist. LEXIS 7383 (ND Tex. 2015)(eaving the Bandidos would get her killed. PEOPLE v PETTIGREW, 2006 Cal App. 6092 (unpublished) (Cal Ct App. S* Dist. 2005) (Bands, Hells Angels & Mongols"); PEOPLE ¥ MALONE, 2008 Cal. App. 116888 (Cal. Ct App. Dist 2005) ("eaving the Bandidos would get he illd); STATE s LANDRY, G8-0318 (La, App. 3" Cit. 20118), STATE v LEMAY, 2011 MUS.Ct. 2011) (*Bandidos motoreycle gang”); STATE v MYNAT 2006 Wash. App, LEXIS 348 (CA Wash, Dist.3 2004) ("Bandidos gang) and US v WISEMAN, 376 Fed ‘Apps. 76 (CAS 2014) xo)BBandidos, as both ae “riminal street gangs,” i simply not supported inthe law of this State oF any other state or ofthe United States, “The State of Texas seeks by indictment to prove mee presence a the scene of a erime canbe illegal ithe person present isa member of a criminal street gang. The term criminal street sang has been defined. The prosecution is not fee to determine which groups are and are not {nal street ganys with no reference to such determinations being subject to the law of the State of Texas“ That is specifically what has gecurted and the simple allegation of membership al street gang,” given the stare decisis of the State of Texas, fails to state a rime in clear and intelligible language and fails to place Cody Ledbetter on suficient notice of what he must defend against. * The term “eriminal set gang” is defined by Texas law: Three oF more persons having. a common idemiing sign oF symbol, of an identifiable leadership who continuously oF regularly associate in the commission of criminal activities. Tex, Penal Coxe see. 710108) The slements oF proof are the association with to oF more with distinctive symbols, or an association with an identiGiable Teer sho engage in a patter of organized assulive bchavior legally sufficient to support such finding ID,, NGUYEN y STATE, 1'S\W.3d at 697, supa, Texas also creates a private cause of action to enjoin public muisance Tex. Civ: Prac & Rem, Cade 125.064(). A public muisance exists when a combination ‘or “criminal sect gang” (See: Tex. Cin. Prac. Rem Code’ 125.061(1}, having meaning assigned by Tex. Penal Code 7101 by either. (a) continuously or regulady associate in gang activities, {Tex. Civ Prac. & Rem, Code 125 061(2} of which “continuously of regularly meas at ast five times in not more than 12 months, oF (b) habaly use a place For gang activity, {Tes. Cv. Pra. & Rem. Code 125.063}, and (¢) wang activity” means a variety of organized eriminal activity prohibited by the Penal Cods. including. (1) Terorstic threats: 2) Coering. soliciting. or inducing gang membership. (3) Criminal trespass. (4) Disorderly conduct: (8) Criminal mischif, (6), Weapons offenses. of (7) Unlawtul possession of controlled substancss. (Tex. Civ. rac. & Rem. Code 125 061(3)} Ifthe Cossacks were provable asa “criminal tect gang” that proof eauld have been manifested by te very Dstt Attorney's Otic that sought the indictments in ths ease fling an injunction suit wo enjoin thie activities within the jurisdictional limits ofthis very Distiet Court. Any Cossack motoreycle club member. o any business in ‘MeLennan County allowing the Cossacks to moot at their place of business could have been joined in a sit fr inunetion against the Cossack if indoed. dhe Cossacks wore a “criminal street gang,” {Tex. Ci Pra. & Rem. Code 128.0645) & 125 06i(3)}- I noted that at no time did the same District Attorney's Office now prosceuting the Cossacks as a “enminal stoct gang” endeavor to enjoin the Cossacks a8 & oriminalstret pan,” notwithstanding the statutory authority 19 dos.ML The indictment charges Cody Ledbetter committed his assautive conduct as organized criminal activity. There is but a single criminal episode alleged, Texas law is clear. Proof that ttre oF more persons agreed to jointly commit a single crime is insufficient to prove a combination under the organized exime statute, Nuun ¥: State, I S.W.3d 694, 697 (Tex. Cr App. 1999). uve stands for the proposition that “organized criminal activity” does not apply to asingle criminal episode ‘The charge must be that the members of the group intended to work together in a continuing course of criminal activity. The intent to work together in a continuing course of criminal activity may be manifested in acts that are not criminal, so the State doesnot have to allege the commission of other criminal acts by members ofthe combination Its sill necessary to charge that the combination existed as a criminal organization, andthe defendant committed the enumerated offense in order to facilitate the commission ofa “continuing course of criminal activity” by that organization, Fee v. State, 841 S W.2d 392 (Tex Crim.App. 1992) A criminal re street gang can commit a single crime, but if th crime isnot associated with a “continuing course of criminal activity” it cannot be charged as engaging in organized criminal activity There is no allegation that Cody Lesbetter committed the crimes alleged to further the commission of a continuing course of criminal activity. Absent that allegation, the State has failed to state a crime under Texas law, and Cody Ledbetter is not on notice of what he is 40 defend against There is no allegation that Cody Ledbetter’s affiliation with the Cossacks was “continuous” or for “the purpose of committing criminal acts” The specific eriminal acts charged do not have tobe pled, but that Cody Ledbetter’s Cossacks ailiation wiand his involvement was for “the purpose of committing criminal acts,” must be pled in order to charge a crime in Texas, Failing these allegations, the indictment is insufficient to charge a crime in Texas, Barriemes v. State, 2003 Tex. App. LEXIS 9902 (Tex. App. 8 Dist 2003)(unpublished), citing: Tex. Penal Code Ann, 71.01(d). As determined in Barrientes the frst allegation is of an affiliation with an “organized street gang.” In Barrienves the “organized street gang” was the “Bloods,” auain, a group that had been determined to be an organized street ang because its members had a “continuous involvement,” and the members “affiliated” solely for “the purpose of committing criminal acts” To charge a crime in Texas for organized criminal activity as a member of an organized street gang, the State must plead Cody Ledbetter's “continuous involvement” with the Cossacks was for “the purpose of committing criminal ats” Cody Ledbetter tees enhanced punishment because the State has chosen to declare the Cossacks criminal street gang. There is no pleading, however, that the Defendant’s membership in the Cossacks existed for “the purpose of committing criminal acts.” wv. ‘The prosecution theory is that Cody Ledbetter’s mere presence at the scene of the criminal activity at Twin Peaks on May 17, 2015 was as part of a “show of force.” There is no allegation in the indictment making such a claim. There is no alleyation delineating. what constituted Cody Ledbetters participation in a “show of force "* Like other terms set out in the indictment visa vis “criminal street gang” and “organized criminal activity,” the term “show of force” that is criminally actionable has been defined in the law of the State of Texas. ‘There is nothing in Texas law that establishes that a “show of force” is per se illegal, A lot of men present, without more, is not an illegal and actionable “show of force." Arcilav. State, should be noted that Cody Leubetter was unarmed, and ha his right arm in a sing due to a recent accident. Cod Ledbeter is right-handed I is dificult for this author to ascertain what kind of orgs” Me. Ladbetter would have bovn eapabe of showing under such vulnerable circumstances,‘788 S.W.2d S87 (Tex App.-S Dist. Dallas 1990) (pet, granted, aff'd, 834 § W.2d 357 (Tex. Crim, App. 1990). For a “show of force” to be criminally actionable the “show of force” must be Unreasonable. Grissom ¥. Sate, 262 8.W.3d $49, $52 (Tex. App. 6 Dist. 2008, no pet). Its clear that the ease law on this issue in Texas involves “illegal” police shows of force, but a look to that case law provides a view of what does and does not constitute an “illegal” and actionable show of force, When the presence is characterized by no display of weapons, no physical abuse and no threats the alleged “show of force” is not unreasonable. le, Grissom, supra: at $52. On the other, the law recognizes that a “show of force” is unreasonable when ‘conducted in such a way as to leave “the other” with no choice. Rumbangh v. State, 629 SW 2d 747, 153 (Tex. Cr. App, 1982) ‘An actionable “show of force” includes alot of factors (when police “show of force” challenged), but one common factor is exhibition of firearms, Fontenor . State, 792 S.W 24 250, 254 (Tex. App. S® Dis, Dallas ~ 1990, no pet). See also Johnson v, State, 1994 Tex. App. LEXIS. 3513 (Tex. App. 5 Dist. Dallas 1994, no pet)where “mere presence” without a display of ‘weapons does not constitute an actionable “show of force”Xunpublished), see also Wilson Stave, 1993 Tex. App. 285 LEXIS 285 (Tex. App. 14! Dist. 1993, no pet) (where an actionable “show of force” results ftom a display of weapons coupled with flagrant misconduct like intimidation, threats or abuseunpublished). See uso Oliver. State, 1998 Tex. App, LEXIS 3066 (Tex. App. Dist Dallas 1998, pet, red) (unpublished). On balance, an armed posse converging on a scene isan illegal show of force. Mere presence with no display of weapons and «lawful presence is most likely not an illegal “show of force." See Frierson v. State, $39 8.W.2d 841, 851 (Tex. App. 5® Dist, Dallas 1992, no pet), ‘The major distinction between an illegal “show of foree” and a reasonable and not i aactionable "show of force” is whether firearms are displayed. Lowery v. Stave, 499 S,W.2d 160, 168 (Tex. Cr_ App. 1973) involved fifteen officers approaching with guns drawn, and this was determined 10 be illegal and unreasonable, But on the contrary, the Supreme Court has determined that a “show of force” isnot illegal if there is no application of force, no intimidating ‘movement, no blocking of movement and no brandishing of Rrearms, US. % Drayton, $36 US 194 (2002), The prosecution theory is premised on Cody Ledbetter's mere presence atthe scene of the ef ve was illegal because he participated in a “show of force,” although neither a “show of foree,” nor acts sufficient to establish an alleged “illegal” “show of foree,” are charged. No specifies relating to Cody Ledbetter’s conduct, ie a display of a weapon or Nagrant misconduct, are alleged. An indictment must set forth in plain and intelligible language the conduct thatthe Ste alleges was illegal, and nota single specific act is alleged supporting an allegation that Cody Ledbetter’s mere presence, even asa “show of force” on May 17,2015 was illegal. Failing to plead specific conduct fils to state a crime under Texas law, and Cody Ledbetter is not on notice sulicient to prepare a defense The prosecution theory, in this regard, is one of frst impression in Texas, The prosecution seeks to overcome the sare decisis favoring no criminal conduct beng found ifthe defendant is “merely present” at the scene of a criminal act, and re-defining that principle to include a finding of criminal conduct in the event the defendant participated in an “illegal” ‘show of force” as he was merely present atthe scene ofa criminal act. At a bare and fe ing num this new and novel prosecution theory should be held to another principle that is not subject to amendment atthe whim and whimsy of the State of Texas. That principle is thatthe State is bound to plead in plain and intelligible language “an offense” against the laws of theState of Texas, Charging “an offense" aginst the laws ofthe State of Teas allows the defendant his entitlement his notice of the particulars of any such “offense,” and requires that what is charged is charged suiciently to allow the defendant to effectively defend himself against the charwes. Absent holding the State to the burden of defining the parameters and elements of this new and novel prosecution theory, the State has not met its burden to plead in clear and intelligible language an offense against the laws oF the State of Texas. The indictment fails to place Cody Ledbeter on sutficient notice of what he is to defend against by fling to state in clear and intelligible language a crime agains! the law othe State of Texas. WIIEREFORE, PREMISES CONSIDERED, CODY LEDBETTER prays that the Court quash the indictment due to the above outined defests of substance, and discharge Defendant, Respectfully submited, LOONEY & CONRAD, PC S18 Austin Street Hempstead, Texas 77445 (979) 826-8484 (offie) (979) 926-8284 (Telefax) By: Paul Looney State Bar No. 12555900 pelooney@msn net ‘Attorney for CODY LEDBETTERATE OF RVICE “This is t0 cemity that on December 7, 2015, @ true and correct copy of the above and foregoing document was served on the Assistant District Attomey Michael Jaret of the MeLennan County District Attorney Office, McLennan County Courthouse, Waco, Texas, by hand deliver in open Court. Paul Looney ORDER FOR A SETTING PLEASE TAKE NOTICE that the Defendant, Cody Ledbetter, has filed a Motion to ‘Quash and Exception to Substance ofthe Indictment, the Court finds that the partys ent led to ‘hearing on this matter, and it is THEREFORE ORDERED that a hearing on this motion is set for 9:00 AM, (oF atthe time of the formal arraignment in this Signed onNo. SUATE OF TEXAS § Iwtuepistcr courr 7 {19m supictat pistaicr copy Lepaerren $ MCLENNAN COUNTY, TEXAS onDER on 2015, came onto be comieed CODY LEDBETTER’ Maton 0 Quasi and Exception to Substance of the Indictment, and said motion is hereby GRANTED. JUDGE PRESIDING