Edward Dean Stewart v. State

IN THE
TENTH COURT OF APPEALS
No. 10-15-00113-CR
DAVID WAYNE KERR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 12491-A
_______________
No. 10-15-00116-CR
No. 10-15-00117-CR
EDWARD DEAN STEWART,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court Nos. 13281-A and 13574-A
_______________
No. 10-15-00170-CR
BEN MCALPINE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 13012-A
ABATEMENT ORDER
The reporter’s record or a portion of the reporter’s record is overdue in each of
these four appeals. In the past, this Court has issued an order directly to a court reporter
requiring that the record be filed within a specified time or the Court may issue a show
cause order and/or a judgment of contempt. See, e.g., McElwee v. Joham, 971 S.W.2d 198,
198 (Tex. App.—Waco 1998, order) (per curiam), disp. on merits, 15 S.W.3d 557 (Tex.
App.—Waco 2000, no pet.). However, these cases involve special circumstances.
On May 5, 2015, the Judicial Branch Certification Commission suspended Helen
C. Wooten’s court reporter certification for the longer of: (a) a period of 12 months; or (b)
until she completes all records currently assigned to her which have not been completed
by the deadlines set by the courts. The order stated, “During the period of suspension,
[Ms. Wooten] must not work on any records other than records of matters she reported
Kerr v. State Page 2
before [the] date of this order and shall cooperate with the court(s) to reassign other
records.”
At the time that the Commission Chair signed the order, Ms. Wooten was
responsible for the reporter’s record in No. 10-15-00113-CR, David Wayne Kerr v. The State
of Texas, which was due on July 24, 2015, and the reporter’s records in Nos. 10-15-00116-
CR and 10-15-00117-CR, Edward Dean Stewart v. The State of Texas, which were due on July
21, 2015. Additionally, a notice of appeal was filed in the trial court in No. 10-15-00170-
CR, Ben McAlpine v. The State of Texas, on May 14, 2015. The official court reporter
informed the Court that Volume 2 of the reporter’s record in McAlpine regarding a motion
to suppress was to be submitted by Ms. Wooten. After the granting of one extension
request, the reporter’s record was due on July 30, 2015.1 To date, Ms. Wooten has not
filed the reporter’s records in Kerr or Stewart. Neither has she filed her portion of the
reporter’s record in McAlpine.2
“The appellate court may enter any order necessary to ensure the timely filing of
the appellate record.” TEX. R. APP. P. 35.3(c). Therefore, we abate these appeals for a
hearing in the trial court to determine a date certain within a reasonable period of time
when the reporter’s record will be filed in each appeal.3
1 The official court reporter timely filed her portion of the reporter’s record.
2As far as the Court is able to determine, these four reporter’s records are the only reporter’s records that
Ms. Wooten is presently responsible for filing in this Court.
3 All four appeals are from the 77th Judicial District Court.
Kerr v. State Page 3
The Court directs Ms. Wooten to appear at the hearing to provide testimony
relevant to the above matters. The trial court shall: (1) conduct the hearing within
twenty-one (21) days after the date of this Order; (2) prepare any necessary findings of
fact and conclusions of law; and (3) sign a written order consistent with the requirements
of this Order.
Within thirty-five (35) days after the date of this Order, the district clerk shall file
with the Clerk of this Court a supplemental clerk’s record containing a copy of (1) the
trial court’s findings of fact and conclusions of law and (2) the trial court’s order. Within
thirty-five (35) days after the date of this Order, the trial court’s current official court
reporter is ordered to prepare and file with the Clerk of this Court a supplemental
reporter’s record of the abatement hearing.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed April 28, 2016
Do not publish
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