State v. Timothy Wayne Smith ( 2016 )

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00296-CR NO. 09-16-00297-CR ____________________ THE STATE OF TEXAS, Appellant V. TIMOTHY WAYNE SMITH, Appellee __________________________________________________________________ On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 16-24980, 16-24981 __________________________________________________________________ ORDER On October 24, 2016, appellee Timothy Wayne Smith filed a motion to supplement the record with (1) the orders under which District Judge John Stevens was assigned the Chad Kolander cases, Trial Cause Nos. 16-24978 and 16-24979, and then recused himself; and (2) the August 19, 2016, letter from District Attorney Bob Wortham to the special prosecutor, in which Wortham disavows 1 being a victim or complaining witness.1 Smith noted that on October 11, 2016, this Court granted Kolander’s motion and ordered a supplemental clerk’s record. On October 25, 2016, the District Clerk’s office sent a letter which certified to this Court that despite a diligent effort to comply with the request to supplement the Kolander record, the record does not contain the requested documents. Smith contends that the orders under which District Judge John Stevens was assigned the Chad Kolander cases and subsequently recused himself “relate directly to the propriety of the order Judge Stevens signed appointing Pro Tem [Prosecutor] Schaffer in the Tim Smith cases[.]” Smith also asserts that the correspondence from Wortham to Schaffer directly relates to Smith’s contention on appeal that “the attorney pro tem acted without authority, that this Court lacks jurisdiction, and that a remand would be futile.” It is, therefore, ORDERED that the Smith appeals are abated and the causes are remanded to the trial court for an evidentiary hearing to settle the issue of whether (1) the orders under which District Judge John Stevens was assigned the Chad Kolander cases, Trial Cause Nos. 16-24978 and 16-24979, and then recused himself; and (2) the August 19, 2016, letter from District Attorney Bob Wortham 1 Smith also requests a copy of Chad Kolander’s “original and supplemental application for writ of habeas corpus and alternative motion to quash/dismiss the indictments[.]” The Court will address that request in a separate order. 2 to the special prosecutor, in which Wortham disavows being a victim or complaining witness, should be included in the record in Smith’s cases, and to file with the Court of Appeals by December 19, 2016, a reporter’s record of the hearing, as well as a supplemental clerk’s record containing a copy of the trial court’s order and any documents the trial judge determines should be added to the records. All appellate timetables are suspended while the cases are before the trial court. ORDER ENTERED November 15, 2016. PER CURIAM Before McKeithen, C.J., Kreger and Horton, JJ. 3