                                   NO. 07-04-0087-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                 SEPTEMBER 24, 2004

                         ______________________________


                         IN RE STATE OF TEXAS, RELATOR


                         _______________________________



Before QUINN and REAVIS and CAMPBELL JJ.


                               MEMORANDUM OPINION


      The State of Texas, relator, has filed a petition for writ of mandamus by which it

requests that we compel the Honorable Ron Enns, Judge of the 69th District Court of

Dallam County, respondent, “to vacate his order granting [Thaxton’s] Motion to Enforce

Plea Agreement. In the alternative, the State asks us to order respondent “to enter an

appealable order, and to stay further proceedings [in cause number 3676] in the trial court

until such time as an appeal on the issue is decided.” We deny the petition as moot.


       On May 30, 2001, Brenda Thaxton was indicted for abandoning a child in cause

number 3540 for her part in the death of her two year old son at the hands of her boyfriend
and co-defendant, Nathan Felder. As part of a plea agreement, the State agreed to

recommend to the court that Thaxton be sentenced to ten years confinement in exchange

for her guilty plea and pledge to testify “truthfully in conformity with the oral and written

statements she gave to investigators” in the capital murder case against Felder.


       In October of 2002, Thaxton, accompanied by her attorney, provided a tape-

recorded statement to investigators. Following the interview, prosecutors spoke with the

attorney and voiced their reluctance to utilize Thaxton’s testimony at trial and expressed

their concern that she was not “being completely forthcoming and truthful.” On November

14, 2002, the grand jury returned a new indictment against Thaxton for injury to a child in

cause number 3676. The State then filed, and the court granted, a motion to dismiss the

abandoning a child case, cause number 3540, on the basis that the “case has been re-

indicted in Cause Number 3676.”


       In July of 2003, Thaxton filed a motion in cause number 3540 to enforce the plea

agreement and requested “that the Court grant this motion and accept [Thaxton’s] plea in

accordance with this agreement, including the dismissal of case no. 3676 . . . . ” At a

pretrial hearing, the State responded that, because the plea offer was withdrawn prior to

its acceptance by the trial court, no plea bargain existed for the court to enforce. The State

further argued that the court had no jurisdiction to reinstate a case it had previously

dismissed. On December 30, 2003, the court sent a letter to the parties indicating that it

had “determined that the Motion to Enforce Plea Agreement by [Thaxton] should be


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granted.” Deeming the letter to constitute an order dismissing cause number 3676, the

State filed a notice of appeal with this Court in January of 2004 seeking a reversal of the

court’s decision.1 On February 23, 2004, the trial court signed an order granting Thaxton’s

motion to enforce the plea agreement. Respondent, on March 3, 2004, set cause number

3676 for a plea hearing on March 24, 2004. This petition for writ of mandamus, along with

a petition for writ of prohibition, ensued.


           On March 22, 2004, this Court conditionally granted the State’s petition for writ of

prohibition, finding that “the setting of a docket call for cause number 3676 by the trial court

[was] a proscribed intrusion upon the jurisdiction of this Court.” The proceedings below

were subsequently stayed. Thus, to the extent that this petition for writ of mandamus

seeks to “stay further proceedings in the trial court,” it is moot. Furthermore, on this day

this Court has resolved the State’s direct appeal in cause number 07-04-0032-CR by

vacating the trial court’s order granting Thaxton’s motion to enforce the plea agreement.

That resolution moots the remaining portion of the State’s petition.


       Accordingly, the State’s petition for writ of mandamus is denied.


                                              Don H. Reavis
                                                Justice


       1
        Assuming arguendo that the court’s December 30, 2003 letter granting appellee’s
motion to enforce the plea agreement was not an order from which an appeal could be
predicated, the State’s premature filing would be deemed to be filed on the same day, but
after the appealable order was signed by the trial court, in this case, on February 23, 2004.
Tex. R. App. P. 27.1(b).

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