
NO. 07-04-0088-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 22, 2004

______________________________


IN RE STATE OF TEXAS, RELATOR

________________________________


Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

MEMORANDUM OPINION

 By this original proceeding the State has filed a petition for writ of prohibition by
which it requests that we direct the Honorable Ron Enns, Judge of the 69th District Court
of Dallam County, to stay further proceedings in trial court cause number 3676, styled
State of Texas v. Brenda Thaxton pending disposition on direct appeal in cause number
07-04-00032-CR, styled State of Texas v. Brenda Thaxton.  We conditionally grant the writ
of prohibition. (1)
	On May 3, 2001, Thaxton was indicted for child endangerment for her conduct
leading up to the murder of her two year old son in trial court cause number 3540, in the 
69th District Court of Dallam County.  On April 30, 2002, the State via the elected District
Attorney extended a plea offer to Thaxton's attorney.  The State again, on November 14,
2002, indicted Thaxton for injury to a child by omission in cause number 3676 in the 69th 
District Court of Dallam County.  Pursuant to the State's written motion presented by the
State's elected District Attorney, in March 2003, the Honorable Ron Enns dismissed cause
number 3540 without prejudice but cause number 3676 remained on the court's docket.
 By its letter of December 30, 2003, addressed to Thaxton's attorney and the State
appearing pro tem, the trial court advised counsel it had determined that Thaxton's motion
to enforce a plea agreement in cause number 3676 should be granted.  The trial court
requested Braxton's counsel to prepare an appropriate order and provide a copy to
counsel for the State.  Thereafter, on January 6, 2004, citing article 44.01(a)(1) of the
Texas Code of Criminal Procedure, the State filed its notice of appeal in cause number 07-04-00032-CR, styled State of Texas v. Brenda Thaxton, challenging the trial court's action
in granting Thaxton's motion.
	The trial court has given written notice of a docket call/guilty plea in cause number
3676 for March 24, 2004.  This Court may grant a writ of prohibition to protect its 
jurisdiction over the subject matter of a pending appeal.  See Texas Capital Bank-Westwood v. Johnson, 864 S.W.2d 186, 189 (Tex.App.-Tyler 1993, orig. proceeding). 
Article 44.01(a)(1)(3) of the Code provides that the State is entitled to a stay of the trial
court proceeding pending disposition on appeal.  Thus, pending further orders of this Court
in this cause and in appellate cause number 07-04-00032-CR, and without expressing any
opinion as to whether the notice of appeal filed by the State was not effective or authorized 
under article 44.01(a)(1) of the Texas Code of Criminal Procedure,  we find that the setting
of a docket call for cause number 3676 by the trial court is a proscribed intrusion upon the
jurisdiction of this Court.  We conditionally grant the petition for writ of prohibition.  We
instruct the Clerk to issue the writ only if the trial court proceeds in violation of this Court's
jurisdiction and stay as set forth herein. 
							Per Curiam
 



1. Considering that we conditionally grant the writ of prohibition, the court makes no
ruling on the State's petition for writ of mandamus at this time in cause number 07-04-0087-CV, and the petition for writ of mandamus will remain subject to further orders of the
Court.

