                                   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


       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.
      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).

                                             2
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




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