in Re: State of Texas ( 2004 )

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. ^{(footnote: 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

FOOTNOTES

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.