NO. 07-04-0032-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 24, 2004

______________________________ THE STATE OF TEXAS, APPELLANT

V. BRENDA THAX

TON, APPELLEE

_________________________________ FROM THE 69 TH DISTRIC T COURT O F DALLAM CO UNTY; NO. 3676; HON ORABLE RON E NNS, JUDG E

_______________________________ Before QUINN and REAVIS an d CAMPBELL, JJ.
MEMORA NDUM OPIN ION
This is an appeal by theState from the tri al court’s order gra nting appell ee Brenda Thaxton’s motion to enforce a p lea agreement. With three issues , the State contends : (1) the court’s or

der of Febr uary 23, 2004 is appealabl e; (2) the cou rt has no authority to1 App ellee ma intains that t his was a written confirmation of a verbal offer Green

extended to her in Feb ruary of 2002. Though prov iding no r ec ord reference for t he assertion, she contends that , after discuss ing the offer w ith her attor ney, she deci ded to accept it, and that her

attorney “immediately

communicated this

acceptance to [G reen] in a face-to-face co nference.”

2 See Tex. Code Crim. Proc. Ann. art. 2.07(a) (Vernon 1977). 2 enforce a plea agree mentit never accepted; and (3 ) the court l acks juri sdiction to en ter a plea in a dismissed case. W e vacate the court’s order.
On May 30, 2 0 01, appellee was indicted for abandoning a chi ld in cause number 3540 for her part in the death of her two year old son at the hands of her boyfriend and codefendant, Nathan Felder . In April of 2002, Dallam Count y District Attorney

David Gr

een exten ded a w ritte n plea offer to a ppell ee. Un der th e terms of the off er, the State agr eed to recommend that the court assess aten year sentence in ex

change for appell ee’s guil ty plea and pledge to testify in th e capital murder case agains t Felder

“truthfully

in conformity with the or

al and wr itten statements she gave to investi gators.” 1
In October of 2002, appel lee, accompanied by her attorney , provided a taperecorded statement to investi gators w ith the Attorney General’s O ffice. Although G reen was hand ling a ppe llee ’s pro secu tion at th e tim e, As sista nt At torn eys General Laura Popps and John Neal had been appo inted district attorneys pro tem 2in, and were responsible for, the prosecution of F elder. Dur ing the i nter view, Popps and Neal confronted appellee w ith letters she had written Felder while he was in jail awaiting trial and on the i nconsistenci es between her current

and former statements . Follow ing the inte rview , Popps and Neal3

spok e with appe llee ’s att orne y and vo iced thei r relu ctan ce to utili ze appellee’s te stimony attrial and expressed their concern that she was not “being completely forthcoming and truthful.” In November of 2002, Popps advi sed appel l ee’s attorney that she intended to seek an indictment ag ainst appellee for injury to a child. After

the grand j ury returned the
new indictment on N ovember 14, 2002, the State file d, and the court g ranted, a motion to dismiss cause nu mber 35 40, the aband oning a child case, on the basis th at the “case has been re-in dicted in Cause Number 3676 .” After Green filed a mot ion to recuse himse l f from the prosecuti on of appellee, the co urt, on December 4, 2002 appointed Popp s and Neal as district attorneys pro tem to handle appellee’s prose cution in addition to Felder’s. In Julyof 2003, appellee filed a motion in cause n umber 3540 to enforce t he plea agreement

and requested “that the Court grant this motion and accept [appellee’s] p lea in accordance with t his ag reement, includi ng the dismis sal of case no. 3676 . . . . ” At a pretrial hea ring, the S tate responded that , because the pleaoffer was w ithdrawn prior to its acceptance by

the trial court, no plea bar gain exi sted for the court to enforce. The State further argued that the court had no jurisdiction to reinst ate a c ase 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 Pl ea Agreemen t by [appell ee] should be granted.”Believi ng the letter constitute d an order dis missing cause number 3676, the State filed a notice of appeal wit h this Court in January

of 2004 seeking a r

eversal of the3 The State maintains, and w e a gree, that appe llee, by fai ling to ar gue to the cont rary, has “conceded t hat the State’s n otice of appeal from the trial court’s D ecember 30, 2003 letter i s sufficient” tovest this Court w ith juris diction. Thus, a ssumin g arguendo that the court’s December 30, 2003 letter granting appellee’s motion to enf orce the ple a agreement

was not an order from which an appeal co uld b e predicated, the State ’s premature filing would be deemed to be filed on the same day, but aft er the appealable order w as signed by the trial court, in this case on February 23, 2004. Tex. R. App. P

. 27.1(b).

4 In resolving this issue, we also find itsignificant that, by appel lant’s ow n admission atoral arg uments, the parti es never engaged in plea negotiati ons in cause number 3676. Thus, there ex ists no plea a greement for the court to enforce i n that case. 4 court’s decision. 3 On February 23, 2004, the tri al court si gned an actual order grantin g appellee’s moti on to enforce the ple a agreement.
The State contends by

its first i ssue that “[t] he trial cour t’s Februar

y 23, 2004 order is a p p e a l a b l e . ” We agree. At the outset, we note that althoug h appellee filed her motion to enforce the plea ag reement in cause number 3540, the orde r granting the motion was filed in cause number 3676. The State sug gests, and w e, again, agree, that “[t]he fact that entryof the order

was made in Cause No. 3676 is likelynothing more than the trial court’s acknowledg mentthat it cannot enter an order in a no n-existent case.” Because it appears from the record th at appellee only filed a motion to enforce the pleaagreement in cause numbe r 3540 , and since the “Order Gr anting Defendant’ s Motion to En force Plea Agreement” specifically refers to that motion , we co nclude th e order pertains to cause number 3540. 45

Next, we acknow ledge that the State is ent itled to appeal an order of a cour t in a criminal case if it “dismisses an indictment, i nformation, or compl aintor any por tion of an indictment, information, or complaint. ” Tex. CodeCrim. Proc . Ann. art. 44.01(a)(1) (Vernon 2003). Appellee maintai ns that the cour t’s Februar

y 2004 order

did not d is miss cause number 3676. However, because the order g ranted appellee’ s motion to enforce the plea agreement

without r eservatio n, and since that motion reques ted “the dismi ssal of case no. 3676," we conclude the order did just that. Then , because dismissal of an indic tment is
one of those actions by a t rial court from which t he State may appeal , we concl ude the State’s appeal i s properly before this Cour

t. By its third issue, the State maintain s the court had no jurisdi ction to enter a plea in a previously dismisse d cas e. We agree. In criminal cases the pres entment of an indic tme nt invests the trial court with jurisdiction of the cause. Tex. Const. art. V, 12(b). The filing of the i ndictment is essentia l to vest the trial court wi th jurisdi ction over a felony offense. See Ex parteDobbs, 978 S.W.2d 959, 960 (Tex.Cr.A pp. 1 998). When a trial court empowered w ith juris diction over a crimin al case sus tains a m otion to dismis s the indictment

or information, there is, conco mitant to the dismissal, no case pending against the accused and, accordingly, no jurisdiction remaining in the dismissing court. See Garcia
v. Dial, 596 S. W.2d 524, 528 (Tex.Cr .App. 1980). Where there is nojurisdic tion, the power of the court to act is as absent as if it did not exist

. Id . Furthermor e, any order

entered by
a court havi ng no juri sdiction is void. Id . Here, w hen the court, upon moti on by the State , dismissed the indictment against appe llee in cause number 3540 , its jurisdictio n in that6

case was ex hausted. Therefore, the order purporting to grant appellee’s motion to enforce the plea agreement was void and of no effect. Id . Correspon dingly , the dismiss al of the indictment

in cause number 3540 had the effect of renderi ng the plea agreement moot. Cf

. Camerena v. Texas Employ ment Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (holding that appellate courts donot decide cases in which no case or controversy exists between the parties). The State’s thi rd issue is sustained. Our

resolution of this point prec ludes consideration of the State’s second issue.
Acco rding ly, the court’s February 23, 2003 Order G ranting D efendant’s Motion to Enforce Plea Agr

eement is vacated.

Don H. Reavis Justice Do not publish

.