1 Considering that weconditionally grant the writ of prohibition, the court m akes no

ruling on t he S tate’spet ition for w rit of mandam us a t this time in cause numbe r 07-04- 0087- CV, and thepet ition for w rit of m andam us will remain subj ect to further orders of the Court. NO. 07-04-0088 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C MARC H 22, 2004

______________________________ IN RE S TATE OF TEXA S, RELA TOR

________________________________ Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
MEM ORAN DUM OP INI ON Bythis ori ginal proceedi ng the State has f ile d a petition for writ of prohibition by which it re que ststha t we dir ect theHon ora ble Ron Enns, J udge of the 69th D istrict Co urt of Dallam County , to stay further proceedings in trial court cause number 36 76, sty le d State of Texas v. Brenda Thax ton pending disposition on direct appeal in cause number 07-04-000 32-CR, sty led S tate of Tex as v . B ren da T hax

ton . We co ndit iona lly g ran t th e w rit of prohibition. 12

On May 3, 2001, Thaxton w as indicted for child e ndan germent for her conduct leading up to the mu rder of her twoyear old son in trial court cause num ber 3540, in the 69th District C ourt

of Dallam Co unty. 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 inj ury to a chil d by om iss ion in cau se n um ber 367 6 in the 69th District Court of

Dallam County . Pursuant to t he State’s w ritten motion presented by the State’s elected District Attorney, in M arch 2003, the Honorable Ron Enns dismissed cause numbe r 3540 without prej udice but cause num ber 3676 rem ained on the court’s docket. Byits letter of Decem ber 30, 2003, addressed to Thaxton’ s attorney and the S tate appearing pro tem , th e tr ial c our t ad vis ed coun sel i thad determ ined that Thaxton’s mo tion to enforce a plea agr eemen t in cause n um ber 3676 should begranted . The trial court requested Braxton’s counsel to prepare an appropr iate ord er and provide a copy to counsel for the State. There after, on Januar y 6 , 20 04, cit ing article 44.01(a)(1) of the Texas Code of Crim inal Procedure, the State filed its not ice of ap pea l in cause num ber 07- 04-00032- CR, styled State of Texas v. Brenda Thax

ton, challenging the trial court’s action in granting Thaxton’s m otion.
The trial court has given written notice of a docket call/guilty plea in cause num ber 3676 for March 24 , 2 004. This Court m ay grant a w rit of prohibition to protect its jurisd ic tion over the subj ect m atter of a pending appeal. See Texas Capital BankWe s twood v. Johnson, 864 S .W .2d 186, 189 (Tex .App.–Tyler 1993, orig. proceeding)

.3

Art icle 44.01(a)(1)(3) of the Code provides that the S tate is entitled to a stay of the trial court proceeding pending disposition on appeal. Thus, p ending fur ther orde rs of th is Court in this cause and in appellate cause num ber 07-04-00032-CR, and w ithout expressing any opinion as to w hether the notice of appeal filed by the State w as not effective or authorized under article 44.01(a)(1) of the Texas C ode of Crim inal Procedure, we find that the setting of a docket call for cause num ber 3676 by the trial court is a proscribed intrusion upon the jurisdiction of this Court. We conditional ly grant the petition for writ of prohibition. W e instruct theCle rk to iss ue t he w rit o nly if t he t rial cour

t pr oce edsin violat ion of thi s Court’s jurisdiction and stay as s et forth herein.
Per Curiam