Marrufo, Joseph M ( 2014 )

    













IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-80,822-01

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JOSEPH M. MARRUFO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2008CR0327 IN THE 290^TH DISTRICT COURT FROM BEXAR COUNTY

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   Keller, P.J., filed a dissenting opinion in which Keasler and Hervey, JJ., joined.

I agree that retaining both burglary convictions violates double jeopardy. But there was a plea agreement in this case, so the question arises whether the entire plea should be undone. In Ex parte Ervin, we vacated one of the convictions on double-jeopardy grounds when there was a plea agreement, but the State in that case expressed its desire to waive the illegal portion of the plea agreement and enforce the remainder as modified. ⁽¹⁾ We should remand this case to the trial court to determine what remedy the parties desire and to determine whether either party would be prejudiced by a decision to vacate one of the convictions rather than undoing the entire plea. Because the Court simply vacates one of the convictions without obtaining input from the parties, I respectfully dissent.

Filed: April 9, 2014

Do not publish

1. 991 S.W.2d 804, 817 (Tex. Crim. App. 1999).