                         IN THE COURT OF CRIMINAL APPEALS
                                     OF TEXAS

                                       NO. WR-80,822-01



                            JOSEPH M. MARRUFO, Applicant



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

                K ELLER, P.J., filed a dissenting opinion in which K EASLER and H ERVEY,
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




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

simply vacates one of the convictions without obtaining input from the parties, I respectfully dissent.

Filed: April 9, 2014
Do not publish
