             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. PD-1551-09



                          OSCAR RENE BENAVIDEZ, Appellant

                                                  v.

                                    THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE THIRTEENTH COURT OF APPEALS
                            HIDALGO COUNTY

       HERVEY , J., filed a dissenting opinion in which KELLER , P.J., joined.

                                   DISSENTING OPINION

       I respectfully dissent. I agree with the Court’s decision that “the court of appeals was not

justified in ordering the entry of an acquittal.” Maj. op. at 6. I also agree with the Court’s decision

that this case should be remanded to the court of appeals. Maj. op. at 9. I believe that the Court

should, however, simply remand this case to the court of appeals for further proceedings not

inconsistent with its opinion.

       I respectfully dissent.
                                                       Hervey, J.
Filed: October 20, 2010
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