









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO.  PD-499-04, 500-04, 501-04 & PD-1575-04, 1576-04


ROBERT STEVEN PHILLIPS and HENRY DANIEL FARR, Appellants

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

HARRIS  COUNTY



 Keller, P.J., filed a concurring opinion in which KEASLER, and
HERVEY, JJ., joined. 



 Although I agree with the result reached by the Court, I disagree with some of its comments
regarding how the reasons for an election relate to the timing of an election.  The Court sets forth
four reasons for the election rule and says that these reasons support requiring an election (upon
timely request) at the end of the State's case-in-chief. (1)  But while all four reasons support requiring
an election at some point, only the fourth reason - notice to the defendant - supports requiring an
election at the time the State rests.  
	The first reason - protecting the accused from the introduction of extraneous offenses -
suggests that election should be made when the State offers the extraneous-offense evidence in
question.  But this point in time cannot be formulated as a general rule because (1) often the accused
is not entitled to protection from the introduction of extraneous offenses, (2) and (2) as the Court points
out, the State  will often need to develop its entire case-in-chief before it can intelligently determine
which transaction it prefers to rely upon for conviction, and therefore which offenses are
"extraneous." (3)  I believe that is why O'Neal held that before the State rests, it is within the trial
court's discretion whether to order an election. (4)   It may be possible for a trial court to abuse its
discretion in deciding whether to order an election before the State rests, but the trial court's
determination would have to be made on a case-by-case basis rather than at a particular point in trial. 
Incidentally, preserving error on such a claim would require objecting at the time the evidence was
offered, and because protections against the introduction of extraneous offenses are found solely in
statutes and court rules, any failure to order an election at such an early stage would be non-constitutional error, to be analyzed under Texas Rule of Appellate Procedure 44.2(b).     
	The second and third reasons - ensuring proof beyond a reasonable doubt and jury unanimity
- support requiring an election before submission of the case to the fact finder (e.g. before the jury
is charged), but not any earlier.  And the jury unanimity concern would apply only when there is a
jury.  It follows that an election request at the close of all the evidence is timely if proof beyond a
reasonable doubt and jury unanimity are the concerns underlying the request.  If the issue is notice,
however, then a request at the close of the evidence is too late, because the time to make use of that
notice would be during the defense's case.     
	The Court also says that requiring an election at the end of the State's case-in-chief is
necessary to enable the trial judge to craft an appropriate limiting instruction.  But limiting
instructions are specifically authorized at only two points in trial: (1) at the time the evidence is
admitted, (5) and (2) in the jury charge. (6)  An election at the end of the State's case-in-chief would occur
too late for the former but sooner than necessary for the latter.
	In some portions of its opinion, the Court seems to assume that the "election requirement"
is a monolithic rule.  In actuality, various considerations are implicated by evidence of multiple
offenses conforming to the indictment.  Rather than require trial courts to engage in exhaustive case-by-case determinations regarding when these considerations arise and what to do about them, we
have imposed a requirement that the State elect on which offense it will proceed, and that it do so
upon request at a period that will serve the implicated interests - at the end of the State's case-in-chief, or if requested later, before submission to the jury (with a case-by-case approach used for
requests occurring before the State rests).  Even when an appellate court has determined that a trial
court erred in denying a request to require the State to elect, matters such as when the request is
made, whether the trial is to a jury, and which interests are implicated can impact error preservation
and/or a harm analysis.
	With these comments, I concur in the Court's judgment.

Date filed: June 7, 2006
Publish
1.   Court's op. at 10 ("the Fourteenth Court of Appeals aptly set forward the reasons to
have the State elect at this juncture").
2.   See e.g. Tex. Code Crim. Proc. 38.37; Tex. R. Evid. 404(b)
3.   Court's op. at 15.
4.   See Court's op. at 9 (citing O'Neal v. State, 746 S.W.2d 769, 770 (Tex. Crim. App.
1988)).
5.   See Tex. R. Evid. 105(a).
6.   See Moses v. State, 105 S.W.3d 622, 625 (Tex. Crim. App. 2003)(proper limiting
instruction given at time of testimony and in the jury charge).
