                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-08-00169-CR

KEITH ALLEN PORTER,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                             From the 54th District Court
                              McLennan County, Texas
                             Trial Court No. 2006-320-C2


                            MEMORANDUM OPINION


          A jury convicted Keith Allen Porter of two counts of aggravated sexual assault

and a single count of indecency with a child. The jury assessed his punishment at

seventy five years for each of the aggravated sexual assault convictions and ten years

for the indecency conviction. Porter contends in his sole issue that the court abused its

discretion by failing to require the State to make an election before resting. We will

affirm.
        Count one of the indictment alleges that Porter sexually assaulted his son by

penetrating the boy’s anus with his finger. Count two alleges that Porter did the same

thing with a hose. Count three alleges that Porter exposed his genitals in the presence

of his son.

        The complainant testified about the sexual assaults occurring when he was in the

second grade1 and that they happened in “tons of houses.”2 He said he was sexually

assaulted each time Porter bathed him, which was about three times a day at the time.

He testified that Porter exposed himself “lots of times.” These incidents occurred in the

bathroom and in Porter’s bedroom.

        During the course of the trial, Porter repeatedly asked the court to make the State

elect which incidents it would rely on for conviction. The trial court did not require the

State to make an election until the State rested its case in chief. The State elected to

proceed on “the very first” acts of penetration that occurred in the bathroom and “the

very first exposure” in the bedroom.

        Porter’s appellate complaint focuses on the following language in O’Neal v. State,

746 S.W.2d 769 (Tex. Crim. App. 1988), regarding the timing of the State’s election:

        The trial court in its discretion may order the State to make its election at
        any time prior to the resting of the State's case in chief. However, once the
        State rests its case in chief, in the face of a timely request by the defendant,
        the trial court must order the State to make its election. Failure to do so
        constitutes error.



1
        The complainant was in fifth grade at the time of trial.

2
       The family lived in McLennan County for the first part of the complainant’s second-grade year,
then moved out of state. They later returned to Texas and now live in another county.


Porter v. State                                                                               Page 2
Id. at 772. His complaint concerns the circumstances under which a trial court may

require the State to make an election before resting.

        Porter refers to a very old decision by the Supreme Court of Texas as a source of

guidance on this issue. In Lunn v. State, 44 Tex. 85, 1875 WL 7643 (1875), the Court held,

“The prosecuting officer should not be required to make the election before he has

examined the witnesses far enough to identify the transactions to which the testimony

relates, without going into details.” Id. at 88, 1875 WL 7643, at *2. The Court derived

this holding from Bishop’s Commentaries on the Law of Criminal Procedure, relying in

particular on the following quotation:

                This able jurist in a general summing up of cases on this subject
        expresses his own views, and says: “It is one which addresses itself chiefly
        to the judicial discretion of the individual judge who presides at the trial.”
        It is added “that as a general fact justice is best promoted when the judge
        permits the witnesses to go far enough to identify particular transactions
        before compelling the election.”

Id. at 87, 1875 WL 7643, at *2 (quoting 1 JOEL PRENTISS BISHOP, COMMENTARIES         ON THE


LAW OF CRIMINAL PROCEDURE § 462 (2d ed. 1872)).

        We agree with Porter that Lunn provides some guidance as to the circumstances

under which a court may require the State to make an election before resting. The

critical issue is whether at some point during the State’s case in chief the testimony and

other evidence “go far enough to identify [a] particular transaction.” See id. In other

words, before an election may be compelled, the State’s evidence must show a discrete,

identifiable occurrence which fits within the allegations of the indictment. Generally,




Porter v. State                                                                          Page 3
such a showing will include a chronological component (e.g., the complainant may

testify that the defendant assaulted him during the Thanksgiving holidays).

        Here, the State’s evidence did not show any discrete, identifiable occurrence.

Rather, the complainant in essence testified that Porter repeatedly sexually assaulted

him and exposed himself during the complainant’s second grade year. There was

nothing in the complainant’s testimony to isolate any particular sexual assault or

instance of exposure. Accordingly, we cannot say that the court abused its discretion by

not requiring the State to make its election until it rested.

        We overrule Porter’s sole issue and affirm the judgment.



                                                          FELIPE REYNA
                                                          Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurs in the judgment only to the extent it affirms the trial
court’s judgment. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed July 29, 2009
Do not publish
[CRPM]




Porter v. State                                                                     Page 4
