                                  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


                    CONCURRING OPINION TO DENIAL
                      OF MOTION FOR REHEARING


       On original submission the Court, in an unpublished opinion, affirmed the trial

court’s judgment. I concurred without a separate opinion. In a separate order the

Court is now ordering their prior unpublished opinion to be published. I therefore find

it necessary to explain why I join the judgment but not the opinion. I believe the trial

court abused its discretion under the test for when the State must elect the offense it is

trying before it rests. I do not think the test has changed, nor has the Court clarified it,

but if a defendant is entitled to know the offense for which he is being tried, and I think
he is, the State, on the facts of this case, should have been made to elect the offense well

before it rested its case-in-chief. I determined, however, that the trial court’s error was

harmless and can therefore concur in the judgment to the extent that it affirms the trial

court’s judgment.



                                          TOM GRAY
                                          Chief Justice

Concurring opinion delivered and filed October 28, 2009
Publish




Porter v. State                                                                       Page 2
