









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



 Price, J., delivered the opinion of the Court, in which Meyers, Johnson,
Holcomb and Cochran, JJ., joined.  Keller, P.J., filed a concurring opinion, in which
Keasler and Hervey, JJ., joined.  Womack, J., concurred.

O P I N I O N


	Phillips was convicted of three counts of sexual assault.  In a separate and unrelated
case, Farr was convicted of two counts of sexual assault.  In both cases, the State introduced
multiple occurrences of each type of assault, and the trial court refused to require the State
to elect, at the close of the State's evidence, which occurrence it would use to convict. 
Phillips and Farr appealed their sexual assault convictions.  The court of appeals found error
in both cases, finding harm of a constitutional nature in two of Phillips' convictions and both
of Farr's convictions.  The court of appeals reversed those convictions.  We granted review
of both cases on the State's petitions for discretionary review. 
	We consolidated Appellants' cases, as the same issues are raised in each of their
appeals, and both cases come from the Fourteenth Court of Appeals.
I. Facts and Procedural History

A. Phillips
	Phillips was charged in separate indictments and convicted of three counts of sexual
assault of a fifteen-year-old girl. (1)  The record shows that Phillips initially hired the victim to
teach him English and to help with his business.  While they worked together, however,
Phillips began to sexually assault the complainant.  Incidents of sexual assault occurred
repeatedly and escalated for months until the complainant finally told her mother.  In separate
indictments, the State alleged three offenses: penetration of the victim's mouth by the
appellant's sexual organ, oral contact of the victim's sexual organ with the appellant's mouth,
and digital penetration of the victim's sexual organ.  
	At trial, the state offered evidence concerning the charged offenses.  As to the first
offense, penetration of the victim's mouth, testimony was offered in detail about only one
occurrence.  A specific date was identified for that occurrence.  The complainant also
testified that penetration of the mouth occurred intermittently between Summer 2000 and
Spring 2001, but was not specific as "to how, when, or where." (2)  The testimony concerning
the other two offenses, digital pentration and oral contact, was more specific, indicating that
the offenses occurred on numerous occasions.  The evidence was clear about the first date
digital penetration and oral contact occurred and specifically indicated that the offenses
occurred at Phillips's apartment.  The testimony also showed, however, that digital
penetration and oral contact occurred repeatedly over the next few months at Phillips's
apartment.  No specific dates were given for these later occurrences, although some were
identified by month.  Finally, testimony showed that digital penetration and oral contact also
occurred at a motel on a specific day, and a receipt was introduced from the motel that bore
Phillips's signature.
	After the State rested, Phillips asked the trial court to require the State to elect the
occurrence upon which it intended to rely for a conviction in each alleged offense.  The trial
court refused the request.  Phillips was convicted of all three offenses. He appealed to the
Fourteenth Court of Appeals, claiming that the trial court should have required the State to
elect the transaction upon which it intended to rely for its conviction under this Court's
holding in O'Neal v State. (3)
	The court of appeals held that the trial court erred in failing to have the State elect the
offenses it would use to convict on each count. (4)  As to the first offense, the court of appeals
held that it was error for the trial court not to require the State to elect the transaction upon
which it would rely for conviction.  But because there was specific testimony as to only one
occurrence and only general, nonspecific testimony of other occurrences, the error was
harmless. (5)  For the remaining two offenses, however, the court of appeals held that the trial
court's error in failing to require the state to elect which transaction it would rely upon for
conviction was harmful constitutional error because the complainant had given more than
one detailed account for each type of offense. (6)
B. Farr
	Farr was charged in two indictments with aggravated sexual assault of a child. (7)  The
first indictment alleged aggravated sexual assault by oral contact. (8)  The second indictment
alleged aggravated sexual assault by both digital penetration and oral penetration. (9)   During
the charge conference, the State abandoned the paragraph in the second indictment alleging
oral penetration and proceeded only on the allegation of digital penetration as to that
indictment.  During testimony, the complainant claimed that Farr, her stepfather, orally
contacted her sexual organ four times, giving specific details, indicating her age and grade
in school at the time of each act, as well as where the events took place.  The complainant
also claimed that Farr digitally penetrated her "every chance he got," although she did not
provide specific details or dates for these incidents. She could not recall how many times
these incidents occurred, but did state that they did not occur in connection with the incidents
of oral sex.  At the close of all evidence at the guilt phase, the appellant requested the trial
court to require the State to make an election of which incidents of oral contact and digital
penetration it would rely upon to prove the aggravated sexual assault charges.  The trial court
denied the request.  Farr requested election again during the punishment phase, but the trial
court once again denied the request and Farr appealed.
	Relying on its earlier opinion in Phillips, (10) the court of appeals held that the trial court
erred in failing to require the State to elect the offenses it would use to convict on each
count. (11)  As to the offense of sexual assault by oral contact, the court of appeals held that the
error in failing to require the state to elect which transaction it would rely upon for conviction
was harmful constitutional error because the complainant had given more than one detailed
account for each type of offense. (12)  For the charge of sexual assault by digital penetration,
however, the court of appeals held that the error was harmless, because the complainant
testified only generally about the repetitive nature of the incidents, without specifically
identifying the details of each occurrence. (13)
C. State's Petition
	We granted the State's petitions for discretionary review and consolidated the two
cases, due to the similarity in issues, to: 1) reexamine our holding in O'Neal v State to
determine when the State is required to elect which transaction it will rely upon for its
conviction, and whether overruling an election request constitutes automatic error, despite
the lack of erroneous evidentiary rulings and jury instructions, and 2) to determine whether
the court of appeals erred in analyzing the trial courts' failure to require the State to elect
under a constitutional harm analysis. (14)
II. Law and Analysis
A.  Reexamining O'Neal
	The State has asked us to review the continuing vitality of O'Neal to determine when
the State is required to elect which transaction it will rely upon for conviction, and we have
taken this opportunity to do so.  In O'Neal, the appellant was accused of sexually assaulting
his fifteen-year-old stepdaughter since the age of five. (15)  The complainant gave a detailed
account of an act of intercourse that occurred on April 24, 1984.  The testimony of O'Neal's
biological daughter, who shared a bed with the complainant, corroborated the occurrence on
that date, but also set out numerous other acts of intercourse that she observed between the
complainant and O'Neal over the  three or four years preceding trial. (16)  O'Neal requested on
three separate occasions that the State be required to elect which act of intercourse it would
rely upon for conviction - at a pretrial hearing, after the State rested its case, and finally at
the close of all the evidence. (17)  O'Neal's motion was granted at the close of all the evidence,
and the State elected to proceed on the occurrence of April 24, 1984.  The election was set
out in the jury charge along with a limiting instruction concerning the jury's consideration
of the extraneous acts of intercourse. (18) O'Neal was subsequently convicted.  On appeal, the
court of appeals held that the State was required to elect which act of intercourse it would
rely upon for conviction at the close of the State's evidence, rather than at the close of all the
evidence, and that the State's later election prejudiced the appellant, thus requiring reversal. (19) 
The State petitioned and we granted discretionary review. 
	In reviewing the court of appeals, we held that before the State rests, the trial court
has discretion in directing the State to make an election. (20)  However, we also held that once
the State rests its case in chief, on the timely request of a defendant "the trial court must . .
. order the State to makes its election." (21)   In evaluating the Eleventh Court of Appeals's
holding that the election was required to be made by the State at the close of its evidence, we
held that while the trial court had erred, the error was harmless because, by the close of the
State's case, it was clear that the act upon which the State would rely for conviction occurred
on April 24, 1984. (22)  In other words, the evidence presented at trial clearly gave de facto
notice to the appellant as to which act of intercourse the State would rely upon for
conviction. (23)  Thus, the delay in the election did not "embarrass the accused by leaving him
in doubt as against which offense he [would] be called upon to defend." (24)
	In reexamining O'Neal, we find no reason to deviate from our holding that a trial
court errs by failing to have the State elect at the close of its evidence when properly
requested by the defense.  In its initial review of Phillips's appeal, the Fourteenth Court of
Appeals aptly set forward the reasons to have the State elect at this juncture: (25)

	to protect the accused from the introduction of extraneous offenses; (26)
	to minimize the risk that the jury might choose to convict, not because one
or more crimes were proved beyond a reasonable doubt, but because all of
them together convinced the jury the defendant was guilty; (27)



to ensure unanimous verdicts; that is, all of the jurors agreeing that one
specific incident, which constituted the offense charged in the indictment,
occurred; (28)
 

	and to give the defendant notice of the particular offense the State intends
to rely upon for prosecution and afford the defendant an opportunity to
defend. (29)

 
	In short, requiring the State to elect at the close of its evidence forces it to formally
differentiate the specific evidence upon which it will rely as proof of the charged offense
from evidence of other offenses or misconduct it offers only in an evidentiary capacity.  This
allows the trial judge to distinguish the evidence which the State is relying on to prove the
particular act charged in the indictment from the evidence that the State has introduced for
other relevant purposes. (30)  Thus, the trial court can instruct the jury on the proper use and
weight to accord each type of evidence. Moreover, the election requirement protects
fundamental rights such as notice and unanimity, insuring both that the defendant is aware
of precisely which act he must defend himself against, and that the jurors know precisely
which act they must all agree he is guilty of in order to convict him.  Because of the
multitude of compelling, systemic reasons for requiring an election, we decline to alter our
decision in O'Neal, and find its reasoning applicable to the facts before us today.
B. Error Analysis

i. The State's Arguments Against Error
 The State relies on two cases, Steele v. State and McNutt v. State, (31) for the contention
that the State was not required to elect because the facts adduced showed only one
continuous course of conduct or transaction.  This court has previously held, however, that
Steele applies only where the evidence shows that several acts of intercourse were committed
by one continuous act of force and threats that are "part and parcel of the same criminal
transaction." (32)  In Steele, unlike in the cases presently before us, two acts of intercourse
occurred approximately two hours and twenty miles apart. (33)  The logic of Steele is hardly
applicable to the facts before us, in which the complainants were molested at different
locations over a period of months or years.	
	Additionally, the State's other precedent, McNutt, merely deals with the admissibility
of extraneous offenses as evidence, not the election by the State as to which act of
intercourse was being relied upon for conviction. (34)  In McNutt, complainant was allowed to
testify about her conversation with the appellant on the night she left home concerning their
plans for her to engage in prostitution with the appellant acting as her procurer, about his
suggesting an act of sodomy to her, about an act of intercourse for hire she had with another
man on the same night, giving the money to the appellant, and about her having had other
prostitution dates while she was with the appellant. (35)  The issue in McNutt was the
admissibility of these extraneous offenses, not the requirement for an election.  Indeed, the
State was never even asked to elect. (36)  Accordingly, the State's arguments based on Steele
and McNutt are unpersuasive in our analysis of the cases before us, where the acts are clearly
separate and distinct.
	The State also posits that Article 38.37 of the Code of Criminal Procedure allows the
admission of evidence of other crimes, wrongs, or acts for its bearing on relevant matters
such as the state of mind of the defendant and the child, and the previous subsequent
relationship between the defendant and the child.  Had the appellants requested, the State
urges, they would have been entitled to a contemporaneous limiting instruction at the time
the extraneous offense testimony came into evidence. (37)  Because they could have obtained
limiting instructions at the time of admission of the evidence, the State claims, the appellants'
requests for election were untimely.  This argument, however, is also unavailing.
	Article 38.37 does allow for the admission of other crimes, wrongs or acts to be
admitted when relevant.  However, it does not restrict a defendant's right to have the State
elect the incident for which it will seek a conviction by forcing the defendant to request a
limiting instruction when the evidence is admitted.  The requirement of an election upon
timely request is well-settled (38) and distinct from a limiting  instruction.  The purpose of a
limiting instruction is to "restrict evidence to its proper scope and instruct the jury
accordingly." (39)  An election partly serves this purpose; but it serves other salutary purposes
as well, providing explicit notice to the defendant, and promoting unanimous jury verdicts. 
A limiting instruction alone does not adequately serve all these purposes.  Nor does a
defendant somehow waive or forfeit his right to an election, with all of its attendant
advantages, by his failure to request a limiting instruction at the absolute earliest
opportunity. (40)
	Similarly, the State argues that a valid jury charge serves as a de facto election.  A jury
charge alone, however, does not afford the defendant with the requisite notice that is
provided by a valid and timely election by the State.  A jury charge cannot be a de facto
election,  because the instruction is not given until the end of trial.  This would not require
the State to elect after its case in chief, when the defense needs to know the evidence it must
refute in order to challenge the specific act in the indictment.  The defendant must be made
aware of the exact crime he is defending against to ensure notice at the end of the State's
evidence, if the defendant so requests.   A jury charge and an election are not interchangeable
in this context.  The State is required to elect at the close of its evidence when properly
requested.ii.  Application of O'Neal
	We therefore agree with the court of appeals that the trial court erred in both cases in
failing to require the State to elect.  The rule set forth in O'Neal applies to the facts of these
cases.  The State has the privilege, in a case such as this, to delay election until such stage
in the development of the evidence as would give the State an opportunity to intelligently
determine upon which transaction it prefers to rely for a conviction. (41)  But, for the reasons
set forth by the court of appeals and listed above, once the State rests its case in chief, on the
timely request of a defendant the trial court must order the State to make its election,
regardless of the lack of erroneous evidentiary rulings and jury instructions.  It is at this
juncture that the defense needs notice so that it can put forward a vigorous defense and argue
to the jury the evidence that challenges some or all of the elements of the State's case. 
Additionally, an election allows a defendant to tailor a request for a limiting instruction and
the trial judge to craft that instruction on the basis of the State's theory of proving its case.
	As the court of appeals points out, Farr did not request election at the close of the
State's case. (42)  Farr did not move for election until the close of all evidence.  The question,
then, is whether his request for election was timely, as required by the rule of O'Neal. (43) 
Undoubtedly, if Farr had petitioned for election at the close of the State's evidence, the trial
court would have been obligated to require the State to elect at that time.  Because Farr did
not move for election until the close of all evidence, Farr was not entitled to an election at
the close of the State's evidence.  However, Farr was still entitled to an unanimous verdict. 
He preserved his right to an unanimous verdict by calling for an election at the close of the
all evidence.  Therefore, Farr's request was timely insofar as he was entitled to a unanimous
jury verdict, and the trial court had an obligation to require the State to elect at that juncture.
	Accordingly, we affirm the judgment of  court of appeals as to both appellants, that
the trial court erred in failing to require the State to elect the incidents upon which it would
convict.  We turn now to evaluate whether the court of appeals applied the correct standard
to evaluate harm in these cases.C. Proper Harm Analysis
	The State claims that the court of appeals erred in conducting a constitutional harm
analysis.  Such an analysis requires a reviewing court to reverse unless it finds beyond a
reasonable doubt that the error did not contribute to the conviction or had but slight effect. (44) 
Although we have not directly decided the proper harm analysis for failure to elect, the
reasons for requiring an election, and our precedents, offer guidance.
	For example, we examined the unanimous jury requirement in Francis v. State, in
which the jury charge stated that the appellant engaged "in sexual contact by touching the
breast or genitals of" the victim. (45)  The State introduced evidence of four separate incidents. 
In two different incidents, the appellant touched the victim's breasts.  On two separate
occasions, the appellant touched the victim's genitals. There was never a single incident
alleged in which the appellant touched both the breasts and the genitals of the victim. (46)  In
that case, we held that, by charging the two offenses in the disjunctive by using the term "or,"
it is possible that six members of the jury convicted appellant on the breast-touching offense
(while the other six believed he was innocent of the breast-touching) and six members
convicted appellant on the genital-touching offense (while the other six believed he was
innocent of the genital-touching).  We held that this violated Francis's right to an unanimous
jury verdict  (47) In his separate opinion joining the Court's opinion, Judge Womack identified
this right as one of state constitutional dimension. (48)
	A similar danger arises when a multitude of incidents are presented to the jury and the
State is not required to elect.  Six jurors could convict on the basis of one incident and six
could convict on another (or others). While each of the incidents presented may constitute
the commission of a sexual abuse offense, the jury must agree on one distinct incident in
order to render a unanimous verdict. (49)  Consideration of these incidents without an election
jeopardizes the defendant's right to a unanimous jury verdict as guaranteed by the Texas
Constitution, even though the extraneous incidents may be admissible for other purposes
under Article 38.37 of the Code of Criminal Procedure. (50)   When the Texas Constitution is
violated, as it was in the case before us, the proper analysis is provided by Rule of Appellate
Procedure 44.2(a).
	In addition to protecting the unanimity of the jury verdict, an election is also required
in order to provide adequate notice and an opportunity to defend.  The deprivation of notice
also implicates of fundamental constitutional principles, viz: due process and due course of
law.  As the Supreme Court has said, "No principle of procedural due process is more clearly
established than that notice of the specific charge, and a chance to be heard in a trial of the
issues raised by that charge, if desired, are among the constitutional rights of every accused
in a criminal proceeding in all courts, state or federal." (51) 
	Accordingly, we find that the failure to require the State to elect upon timely request
results in constitutional error, and that the court of appeals was indeed required to reverse the
convictions unless it found beyond a reasonable doubt that the error did not contribute to the
convictions or had but slight effect. (52)  Accordingly, the court of appeals applied the correct
standard in conducting its harm analyses to the error found in the cases of Phillips and Farr.
III. Conclusion

	We affirm the judgments of the court of appeals in both cases. (53)
Delivered:	June 7, 2006
Publish.
1. 	 The pertinent parts of the three indictments read:
				Indictment No. 0881466:   
		The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County Texas,
ROBERT STEVEN PHILLIPS . . . heretofore on or about FEBRUARY 15,
2000, did then and there unlawfully, intentionally and knowingly cause the
penetration of the mouth of [the Complainant], a person younger than
seventeen years of age and not his spouse, with the sexual organ of the
Defendant.

		Indictment No. 0881467:
		The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County Texas,
ROBERT STEVEN PHILLIPS . . . heretofore on or about MARCH 15, 2001,
did then and there unlawfully, intentionally and knowingly cause the sexual
organ of [the Complainant], a person younger than seventeen years of age and
not his spouse, to CONTACT the MOUTH of ROBERT STEVEN PHILIPS.

		Indictment No. 0881468:
		The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County Texas,
ROBERT STEVEN PHILLIPS . . . heretofore on or about JANUARY 15,
2000, did then and there unlawfully, intentionally and knowingly cause the
penetration of the FEMALE SEXUAL ORGAN of [the Complainant], a
person younger than seventeen years of age and not his spouse by placing HIS
FINGER in the FEMALE SEXUAL ORGAN of the Complainant.
2. 	 Phillips v. State, 130 S.W.3d 343, 354 (Tex. App.-Houston [14th Dist.]  2004).
3. 	 746 S.W.2d 769 (Tex. Crim. App. 1988).
4. 	 Phillips, 130 S.W.3d at 349.
5. 	 Id., at 354-55.
6. 	 Id., at 353-54.
7. 	 Farr was also charged in a third indictment with indecency with a child relating to Farr's
contact with one of the complainant's younger sisters.  Farr was convicted of this offense in the same
jury trial, but did not appeal this conviction.
8. 	 The pertinent parts of this indictment read:

		Indictment No. 941488: 
		The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County Texas, HENRY
DANIEL FARR . . . heretofore on or about JANUARY 15, 2002, did then
and there unlawfully, intentionally and knowingly cause the sexual organ of
[the complainant], a person younger than fourteen years of age and not the
spouse of [Farr], to CONTACT the MOUTH of HENRY DANIEL FARR.
9. 	 The pertinent parts of this indictment read:

		Indictment No. 918716:
		The duly organized Grand Jury of Harris County, Texas, presents in the
District Court of Harris County, Texas, that in Harris County Texas, HENRY
DANIEL FARR . . . heretofore on or about MAY 15, 2002, did then and
there unlawfully, intentionally and knowingly cause the penetration of the
FEMALE SEXUAL ORGAN of [the Complainant], a person younger than
fourteen years of age and not the spouse of the Defendant, by placing HIS
FINGER in the FEMALE SEXUAL ORGAN of the Complainant.

			It is further presented that in Harris County, Texas, HENRY DANIEL
FARR . . . heretofore on or about MAY 15, 2002, did then and there
unlawfully intentionally and knowingly cause the penetration of the
FEMALE SEXUAL ORGAN of [the Complainant], a person younger than
fourteen years of age and not the spouse of the Defendant, by placing HIS
TONGUE in the FEMALE SEXUAL ORGAN of the Complainant.
10. 	 Phillips, 130 S.W.3d 343.
11. 	 Farr v. State, 140 S.W.3d 895, 899-900 (Tex. App.-Houston [14th Dist.]  2004).
12. 	 Id., at 900-01.
13. 	 Id., at 901.
14. 	 Tex. R. App. Proc. 44.2 (a). 
15. 	 746 S.W.2d at 770.
16. 	 Ibid.
17. 	 Id., at 771.
18. 	 Ibid.
19. 	 O'Neal, 746 S.W.2d at 770.
20. 	 Ibid.
21. 	 Id., at 772.
22. 	 Ibid.
23. 	 Ibid.
24. 	 Ibid. (citing Crosslin v. State, 235 S.W. 905, 906 (Tex. Crim. App. 1921)).
25. 	 Phillips, 130 S.W.3d at 349.
26. 	 See Fisher v. State, 33 Tex. 792, 794 (1870).
27. 	 See id. ("The jury may have taken both [offenses] into account, and have considered that one
or the other was not sufficiently made out to warrant a conviction, but that both together convinced
[it] of the guilt of the defendant. . . .").
28. 	 See Francis v. State, 36 S.W.3d 121, 123-25 (Tex. Crim. App. 2000).
29. 	 See O'Neal, 746 S.W.2d at 772-73.
30. 	 See Tex. Code  Crim. Proc.  art. 38.37.
31.  523 S.W.2d 685 (Tex. Crim. App. 1975); 322 S.W.2d 622 (Tex. Crim. App. 1959). 
32. 	 Crawford v. State, 696 S.W.2d 903, 906 (Tex. Crim. App. 1985).
33. 	 Steele, 523 S.W.2d at 686.  See also Bethune v. State, 363 S.W.2d 462, 464 (Tex. Crim.
App. 1962) (where victim was raped repeatedly in one night, this Court found that the acts of
intercourse occurred in the same bed in the same night, and held that, in such a case, no election 
required).  See also Ledesma v. State, 181 S.W.2d 705, 707 (1944) (where several acts of sexual
intercourse were accomplished by one continuous act of force and threats in one day, no election
required).
34. 	 Crawford v. State, 696 S.W.2d 903, 905 (Tex. Crim. App. 1985)
35. 	 322 S.W.2d at 623-24.
36. 	 Id., at 624.
37. 	 Tex. Code  Crim. Proc.  art. 38.37; Rankin v. State, 974 S.W.2d 107 (Tex. Crim. App.
1996). 
38. 	 O'Neal, 746 S.W.2d 769; Crawford v. State, 696 S.W.2d 903 (Tex. Crim. App. 1985); Bates
v. State, 305 S.W.2d 366 (Tex. Crim. App. 1957); Hudgins v. State,  69 S.W.2d 97 (Tex. Crim. App.
1921); Crosslin v. State, 90 Tex. Crim. 467 (Tex. Crim. App. 1921).
39. 	 Tex. R. Crim. Evid. 105(a).
40.   It is of course conceivable that a limiting instruction, requested and given at the time the
extraneous misconduct evidence was admitted, could essentially render the lack of an election later
on harmless error.  This does not mean, of course, that the defendant would not be entitled to his
requested election.  That is, if he requested an election, the trial court would clearly err not to give
it.  But if a limiting instruction had been provided at the time the evidence was admitted that
sufficiently made clear the act upon which the State was relying for conviction, the trial court's error
might be harmless for the same reasons we stated in O'Neal, supra, at 772, viz: by the close of the
State's case, the act upon which the State was relying for conviction would be unmistakable.  See
O'Neal, supra, at 772.
41. 	 O'Neal, 746 S.W.2d at 771.
42. 	 Farr, 140 S.W.3d at 898, n.3..
43. 	 O'Neal, 746 S.W.2d at 772.
44. 	 Tex. R. App. P. 44.2(a).
45. 	 36 S.W.3d at 122 (emphasis added).
46. 	 Id., at 124.
47. 	 Id., at 125.
48. 	 Id., at 126, n. 6; Tex. Const. art. V, § 13.
49. 	 See Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005)
50. 	 Id.
51. 	 Cole  v. Arkansas, 68 S. Ct. 514, 517 (1948).
52. 	 Tex. R. App. P. 44.2(a).
53. 	 We are not unmindful of the points and concerns that Presiding Judge Keller has expressed
in her thoughtful concurring opinion.  We do not in this opinion intend to fashion an inflexible
"monolithic rule."  But it does bear emphasis that the close of the State's case in chief is the point
in time at which an election best serves all of the interests involved.  This is not to say that a later
request for an election might not also be timely, insofar as it addresses the concern for jury
unanimity, as our analysis of Farr's case illustrates.  See page 16, ante.  On the other hand, as Judge
Keller points out, there will be no jury unanimity issue at all in a bench trial.  Even in a bench trial,
however, an election may be important at the close of the State's case, not simply to comply with
the defendant's need for notice of the particular incident against which he must defend, but also to
insure that the trial judge will assay the evidence with a view to whether the defendant committed
a discrete offense, and not potentially convict him for being a criminal in general.  Still, as Judge
Keller points out, such a requirement, at least insofar as it fails to implicate state and/or federal
constitutional guarantees of jury unanimity, may well be subject to an ordinary harm analysis, under
Rule 44.2(b) of the Rules of Appellate Procedure, rather than Rule 44.2(a), which we apply on the
facts before us in these cases today.
