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On original submission the Court, in an unpublished opinion, affirmed the trial court’s judgment.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 In a separate order the Court is now ordering their prior unpublished opinion to be published.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