Keith Allen Porter v. The State of Texas--Appeal from 54th District Court of McLennan County
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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On original submission the Court, in an unpublished opinion, affirmed the trial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Court is now ordering their prior unpublished opinion to be published.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
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Porter v. State
Page 2
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