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.
Porter v. State Page 2

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 3

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 4

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

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