Keller, J., delivered a dissenting opinion.

I respectfully dissent.

At trial, the State introduced evidence of four different criminal incidents that conformed to the allegations in the indictment. Appellant requested that the trial court require the State to elect which incident it would rely upon to secure a conviction. The State agreed to rely upon only two of the four incidents, but appellant further requested that the State be required to elect only one incident upon which to rely. The trial court denied this request. Appellant later requested that the two incidents be charged to the jury in the conjunctive: that is, that the jury be instructed that it must find both incidents in order to find appellant guilty.

On appeal, appellant claimed that the trial court erred in refusing this request for a conjunctive jury charge. Appellant did not, however, complain on appeal of the trial court's refusal to require an election. Appellant claimed that he was entitled to the conjunctive charge because of the failure to require an election, but this is still a complaint about the charge, not about the failure to require an election.

The majority contends that appellant's failure to raise an "election" claim on appeal does not preclude granting relief on a meritorious "conjunctive charge" claim. The majority would be correct if the conjunctive charge claim were meritorious, but it is not. The majority gives only one reason for holding that the trial court erred in refusing the conjunctive charge: the conjunctive charge would have cured the election error. But that does not mean the defendant was entitled to a conjunctive charge. A defendant is not necessarily entitled to an unauthorized jury instruction simply because that instruction would cure an error that occurred elsewhere in the trial. Anderson v. State, 932 S.W.2d 502, 507 (Tex. Crim. App. 1996), cert. denied, 521 U.S. 1122 (1997)(a defendant is not entitled to jury instruction on parole to cure improper references to parole in State's argument unless traditional remedies were constitutionally inadequate to cure the error). If appellant was entitled to an election, then he was entitled to jury unanimity on one offense (incident), and the jury charge should have submitted one, and only one, offense for consideration. The trial court was not required to ensure unanimity as to two offenses in order to authorize conviction on one, so appellant was not entitled to the submission of two offenses in the conjunctive.

Although the majority purports to resolve this case on the basis of an erroneous refusal by the trial court to submit a conjunctive charge, the majority's reasoning instead supports the conclusion that the trial court erred in refusing to require an election. While submission of a conjunctive charge would have cured that error, it would also have resulted in a windfall to appellant by requiring the jury to find two offenses instead of one. The trial court was not required to give appellant this windfall. If appellant was entitled to an election, then the trial court should have required the State to elect -- an action that would have resulted in the submission of only one offense (incident) in the jury charge. Because appellant did not raise a point of error complaining about the trial court's refusal to require an election, this petition should be dismissed as improvidently granted.

I join Presiding Judge McCormick's dissenting opinion except for the discussion of harm.

KELLER, J.

DELIVERED: November 3, 1999

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