¶1concurs in the judg-
¶2ment only to the extent it affirms the trial court’s judgment. A separate opinion will not issue.
¶3Rehearing denied.
¶4*697TOM GRAY, Chief Justice, concurring opinion to denial of motion for rehearing.
¶5On original submission the Court, in an unpublished opinion, affirmed the trial court’s judgment.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 In a separate order the Court is now ordering their prior unpublished opinion to be published.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.