McKinney v. State

WILLIAM J. CORNELIUS, Chief Justice,

concurring.

I concur in the affirmance, but I do not agree that Tex. Pen.Code Ann. § 6.02(e) applies in this case. That statute applies only when the evidence proves a higher degree of culpability than that charged in the indictment or information. That is not what happened here. The evidence proved exactly the degree of culpability that was charged. But the application of the statute is unnecessary here because, under general legal principles, proof of the higher degree of culpability includes proof of the lesser degree of culpability. See Daniel v. State, 668 S.W.2d 390 (Tex.Crim.App.1984).