NO. 12-23-00277-CR 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MICHAEL WAYNE MCKENNEY, 

APPELLANT

V.

THE STATE OF TEXAS, 

APPELLEE

§

§

§

APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Appellant, Michael Wayne McKenney, appeals his conviction for felony driving while 

intoxicated. In two issues, he challenges the jury charge as improperly commenting on the 

evidence and improperly instructing the jury as to lesser included offenses. We affirm. 

BACKGROUND

On or about March 10, 2021, in Smith County, Texas, law enforcement stopped a truck 

driven by Appellant pursuant to a 911 call.1 Following the administration of field sobriety tests, 

they determined Appellant was intoxicated and arrested him. Appellant was subsequently 

indicted for the felony offense of driving while intoxicated (DWI). The indictment further 

alleged that Appellant was previously finally convicted of four separate felony offenses: (1) a 

May 17, 1990, conviction for “an offense relating to the operating of a motor vehicle while

intoxicated,” (2) a November 1, 2016, conviction for “an offense relating to the operating of a 

motor vehicle while intoxicated,” (3) an August 27, 1990, conviction for sexual assault of a child, 

1 Because Appellant does not challenge the sufficiency of the evidence supporting his convictions, we 

provide only a general overview of the facts of the case. We provide additional facts as necessary to advise the 

parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.1, 47.4.
2 

and (4) a March 24, 2006, conviction for possession of a controlled substance. Appellant pleaded 

“not guilty” to the charged offense, and “not true” to the enhancement paragraph alleging that he 

was previously twice convicted of DWI. This matter proceeded to a jury trial. 

The charge of the court contained a limiting instruction in paragraph 4 which informed 

the jury that they could not use any evidence pertaining to Appellant’s alleged prior DWI 

convictions for the purpose of proving that Appellant committed the DWI offense currently 

charged:

With respect to the evidence admitted in this case concerning the Defendant’s having been two 

times previously convicted of being intoxicated while operating a motor vehicle in a public place, 

you are instructed that such evidence cannot be considered by you as in any manner proving or 

tending to prove that the Defendant was intoxicated while operating a motor vehicle in a public 

place on or about the 10th day of March, 2021.

The charge stated in paragraph 5 that to find Appellant “guilty” of felony DWI, the jury must 

unanimously find beyond a reasonable doubt both that (1) on or about Macrh 10, 2021, 

Appellant “operate[d] a motor vehicle in a public place while [Appellant] was intoxicated,” and 

(2) Appellant, previous to the charged offense, “had been twice convicted of the offense of being

intoxicated while operating a motor vehicle in a public place,” namely the aforementioned

convictions from May 17, 1990, and November 1, 2016. Moreover, the charge instructed,

“Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you

will acquit the Defendant of the felony offense alleged in the indictment.”

The jury charge also contained instructions as to the lesser included offenses of 

“misdemeanor ‘A’ driving while intoxicated” and “misdemeanor ‘B’ driving while intoxicated,” 

in paragraphs 6 and 7, respectively. To find Appellant “guilty” of misdemeanor A driving while 

intoxicated, the jury must unanimously find beyond a reasonable doubt both that (1) on or about 

Macrh 10, 2021, Appellant “operate[d] a motor vehicle in a public place while [Appellant] was 

intoxicated,” and (2) Appellant “had previously been convicted one time of the offense of being 

intoxicated while operating a motor vehicle in a public place,” namely either one of the 

aforementioned convictions from May 17, 1990, and November 1, 2016. The charge then 

instructed, “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt 

thereof, you will acquit the Defendant of misdemeanor ‘A’ driving while intoxicated.” 

However, if the jury unanimously found beyond a reasonable doubt that on or about 

Macrh 10, 2021, Appellant “operate[d] a motor vehicle in a public place while [Appellant] was 
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intoxicated,” but “[did] not find, or [had] a reasonable doubt thereof, that [Appellant] has 

previously been convicted of the offense of driving while intoxicated,” the jury was instructed to 

find Appellant guilty of misdemeanor B driving while intoxicated. And, similarly to the 

previous instructions, the charge went on to state, “Unless you so find beyond a reasonable 

doubt, or if you have a reasonable doubt thereof, you will acquit the Defendant of misdemeanor 

‘B’ driving while intoxicated.” 

Paragraph 8 of the charge states, “If you have a reasonable doubt as to whether the 

Defendant is guilty of any offense defined in this charge, then you should acquit the Defendant 

and say by your verdict ‘Not Guilty.’” 

Appellant first raised the issue of lesser-included offense instructions to the trial court at 

the charge conference. The trial court agreed to include the requested instructions, and Appellant 

did not object to the version of the charge submitted to the jury. 

The jury found Appellant “guilty” of felony DWI as charged in the indictment. At the 

punishment phase of trial, Appellant pleaded “not true” to the enhancement paragraphs alleging 

previous convictions for the felony offenses of sexual assault of a child and possession of a 

controlled substance. The jury found both enhancement paragraphs to be “true” and sentenced 

Appellant to life imprisonment. This appeal followed. 

JURY CHARGE ERROR

In his first issue, Appellant contends that the language of the jury charge constitutes an 

improper comment on the evidence pertaining to his alleged previous DWI convictions. In his 

second issue, Appellant argues that the instructions to the jury regarding the lesser included 

offenses of misdemeanor DWI failed to “properly guide” the jury. 

Standard of Review and Applicable Law

“The purpose of the jury charge is to inform the jury of the applicable law and guide 

them in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. 

Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). A 

jury charge must include an accurate statement of the law. See TEX. CODE CRIM. PROC. ANN. art. 

36.14 (West 2023). Moreover, the trial court must apply the law to the facts adduced at trial. 

Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). 
4

In reviewing a jury charge issue, an appellate court’s first duty is to determine whether 

error exists in the jury charge. Hutch, 922 S.W.2d at 170. If error is found, the appellate court 

must analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453–54 (Tex. Crim. App. 

2003). If error was properly preserved by objection, reversal will be necessary if the error is not 

harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), overruled on other 

grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). Conversely, if error was 

not preserved at trial by a proper objection, a reversal will be granted only if the error presents 

egregious harm, meaning the appellant did not receive a fair and impartial trial. Reeves v. State, 

420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In examining the record to determine whether 

charge error is egregious, courts have traditionally considered: (1) the entirety of the jury charge 

itself, (2) the state of the evidence, (3) counsel’s arguments, and (4) any other relevant 

information revealed by the entire trial record. Marshall v. State, 479 S.W.3d 840, 843 (Tex. 

Crim. App. 2016). Egregious harm is a difficult standard to meet, and such a determination must 

be made on a case-by-case basis. Id. Neither party bears the burden on appeal to show harm or 

lack thereof under this standard. Id. Instead, courts are required to examine the relevant 

portions of the entire record to determine whether appellant suffered actual harm, as opposed to 

theoretical harm, as a result of the error. Id.

Improper Comment on Evidence

A trial court may not submit a charge that comments on the weight of the evidence. TEX.

CODE CRIM. PROC. ANN. art. 36.14. A charge comments on the weight of the evidence if it 

assumes the truth of a controverted issue or directs undue attention to particular evidence. See

Lacaze v. State, 346 S.W.3d 113, 118 (Tex. App—Houston [14th Dist.] 2011, pet. ref’d). “In 

determining whether the charge improperly comments on the weight of the evidence, we 

consider the court’s charge as a whole and the evidence presented at trial.” Id.

Appellant takes issue with the charge language reading, “With respect to the evidence 

admitted in this case concerning the Defendant’s having been two times previously convicted of 

being intoxicated while operating a motor vehicle in a public place...” 

Appellant claims that this phrase “improperly told the jury that evidence was admitted 

that Appellant had indeed been ‘two times previously convicted’ of DWI,” where Appellant 

contested the existence of the alleged prior convictions. Appellant asserts that the language at 

issue “removed that contest by instructing the jury that there was “evidence admitted...[that] the 
5 

Defendant’s having been two times previously convicted...” and constitutes a comment on the 

weight of the evidence. We disagree.

Far from telling the jury that Appellant “had indeed been convicted by the trial court via 

the jury instructions,” the language to which Appellant objects merely correctly states that there 

was evidence admitted pertaining to the two alleged prior convictions and does not express any 

opinion as to the credibility or weight of that evidence. See Smith v. State, No. 12-17-00106-

CR, 2018 WL 5276721, at *6 (Tex. App.—Tyler Oct. 24, 2018, pet. ref’d) (mem. op., not 

designated for publication). Indeed, the charge instructs the jury that it cannot convict Appellant 

of the charged offense unless it “find[s] from the evidence beyond a reasonable doubt” that 

Appellant was previously twice convicted of DWI. Additionally, the charge properly instructed 

the jury in paragraph 10, “Whether offered evidence is admissible is purely a question of law. In 

admitting evidence to which an objection is made, the Court does not determine what weight 

should be given such evidence; nor does it pass on the credibility of the witnesses.” And 

paragraph 16 instructed, “You are the exclusive judges of the facts proved, of the credibility of 

the witnesses and of the weight to be given to the testimony[.]” The charge also properly 

instructed the jury on such relevant matters as reasonable doubt, the presumption of innocence, 

and the prosecution’s burden of proof. 

Furthermore, the remainder of the paragraph instructs the jury that it may not consider 

evidence regarding the two alleged prior DWI convictions as a suggestion, or as a basis for 

finding, that Appellant was driving while intoxicated on this occasion. The Court of Criminal 

Appeals has explained that a trial court may specifically instruct the jury limiting its 

consideration of a particular item or category of evidence to certain purposes. See Bartlett v. 

State, 270 S.W.3d 147, 151 (Tex. Crim. App. 2008) (citing TEX. R. EVID. 105(a)) (“When 

evidence which is admissible ... for one purpose but not admissible ... for another purpose is 

admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the 

jury appropriately[.]”); see also Adams v. State, 862 S.W.2d 139, 148–49 (Tex. App.—San 

Antonio 1993, pet. ref’d) (“A limiting charge by its very nature must be directed to certain 

testimony to prevent the jury’s misuse of such testimony. An abstract limiting charge would be 

useless and confusing to the jury.”). “An instruction limiting the jury’s consideration of an item 

of evidence to certain purposes is not an impermissible comment on the weight of the evidence 

because it would be impossible to limit the jury’s consideration without pointing out the 
6 

evidence subject to the limitation.” Guerrero-Yanez v. State, No. 07-14-00143-CR, 2016 WL 

2343907, at *4 (Tex. App.—Amarillo Apr. 28, 2016, pet. ref’d) (mem. op., not designated for 

publication) (citing Bartlett, 270 S.W.3d 147 at 151).

Accordingly, the trial court did not err in charging the jury with the limiting instruction 

given in this case. We overrule Appellant’s first issue.

Lesser-Included Offense Instruction

As to Appellant’s second issue in which he asserts that the jury charge improperly guided 

the jury, the trial court instructed the jury (at Appellant’s request) on the lesser-included offenses 

of misdemeanor DWI. Appellant appears to contend that the lack of “acquittal first” or 

“modified acquittal first” language between the section regarding the charged felony offense and 

the section regarding misdemeanor A DWI, and between the misdemeanor A section and the 

misdemeanor B section, renders the instructions inadequate.2

 

Jury instructions that tell the jury when and how to proceed from deliberating about a 

greater offense to deliberating about a lesser-included offense are sometimes called “transitional 

instructions.” Sandoval v. State, 665 S.W.3d 496, 532 (Tex. Crim. App. 2022). In Sandoval, 

the defendant was charged with capital murder, and the jury charge included an instruction on 

the lesser-included offense of murder. After instructing the jury as to the elements of capital 

murder, the charge stated:

But if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the 

defendant of the offense of Capital Murder as alleged in Count I of the indictment, say by your 

verdict “Not Guilty,” and proceed to consider whether the defendant is guilty of the lesser 

included offense of murder.

Id. “The type of transitional instruction that the trial court gave in this case is often referred to as 

an “acquittal first” instruction, because it requires the jury to acquit the defendant of the greater 

offense before deliberating on the lesser-included offense.” Id. The Court of Criminal Appeals 

previously approved the use of an “acquittal first” instruction. Id. at 535 (citing Boyett v. State, 

692 S.W.2d 512, 516 (Tex. Crim. App. 1985)). A “modified acquittal first” instruction is 

similar; it allows the jury to “deliberate in the order it sees fit but require[es] that it acquit the 

defendant of the greater offense before returning a verdict on the lesser offense[.]” Id. at 537. 

2 There is no dispute that misdemeanor DWI is a lesser-included offense of felony DWI, as charged in the 

indictment. Appellant additionally concedes that he failed to object to the jury charge at trial and must therefore 

prove both error and egregious harm to warrant reversal.
7

The jury charge herein instructs, “Unless you so find beyond a reasonable doubt, or if 

you have a reasonable doubt thereof, you will acquit the Defendant of the felony offense alleged 

in the indictment.” Therefore, we read Appellant’s argument as protesting the lack of an explicit 

statement to the jury that, after acquitting him of the felony DWI, they should then proceed to 

considering the lesser-included offense of misdemeanor A DWI (and after acquitting him of 

misdemeanor A DWI, they should then proceed to considering the lesser-included offense of 

misdemeanor B DWI). While Texas courts have held that jury instructions including this 

language are permissible, Appellant does not cite, and we do not find, any authority suggesting 

that the lack of this language alone (when an instruction regarding acquittal is present) is 

inherently erroneous.

Appellant also appears to assert that the location of the “benefit of the doubt” instruction 

in the charge (following the instruction as to misdemeanor B DWI) is erroneous, because “the 

damage is done and it is lost due to its placement and the confusing nature of the charge as a 

whole.”3 However, this Court is unaware of—and Appellant does not cite to—any authority 

establishing that this type of instruction may be inadequate solely by virtue of its placement in 

the charge. We further disagree as a general matter that the placement of this instruction, 

following the listing of the elements for all three potential offenses but prior to the circumstances 

which would require the jury to render a “not guilty” verdict, is inappropriate on its face.

Finally, Appellant contends that “[t]he jury was never told that it may consider a lesser as 

a part of their deliberations.” The meaning of this assertion is somewhat unclear. We note that 

the trial court read the jury charge to the jury in its entirety in open court, making the jury aware 

of the lesser offenses included therein. See, e.g., Williams v. State, No. 03-18-00267-CR, 2018 

WL 3451635, at *8 (Tex. App.—Austin July 18, 2018, pet. ref’d) (mem. op., not designated for 

publication). Additionally, both counsel for the State and Appellant’s counsel referenced the 

lesser included offenses in their respective closing arguments as options to be considered by the 

jury based upon what they believed the State proved beyond a reasonable doubt.

The jury was undoubtedly informed that it could choose to find Appellant “guilty” of the 

charged felony offense, find Appellant “guilty” of one of the two misdemeanor offenses listed in 

3 In this portion of the charge, the court instructs the jury that “[i]f you find from the evidence beyond a 

reasonable doubt that the Defendant is guilty of felony driving while intoxicated or driving while intoxicated 

misdemeanor A, but you have a reasonable doubt as to which offense he is guilty, then you must resolve that doubt 

in Defendant's favor and find him guilty of the offense of driving while intoxicated misdemeanor A.” Thereafter, 

the court provides a substantially similar instruction for misdemeanor A DWI and misdemeanor B DWI.
8

the charge, or return a verdict of “not guilty.” That the jury found Appellant “guilty” of the 

greater offense of felony DWI does not point to unawareness on the jurors’ part that the lesserincluded offenses were available.

However, even if the trial court erred in omitting language explicitly instructing the jury 

to proceed to considering the lesser included offenses after acquitting Appellant of the greater 

felony DWI offense, such error would not require reversal of Appellant’s conviction, because the 

record does not show that the alleged error caused him egregious harm.

4 See Reeves, 420 

S.W.3d at 816. 

The Court’s Charge

The jury charge’s sole purpose “is to instruct the jurors on all of the law that is applicable 

to the case.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Because the 

charge is the instrument by which the jury convicts, it must contain an accurate statement of the 

law and must set out all the essential elements of the offense. Id. at 366–67. Through the jury 

charge, the trial court must instruct the jury “under what circumstances they should convict, or 

under what circumstances they should acquit.” Gray, 152 S.W.3d at 128–29. The jury charge in 

the instant case fulfilled that directive. For each offense listed therein, the charge correctly 

recites the elements the jury must unanimously find the State proved beyond a reasonable doubt 

in order to convict Appellant of each respective offense. And the charge rightly instructs the jury 

to acquit Appellant of each respective offense if they have doubt as to any of those elements.

Further, the charge instructs the jury that if they find the elements of two offenses proven beyond 

a reasonable doubt, they must render a “guilty” verdict for the lesser offense. Finally, the charge

correctly provides that if the jury finds the State proved none of the offenses beyond a reasonable 

doubt, they must render a “not guilty” verdict. Our reading of the charge as a whole weighs 

against a conclusion that Appellant was denied a fair and impartial trial.

4 Appellant’s argument as to egregious harm merely states, in a conclusory fashion, that the alleged errors 

“deprived Appellant of meaningful consideration of the lesser included offenses.” The Texas Court of Criminal 

Appeals has found no error where an appellate court assumed without deciding jury charge error and decided the 

case solely on harm. See Vogel v. State, No. PD-0873-13, 2014 WL 5394605, at *2 (Tex. Crim. App. Sept. 17, 

2014) (not designated for publication). The Court reasoned that, because Almanza v. State, 686 S.W.2d 157 (Tex. 

Crim. App. 1985), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) 

requires both a jury charge error and harm, it makes no difference which prong a court of appeals finds lacking in 

rejecting a claim of reversible jury-charge error. Id. This approach promotes the virtues of deciding cases on 

narrower grounds and enhancing judicial efficiency by addressing those elements of a claim that are more quickly 

and easily resolved. Id.
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Argument of Counsel 

When considering the parties’ arguments, appellate courts “look to whether any 

statements made by the State, appellant, or the court during the trial exacerbated or ameliorated 

error in the charge.” Arrington v. State, 451 S.W.3d 834, 844 (Tex. Crim. App. 2015). As 

aforementioned, both counsel for the State and Appellant’s counsel referenced the lesser 

included offenses during closing argument. Appellant’s counsel stated: 

Basically, you have options. Obviously, our position is our -- what we believe, because of the lack 

of evidence, because there is reasonable doubt, we believe the verdict ought to be not guilty. You 

also have the options of, if you believe that Mr. McKenney was driving while intoxicated that 

night on 2021, but you have a reasonable doubt as to either of these two prior convictions, okay, 

then you can make a finding that you believe he was only convicted of one prior DWI or no prior 

DWIs. ... Basically, the third option says that you believe only one of these beyond a reasonable 

doubt -- one of these prior convictions beyond a reasonable doubt, then the fourth option just says 

that you don’t believe beyond a reasonable doubt either of these two prior convictions.

Similarly, counsel for the State explained, 

If you think [Appellant] only has one prior DWI but he’s guilty this time, it’s a Class A 

misdemeanor. If you think he’s guilty this time but he has no priors, it’s a Class B misdemeanor. 

If you think he’s guilty this time and he has two priors -- which we’ve proven to you that he does 

– it’s a felony.

The statements of counsel correctly set forth the elements of the offenses as they apply to 

this case and, as discussed supra, informed the jury of both the existence of the lesser-included 

offenses and the impact of the jurors’ findings as to the prior DWI convictions. Therefore, the

statements of counsel at trial weigh heavily against a conclusion that Appellant was egregiously 

harmed by any error in the jury charge. 

The State of the Evidence 

The state of the evidence is a strong indicator that the charge’s potential harm was 

theoretical rather than actual. At the guilt-innocence phase of trial, the two main elements of the 

felony DWI offense Appellant contested were (1) whether he was the person actually operating 

the vehicle (as he alleged at trial that his then-girlfriend, Carla Prince, was operating the truck), 

and (2) whether Appellant was previously convicted of two DWI offenses. The evidence that 

Appellant was intoxicated on the night of March 10, 2021, was uncontroverted. 

It is unclear how the presence of Appellant’s suggested language (explicitly instructing 

the jury to proceed to considering the next lesser-included offense after acquitting Appellant of 

the preceding offense) could have impacted the jury’s finding that Appellant was operating a 
10

vehicle on the night of March 10, in light of the jury charge as a whole. As the charge is written, 

to find Appellant “guilty” of any of the offenses therein (felony DWI, misdemeanor A DWI, and 

misdemeanor B DWI), the jury was required to find beyond a reasonable doubt that Appellant 

operated a vehicle while intoxicated on March 10. If the jury believed the defense’s contention 

that Appellant was not driving, or otherwise had any reasonable doubt as to whether Appellant 

was operating a vehicle as alleged in the indictment, the charge directed them to acquit him of 

each offense listed therein, and we assume that the jury followed that instruction. See Miles v. 

State, 204 S.W.3d 822, 827–28 (Tex. Crim. App. 2006). The only difference between the 

findings necessary for adjudging Appellant “guilty” of felony DWI versus misdemeanor A or B 

DWI is in the number of prior DWI convictions the jury believed the State proved beyond a 

reasonable doubt (two, one, or zero). See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (West 2023).

Pertaining to Appellant’s prior DWI convictions, the State introduced a judgment on plea 

of “guilty” from the Smith County Court at Law No. 2 in cause number 86265-A, signed on May 

17, 1990. The information in cause number 86265-A alleged that “Michael Wayne McKinney” 

operated a motor vehicle while intoxicated on or about December 2, 1989. Appellant objected to 

the admission of this exhibit because the surname of the individual convicted was spelled 

differently than his own; the trial court overruled this objection. 

The State then introduced a judgment of plea of “guilty” from the Smith County Court at 

Law No. 3 in cause number 003-82179-16, signed on November 1, 2016, wherein Appellant 

pleaded “guilty” to the misdemeanor offense of “Driving While Intoxicated 2nd.” The 

information and complaint in cause number 003-82179-16 alleged that Appellant operated a 

motor vehicle while intoxicated on or about June 13, 2016, and further alleged that 

[P]rior to the commission of the aforesaid offense by the said MICHAEL MCKENNEY 

on the 2nd day of December, 1989 in the County Court at Law 2, Smith County, Texas in 

Cause number 86265A the said MICHAEL MCKENNEY was convicted of the offense 

of driving and operating a motor vehicle in a public place while intoxicated, a 

misdemeanor and said conviction became final prior to the commission of the aforesaid 

offense.

The record includes a copy of the written plea admonishments and guilty plea in cause number 

003-82179-16, signed by Appellant, his counsel, and the prosecutor. The judgment included a 

form purporting to bear the print of Appellant’s right index finger. Detective Travis Breazeale of 

the Smith County Sheriff’s Department, a crime scene investigator trained in advanced 
11 

fingerprint analysis, testified that he personally obtained Appellant’s fingerprints on a ten-print 

card, and that the print on the form matched the print of Appellant’s index finger on that ten-print 

card. Further, the date of birth on the criminal docket in cause number 86265-A matched the 

date of birth given by Appellant for the preparation of the ten-print card and the date of birth on 

the complaint in cause number 003-82179-16. 

It is axiomatic that “a plea of guilty actually constitutes an admission to the accusation.” 

Hughes v. State, 390 S.W.3d 700, 702 (Tex. App.—Amarillo 2012, no pet.) (citing Dees v. 

State, 676 S.W.2d 403, 404 (Tex. Crim. App. 1984)) (plea of guilty or nolo contendere admits 

each element of the offense charged in a misdemeanor case). The fingerprint evidence supported 

a finding that Appellant was convicted of a DWI offense in 2016, and the 2016 offense for 

“Driving While Intoxicated 2nd” contained as an element Appellant’s 1990 final conviction for 

DWI. See Ramirez v. State, 139 S.W.3d 731, 732 (Tex. App.—Fort Worth 2004, pet. ref’d) 

(citing Gibson v. State, 995 S.W.2d 693, 696 (Tex. Crim. App. 1999)) (allegations of prior DWI 

convictions in an indictment are allegations of elements of the offense). Appellant’s “guilty” 

plea in cause number 003-82179-16 was therefore an admission to his conviction in cause 

number 86265-A. See Dees, 676 S.W.2d at 404. 

For the foregoing reasons, the State’s evidentiary case against Appellant, particularly 

pertaining to the contested prior DWI convictions, was strong, and Appellant’s sole defense (that 

the misspelling of his surname on one of the judgments rendered it inadmissible) was 

comparatively weak. Therefore, we conclude that the state of the evidence in the instant case 

weighs against a conclusion that Appellant was denied a fair and impartial trial.

Other Relevant Information 

In examining the fourth factor, which accounts for any other relevant information 

contained in the record, we note the absence in the record of any message from the jury during 

deliberations expressing confusion or requesting clarification as to the lesser-included offenses’ 

role in said deliberations. See Gelinas v. State, 398 S.W.3d 703, 709 (Tex. Crim. App. 2013); 

Flores v. State, 513 S.W.3d 146, 161 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). This 

suggests that the jury was not confused by the charge. 

Moreover, there exists a line of Texas jurisprudence holding that “any error in the 

submission of a lesser-included offense is not reversible when the jury has found the accused 

guilty of the greater offense.” Campbell v. State, 227 S.W.3d 326, 330 (Tex. App.—Houston 
12 

[1st Dist.] 2007, no pet.) (citing O’Pry v. State, 642 S.W.2d 748, 765 (Tex. Crim. App. 1982)); 

Thomas v. State, 587 S.W.2d 707, 708–09 (Tex. Crim. App. 1979); DeRusse v. State, 579 

S.W.2d 224, 233 (Tex. Crim. App. 1979); see also Parson v. State, 193 S.W.3d 116, 127 (Tex. 

App.—Texarkana 2006, pet. ref’d) (“The jury found in both cases that Parson was guilty of the 

higher crime under a charge correctly requiring the State to prove guilt beyond a reasonable 

doubt and thus did not need to go on to the portion of the charge involving the lesser-included 

offenses.”). “The rationale for this line of cases is that, once the jury convicts an accused of the 

greater offense charged, having been properly charged as to that offense, it has no occasion to 

consider whether Appellant might be guilty of the lesser-included offense.” Campbell, 227 

S.W.3d at 330. This rationale is similarly applicable to the instant case—the jury, having found 

Appellant “guilty” of the greater offense of felony DWI beyond a reasonable doubt, had no 

occasion to consider the portion of the charge of which Appellant complains. In light of the 

jury’s ultimate decision to convict Appellant of the greater offense, we believe it probable that 

the jury resolved the issue in accordance with the law. This factor, too, weighs in favor of 

finding no egregious harm. 

Summation

Having considered the entirety of the jury charge, the arguments of counsel, and the state 

of the evidence, we conclude that these factors, considered together, do not weigh in favor of a 

conclusion that Appellant was denied a fair and impartial trial. Accordingly, we hold that 

Appellant did not suffer actual (rather than theoretical) egregious harm and overrule Appellant’s 

second issue. 

DISPOSITION

Having overruled both of Appellant’s issues, we affirm the judgment of the trial court. 

GREG NEELEY

Justice

Opinion delivered July 24, 2024. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT 

JULY 24, 2024 

NO. 12-23-00277-CR

MICHAEL WAYNE MCKENNEY, 

Appellant 

V.

THE STATE OF TEXAS, 

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-1201-21) 

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment. 

It is therefore ORDERED, ADJUDGED, and DECREED that the 

judgment of the court below be in all things affirmed, and that this decision be certified to the 

court below for observance.

Greg Neeley, Justice. 

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.