AFFIRM as modified; Opinion issued April 9, 2013

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00325-CR

No. 05-12-00326-CR

CEDRIC MONK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 3

Dallas County, Texas

Trial Court Cause Nos. F05-50150-J and F11-55331-J

MEMORANDUM OPINION

Before Justices Lang-Miers, Murphy, and Fillmore 

Opinion by Justice Lang-Miers

Cedric Monk appeals his conviction for aggravated assault with a deadly weapon in case 

no. 05-12-00326-CR and the adjudication of his guilt in an earlier aggravated assault in case no. 

05-12-00325-CR. Appellant challenges the sufficiency of the evidence in both cases and also 

argues that the trial court committed charge error in the most recent case. We affirm the 

judgment in case no. 05-12-00325-CR. We modify the trial court’s judgment in case no. 05-12-

00326-CR to add a deadly weapon finding and affirm the judgment as modified. We issue this 

memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be 

applied in the case is well settled.

BACKGROUND

Appellant pleaded guilty to aggravated assault with a deadly weapon, a knife, committed 

in 2005 against his brother Lester Monk (case no. 05-12-00325-CR). The trial court deferred a 
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finding of guilt and placed appellant on community supervision for five years. The next year the

trial court extended the period of community supervision by two years until August 2012. In 

May 2011, the State indicted appellant for aggravated assault with a deadly weapon, a brick, 

against his brother Kelly Monk (case no. 05-12-00326-CR), and moved to adjudicate appellant’s 

guilt in the earlier aggravated assault case alleging appellant violated a condition of his 

community supervision by committing another offense. Appellant pleaded not guilty to the 2011 

aggravated assault and not true to the violation of a condition of community supervision in the 

2005 aggravated assault case. A jury convicted appellant in the 2011 aggravated assault case and 

assessed punishment at 60 years’ imprisonment. Following the rendition of judgment in that

case, the trial court adjudicated appellant’s guilt in the earlier case and assessed punishment at 20 

years’ imprisonment. These appeals followed.

SUFFICIENCY OF THE EVIDENCE

In case no. 05-12-00326-CR, the State charged appellant by indictment with 

intentionally, knowingly, and recklessly causing serious bodily injury to Kelly Monk, appellant’s 

brother, by striking Kelly with a brick. The State alleged that the brick was a deadly weapon and

that appellant was a member of Kelly’s family and household. Appellant argues that the evidence 

is insufficient to support the jury’s verdict.

Standard of Review

We analyze a challenge to the sufficiency of the evidence by viewing the evidence in the 

light most favorable to the verdict and determining whether the jury rationally found the essential 

elements of the offense beyond a reasonable doubt.1 Wise v. State, 364 S.W.3d 900, 903 (Tex. 

 1 The State contends that appellant inadequately briefed this issue because he cited only the standard of review for factual sufficiency, 

which the Texas Court of Criminal Appeals rejected in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) (plurality opinion) (overruling 
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Crim. App. 2012). A jury is free to believe all, some, or none of the witnesses’ testimony. See

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). When the evidence is 

conflicting and jurors could resolve the evidence either way, we presume the jury resolved the 

conflicts in favor of their verdict. See Brooks v. State, 323 S.W.3d 893, 922 (Tex. Crim. App. 

2010) (plurality opinion). 

Applicable Law

A person commits assault if the person intentionally, knowingly, or recklessly causes 

bodily injury to another. TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2011). A person commits 

aggravated assault if the person commits assault, causes serious bodily injury to another, and 

uses or exhibits a deadly weapon during the commission of the assault. Id. § 22.02(a)(2). 

The Evidence

Kelly testified that on the day of the incident he may have watched sports for a while and 

had a beer or two, then he went to his nephew’s barber shop to get a haircut. His younger 

brother, appellant, was there. Kelly asked his nephew for some money, and his nephew gave him 

$40. Kelly and appellant left the barber shop together in Kelly’s truck, stopped to buy beer, and 

went to the neighborhood where they used to live. Their house was no longer there because it 

burned, but they sat and talked in Kelly’s truck in front of the vacant lot. Kelly saw Charles 

Allen, who still lived in the neighborhood, sitting on a car nearby. At some point, appellant and 

Kelly’s conversation got louder. Kelly said appellant asked him for money several times, and 

Kelly refused because he needed the money to pay bills. The conversation was loud enough for 

the neighbors across the street to hear. Kelly told appellant to get out of the truck because Kelly

 Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)). We address the issue in the interest of justice. See Butler v. State, 872 S.W.2d 227, 237 

(Tex. Crim. App. 1994).
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had to leave. Appellant did not get out, so Kelly got out of the truck, walked around to the 

passenger door, opened the door, and asked appellant to get out of the truck. Appellant got out, 

and Kelly walked around the back of the truck toward the driver’s side. He did not see anyone

else in the area, just appellant and Allen. Kelly took two or three steps and then felt a heavy blow 

to the left side of his face. He woke up in a hospital. He said he did not have the $40, his watch, 

or his ring. 

Photographs of Kelly in the hospital showed significant injuries to both sides of his face. 

Kelly testified that he was in the hospital for fourteen days, but the medical records show he was 

discharged after seven days. He testified that he sustained nerve damage in his face, hearing loss, 

memory loss, and blurred vision.

Charles Allen testified that he has known appellant and Kelly about five years and lived 

next door to them until their house burned. He said he is on disability and has been diagnosed 

with depression, bipolar disorder, and schizophrenia, and that he sometimes “see[s] people and

hear[s] voices” when he does not take his medication. He explained his criminal history and said 

he committed those crimes when he was off his medications. Allen testified that he did not have 

any problems understanding what was going on or seeing and remembering things clearly and 

accurately. 

Allen testified that he was sitting on the hood of his uncle’s car when appellant and Kelly 

drove up in Kelly’s truck. Allen was about three car lengths away. Kelly’s truck windows were 

down and Allen could hear appellant and Kelly yelling and arguing about beer and money. Then 

he saw Kelly get out of the truck, walk around to the passenger side, open the door, and tell 

appellant to get out. Appellant got out. Allen saw Kelly walk around the front of the truck. He 

saw appellant get a brick from the vacant lot and hit Kelly from behind. Kelly fell onto the street. 
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Appellant dragged Kelly to the sidewalk and hit him more than five times in the head with the 

brick. Allen asked appellant what he was doing and appellant said “stay out of it, it’s family 

business.” Allen told appellant to stop and he was calling the police. Appellant stopped and said 

he was leaving to get some beer. Allen saw appellant reach into Kelly’s pocket for money. A 

man named “Rick” walked up and drove Kelly’s truck around the block to his house and gave

the keys to Allen’s aunt, Dorothy Allen, also known as Miss Louise. Allen said he could tell that 

both appellant and Kelly had been drinking.

Dorothy Allen testified that she was told people were fighting and she went outside to see 

what was happening. She saw appellant holding Kelly under the arms on the sidewalk, like he 

was trying to hold Kelly up. She said Kelly was bleeding out of his nose, his mouth and “this 

side over here was bleeding down his ear . . . .” She did not see anyone else at first, but then she

saw “Richard” walking toward them. She did not see any blood on Richard’s shirt. She went to 

the house to get water to pour on Kelly’s face. Appellant was still there when she got back. Kelly 

was unconscious. Appellant laid Kelly down and left before the ambulance arrived. Appellant 

came back later for the keys to Kelly’s truck, and she refused to give him the keys.

Dr. James Carroll testified that he is the head of the trauma team at Baylor Medical 

Center and was the responding physician on Kelly’s case. He said Kelly had a moderate head 

injury, a laceration above the left eyebrow, “lots of swelling and abrasions, more on the right 

side,” and multiple facial fractures that had to be repaired surgically. Dr. Carroll testified that 

injuries like Kelly’s could result in hearing loss, memory loss, facial nerve damage, blurred 

vision, and change in behavior. He said based on the injuries he observed in Kelly, a brick would 

qualify as a deadly weapon.
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Appellant testified in his defense and gave a different account of the events of that day. 

He said he and Kelly were not at the barber shop together; he said they went to another brother’s 

house around noon where Kelly and the other brother drank cognac and beer for about an hour, 

and Kelly borrowed $50 from that other brother. Then appellant and Kelly met later that evening 

at the vacant lot where they used to live. They sat in Kelly’s truck and each drank a 24-ounce 

beer. Then two guys walked up and asked Kelly about money Kelly owed them. Appellant got 

out of the truck and went to the vacant lot to use the restroom. He saw one of the guys hit Kelly 

with a brick and take off running. Kelly was still in the truck when he was hit. Appellant said he 

did not know the guys and had never seen them before. He said “Ricky” was not one of the two 

guys, but that Ricky was there and saw the incident. He also said he knew Charles Allen, and 

Allen may have been one of the guys. Appellant said the hit was not that severe, and Kelly “was 

still talking and still trashing the guy.” Appellant said Kelly was hit once with the brick and then 

fell to the concrete, and that it was Kelly’s fault that he got hit with a brick.

Appellant testified that he held Kelly in his arms and asked Miss Louise to get some 

water and call the ambulance. He said “[a]ll I did was show brotherly love to help him. I would 

never hurt my brother in that situation.” He admitted, however, that he spent three years in prison 

and five years on probation in two separate aggravated assaults of another brother. Appellant 

admitted that he left Kelly before the ambulance arrived; he said he had to borrow money from a 

friend. He said he went back to get the keys to Kelly’s truck, but Miss Louise refused to give the 

keys to him. 

Appellant also said he is right-handed and could not have hit Kelly with his left hand 

because he had a finger on the left hand amputated a couple of months before this incident. 
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Appellant explained that he lost his finger when he was playing a game called “who point the 

finger in your face we’ll knock it off” and the other guy bit his finger off. 

Discussion

Appellant argues that the evidence is insufficient to convict him. He argues that Kelly did 

not see who hit him, and Kelly’s testimony about what happened was unreliable and conflicting

because of his memory loss. Appellant argues that Allen’s testimony was also unreliable because 

he suffered from depression, bipolar disorder, and schizophrenia and “sees people.” And 

appellant argues that he could not have held a brick in his left hand because of his finger loss.

We conclude that the evidence is sufficient to support the conviction. Allen, an 

eyewitness who had known appellant and Kelly for years, saw and heard appellant and Kelly 

arguing over beer and money. Allen saw them get out of the truck and saw appellant hit Kelly in 

the head with a brick. Allen said he, appellant, and Kelly were the only ones in the area when the 

incident occurred. Allen and his aunt testified that Richard (Rick, Ricky) walked up after the 

incident, drove Kelly’s truck around the block, and gave the keys to Allen’s aunt. 

On the other hand, appellant said two strange men approached Kelly about money Kelly 

owed them. Appellant said he got out of the truck and went to the vacant lot to use the restroom, 

and that is when he saw one of those men hit Kelly in the head with a brick while Kelly was 

sitting in the truck. Appellant said Ricky was already there and saw the incident. At one point 

appellant said he did not know the two men and had never seen them before, but then he said 

Allen could have been one of the two men.

The jury was free to believe all, none, or any portion of any of the witnesses’ testimony. 

See Wesbrook, 29 S.W.3d at 111. Because the evidence supports conflicting views, we presume 

the jury resolved the conflicts in favor of their verdict. See Brooks, 323 S.W.3d at 922. Viewed 
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in the appropriate light, we conclude that the evidence was sufficient to support the conviction.

We resolve appellant’s first issue in case no. 05-12-00326-CR against him.

In his sole issue in case no. 05-12-00325-CR, appellant argues that the trial court’s 

finding that he violated the conditions of probation by committing another offense must be set 

aside because the evidence is insufficient to show he committed aggravated assault against Kelly.

Having found the evidence sufficient to support the conviction, we resolve this issue against 

appellant.

JURY CHARGE

Appellant also complains about two alleged errors in the jury charge in case no. 05-12-

00326-CR. He first complains that the guilt/innocence charge did not define certain terms, and he 

next complains that the punishment charge did not instruct the jury on the proper range of 

punishment. 

Appellant concedes that he did not object to the jury charge. Consequently, he must show 

he suffered egregious harm as the result of any error. Almanza v. State, 686 S.W.2d 157, 171–72 

(Tex. Crim. App. 1985) (op. on reh’g). That is, appellant must show that the error deprived him 

of a fair and impartial trial. Id. at 172. We assess harm in light of the entire jury charge; the state 

of the evidence, including contested issues and the weight of the probative evidence; the 

arguments of counsel; and any other relevant information revealed by the record as a whole. 

Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). 

Failure to Define Terms

Appellant argues that the charge should have defined “family” and “household.” He

argues that “[t]he purpose for alleging the family relationship in the indictment was to increase 

the available punishment range” and the “effect of alleging the family and household relationship 
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resulted in an enhanced punishment, increasing the offense to a first degree.” Appellant argues 

that he suffered egregious harm because the allegation increased the punishment range from a

second-degree felony to a first-degree felony.

The trial court submitted two charges: one in the guilt/innocence phase and one in the 

punishment phase. In the charge on guilt/innocence, the jury was asked whether appellant 

committed aggravated assault and whether appellant was a member of Kelly’s family or 

household at the time. The charge did not define “family” or “household.” As appellant 

concedes, the purpose of alleging family violence is to increase the range of punishment. See

TEX. PENAL CODE ANN. § 22.02(b). But appellant does not explain why the failure to define 

those terms in the charge on guilt/innocence caused him egregious harm. Additionally, the 

court’s punishment charge did define those terms, and appellant does not complain about those 

definitions or the punishment charge itself. 

The punishment charge also authorized the jury to convict appellant as a repeat and 

habitual offender with a minimum punishment of 25 years if it found the allegations in the

enhancement paragraphs true. See id. § 12.42(d) (West Supp. 2012). The jury found the 

allegations true. Consequently, the punishment range that applied to appellant was that for a 

repeat and habitual offender, whether or not the jury also concluded that appellant was a member 

of Kelly’s family or household. 

Under these circumstances, we cannot conclude that appellant suffered egregious harm 

because the trial court did not define “family” and “household” in the guilt/innocence charge. 

We resolve issue two against appellant.
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Failure to Instruct on Full Range of Punishment

In his third issue, appellant argues that the punishment charge did not instruct the jury on 

the proper range of punishment if the jury found the allegations in the first and second 

enhancement paragraphs true because it instructed the jury that the applicable punishment was 

life and did not allow the jury to assess a term of years less than life. The State argues that the 

charge in the clerk’s record, upon which appellant’s argument depends, is missing a page. It 

argues that the reporter’s record contains the entire punishment charge as read to the jury. We 

agree with the State.

The clerk’s record contains a punishment charge that skips from page three to page five. 

Page three of the punishment charge ends in mid-sentence, and page five does not complete the 

sentence from page three. Clearly the mistake was not a page numbering mistake, but rather the 

clerk’s record is missing page four. However, when the trial court read the entire punishment 

charge to the jury, the court reporter recorded the reading verbatim. The reporter’s record

contains that verbatim transcript and it shows that the trial court read the full range of 

punishment to the jury. 

Additionally, the punishment charge contains eight different verdict forms depending on 

whether the jury made a finding of family violence and found one, both, or none of the 

allegations in the enhancement paragraphs true. None of those eight verdict forms gave the jury 

the option of imposing only a sentence of life. Instead, they all included the option of imposing a 

sentence of less than life. 

We conclude that appellant has not shown the charge contained error or, if it did, he was 

egregiously harmed. We resolve issue three in case no. 05-12-00326-CR against appellant.
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STATE’S CROSS-APPEAL ISSUE

In a cross-appeal issue, the State argues that the judgment in case no. 05-12-00326-CR 

should be reformed to reflect the jury’s finding that appellant used a deadly weapon during the 

commission of the offense. We agree. 

The Texas Code of Criminal Procedure requires the trial court to enter a deadly weapon 

finding in its judgment when the jury makes an affirmative finding of the use of a deadly 

weapon. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2012). An 

affirmative finding is made when the indictment alleges that a deadly weapon was used and the 

jury finds the defendant guilty “as charged in the indictment.” See Polk v. State, 693 S.W.2d 391, 

394 (Tex. Crim. App. 1985). 

The indictment charged appellant with aggravated assault and the use of a deadly 

weapon, a brick, during the commission of the offense. The jury found appellant guilty of 

aggravated assault “as charged in the indictment.” Consequently, we modify the judgment in 

case no. 05-12-00326-CR to delete the “N/A” under “Findings on Deadly Weapon” and insert 

“Yes.” 

CONCLUSION

We affirm the trial court’s judgment in case no. 05-12-00325-CR. We modify the trial 

court’s judgment in case no. 05-12-00326-CR to reflect a finding of the use of a deadly weapon 

and affirm as modified. 

Do Not Publish

TEX R. APP. P. 47

120325F.U05

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

CEDRIC MONK, Appellant

No. 05-12-00325-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 3, Dallas County, Texas

Trial Court Cause No. F05-50150-J.

Opinion delivered by Justice Lang-Miers, 

Justices Murphy and Fillmore participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered April 9, 2013.

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

CEDRIC MONK, Appellant

No. 05-12-00326-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 3, Dallas County, Texas

Trial Court Cause No. F11-55331-J.

Opinion delivered by Justice Lang-Miers, 

Justices Murphy and Fillmore participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows:

The “N/A” under “Findings on Deadly Weapon” is deleted and “Yes” is inserted.

As REFORMED, the judgment is AFFIRMED.

Judgment entered April 9, 2013.

/Elizabeth Lang-Miers/

ELIZABETH LANG-MIERS

JUSTICE