In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00051-CR

JEFFREY MONK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd District Court

Bowie County, Texas

Trial Court No. 17-F-0013-102

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

In Jeffrey Monk’s trial on a charge of terroristic threat,

1 he did not object to the jury charge. 

After Monk’s conviction, he appeals, claiming reversible error in the trial court’s jury instruction 

that the jury should “confine [its] deliberations solely and strictly to [Monk’s] guilt or innocence.” 

Monk argues that the instruction improperly shifted the burden of proof, requiring him to prove 

his own innocence. Because we disagree, we affirm the trial court’s judgment.

We employ a two-step process in our review of alleged jury charge error. See Abdnor v. 

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error 

occurred and then evaluate whether sufficient harm resulted from the error to require reversal.” 

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 

S.W.2d at 731–32).

“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the 

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). “A trial 

court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d

915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art. 

36.14 (West 2007)). “The purpose of the jury charge . . . is to inform the jury of the applicable law 

and guide them in its application. It is not the function of the charge merely to avoid misleading 

or confusing the jury: it is the function of the charge to lead and prevent confusion.” Id. (quoting 

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

 1

See TEX. PENAL CODE ANN. § 22.07(6) (West Supp. 2018). The prosecution alleged Monk threatened to murder 

someone with the intent of influencing the conduct or activities of the United States Social Security Administration in 

Texarkana. 
3

Monk complains of this instruction in the jury charge: “At this stage of the proceeding you 

will confine your deliberations solely and strictly to the guilt or innocence of this defendant, and 

you will not under any circumstances discuss the possibility of punishment.”2 (Emphasis added.)

We find no error in the court’s charge.

“In all criminal cases . . . tried before a jury on a plea of not guilty, the judge shall . . . 

submit to the jury the issue of guilt or innocence of the defendant of the offense or offenses charged

. . .” TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(a) (West Supp. 2018). That is essentially what 

the challenged instruction did, while the rest of the charge included language making clear that the 

State bore the burden of proof. The jury was instructed it could find Monk guilty of the charged 

offense only on a finding of all the alleged elements beyond a reasonable doubt. Failing that, the 

jury was to find Monk not guilty and consider a lesser-included offense. It was further 

admonished, “All persons are presumed innocent, and no person may be convicted of an offense 

unless each element of the offense is proved beyond a reasonable doubt.” The instruction added 

that the “burden of proof in all criminal cases rests on the State throughout the course of the trial 

and never shifts to the defendant.” Reading the entire charge in context, it is clear the jury was 

instructed on the law applicable to the case.3 The jury, presumed to follow instructions from the 

trial court, could not have convicted Monk without finding that the State met its burden by proving 

every element of the charged offense beyond a reasonable doubt. The charge did not shift the 

burden to Monk to prove anything, much less his innocence. 

 2

The italicized language is the source of Monk’s complaint. We present the entire sentence for the sake of context.

 

3

See TEX. CODE CRIM. PROC. ANN. art. 36.14.
4

Monk’s argument, or a close facsimile, has been rejected by at least two of our sister courts. 

See Avila v. State, 15 S.W.3d 568, 575–77 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Flores 

v. State, 920 S.W.2d 347, 356–57 (Tex. App.—San Antonio 1996, pet. dism’d); Barnes v. State, 

855 S.W.2d 173, 175 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). In each of these cases,

the reviewing court noted the similarity between the language charging the jury to “determine the 

guilt or innocence”4 of the accused and the text of Article 37.07, Section 2(a), of the Texas Code 

of Criminal Procedure, as well as the presence of other language in the charge noting the State’s 

burden of proof beyond a reasonable doubt and the defendant’s presumption of innocence. Avila, 

15 S.W.3d at 576; Flores, 920 S.W.2d at 357; Barnes, 855 S.W.2d at 175. Each of the three 

decisions found no error in the applicable jury charge. Avila, 15 S.W.3d at 577; Flores, 920 

S.W.2d at 357; Barnes, 855 S.W.2d at 175.

Here, the language instructing the jury to determine Monk’s guilt or innocence is consistent 

with the language in the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.

art. 37.07, § 2(a). The charge clearly provided that the jury could convict Monk only if it was 

unanimous in finding that all elements of the charged offense were proven beyond a reasonable 

doubt. And the charge instructed the jury, “All persons are presumed to be innocent, and no person 

may be convicted of an offense unless each element of the offense is proved beyond a reasonable 

doubt.” It added, “The burden of proof in all criminal cases rests on the State throughout the course 

of the trial and never shifts to the defendant.” There was no error in the trial court’s charge.

 4

Avila, 15 S.W.3d at 575; Flores, 920 S.W.2d at 356; Barnes, 855 S.W.2d at 175.
5

Monk acknowledges the above holdings of our sister courts. He attempts to distinguish 

those holdings by arguing that, after those cases were decided, the Texas Criminal Pattern Jury 

Charges were amended in 2011.5 He cites or quotes at length from the pattern jury charges. He 

finds error in the following differences between the pattern jury charges’ suggested language 

versus that found in the trial court’s charge. He argues that the trial court should have told the jury 

its “sole duty . . . [was] to determine whether the defendant [had] been proved guilty.” See STATE 

BAR OF TEXAS, TEXAS CRIMINAL PATTERN JURY CHARGES—CRIMES AGAINST PERSONS § C2.1

(2011). Similarly, he complains that the trial court’s charge did not tell the jury that its verdict 

must either be guilty or not guilty. Id. at 35.

Monk also takes issue with the trial court’s language regarding the presumption of 

innocence. The trial court instructed as follows:

All persons are presumed to be innocent, and no person may be convicted of an 

offense unless each element is proved beyond a reasonable doubt. The fact that a 

person has been arrested, confined, indicted for, or otherwise charged with, the 

offense give rise to no inference of guilt at his trial.

A grand jury indictment is the means whereby a defendant is brought to trial in a 

felony prosecution. It is not evidence of guilt nor can it be considered by you in 

passing on the issue of guilt by the defendant. The burden of proof in all criminal 

cases rests on the State throughout the course of the trial and never shifts to the 

defendant.

 

The pattern jury charge would instruct as follows:

The defendant is presumed innocent of the charge. All persons are presumed to be 

innocent, and no person may be convicted of an offense unless each element of the 

offense is proved beyond a reasonable doubt. The law does not require a defendant 

to prove his innocence or produce any evidence at all. Unless the jurors are satisfied 

 5

STATE BAR OF TEXAS, TEXAS CRIMINAL PATTERN JURY CHARGES—CRIMES AGAINST PERSONS §§ C1.6.1; C2.1 

(2011).
6

beyond a reasonable doubt of the defendant’s guilt after careful and impartial 

consideration of all the evidence in the case, the presumption of innocence alone is 

sufficient to acquit the defendant.

STATE BAR OF TEXAS, TEXAS CRIMINAL PATTERN JURY CHARGES—CRIMES AGAINST PERSONS 

§ C2.1 (2011).

Other than pointing out the above language difference, Monk provides no authority to 

compel a finding that the trial court erred in any of the language it used in instructing the jury.6

 

We find the language differences to be immaterial. Reviewing the charge as a whole, we find that 

it authorizes “a conviction under conditions specified by other [abstract] paragraphs of the jury 

charge to which the application paragraph necessarily and unambiguously refers.” Plata v. State,

926 S.W.2d 300, 304 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 

S.W.2d 234 (Tex. Crim. App. 1997).

Since the trial court did not err as Monk asserts, there is no need of a harm analysis. We 

overrule Monk’s point of error and affirm the trial court’s judgment.

Josh R. Morriss, III 

Chief Justice

Date Submitted: September 19, 2018

Date Decided: October 12, 2018

Do Not Publish

 6

Although of great assistance, the pattern jury charges do not carry the weight of law; they are secondary sources. See 

Burk Royalty Co. v. Walls, 616 S.W.2d 911, 920 n.7 (Tex. 1981); H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 

199 (Tex. App.—San Antonio 1996), aff ‘d, 985 S.W.2d 22 (Tex. July 14, 1998).