Eric Lon Jones v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-24-00463-CR


                                    Eric Lon Jones, Appellant

                                                 v.

                                  The State of Texas, Appellee


             FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY
      NO. 22-0866-K26, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING



                                          OPINION


               A jury found appellant Eric Lon Jones guilty of delivery of a controlled substance—

methamphetamine—in an amount greater than four grams but fewer than 200 grams and assessed

his punishment at forty-five years’ confinement and a $10,000 fine. See Tex. Health & Safety

Code §§ 481.102(6), .112(a), (d). The trial court sentenced Jones in accordance with the jury’s

verdict. In a single issue on appeal, Jones contends that the trial court committed jury-charge error

by failing to (1) include a venue instruction under article 13.04 of the Code of Criminal Procedure

and (2) define “preponderance of the evidence” as used in the court’s venue instruction. See Tex.

Code Crim. Proc. art. 13.04, repealed by Act of June 12, 2023, 88th Leg., R.S., ch. 765, § 3.001(6),

2023 Tex. Gen. Laws 1837, 1974 (current version at Tex. Code Crim. Proc. art. 13A.053). 1 We




       1
        Effective January 1, 2025, after Jones’s trial, the Legislature repealed chapter 13 of the
Code of Criminal Procedure and, with minor substantive changes, moved the venue statutes to
conclude that the trial court’s charge was not erroneous and affirm the trial court’s nunc pro tunc

judgment of conviction.2


                                        BACKGROUND

               The indictment in this case arose from a controlled drug buy involving an

undercover officer with the Texas Department of Public Safety (DPS). The controlled buy took

place inside an undercover police vehicle in the parking lot of a Target near the boundary between

Travis County and Williamson County. The State’s witnesses included Tyler Watson, the

now-retired undercover officer; DPS Lieutenant Ricardo Soforo, who participated in the operation

and observed the controlled buy from a distance; and Kiersten Drake, a DPS seized-drug analyst.

Jones did not call any witnesses during his case-in-chief.          The State’s exhibits included

photographs of the controlled buy, a recording of a phone call between Watson and Jones, and

images from Google Maps—including both a road map and a satellite view—of the area in which

the buy occurred; a line depicting the counties’ border was overlaid on both images.




their current location in chapter 13A. Unless otherwise indicated, we refer to the statutory versions
in effect before these changes.
       2
        The trial court issued a nunc pro tunc judgment on July 19, 2024, in which it deleted an
assessment of $475 in court costs.
                                                 2
       3




               Shown the road map, Watson testified that “south of that red line would be Travis

County. North of that dotted line would be Williamson County.” He agreed that he had parked

the undercover vehicle in the “Williamson County area of th[e] parking lot” and explained, “There

is a lot that goes into the planning and where the . . . undercover officer is going to park, and we



       3
         We have excised the central portion of the satellite-view image of the parking lot in
which the controlled buy occurred. At the top-left of the image is a Navy Federal Credit Union
bank branch. The Target is visible on the image’s far right.
                                                 3
planned to park within those lines. Yes. We looked at a map similar to that.” In his phone

conversation with Jones, which was recorded just before the controlled buy, Watson told Jones

that he was parked “kind of towards the bank,” in apparent reference to the Navy Federal Credit

Union at the top-left of the above image.

               On cross-examination, Watson confirmed that it was “a conscious decision” to

arrange the controlled buy in Williamson County, testifying “I know it’s Williamson County, and

I know that’s where we planned to have the buy at.” Asked about Williamson County’s reputation

for “tougher sanctions” and “tougher punishments for this type of crime than Travis County,”

Watson testified:


       I know where you’re trying to get to with Travis County and Williamson County
       . . . . I think that there is a reputation out there that there is harsher punishment,
       maybe, in Williamson County. I don’t know. That’s a reputation that I’ve heard
       on the street . . . . I’ve heard that Williamson County is tougher on crime than other
       counties and—but that’s the reputation that I’ve heard.


               Lieutenant Soforo likewise testified about the location of the controlled buy, which

he estimated was “two or three parking lot spaces into Wilco [Williamson County]” and “sort of

in this area just to the north of the red line,” which demarcated the border between Williamson

County (north) and Travis County (south). The lines on both maps were “true and correct

approximation[s] of the difference between Travis and Williamson Count[ies].”             Although

Lieutenant Soforo, who was in a vehicle “in the Target parking lot but a little bit more south,”

could not remember which county he had been in, he testified that Watson had been in Williamson

County, a determination Lieutenant Soforo was able to confirm in part from looking at the

photographs admitted into evidence.




                                                 4
                 Like Watson, Lieutenant Soforo agreed that the decision to hold the controlled buy

in Williamson County had been intentional, testifying, “So we were working with Round Rock

[Police Department], so they’re very familiar with the county lines. And so we looked at the map,

and we confirmed that that was Williamson County.” He also agreed that the decision was

“important for a number of reasons,” including to ensure that charges were filed in the

proper county.

                 In language tracking article 13.17 of the Code of Criminal Procedure, the

guilt-innocence jury charge included the following instruction regarding venue:


       You are instructed that the indictment may allege the offense was committed in the
       county where the prosecution is carried on. To sustain the allegation of venue, it
       shall only be necessary to prove by the preponderance of the evidence that by
       reason of the facts in the case, the county where such prosecution is carried on
       has venue.


                 The jury was instructed that it must find Jones guilty if it found beyond a reasonable

doubt “that in Williamson County, Texas, on or about the 1st day of April 2022, [he], did then and

there knowingly deliver, by actual transfer, to SA [Special Agent] Watson, a controlled substance,

namely, methamphetamine, in an amount of four grams or more but less than 200 grams.”


                                             DISCUSSION

I.     Standard of Review

                 A trial court is statutorily obligated to instruct the jury on the “law applicable to the

case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim.

App. 2018). The jury charge should tell the jury what law applies and how it applies to the case.

Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). The trial court’s duty to instruct

the jury on the law applicable to the case exists even when defense counsel fails to object to

                                                    5
inclusions or exclusions in the charge. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App.

2013). The trial court is “‘ultimately responsible for the accuracy of the jury charge and

accompanying instructions.’” Mendez, 545 S.W.3d at 552 (quoting Delgado, 235 S.W.3d at 249).

                   We review alleged jury-charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). If there is no charge error, we

need not conduct a harm analysis. See Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013)

(plurality op.).


II.     Article 13.04 Venue Instruction

                   Jones first contends that the trial court erred by failing “to include [an article] 13.04

instruction as part of its venue instruction.” He argues that because the evidence “did not

sufficiently establish that the offense occurred more than four hundred yards into Williamson

County,” an article 13.04 instruction was necessary “for the jury to be authorized to find the [S]tate

proved venue by a preponderance of the evidence.”

                   “Venue means the place where the case may be tried.” State v. Blankenship,

170 S.W.3d 676, 681 (Tex. App.—Austin 2005, pet. ref’d). Because it is not a “criminative fact”

or element of any offense, venue need be proved by the State only by a preponderance of the

evidence and not beyond a reasonable doubt. Schmutz v. State, 440 S.W.3d 29, 34 (Tex. Crim.

App. 2014). At the time of Jones’s trial, venue was governed by chapter 13 of the Code of Criminal

Procedure. The general rule provided that “[i]f venue is not specifically stated, the proper county

for the prosecution of offenses is that in which the offense was committed.” Tex. Code Crim.

Proc. art. 13.18; cf. id. art. 13.17. However, the Legislature has enacted special venue statutes,


                                                      6
which “as a general matter, exist to ‘expand the number of counties in which an offense may be

prosecuted’ rather than restricting them.” Schmutz, 440 S.W.3d at 41 (quoting Soliz v. State,

97 S.W.3d 137, 141 (Tex. Crim. App. 2003)). Some of the special venue statutes expressly apply

to identifiable penal code offenses; others—such as article 13.04—apply by virtue of the particular

facts of the case. Murphy v. State, 112 S.W.3d 592, 604 (Tex. Crim. App. 2003). Although “a

special venue provision will control over a general venue statute,” Trees v. State, 152 S.W.2d 361,

362 (Tex. Crim. App. 1941), the general venue statute is proper when there is no special venue

statute applicable to the charged offense, Schemm v. State, 228 S.W.3d 844, 845 (Tex. App.—

Austin 2007, pet. ref’d).

               Article 13.04 provided in relevant part that “[a]n offense committed on the

boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and

punished in any one of such counties.” Tex. Code Crim. Proc. art. 13.04; see id. art. 21.06 (“When

the offense may be prosecuted in either of two or more counties, the indictment may allege the

offense to have been committed in the county where the same is prosecuted, or in any county or

place where the offense was actually committed.”).

               The question before us is whether article 13.04 was part of the law applicable to the

case, such that the trial court erred by not sua sponte instructing the jury about the provision. See

id. art. 36.14; Vega, 394 S.W.3d at 519. The Court of Criminal Appeals has defined “the law

applicable to the case” as an instruction required by a rule or statute under the particular

circumstances of a case. Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). “Such

statutes and rules set out an implicit ‘If-then’ proposition: If the evidence raises an issue of

[voluntariness, accomplice witness, confidential informant, etc.], then the trial court shall instruct

the jury that [whatever the statute or rule requires].” Id. (brackets in original).

                                                   7
               We conclude that article 13.04 was not law applicable to this case. An article 13.04

instruction is not logically required when a charge is brought in the county in which an offense

was alleged to have occurred, and—as here—the evidence at trial that the offense occurred in the

county of prosecution is uncontroverted. The Court of Criminal Appeals has implicitly recognized

as much by explaining—in reference to a statutory predecessor of article 13.04—that the statute

merely provided the State with the option to bring the prosecution in either county and that the

State did not “exercise that option” unless the indictment showed “that the offense was committed

in one county and the prosecution conducted in another.” Parr v. State, 299 S.W.2d 940, 941 (Tex.

Crim. App. 1957). If an offense occurs within 400 yards of two or more counties, and the trial is

held in the same county as that in which the offense occurred, there is no need for an instruction

at variance with the general rule, and an article 13.04 instruction is both superfluous and potentially

confusing to jurors. See Meraz v. State, 415 S.W.3d 502, 506 (Tex. App.—San Antonio 2013, pet.

ref’d) (recognizing that “the State may always allege that the offense was committed in the county

where the prosecution is carried on”). Simply put, because the offense and prosecution in this case

undisputedly occurred in the same county, article 13.04 was not law applicable to the case, and the

trial court was not required sua sponte to issue an instruction regarding the statute; consequently,

the instruction’s omission was not error.       See Tex. Code Crim. Proc. art. 36.14; Mendez,

545 S.W.3d at 552; Vega, 394 S.W.3d at 519.


III.   “Preponderance of the Evidence” Definition

               Jones next contends that the trial court erred by failing to define “preponderance of

the evidence” in its charge. Specifically, he argues that the standard has a known and established




                                                  8
legal meaning and therefore falls within the exception to the general prohibition against defining

in a jury charge words that the Legislature has left undefined in statute.

               As noted above, the trial court gave an instruction tracking the language of article

13.17, which in relevant part required that “[t]o sustain the allegation of venue, it shall only be

necessary to prove by a preponderance of the evidence that by reason of the facts in the case, the

county where such prosecution is carried on has venue.” Tex. Code Crim. Proc. art. 13.17. “All

words, phrases and terms” used in the Code of Criminal Procedure “are to be taken and understood

in their usual acceptation in common language, except where specially defined.” Id. art. 3.01;

cf. Tex. Gov’t Code § 311.011 (providing that “[w]ords and phrases shall be read in context and

construed according to the rules of grammar and common usage” but that “[w]ords and phrases

that have acquired a technical or particular meaning, whether by legislative definition or otherwise,

shall be construed accordingly”). The term “preponderance of the evidence” is defined in neither

the Code of Criminal Procedure nor the Texas Penal Code.

               On one hand, definitions for terms that are not statutorily defined are not considered

to be the “applicable law” under article 36.14, and it is thus generally impermissible for the trial

court to define those terms in the jury instructions. Green v. State, 476 S.W.3d 440, 445 (Tex.

Crim. App. 2015); see Celis, 416 S.W.3d at 433 (“Non-statutory instructions, even when they are

neutral and relate to statutory offenses or defenses, generally have no place in the charge.”);

Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007) (“Normally, if the instruction is not

derived from the code, it is not ‘applicable law.’”). Consistent with article 36.14’s terms,

“jurors should be permitted to ‘freely read [undefined] statutory language to have any meaning

which is acceptable in common parlance.’” Green, 476 S.W.3d at 445 (quoting Kirsch v. State,

357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (brackets in original)).

                                                  9
               On the other hand, an exception to the general rule that it is impermissible to give

instructions on the meanings of terms that are not statutorily defined exists for “‘terms which have

a known and established legal meaning, or which have acquired a peculiar and appropriate

meaning in the law, as where the words used have a well-known common law meaning.’” Kirsch,

357 S.W.3d at 650 (quoting Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000)). “Such

terms are ‘considered as having been used in their technical sense,’ and, therefore, it is not error

for the trial court to include in its instructions ‘a precise, uniform definition’ to guide the jury’s

deliberations.” Green, 476 S.W.3d at 445. The need to define terms that have a technical legal

meaning is particularly acute when “there is a risk that the jurors may arbitrarily apply their own

personal definitions of the term or where a definition of the term is required to assure a fair

understanding of the evidence.” Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003).

               We have not found—and Jones has not provided—authority holding that a trial

court errs by failing to define “preponderance of the evidence” in a criminal jury charge. See

Campbell v. State, 125 S.W.3d 1, 10–11 (Tex. App.—Houston [14th Dist.] 2002, no pet.)

(emphasizing that appellant “does not cite any rules or cases requiring that his proposed definition

of preponderance be given in the charge, and our research has discovered none”). It is important

to distinguish this absence of authority from the existence of authorities—which Jones provides—

concluding that a trial court does not err when it opts to provide such a definition. See Green,

476 S.W.3d at 445 (concluding that “it is not error” to define terms with “a known and established

legal meaning”). In particular, he directs us to McGee v. State, in which the Court of Criminal

Appeals held only that a charge paragraph defining “preponderance of the evidence” was not

subject to the objections raised in the appellant’s bill of exceptions but in dicta stated that “it was

proper” to define the term, which had been used in the charge’s preceding paragraph. See

                                                  10
238 S.W.2d 707, 716 (Tex. Crim. App. 1950), superseded by statute on other grounds as

recognized by Manning v. State, 730 S.W.2d 744, 748–49 (Tex. Crim. App. 1987). 4 Cf. Paulson

v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000) (overruling requirement that trial courts

instruct juries on definition of “beyond a reasonable doubt” and finding that “the better practice is

to give no definition of reasonable doubt at all to the jury”).

               Moreover, we are unpersuaded that “preponderance of the evidence” has acquired

a technical legal meaning that is distinct from its meaning in common parlance. Jones posits that

the term means “the greater weight of credible evidence presented” or that a fact “is more likely

true than not true.” Yet this is precisely the term’s usual acceptation in common language, as

illustrated by the dictionary definitions of the term’s constituent words. See Ex parte Medellin,

223 S.W.3d 315, 349 (Tex. Crim. App. 2006) (explaining that to discern word’s “usual

acceptation . . . in common language or how it is construed according to the rules of common

usage, we look to dictionary definitions”), aff’d sub nom. Medellin v. Texas, 552 U.S. 491 (2008).

“Preponderance” means a “majority” or “a superiority in weight, power, importance, or

strength.” Preponderance,           Merriam-Webster               Dictionary,    available         at

https://www.merriam-webster.com/dictionary/preponderance (last accessed Apr. 21, 2026);



       4
          We do not read McGee to signify that the definition was required and that the trial court
would have erred by omitting it. Similarly, Jones references the Criminal Pattern Jury Charges, in
a comment to which the committee noted that “[t]he court of criminal appeals has not determined
whether ‘preponderance of the evidence’ qualifies under” the technical-meaning exception,
suggested that a definition “may be of appreciable help to jurors,” and concluded that “it would
not be error to define the term for jurors,” but stopped short of declaring that the definition’s
omission would constitute error. See, e.g., Comm. on Pattern Jury Charges, State Bar of Tex.,
Texas Criminal Pattern Jury Charges: General Defenses CPCJ 8.14 (2024); see also Mayo
v. State, 321 S.W.3d 576, 581 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (finding that
inclusion of definition for preponderance of evidence was “appropriate for a jury charge”).


                                                  11
see Preponderance,              Cambridge              Dictionary,            available            at

https://dictionary.cambridge.org/dictionary/english/preponderance (last accessed Apr. 21, 2026)

(“the largest part or greatest amount”).

               Our sister court has considered the term’s meaning and agrees that understanding

the term “preponderance of the evidence” does not pose any particular challenge for jurors. See

Campbell, 125 S.W.3d at 11 (determining that definition of “preponderance of the evidence” was

unnecessary because trial court’s definition of “clear and convincing evidence” directed jurors to

examine “credible evidence” and “the term ‘preponderance’ in general usage sufficiently denotes

the remainder of Campbell’s requested instruction”).

               Accordingly, because of the absence of authority to the contrary, because

“preponderance of the evidence” “may be interpreted according to its common usage,” and

because there is nothing in the record or in caselaw to suggest “a risk exists that jurors may

arbitrarily apply an inaccurate definition to the term” or that “an express definition is required to

assure a fair understanding of the evidence,” we conclude that the trial court did not err by not sua

sponte defining the term in this case. See Kirsch, 357 S.W.3d at 650; see also Mendez, 545 S.W.3d

at 552; Vega, 394 S.W.3d at 519.

               We overrule Jones’s sole issue on appeal.


                                           CONCLUSION

               Having overruled Jones’s only issue on appeal, we affirm the trial court’s nunc pro

tunc judgment of conviction.




                                                 12
                                             __________________________________________
                                             Maggie Ellis, Justice

Before Chief Justice Byrne, Justices Kelly and Ellis

Affirmed

Filed: April 24, 2026

Publish




                                               13