                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00094-CR



          RONNIE MONTALBANO, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 41041B




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                MEMORANDUM OPINION
        Ronnie Montalbano was convicted by a jury of aggravated assault causing bodily injuries

while using a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). Proof of

a previous conviction enhanced the punishment range to a first degree felony. The jury assessed

punishment at seventy-five years’ imprisonment. Montalbano contends that the evidence is

insufficient to support a finding that a deadly weapon was used. The indictment provided four

potential objects used by Montalbano as a deadly weapon: a flashlight, a multi-tool, a power

inverter (or converter) box, and/or a chain.

I.      Facts

        Virginia Oxsheer testified that on Sunday morning, October 16, 2011, a bruised, scared,

and beaten female appeared at her front door. Police were called and identified the person at

Oxsheer’s home as Haley Brook Oneil. Oneil reported that she had been beaten by Montalbano,

a recurrent boyfriend. She gave several responses about the items Montalbano used to cause her

injuries.   Common themes running through these several responses were Montalbano,

Montalbano and Oneil’s use of methamphetamine together, a drive into the country, and

Montalbano’s attack on Oneil. Montalbano admitted assaulting her with his hands but denied

using other objects.

        “Just to get out of the house,” Oneil went with Montalbano to take a ride in his pickup

truck. Montalbano immediately began using methampethamine and then, according to Oneil, hit

her with a Maglite. The two of them drove down an oil-lease road and had sex. Following that,

Montalbano struck Oneil with a chain wrapped around his fist. At some point during the drive,


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Montalbano told Oneil that he had been hired to kill her. Oneil testified that Montalbano hit her

several more times with an inverter/converter unit. Both of them used drugs while they were

together. Later, during the evening cruise, the vehicle Montalbano was driving ran out of fuel.

They entered a wooded area on foot. The exact sequence of events is unclear from the record,

but eventually Montalbano left Oneil in the woods, and she found her way to the home of

Oxsheer.

        Montalbano’s recitation of the events of the evening is substantially different.        He

testified that Oneil called him to pick her up, that she began throwing things at him, and that he

got angry, striking her several times, but only with his hands. He denied using a flashlight or any

object to strike her.

        Oneil’s testimony was not without some contradiction or conflict. The testimony of

Deputy Charles David Easterling established that when Oneil arrived at Oxsheer’s home, she

possessed a multi-tool, which was offered into evidence. According to Easterling, Oneil told

him that she had been struck with the multi-tool object; however, at trial, Oneil testified that she

did not recall being hit or threatened with it. Neither the power inverter/converter nor the

flashlight were introduced as evidence. A chain was recovered from Montalbano’s truck. No

attempt was made to obtain scientific evidence to connect any of the items with Montalbano.

        Deputy Douglas Morgan testified that Oneil’s injuries were consistent with being hit with

objects such as the ones alleged to have been used and not from blows from a fist or foot.




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       Montalbano argues that the failure to produce and introduce the physical objects

allegedly used as weapons is critical, particularly since there is no medical testimony about

Oneil’s injuries or forensic evidence to connect the objects to her injuries. We disagree.

II.    Sufficiency of the Evidence

       In determining whether the evidence is legally sufficient to support a deadly weapon

finding, we review all the evidence in the light most favorable to the jury’s verdict to determine

whether any rational jury could have found the essential elements of aggravated assault with a

deadly weapon beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We examine legal

sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Wilson v. State, 391 S.W.3d

131, 135 (Tex. App.—Texarkana 2012, no pet.).

       Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997); see Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008). The indictment alleges

that Montalbano did “then and there intentionally, knowingly, or recklessly cause bodily injury

to H. Oneil by striking or hitting H. Oneil’s head or body with a flashlight, and . . . did then and

there use or exhibit a deadly weapon, to-wit: a flashlight, during the commission of said




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assault.”   The same language was used in three subsequent paragraphs, each specifying a

different object as the weapon.

       Montalbano committed the offense of aggravated assault if he intentionally, knowingly,

or recklessly caused bodily injury to another and used or exhibited a deadly weapon during the

assault. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2013), § 22.02(a)(2) (West 2011). A

deadly weapon is anything that in the manner of its use or intended use is capable of causing

death or serious bodily injury. TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2013); see

Barnett v. State, 344 S.W.3d 6, 12 (Tex. App.—Texarkana 2011, pet. ref’d).

       Oneil identified the items that were used by Montalbano while assaulting her.

Montalbano acknowledged that he struck her with his fists, but denied using any objects as

weapons. Oneil testified that the assaults caused physical pain, and such bodily injuries were

further demonstrated by photographs and descriptions of her appearance shortly after the events

occurred. Investigating officers testified that if each of the objects were used as she described to

cause her injuries, then they could cause death or serious bodily injury. Deputy Morgan also

testified that her injuries were consistent with injuries caused by objects rather than fists. The

testimony is in conflict, but there is evidence to support a finding that Montalbano used the

objects to assault Oneil, that they caused bodily injury, and that the objects were capable of

causing serious bodily injury or death.




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      We affirm the judgment.




                                      Jack Carter
                                      Justice

Date Submitted:    January 10, 2014
Date Decided:      January 22, 2014

Do Not Publish




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