 
 




                                                                       In The

                                                                 Court of Appeals
                                              Ninth District of Texas at Beaumont
                                                               ____________________
                                                                 NO. 09-16-00348-CR
                                                               ____________________

                                         RICARDO MONTELONGO JR., Appellant

                                                                         V.

                                                    THE STATE OF TEXAS, Appellee

________________________________________________________________________

                                             On Appeal from the 253rd District Court
                                                    Liberty County, Texas
                                                   Trial Cause No. CR31999
________________________________________________________________________

                                                           MEMORANDUM OPINION

              In two issues, Ricardo Montelongo Jr. appeals his conviction for assaulting a

public servant. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2017).1

Specifically, Montelongo argues that the evidence is insufficient to support his

conviction because the State allegedly failed to rebut his assertion of self-defense.



                                                            
              1
       We cite to the current version of the Penal Code throughout this opinion
because any amendments do not affect the issues on appeal.
                                                                         1
 
 
 




Montelongo also complains that his due process was violated because he was

required to wear chains in the presence of the jury during the punishment phase of

his trial. Because the jury determined Montelongo was a habitual offender, his

punishment was enhanced by previous felony convictions, and he was sentenced to

seventy-one years in prison. See Tex. Penal Code Ann. § 12.42(d) (West Supp.

2017). We overrule both of his appellate issues and affirm the trial court’s judgment.

                                    Background

      Frank Longoria, then a corporal with the Liberty County Sheriff’s

Department, was in uniform and patrolling in his marked police car the night of June

13, 2015. He saw Montelongo’s vehicle drift back-and-forth into the opposing lane

of traffic. Deputy Longoria activated his in-car camera, turned on his emergency

lights, and sounded his siren to alert Montelongo to pull over. Montelongo did not

pull over for some time but eventually pulled into a business’s parking lot and finally

came to a stop in the back of the parking lot.

      When Montelongo exited his car, he appeared disoriented, confused, and

intoxicated. He asked Deputy Longoria why he had been stopped. Deputy Longoria

instructed Montelongo to place his hands either above his head or behind him, but

rather than comply, Montelongo requested to go to the bathroom. Deputy Longoria

again instructed Montelongo to place his hands above his head and to specifically

                                          2
 
 
 




not put them in his pockets or he would be tased, but Montelongo placed his right

hand inside of his pants pocket. Deputy Longoria then demanded Montelongo take

his hand out of his pocket for fear that he had a weapon of some sort, but when

Montelongo was slow to obey, Deputy Longoria tased him. Deputy Longoria

acknowledged that he reacted quickly when Montelongo was slow to pull his hand

out of his pocket, and would not have tased him if he would have seen that

Montelongo had nothing in his pocket. When the taser malfunctioned, Montelongo

cursed Deputy Longoria and struck him in the face. Deputy Longoria’s glasses were

damaged, and he felt immediate pain and still had soreness the following day.

Another officer assisted Deputy Longoria in placing Montelongo into custody after

Deputy Longoria was unable to handcuff Montelongo alone. At trial, Montelongo

did not testify, nor call any witnesses to testify on his behalf.

      Montelongo requested a self-defense instruction against Deputy Longoria for

his alleged use of greater force than was necessary for an arrest or search of

Montelongo. See Tex. Penal Code Ann. § 9.31(c) (West 2011). The trial court

included the instruction in the charge, but the jury found Montelongo guilty of the

felony offense of assaulting a public servant. See Tex. Penal Code Ann. §

22.01(a)(1), (b)(1). Montelongo elected to have the jury assess punishment. Before

the punishment phase of the trial began, Montelongo’s counsel complained to the

                                            3
 
 
 




court that Montelongo was restrained with belly chains in front of the jury.

Specifically, the following colloquy occurred:

      [DEFENSE]: Before we go any further, I’m lodging a complaint that
      my client is in belly chains in front of the jury.

      THE COURT: I understand. [Bailiff]? This morning what happened
      with the defendant?

      THE BAILIFF: He refused to get dressed out, but he came. He came.
      He’s convicted of a felony as of yesterday; so, therefore, for security
      purposes, he’s been placed in chains.

      THE COURT: The minimum is 25 to 99 or life.

      THE BAILIFF: Correct.

      THE COURT: Has he indicated or has he shown any propensity to —
      to possibly cause some problems.

      THE BAILIFF: Yes, sir. He poses a threat, yes, sir.

      THE COURT: All right. [Defense], I’m going to leave him in the
      chains, but he is in his street clothes.

      [DEFENSE]: All right.

      The punishment phase of the trial continued without incident or reference to

the chains. Following deliberations, the jury found the enhancements to be true,

which made Montelongo an habitual offender. The jury then assessed a seventy-one

year sentence.




                                         4
 
 
 




                            Sufficiency of the Evidence

      In Montelongo’s first issue on appeal, he argues that the evidence is legally

insufficient to support his conviction because the State failed to rebut his self-

defense assertion beyond a reasonable doubt. Montelongo seems to contend that he

established his self-defense theory as a matter of law, but “the issue of self-defense

is an issue of fact to be determined by the jury.” Saxton v. State, 804 S.W.2d 910,

913 (Tex. Crim. App. 1991).

      Generally, once a defendant produces some evidence raising the issue of self-

defense, the State bears the burden of persuasion to show beyond a reasonable doubt

that the defendant’s actions were not justified. Id.; Valverde v. State, 490 S.W.3d

526, 527–28 (Tex. App.—San Antonio 2016, pet ref’d). To meet its burden, the State

is not required to produce additional evidence. Saxton, 804 S.W.2d at 913; Valverde,

490 S.W.3d at 528. If the jury finds the defendant guilty, it has made an implied

finding against any defensive theory raised by the defendant. Saxton, 804 S.W.2d at

914; Valverde, 490 S.W.3d at 528 (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex.

Crim. App. 2003)).

      As stated in Valverde,

      [w]hen a defendant challenges the legal sufficiency of the evidence to
      support the jury’s implicit rejection of his self-defense claim, “we look
      not to whether the State presented evidence which refuted appellant’s
      self-defense testimony, but rather we determine whether after viewing
                                          5
 
 
 




      all the evidence in the light most favorable to the prosecution, any
      rational trier of fact would have found the essential elements of [the
      offense] beyond a reasonable doubt and also would have found against
      appellant on the self-defense issue beyond a reasonable doubt.”

490 S.W.3d at 528 (quoting Saxton, 804 S.W.2d at 914). In conducting a legal

sufficiency review, we defer to the jury’s assessment of the credibility of the

witnesses and the weight to be given to their testimony. Brooks v. State, 323 S.W.3d

893, 899 (Tex. Crim. App. 2010); Valverde, 490 S.W.3d at 528.

      Montelongo does not challenge the sufficiency of the evidence to support the

jury’s finding of the essential elements of assault of a public servant beyond a

reasonable doubt. Rather, Montelongo challenges the sufficiency of the evidence to

support the jury’s rejection of his self-defense claim. This is consistent with him

requesting a self-defense instruction at trial since “a defensive instruction is only

appropriate when the defendant’s defensive evidence essentially admits to every

element of the offense including the culpable mental state, but interposes [a]

justification to excuse the otherwise criminal conduct.” Shaw v. State, 243 S.W.3d

647, 659 (Tex. Crim. App. 2007). With regard to the essential elements of the

offense, the jury was charged that Montelongo committed the offense of assaulting

a public servant, if he knew that Deputy Longoria was a peace officer discharging

his official duties when attempting to detain or arrest him and intentionally,

knowingly, or recklessly caused Deputy Longoria bodily injury when he hit Deputy
                                         6
 
 
 




Longoria in the head with his fist. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1).

In this case, the evidence is undisputed that Montelongo hit Deputy Longoria, a

uniformed peace officer on duty, in the head with his fist causing bodily injury.

Accordingly, consistent with Montelongo’s request for the self-defense instruction,

the evidence establishes every essential element of the offense of assault of a public

servant beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.

      Next, we examine whether the jury “also would have found against

[Montelongo] on the self-defense issue beyond a reasonable doubt.” See id. In this

case, Montelongo was justified in using force to resist his arrest or search if, before

he resisted, Deputy Longoria used or attempted to use greater force than was

necessary to make the arrest or search, and Montelongo reasonably believed that the

force he used was immediately necessary to protect himself against Deputy

Longoria’s use or attempted use of the greater than necessary force. See Tex. Penal

Code Ann. § 9.31(c). Deputy Longoria’s testimony indicated that when Montelongo

finally stopped his car and got out he seemed disoriented, confused, and intoxicated.

Montelongo would not follow instructions when Deputy Longoria ordered him to

place his hands on top of his head. Disregarding Deputy Longoria’s instruction and

warning that he would be tased if he continued to disobey, Montelongo placed his

hand in his pocket. Deputy Longoria—afraid that Montelongo could have a

                                          7
 
 
 




weapon—again demanded that Montelongo take his hand out of his pocket or be

tased. After he failed to immediately comply with Deputy Longoria’s command,

Montelongo was tased. However, when only one probe embedded in Montelongo,

the taser was ineffective. In response, Montelongo became agitated and attacked

Deputy Longoria, striking him in the face and knocking him down. Deputy

Longoria’s testimony was consistent with the video-recording of the traffic stop

admitted into evidence and played for the jury. Neither Montelongo, nor any other

witness or evidence contradicted the account provided by Deputy Longoria or the

video-recording.

      Having reviewed all of the evidence in the light most favorable to the

prosecution, we conclude the jury rationally could have found each element of the

offense beyond a reasonable doubt and rationally could have found against

Montelongo on the self-defense issue beyond a reasonable doubt. We overrule

Montelongo’s first issue.

                     Restraint of Defendant in Open Court

      Montelongo complains in his second issue that the trial court violated his

rights to due process by allowing the State to restrain him in open court during the

punishment phase of his trial.




                                         8
 
 
 




              Efforts must be made to ensure the jury does not view the defendant in

shackles; otherwise, a defendant’s presumption of innocence is seriously infringed.

Long v. State, 823 S.W.2d 259, 282 (Tex. Crim. App. 1991).2 Although the

application of the presumption of innocence can be questionable during the

punishment phase, the trial court must still maintain the defendant’s due process

right to a meaningful defense and conduct dignified proceedings. See Deck v.

Missouri, 544 U.S. 622, 632 (2005). Thus, courts may not routinely require

defendants to appear in shackles before a jury during either the guilt or punishment

phase of trial, but exceptional circumstances may demand that a trial court shackle

a defendant. See id. at 628–29; Long, 823 S.W.2d at 283. “Examples of exceptional

circumstances warranting shackling include situations in which the accused has a

history of escape, expressed an intent to escape, threatened physical violence,

assaulted persons in the courtroom, and repeatedly interrupted court proceedings.”

Keith v. State, 294 S.W.3d 352, 355 (Tex. App.—Eastland 2009, no pet.). When a


                                                            
              2
        The Texas Court of Criminal Appeals discussed in Bell v. State that for an
error allowing the jury to view a defendant’s restraints to rise to the level of
constitutional error, the record must reflect a reasonable probability that the jury was
aware that the defendant had been placed in restraints. 415 S.W.3d 278, 283 (Tex.
Crim. App. 2013). If the record fails to establish a “substantial basis supporting a
conclusion that the jury perceived the defendant’s restraints[,]” the error is to be
evaluated under a non-constitutional error analysis. Id. at 283; see also Tex. R. App.
P. 44.2(b).
                                                               9
 
 
 




trial court determines that it must shackle a defendant, it must make case-specific

findings of fact justifying the use of shackles. Deck, 544 U.S. at 633. Further, the

“record must clearly and affirmatively reflect the trial judge’s reasons [for shackling

the defendant].” Long, 823 S.W.2d at 282.

      In this case, the bailiff placed the belly chains on Montelongo, and when he

objected to being shackled in front of the jury, the trial court inquired as to why

Montelongo was in chains. The bailiff stated that Montelongo refused to get dressed,

posed a threat, and had been convicted of the crime for which he was charged. While

the trial court identified case-specific special circumstances to justify the restraint of

the defendant, the reasons provided for Montelongo’s continued shackling are more

akin to those provided in Deck, i.e., based on the conviction itself, rather than

detailed reasons, like those explained in Marquez v. State. Compare Deck, 544 U.S.

at 635 (holding that the trial court’s justification of shackling Deck because he had

been convicted was insufficient), with Marquez v. State, 725 S.W.2d 217, 228 (Tex.

Crim. App. 1987), cert. denied, 484 U.S. 872 (1987), overruled on other grounds by

Moody v. State, 827 S.W.2d 875, 892 (Tex. Crim. App. 1992) (findings that

defendant had threatened escape and suicide, attacked a cameraman, and threatened

a prosecutor fell within the special circumstances in which a trial court can shackle

a defendant without abusing its discretion).

                                           10
 
 
 




       The State argues that because Montelongo had already been convicted of the

offense, he was not deprived of his presumption of innocence. However, as

discussed in an unpublished case, Glasscock v. State, No. 06-11-00239-CR, 2012

WL 2127514, *4 (Tex. App.—Texarkana June 13, 2012, pet. ref’d) (mem. op., not

designated for publication), the Texarkana Court of Appeals held that handcuffs in

addition to jail clothes could infringe on the defendant’s presumption of innocence

regarding extraneous offenses introduced during the punishment phase. In

Montelongo’s case, the State bore the burden of proving Montelongo committed two

prior sequential felonies to enhance his status as an habitual offender, thereby,

elevating his punishment range. Under these circumstances, Montelongo’s

presumption of innocence could potentially be impacted by the visible presence of a

restraint. See id.

       However, we need not reach that issue. Even if we assume error here, we

would not reverse. Error depriving a defendant of the presumption of innocence does

not require reversal where the court determines beyond a reasonable doubt that the

error did not contribute to the conviction or punishment. See Tex. R. App. P. 44.2(a);

Satterwhite v. Tex., 486 U.S. 249, 256 (1988) (“[I]f the prosecution can prove

beyond a reasonable doubt that a constitutional error did not contribute to the verdict,

the error is harmless and the verdict may stand.”). The presence of overwhelming

                                          11
 
 
 




evidence supporting the finding in question can be a factor in the evaluation of

harmless error. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). And

we must consider the “totality of the circumstances” by examining the record as a

whole. See Miles v. State, 204 S.W.3d 822, 828 (Tex. Crim. App. 2006).

      Based on the record before us, any alleged error was harmless beyond a

reasonable doubt. The State provided pen packets of two of Montelongo’s prior

felonies and a fingerprint witness that testified that the fingerprints in the packets

matched those that he took of Montelongo at trial. The State also called a regional

coordinator with the Texas Department of Criminal Justice (TDCJ) that acts as a

lieutenant in the Security Threat Group Department that monitors the activities of

all security threat groups or prison gangs within TDCJ. The lieutenant testified that

during Montelongo’s prior imprisonment, he was confirmed as being affiliated with

one of the groups that they monitor; and as a result, upon his incarceration for this

offense would be sent to a segregated unit. While Montelongo cross-examined these

witnesses, he did not offer any controverting evidence. Montelongo did not testify

during the punishment, nor did he contend that the belly chains prevented him from

testifying. He did not call any of his own witnesses either. Furthermore, the jury was

well aware that Montelongo had just been on trial for and convicted of the crime of

assault of a public servant. The State did not mention the chains during closing

                                         12
 
 
 




argument, and the record is silent as to whether the jury saw the chains. We are

confident that the belly chains did not affect the jury’s deliberations as to the

enhancement of Montelongo’s punishment or in determining his sentence. We

therefore conclude, beyond a reasonable doubt, that Montelongo’s wearing of belly

chains during the punishment phase of the trial did not contribute to Montelongo’s

punishment. See Tex. R. App. P. 44.2(a); Bell v. State, 415 S.W.3d 278, 283 (Tex.

Crim. App. 2013).3 We overrule Montelongo’s second issue.

              Having overruled all of Montelongo’s issues, we affirm the trial court’s final

judgment.

              AFFIRMED.

                                                                    _________________________
                                                                       CHARLES KREGER
                                                                             Justice

Submitted on February 6, 2018
Opinion Delivered July 11, 2018
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




                                                            
              3
        We reviewed issue two under the stricter constitutional error standard;
however, we acknowledged that the record likely does not provide a “substantial
basis supporting a conclusion that the jury perceived [Montelongo’s] restraints.”
Bell, 415 S.W.3d at 283
                                                               13
 
