Affirmed and Opinion Filed May 28, 2015 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00724-CR 

ROBERT JOE KIMBLE, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 283rd Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F-1355104-T 

MEMORANDUM OPINION 

Before Chief Justice Wright and Justices Myers and Evans 

Opinion by Chief Justice Wright 

A jury found appellant Robert Joe Kimble guilty of aggravated assault. The trial court 

found the indictment’s enhancement paragraph true and assessed appellant’s punishment at 

twenty-five years’ imprisonment. The court also made affirmative findings that (a) appellant 

used or exhibited a deadly weapon and (b) the case involved family violence. In a single issue, 

appellant challenges the sufficiency of the evidence to support his conviction. We affirm the 

trial court’s judgment. 

Davida Wesley is the complainant in this case. She testified that she and appellant had 

been dating for three months when the incident occurred that forms the basis of this case. 

Wesley testified she dropped off her daughter at work on that evening and went to see appellant 

at about nine o’clock. They went to appellant’s brother’s apartment for dinner and then spent the 
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evening together with a group of people at a neighbor’s apartment. Wesley testified that as one 

of the other couples prepared to leave the neighbor’s apartment, the man approached her and 

tried to kiss her on the mouth. She rejected this advance. Not long afterward, Wesley and 

appellant left the gathering and began to walk toward her nearby condominium. Wesley related 

that as she reached to hold appellant’s hand, he hit her with his fist across her face. Then he 

grabbed her “and he just started wailing [sic]” on her, repeatedly hitting her on the side of her 

head and face. Wesley testified she screamed for help, but no one responded. She asked 

appellant, “How could you do this to me? . . . You’re going to take my life?” After some time, 

she blacked out. When she came to, appellant was using his foot to hold her down, and he was 

striking her on the arm with a pipe. Wesley stated that at first she thought appellant was striking 

her with a tree branch, but when she saw pictures of the scene, she saw several rod-like pipes on 

the ground where she had been beaten. Eventually, appellant ran away. 

Wesley and her daughter met with police and paramedics shortly after four o’clock that 

morning. Photographs taken by the officers show an abrasion beneath Wesley’s left eye and a 

large knot on her forehead above that eye. Her face was very swollen, and she had marked welts 

on her arm. Wesley denied losing consciousness in her interview with police, but she stated at 

trial that she did so because she did not want to worry her daughter any further. 

Ikkendra Oliobi, Wesley’s daughter also testified at trial. She explained that her mother 

picked her up from work sometime around three or four o’clock that morning. When she saw 

her mother’s injuries, Oliobi insisted that she call the police. After the police interview, at about 

six o’clock that morning, Oliobi went to the place where her mother said the attack had taken 

place. Oliobi found a bracelet and earrings belonging to her mother on the ground; she testified 

her mother had been wearing those earrings the night before when she dropped Oliobi off at 

work. Oliobi also saw three or four metal pipes on the ground. She took pictures of the area, 
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including the jewelry, the pipes, and what she believed was blood on the ground. Those 

photographs were also admitted into evidence. 

Appellant was charged with aggravated assault. The indictment states in relevant part 

that he did: 

unlawfully then and there intentionally, knowingly and recklessly cause bodily 

injury to DAVIDA WESLEY, hereinafter called complainant, by STRIKING 

COMPLAINANT WITH A HAND AND A TREE BRANCH AND A PIPE, and 

said defendant did use and exhibit a deadly weapon, to-wit: a HAND, A TREE 

BRANCH, AND A PIPE, during the commission of the assault. 

Appellant’s specific complaint on appeal is that the evidence is insufficient to establish that he 

used or exhibited a deadly weapon in this case. That use or exhibition was an essential element 

of the aggravated assault with which appellant was charged. See TEX. PENAL CODE ANN. 

§ 22.02(a)(2) (West 2011) (person commits aggravated assault if he commits assault and uses or 

exhibits deadly weapon during commission of assault). 

We review this challenge by examining the evidence in the light most favorable to the 

prosecution to determine whether any rational trier of fact could have found the deadly weapon 

element beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). The 

jury exclusively determines the credibility of the witnesses and the weight to be given their 

testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Appellant 

acknowledges that both the police officer who interviewed Wesley and the detective who 

investigated this case testified that a hand, a tree branch, and a pipe could be deadly weapons, but 

he argues the State failed to prove how any of the three were used as deadly weapons in this 

case. We disagree. 

The State is not required to show that the use or intended use of the weapon actually 

causes death or serious bodily injury; instead, it must show that the weapon’s “use or intended 

use is capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. 
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§ 1.07(a)(17)(B) (West 2011) (emphasis added). To determine whether something is a deadly 

weapon, the jury may consider all the surrounding facts. Blain v. State, 647 S.W.2d 293, 294 

(Tex. Crim. App. 1983). The record indicates Wesley believed appellant was trying to kill her 

by repeatedly punching her in the head and face. The police photographs establish that she 

suffered from visible facial and head injuries as a result of those blows to the head. Wesley also 

testified that more than a year after the assault, she still felt its effects in her jaw. The injuries 

inflicted on the victim are factors to be considered in determining whether a hand was used as a 

deadly weapon. Lane v. State, 151 S.W.3d 188, 191 (Tex. Crim. App. 2004). We conclude the 

evidence supports a finding that appellant’s use of his hand in this case was capable of causing 

serious bodily injury. Therefore, rational jurors could have concluded appellant’s hand was used 

as a deadly weapon. 

And as to whether appellant used a tree branch or a pipe as a deadly weapon, Wesley’s 

testimony and the police photographs of the injury to her arm support a similar finding. Wesley 

stated she came to consciousness and was aware of appellant holding her down and striking her 

with something in his hand. She initially believed he was hitting her with a tree branch; when 

she saw her daughter’s pictures of the scene of the assault, she believed he could have been 

swinging one of the metal rods, or pipes, seen in the photograph. The police photographs show a 

series of long, thin, raised welts running down Wesley’s right arm. It is reasonable to infer that 

she was struck repeatedly with something long and thin and hard. See Tucker v. State, 274 

S.W.3d 688, 691–92 (Tex. Crim. App. 2008) (even without description of weapon, injuries 

suffered by the victim can by themselves be sufficient basis for inferring deadly weapon was 

used); see also Moore v. State, 531 S.W.2d 140, 142 (Tex. Crim. App. 1976) (use of deadly 

weapon can be proved by circumstantial evidence). We conclude the evidence supports a 
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finding that appellant’s use of a branch or a pipe in this case could have caused serious bodily 

injury. Rational jurors could have concluded one of those items was used as a deadly weapon. 

When we view the evidence in the light most favorable to the prosecution, we conclude it 

is sufficient to establish appellant employed one or more deadly weapons in his assault of 

Wesley. We overrule appellant’s single issue, and we affirm the trial court’s judgment. 

Do Not Publish 

TEX. R. APP. P. 47 

140724F.U05 

 

/Carolyn Wright/ 

CAROLYN WRIGHT 

CHIEF JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

ROBERT JOE KIMBLE, Appellant 

No. 05-14-00724-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 283rd Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. F-1355104-T. 

Opinion delivered by Chief Justice Wright. 

Justices Myers and Evans participating. 

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

Judgment entered May 28, 2015.