IN THE COURT OF APPEALS FOR

THE FIFTH COURT OF APPEALS DISTRICT

DALLAS, TEXAS

ROBERT KIMBLE, §

APPELLANT §

§

§ 

§ NO. 05-14-00724-CR

V. §

§

§

THE STATE OF TEXAS, §

APPELLEE §

APPEALED FROM CAUSE NUMBER F13-55104 IN THE 283 JUDICIAL rd

DISTRICT COURT OF DALLAS COUNTY, TEXAS; THE HONORABLE RICK

MAGNIS, JUDGE PRESIDING.

§ § §

STATE'S RESPONSE BRIEF

§ § §

SUSAN HAWK

Criminal District Attorney

Dallas County, Texas

MICHAEL R. CASILLAS, Assistant

Criminal District Attorney

Appellate Division

The privilege of presenting 133 N. Riverfront Blvd., LB 19

oral argument is respectfully Dallas, Texas 75207-4399

not requested. (214) 653-3600

FAX (214) 653-3643

State Bar No. 03967500

ACCEPTED

05-14-00724-CR

FIFTH COURT OF APPEALS

DALLAS, TEXAS

1/15/2015 5:03:21 PM

LISA MATZ

CLERK

 RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS 1/15/2015 5:03:21 PM LISA MATZ Clerk
i

TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................... ii

SUMMARY OF THE CASE ......................................... 1

STATEMENT OF FACTS ........................................... 1

SUMMARY OF STATE'S RESPONSES ............................... 4

STATE'S REPLY TO APPELLANT’S

SOLE POINT OF ERROR .......................................... 5

Review of the record below in accord with the applicable standard for

assessing a claim of legal sufficiency reveals the presence therein of

legally sufficient evidence in support of not only the jury’s verdict that

Appellant was guilty of the offense charged, but also that Appellant had

used or exhibited a deadly weapon. Accordingly, the record herein is

not one upon which this Court could base a conclusion that Appellant’s

conviction was irrational or unsupported by the evidence. 

 LEGAL AUTHORITY ........................................... 5

 APPLICATION ................................................. 8

CONCLUSION AND PRAYER ...................................... 15

CERTIFICATE OF SERVICE AND COMPLIANCE . . . . . . . . . . . . . . . . . . . . 16
ii

INDEX OF AUTHORITIES

CASES PAGES

Adame v. State, 69 S.W.3d 581 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . 12,13

Allen v. State, 533 S.W.2d 352 

 (Tex. Crim. App. 1976) ....................................... 13

Alvarado v. State, 912 S.W.2d 199 

 (Tex. Crim. App. 1995) ........................................ 6

Baltazar v. State, 331 S.W.3d 6 (Tex. 

App. – Amarillo 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10,11,13

Bethel v. State, 842 S.W.2d 804 (Tex. 

App. – Houston [1 Dist.] 1992, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . .

st 10

Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . 13

Brooks v. State, 323 S.W.3d 893 (Tex. 

Crim. App. 2010)(plurality op.) ............................. 6,6n,7,14

Bui v. State, 964 S.W.2d 335 (Tex. 

App. – Texarkana 1998, pet. ref’d). ............................... 10

Burden v. State, 55 S.W.3d 608 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . 8

Daniels v. State, No. 05-97-00715-CR, 1998 Tex. App. 

LEXIS 7520 (Tex. App. – Dallas December

4, 1998, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . 10

Denham v. State, 574 S.W.2d 129 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . 10

Ex Parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . 7
iii

Francis v. State, No. 07-12-0044-CR, 2012 Tex. App.

LEXIS 9847 (Tex. App. – Amarillo November

29, 2012, pet. ref’d)(not designated for publication) . . . . . . . . . . . . . . . . 10,14

Goss v. State, No. 05-05-00463-CR, 2006 Tex. App. 

LEXIS 2747 (Tex. App. – Dallas April 6, 2006, 

no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Hernandez v. State, No. 05-04-01686-CR, 2005 Tex. 

App. LEXIS 10076 (Tex. App. – Dallas December

5, 2005, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . 9,12

Hill v. State, 913 S.W.2d 581 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . 10

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7,12

James v. State, Nos. 05-08-01332– 33-CR, 2010 Tex. 

App. LEXIS 4671 (Tex. App. – Dallas June 22, 

2010, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . . . 10,11

Jaramillo v. State, No. 07-08-0148, 2009 Tex. App.

LEXIS 1781 (Tex. App. – Amarillo March 

13, 2009, no pet.)(not designated for publication) . . . . . . . . . . . . . . . . . . . 9,10

Johnson v. State, 871 S.W.2d 183 (Tex. Crim. 

App. 1993), cert. denied, 511 U.S. 1046 (1994) ..................... 8

Judd v. State, 923 S.W.2d 135 (Tex. 

App. – Fort Worth 1996, pet. ref’d). ............................... 9

Kutzner v. State, 994 S.W.2d 180 

 (Tex. Crim. App. 1999) ......................................... 8

Lane v. State, 151 S.W.3d 188 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . 11
iv

Ledbetter v. State, No. 05-09-01313-CR, 2012 Tex. 

App. LEXIS 6697 (Tex. App. – Dallas August 

10, 2012, pet. ref’d)(not designated for publication) . . . . . . . . . . . . . . . . . . . 8

Matson v. State, 819 S.W.2d 839 

 (Tex. Crim. App. 1991) .................................... 7,13,14

Moore v. State, 531 S.W.2d 140 (Tex. Crim. App. 1976) . . . . . . . . . . . . . . . . . . . . 8

Moreno v. State, 755 S.W.2d 866 

 (Tex. Crim. App. 1988) ........................................ 6

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 

 1998), cert. denied, 526 U.S. 1070 (1999) .......................... 6

Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . 12

Quincy v. State, 304 S.W.3d 489 (Tex. 

App. – Amarillo 2009, no pet.) ................................... 10

Rojas v. State, No. 14-13-00628-CR, 2014 Tex. App. 

LEXIS 9687 (Tex. App. – Houston [14 Dist.] th

August 28, 2014, pet. ref’d)(not designated for publication) . . . . . . . . . . . 12

Trahan v. State, 682 S.W.2d 597 (Tex. App. – 

Beaumont 1984, pet. ref’d, untimely filed) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tucker v. State, 274 S.W.3d 688 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . 11,13

Turner v. State, 664 S.W.2d 860 (Tex. Crim. App. 1983) . . . . . . . . . . . . . . . . . . . . 9

Upton v. State, 853 S.W.2d 548 

 (Tex. Crim. App. 1993) ....................................... 7,13

Victor v. State, 874 S.W.2d 748 (Tex. App. – 

Houston [1 Dist.] 1994, pet. ref’d) ...............................

st 12
v

ARTICLES, CODES, RULES, and CONSTITUTIONS:

Tex. Pen. Code §1.07(a)(17)(B) ........................................ 9
1

TO THE HONORABLE COURT OF APPEALS:

The instant brief in response to the brief of Appellant, Robert Kimble, is filed

on behalf of Susan Hawk, the Criminal District Attorney of Dallas County, Texas.

SUMMARY OF THE CASE

Appellant was charged by indictment with having committed aggravated assault

with a deadly weapon. (CR: 8). The indictment alleged that Appellant had used either

his hand, a pipe, or a tree branch as a deadly weapon in the commission of the assault

and similar language regarding all three possible deadly weapons appeared in the jury

charge. (CR: 8, 46). While Appellant pled not guilty to the offense charged, the jury

convicted Appellant of the offense charged. (CR: 5-7, 50-52; RR-3: 1-12, 167).

While Appellant denied the truth of the State’s enhancement allegation, the trial court

found the allegation true and sentenced Appellant to imprisonment for a period of 25

years. (CR: 5-7, 51-53; RR-4: 42-43).

 STATEMENT OF FACTS

Appellant and Davida Wesley had been in a dating relationship for a period of

approximately 3 months on the date of April 21, 2013. (RR-3: 13-16, 58-59). After

spending some time at a party at the apartment of a man identified in the record only

as “Thomas,” Wesley and Appellant exited the apartment of Thomas. (RR-3: 16-17,

20-21, 24-26). After having exited the apartment of Thomas, Wesley reached her hand
2

back to take hold of Appellant’s hand, only to feel Appellant’s fist hit her across her

face. (RR-3: 25-26). 

According to Wesley, the next thing she knew, Appellant “grabbed [her] and he

just started wailing [on her].” (RR-3: 25). Wesley established that Appellant just kept

hitting her and even “started doing upper cuts.” (RR-3: 26). Wesley explained that

Appellant had first hit her in her face and then in the side of her head and had also

repeatedly hit her in her face. (RR-3: 26). According to the first officer on the scene,

Wesley had claimed that Appellant had used only his hands to inflict the injuries that

Wesley suffered. (RR-3: 121). The first officer and the investigating detective were

in agreement regarding how a person’s hands or fists could constitute deadly weapons.

(RR-3: 127-28, 138).

 Wesley recalled that the only time Appellant stopped beating her was when she

had “blacked out,” which had lasted only “for a second.” (RR-3: 28). While Wesley

admitted that she had told the paramedics that she had never lost consciousness,

Wesley had told the investigating detective about how she had lost consciousness

during Appellant’s attack. (RR-3: 45, 67, 144, 146). Wesley made clear that

Appellant’s blows had caused pain. (RR-3: 56-58).

Wesley established that Appellant had also hit her with what she thought was

either a tree branch or a pipe that had been part of a barbeque grill. (RR-3: 28-29, 77).
3

Wesley admitted that her daughter, who returned to the scene of the crime later and

took pictures of the remains of a barbeque grill, was the person who had stated that

Wesley might have been struck with a pipe during the attack. (RR-3: 88). The first

officer on the scene and the investigating detective agreed that a branch and a pipe

could both be deadly weapons. (RR-3: 128-29, 137-38). 

At some point, Appellant threw Wesley to the ground and fled the scene of the

crime. (RR-3: 29-30, 50, 86-87). Wesley testified that, 2 days after having been

attacked, she looked like a “monster.” (RR-3: 33). Wesley also testified that the

pictures that were admitted as State’s Exhibits 3 through 8 depicted how her face had

looked in the immediate aftermath of Appellant’s assaultive acts. (RR-3: 32-34, 40).

Wesley explained that all the swelling that was depicted in State’s Exhibits 3 through

8 had been the result of Appellant’s blows to her body. (RR-3: 36). Wesley showed

the jurors the knots on her head that were depicted in the photographs. (RR-3: 35-36).

Wesley noted that almost a year had elapsed between the time she had been

assaulted and the time she was testifying. (RR-3: 76). Wesley explained that there

were times during the night that her jaw would involuntarily shiver. (RR-3: 56).

Similarly, Wesley explained that her arm had never been the same since the time of the

assault and that her teeth had rattled in her mouth for a long time after the assault had

been committed. (RR-3: 56). Wesley informed the jury that she had wondered during
4

the assault if Appellant was going to take her life. (RR-3: 27). Wesley also informed

the jury that she had asked herself how she could have been in a situation where she

could have almost died. (RR-3: 88). 

SUMMARY OF STATE'S RESPONSES

State's Reply to Appellant's Sole Point of Error:

Review of the record below in accord with the applicable standard for assessing

a claim of legal sufficiency reveals the presence therein of legally sufficient evidence

in support of not only the jury’s verdict that Appellant was guilty of the offense

charged, but also that Appellant had used or exhibited a deadly weapon.

Accordingly, the record herein is not one upon which this Court could base a

conclusion that Appellant’s conviction was irrational or unsupported by the evidence.
5

STATE'S REPLY TO APPELLANT’S 

SOLE POINT OF ERROR:

Appellant’s contentions:

In his sole point of error, Appellant contends that the evidence presented at trial

was insufficient to support his conviction for the offense charged. (Appellant’s Brief

at pp. iii, 2, 9, 12-17). Specifically, Appellant contends that the evidence is

insufficient regarding the State’s deadly weapon allegation. (Id.). 

State’s responses:

Review of the record below in accord with the applicable standard for assessing

a claim of legal sufficiency reveals the presence therein of legally sufficient evidence

in support of not only the jury’s verdict that Appellant was guilty of the offense

charged, but also that Appellant had used or exhibited a deadly weapon. Accordingly,

the record herein is not one upon which this Court could base a conclusion that

Appellant’s conviction was irrational or unsupported by the evidence. 

LEGAL AUTHORITY

In reviewing the legal sufficiency of the evidence to support a conviction, the

appellate court must view the evidence in the light most favorable to the verdict and

may reverse the conviction only if that review reveals that no rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. See
While the lead opinion in Brooks received a total of only four votes, Judge Womack, who 1

did not join the lead opinion, did join the concurring opinion of Judge Cochran, which literally

concluded with language stating that the time had arrived “to consign the civil-law concept of

factual sufficiency review in criminal cases to the dustbin of history.” Brooks, 322 S.W.3d at 926

(Cochran, J., concurring joined by Womack, J.). 

6

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Alvarado v. State, 912 S.W.2d 199,

207 (Tex. Crim. App. 1995). The appellate court, however, is not to disregard, realign

or weigh evidence because the fact finder – whose exclusive realm includes the

reconciliation of any evidentiary conflicts – has already engaged in such exercises. See

Mosley v. State, 983 S.W.2d 249, 254-55 (Tex. Crim. App. 1998), cert. denied, 526

U.S. 1070 (1999); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

While appellate courts formerly had the power to conduct a factual sufficiency

review under a different standard, the Court of Criminal Appeals recently made it

transparently clear that, “[T]he Jackson v. Virginia standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove beyond

a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010)(plurality op.). The Brooks court explained the proper application of the 1

Jackson v. Virginia standard by writing that: 

Viewing the evidence “in the light most favorable to the verdict” under

a legal-sufficiency standard means that the reviewing court is required to

defer to the jury’s credibility and weight determinations because the jury
7

is the sole judge of the witnesses’ credibility and the weight to be given

to their testimony.

Id. at 899 (emphasis in original). 

The explanation of the Brooks court was in complete harmony with an earlier

explanation of the proper application of the legal sufficiency standard in which the

Court of Criminal Appeals had made clear that, in applying the legal sufficiency

standard, the appellate court is not to concern itself with whether it believes the State’s

evidence or that the defense’s evidence outweighs that presented by the State, as the

appellate court does not “assess the credibility of the witnesses on each side.” Ex Parte

Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). By requiring appellate court

deference to the resolutions of the fact finder, the legal sufficiency standard accords

proper respect to the fact finder’s exclusive duty to resolve conflicts in the testimony,

to weigh the evidence, to accept or reject any or all of the evidence presented by either

side, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson,

443 U.S. at 319; Upton v. State, 853 S.W.2d 548, 552 (Tex. Crim. App. 1993);

Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Finally, the appellate

court may reverse the fact finder’s guilty verdict based on legally insufficient evidence

only if the guilty verdict is irrational or unsupported by the evidence. See Matson, 819

S.W.2d at 843; see also Brooks, 323 S.W.3d at 907.
8

This aforementioned standard applies to claims of legal insufficiency whether

the evidence supporting the conviction is direct or circumstantial in nature. See Burden

v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001); Kutzner v. State, 994 S.W.2d

180, 184 (Tex. Crim. App. 1999). Additionally, “In a circumstantial evidence case,

it is not necessary that every fact point directly and independently to the guilt of the

accused; rather, it is enough if the conclusion [of guilt] is warranted by the combined

and cumulative force of all the incriminating circumstances.” Johnson v. State, 871

S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 1046 (1994).

Finally, “Use of a deadly weapon may be proved by circumstantial evidence.”

Ledbetter v. State, No. 05-09-01313-CR, 2012 Tex. App. LEXIS 6697, at *7 (Tex.

App. – Dallas August 10, 2012, pet. ref’d)(not designated for publication), citing:

Moore v. State, 531 S.W.2d 140, 142 (Tex. Crim. App. 1976) and Trahan v. State, 682

S.W.2d 597, 598 (Tex. App. – Beaumont 1984, pet. ref’d, untimely filed). 

APPLICATION

In his sole point of error, Appellant contends that the evidence presented at trial

was insufficient to support his conviction for the offense charged. (Appellant’s Brief

at pp. iii, 2, 9, 12-17). Specifically, Appellant contends that the evidence is

insufficient regarding the State’s deadly weapon allegation. (Id.). The State

respectfully disagrees because review of the record in the light most favorable to the
9

verdict reveals the presence therein of legally sufficient evidence in support of not only

the jury’s verdict that Appellant was guilty of the offense charged, but also that

Appellant had used or exhibited a deadly weapon. Accordingly, the record herein is

not one upon which this Court could base a conclusion that Appellant’s conviction was

irrational or unsupported by the evidence.

The indictment and the jury charge both alleged that Appellant had used his

hand, a tree branch, and a pipe as a deadly weapon. (CR: 8, 46). While none of those

aforementioned objects are a deadly weapon per se, any or all of them could qualify

as a deadly weapon if it was shown by the evidence that in the manner of their use or

intended use they were capable of causing death or serious bodily injury. See, e.g.,

Hernandez v. State, No. 05-04-01686-CR, 2005 Tex. App. LEXIS 10076, at *3-4

(Tex. App. – Dallas December 5, 2005, no pet.)(not designated for publication), citing:

Tex. Pen. Code §1.07(a)(17)(B) and Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim.

App. 1983) and Judd v. State, 923 S.W.2d 135, 140 (Tex. App. – Fort Worth 1996,

pet. ref’d). 

Under the law, the evidence regarding the nature of the injuries Appellant

inflicted upon Wesley can provide sufficient proof of Appellant’s use of a deadly

weapon during the commission of the offense. See Baltazar v. State, 331 S.W.3d 6,

8 (Tex. App. – Amarillo 2010, pet. ref’d), citing Jaramillo v. State, No. 07-08-0148,
10

2009 Tex. App. LEXIS 1781, at *7 (Tex. App. – Amarillo March 13, 2009, no

pet.)(not designated for publication). It was not necessary, however, for the State’s

evidence to show that Wesley actually suffered serious bodily injury as a result of

Appellant’s having beaten her with his hands, the tree branch, or the pipe. See, e.g.,

Francis v. State, No. 07-12-0044-CR, 2012 Tex. App. LEXIS 9847, at *3 (Tex. App.

– Amarillo November 29, 2012, pet. ref’d)(not designated for publication), citing:

Quincy v. State, 304 S.W.3d 489, 500 (Tex. App. – Amarillo 2009, no pet.) and

Baltazar, 331 S.W.3d at 8; Daniels v. State, No. 05-97-00715-CR, 1998 Tex. App.

LEXIS 7520, at *22-23 (Tex. App. – Dallas December 4, 1998, no pet.)(not designated

for publication), citing: Hill v. State, 913 S.W.2d 581, 591 (Tex. Crim. App. 1996)

and Bui v. State, 964 S.W.2d 335, 342 (Tex. App. – Texarkana 1998, pet. ref’d).

Additionally, any testimony from Wesley regarding what she endured and any

testimony regarding how any of the weapons could have been used as a deadly weapon

constituted evidence that was capable of providing legally sufficient evidence regarding

Appellant’s use of a deadly weapon during the commission of the offense. See, e.g.,

James v. State, Nos. 05-08-01332– 33-CR, 2010 Tex. App. LEXIS 4671, at *6 (Tex.

App. – Dallas June 22, 2010, no pet.)(not designated for publication), citing: Denham

v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978) and Bui, 964 S.W.2d at 343

and Bethel v. State, 842 S.W.2d 804, 807 (Tex. App. – Houston [1 Dist.] 1992, no st
11

pet.). 

The record is undisputed regarding how the first officer on the scene and the

investigating detective agreed that hands and fists and a branch and a pipe could all be

deadly weapons. (RR-3: 127-29, 137-38). The testimony from the trained and

experienced first officer on the scene and from the investigating detective is much akin

to expert testimony that supports the jury’s verdict that it was beyond a reasonable

doubt that Appellant had committed the offense charged and had used a deadly weapon

in the commission of the offense charged. See Baltazar, 331 S.W.3d at 8, citing

Tucker v. State, 274 S.W.3d 688, 692 (Tex. Crim. App. 2008).

Additionally, Wesley testified that she had “blacked out” or lost consciousness

at some point during Appellant’s having beaten her with his fists. (RR-3: 28).

Wesley’s having lost consciousness supports the jury’s beyond-a-reasonable-doubt

conclusions that Appellant had been guilty of the offense and had used a deadly

weapon in the commission of the offense. See, e.g., Lane v. State, 151 S.W.3d 188,

191 (Tex. Crim. App. 2004); Baltazar, 331 S.W.3d at 8; see also, e.g., James, Nos.

05-08-01332– 33-CR, 2010 Tex. App. LEXIS 4671, at *7.

The record was also undisputed regarding how Wesley had literally feared that

she was going to die at the hands of Appellant. (RR-3: 27, 88). Wesley’s testimony

regarding her fear that Appellant was going to kill her provides more evidence that
12

supports the jury’s having concluded beyond a reasonable doubt not only that

Appellant was guilty of the crime charged, but also that Appellant had used a deadly

weapon in committing the crime charged. See, e.g., Rojas v. State, No. 14-13-00628-

CR, 2014 Tex. App. LEXIS 9687, at *5 (Tex. App. – Houston [14 Dist.] August 28, th

2014, pet. ref’d)(not designated for publication), citing Victor v. State, 874 S.W.2d

748, 751 (Tex. App. – Houston [1 Dist.] 1994, pet. ref’d); see also, e.g., Goss v. st

State, No. 05-05-00463-CR, 2006 Tex. App. LEXIS 2747, at *5 (Tex. App. – Dallas

April 6, 2006, no pet.)(not designated for publication); Hernandez, No. 05-04-01686-

CR, 2005 Tex. App. LEXIS 10076, at *5-11.

Wesley testified as well that all of the injuries depicted to her in State’s Exhibits

3 through 8 had been the result of Appellant’s criminal acts of beating her. (RR-3: 35-

36). State’s Exhibit 4 shows a bloody contusion directly below Wesley’s left eye. The

jurors, as sole triers of fact, were entitled to conclude beyond a reasonable doubt that

Appellant had used a deadly weapon because the jurors could have inferred that the

force of the blow or blows that had caused the bloody contusion would have been

capable of causing serious bodily injury to the soft tissue of Wesley’s eye had the blow

or blows impacted Wesley’s face at a level just slightly higher than where the blow or

blows actually landed. See Jackson, 443 U.S. at 319; Ortiz v. State, 93 S.W.3d 79, 88

(Tex. Crim. App. 2002); Adame v. State, 69 S.W.3d 581, 582 (Tex. Crim. App.
13

2002); Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994); Upton, 853

S.W.2d at 552; Matson, 819 S.W.2d at 843; Allen v. State, 533 S.W.2d 352, 354 (Tex.

Crim. App. 1976). Furthermore, the fact that Wesley somehow managed to avoid

having her eye itself actually injured by Appellant’s blow or blows that caused the

bloody contusion depicted in State’s Exhibit 4 does not render the evidence insufficient

regarding Appellant’s having used an object that constituted a deadly weapon to inflict

the damage reflected in State’s Exhibit 4. See Baltazar, 331 S.W.3d at 8, citing

Tucker, 274 S.W.3d at 692.

State’s Exhibit 3 and State’s Exhibit 8 both show the swelling to Wesley’s face

that was the result of Appellant’s blow or blows. (RR-3: 35-36). Even though almost

a year had passed since the time of the assault, Wesley explained to the jury how her

jaw would still sometimes shiver at night. (RR-3: 56, 76). 

Similarly, State’s Exhibit 6 shows the welts that Appellant inflicted to Wesley’s

right arm. (RR-3: 35-36). A comparison of those welts with the pipes depicted in

State’s Exhibit 11, State’s Exhibit 13, and State’s Exhibit 14 reveals that those welts

could well have been the result of Appellant’s having beaten Wesley with at least one

of the pipes (or a pipe similar to the pipes depicted). 

Despite the fact that almost a year had elapsed from the time of the assault,

Wesley made clear at the time of the trial that her arm had not returned to its pre-
14

assault status. (RR-3: 56, 76). The jurors – as triers of fact – were entitled to infer

from Wesley’s aforementioned testimony about the on-going physical consequences

with which she had to contend that Appellant’s acts of beating Wesley had caused the

protracted loss or impairment of the function of a bodily member or organ. See, e.g.,

Francis, No. 07-12-0044-CR, 2012 Tex. App. LEXIS 9847, at *5. 

For all the aforementioned reasons, the record – when reviewed properly under

the applicable standard for conducting a legal sufficiency analysis – contains evidence

of a sufficient nature and quality such that neither the jury’s guilty verdict in general,

nor the jury’s conclusion that Appellant was guilty beyond a reasonable doubt of

having used a deadly weapon in the commission of the crime against Wesley can

accurately be characterized as being irrational or unsupported by the evidence. See

Matson, 819 S.W.2d at 843; see also Brooks, 323 S.W.3d at 907. Accordingly,

Appellant’s sole point of error should be overruled. 
15

 CONCLUSION AND PRAYER

Since the record contains evidence in support of Appellant’s conviction that is

of a legally sufficient nature and quality relative to Appellant’s having used a deadly

weapon in the commission of the crime charged, the State prays that this Court will

overrule Appellant’s sole point of error and affirm the trial court’s judgment of

conviction in its entirety.

Respectfully submitted,

SUSAN HAWK,

Criminal District Attorney

Dallas County, Texas

______________________________

MICHAEL R. CASILLAS, Assistant

Criminal District Attorney,

Appellate Division

133 N. Riverfront Blvd., LB 19

Dallas, Texas 75207-4399

(214) 653-3600; FAX (214) 653-3643

State Bar No. 03967500
16

CERTIFICATE OF SERVICE AND COMPLIANCE

I hereby certify that – no later than the 23 day of January 2015 – a true copy rd

of the instant State’s Response Brief was delivered by hand to the Office of the Dallas

County Public Defender and a true, electronically-formatted copy of the instant State's

Response Brief has been served on Appellant’s counsel, the Hon. Julie Woods,

Assistant Dallas County Public Defender, 133 N. Riverfront Blvd., LB-2, Dallas, TX

75207, by use of the electronic service function that accompanies the filing of the

instant State’s Response Brief with this Court through the electronic filing service

provider to which the State subscribes. 

Additionally, I also hereby certify – based on the word-count function of the

Word Perfect, word-processing software with which the instant State’s Response Brief

was drafted – that the instant State’s Response Brief contains 3,129 words.

___________________________________

MICHAEL R. CASILLAS