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n rl P\Nt\ L C0URT 0F CRIMiNAL APPEALS UK itin ,rwr//£ AUG182015

COURT OFCRIMINAL APPEALS

Abel Acosta, Clerk

AUSTIN, TEXAS

FILED IN

KObEkTIOE /<ZmL£ C0URT0FC«NALAPPEALS

AUG 18 2015

to.

Abel Acosta, Clerk

THE STATE OF T^XAS

From Appeal Mo, &£-H-o&*r3iN-cZ

Trial Cause Mo, £Llz^EI2KzZ.

PETITION FOJC DZSC/ZETXDh/ARY AFVXBCJ

TO THE HONORABLE TUD5ES OF THE COURT OF C/clMZhlAL

APPEALS* Corrt£S nocJ, Robert Toe. Kimble., Petitioner j artel

Submits fh/S PetIHoAFor Discretionary fievicuj"on appeal

-from a conviction -rar Qq^n/aTed CASSGLla'It In the. JIBSTM

Judicial 3/strict Court of Dallas Countj/ i J'exas /Honorable.

R'icK Moguls iJudge. presiding . The Petitioner appealed to

flit court of Apptals t Fifth supreme Judical 3)istrier* The

cast cods affirmed on s~x«-2p/sr,
• TA3LE OP CONTENTS •

INDEX OF AUTHOtUTES /.

STATEMENT OF THE CASE *.

HEhORANDUn OPINIOM 3.

REASON FOR GRANTING tfEVIECJ h.

GROUNDFOR fiEVIELJ _^,u.

mUMEMF ___ j,^^.

PRAYEA

SERTIFICATE OF SERVICE _--/*..

J.
Petit/oner j

Ujaiva any st'otemenl'recjordlncf oral

agpimeriij and There cogs no moh'osi's filed for

rehearing on cxppeaF

IX.
INDEX OF AUTHORITIES

Cases:

Danzig V. State,5^ S,(JM300,301lTex£ri*,,App/fl77LS

Johnston v. State,US S,6J*3d 761, 763, at 7£HXTexJpp/^>3)^ -*1<

Lane v* State, 151S,U3dot•irt(Jex.Crin.App,W>H)- a

Rivera w State, X7I S,£J,3d 361,306, at307l7exJoO,X008) X

Turner v. State,£>6H SdJtXd ot <fO.(TeXrCn,tnJppl19831, --.9.

Statutes:

Tex, Penal Code A/m, J,07(a)(V6>) &<

Tex, Penal Code Ann, 1,67(a) (17) . ^

V,TiC<A,Pen(klCode. f,07(*)07)(HQ„----. 1>-

Tex,Penal Code Ann* /tO7C*)07)(3H), — %
STATEMENT OF THE CASE

Agrand jury Indicted Appellant For aggravated assault

001tin a deadly CJeapanXCR: %), The indictment alle-g&d

that Appellant1 and iAe complaining ojltness had ex

dating relationship, (CRf.%}>7he Ind/cArvtenA alleged

one. prior felony conviction as on &nAance*yient*Cctf:<t')*

Appelant pleaded not guilty A/5 fAe. cAarge, (c£' S~/;tffil_:

JOS XA3*. &), Ajury Pound Appellant guilty of AAcl

offense.. (CR: SO;SS3; /zv),

Appellant elected Tor He, court to assess h/S punishment*

CcR'>3%'> £/<%-:&), The- court- found tAe enkancemenE

pargaroph Erue. Qnd assessed punishn<ne/ni or 2.5

year's ImprlsonnnentAe/?: 5t-S3;**9*S HZ-13*).The court

made on affirmative, finding that Appellant" Used or

exhibited a deadly CJeopon , Eo £j/t: a pipej oiurino.

iAe. commission aP'AAie. offense.. (eft 5PS3:/?fiMS H&).

Ihe court also made- an affirmative, finding titat tAlj

e* Case Involved family violence. (C^J 6'/-S3J^£/J¥Xi.

Appellant timely filed his notice, of appeal (cXsHOiWj

H3).

<sLa
MEMORANDUM OPINION

Before Chief Justice Ldrlqht Justices Myers and £van£

Opionion by Chief Justice. (aJright

Ajury found appellantjfober/Joe. /Nimble, guilty of aggrav

ated assault, The trial Court found AAe Indictments

enhancemi ent paragraph true and assessed appellant

punishment at icsenty-flwe year's Imprisonmnent, Ihe

court also mod affirmative finding Hal fa) appellant

Used or exhibited a deadly cjeapon and Cb) the- cqsb

involved family Violence , Xn a single Issue , appellant

challenges the .sufficiency of iAe evidence Ao support

his conv/ctton. CJe affirm iAe trial Court's judgement,

Petitioner i cJas charged cjith aggravated assault. Ihe

indictment elates In relevant pari lhaE be didIUnlocjluily

then and there intentionallys fnoulngly Qnd rec/C'ltejsJy

cause bodily Injury to JDAVJ-jDA IjJESLEY> hereinafter

called complalnat, by STRIKING C0r1ELhIK\(\TCdlTH A

HAND A TlZEE 8lV\l\ICH AMD A PIPE, and said defendant

did use and exhibit a deadly oseaponj io-cj/i '* a band,

a tree (branch j and pipe >during the commission of

the assault*

Z.
Reason for Granting KevlecJ

Petitioner / request f>r revlecJ under Tex.R,App*Pr

Rulle &>&,31 In reference Ab ,'

(AhuJkether a cootrt of appeals decision conflicts

a)1th another court of appeals decision on the. sarno

Issue;

(ChCohethcr a court of appeals has decided on

Important question of State or federal \(\io in a ajay

that Conflicts cJ/'tb Abe. applicable decisions of thecourt of Criminal Appeal's or +t,e Supreme Court of

the, UnlAed SiatesJ

CFlL)Pie-Hi£r a Court of appeal's has so far deported

•rromi the accepted Qnd usual course of judicial

proceedings j Or so far sanctioned suchi a departure

by a Jocjer court j as A> call for Qn exercise of the.

court of Cri/ninaA Appeal's pooer of supervision.
GROUND FOX flEVXED NUMBER 0N£

The court of Appeals erred in holding that rational

jurors could ha ve concluded PetlAionerj hand ojo s

used us deadly cjeapon i and AAe courA ofAppeals

conclude AAe evidence supports a finding AAaA

PetlAionerj use of Als Aond in this case cjasfcapable

of CQuslnq serious bodily Injury,

' kftthL(f\ILNT°

Th& Court of Appeals failed A& prove beyond a reason

able doubt tkaf Petitioner used or exhibited a deadly

OJeaporx during the. alleged assaultJ/Moug tAt sAaAe

SnAroduced evidence AAaf a AandjAree branch j or pipe

could kypotheticed he a deadly uJeapon, It did not

fneet lis burden of pros/Inq AAaA Petitioner i/setcl any

of ttiese objects in a('inanner capable"of causetn^

Serious bodily Injury or death.

The. deadly coeapon

alteration cjas an essential element of Ike, aqqravaied

assault charge,Serious bodily injury is defined as

bodily Injury that creafes a substantial risK of

death or tkat causes deatk >Serious permanent

disfigurement, or protracted loss or Impair/riant of

the function of any bodily Member or oryandex,Penal
Code Ann. ho? (o.)(h&). The Court of Appeals failure to

prove the deadly cJeapon element beyond a 'Seaso

nable, doubt In Akls case renders iU evidence

insufficient Ao support PetiA/ener's convicAAon.

GROUND FOR REUEOd AlUMbtt TOO

The Court of Appeals erred In koldina that evidence

Supports a finding tkat petitioner, use of a branch

or pipe in AAls case could haue caused Serious bodily Injury *and ikaA the evidence ajas sufficient.

'ARGUMENT*

aJ&sleyj testified titat Petitioner tfait her coltA his Aond

and tkat he "way haut used a tree branch or pipe fc

hit her arm.Neither a handi nor a free hrancA* nor a*

pipe is a flrearmTTfierefore >these. objecAs are not

deadly aJeapons per se ,Tex.Pencil Code kOt7(U)0'7),

FurAkerrnere j these lAe/ris are not manifestly designed,

made, i or adapted for purpose of InfliefIna death &r

Serious bodily byury tConsequently / /Ae. Court of

Appeals ojos obllqated to prove that PeAAAlonen, used

these object in a manner"Capable of causing serious

bodily Injury or death according to the fact or AAls

Cast.lht Court of Appeals Cdkolly failed Ao meet lAk

burden , VT,C.A> Penal Code , hOT (ai)GtiCMd.

6.
GROUND FOR KEVIEO) NUMBER THREE

The Court of Appeals erred In revleojing and

examining only ajkaf aJas said ai trial Ay AAe

complaintnq colAness.

>ARG(JMEMT<

The Court of Appeals, Mnccjs of no otAen medical

Areatnnenf for Cdes/eyj oiker- than the parannedlc

report compieAed nineAy nninuAes after AAt, alleged

offense,Xt coou/d be clearly ajrong and manifestly

Unjust Ao conclude serious bodily injury resulted

from this tact alone under" a factual scuffleleney

reviecu,1 there is no evidence that HJes/ey^ souqht

or recelued any additional tmedlcal treatment for

her injuries /Therefore , the finding J> of a deadly

coeapon cannot rest on proof AAaA Lesleyj actually

suffered any Serious bodily Injury from AAe

alleged assault. SBC. Johnston V, STATEl /IS S,aj.3d7£h

763j ot 7&H. (TeyL-App* ZU03),

The Court of Appeals failed to

produce sufflc evidence In this case about the

Inherent nature or deadly capabitltly of AAe weapon

used Ao assault Desley*&TE>Rivera v. £TATErXl7l

S*CJ< *d 301j30&j atSOT, CTexJpp, Wos), The photographs

of LOe&iey >injuries reflect surface skin Injuries. .The,

Scratch on /desley<e arm and face are not Indicative op

the hype of force necessary to cause death or
Serious, bodily IrjuryTThe record Is e,ntirefy devoid of

any evidence, or -testimony -thai Adesfey's, documented

injuries cuere consistent cJlAA AAe type of force Maf

CJooild Indicate the object or object's used oJerc

capable of causing deaAA or serious bodily Injury,

The nature of uJesiey'Sj injuries does not lead tz>

a reasonable Anferehce that Petitioner j used any of these objects in a manner capable, of dousing

deaik or serious bodily injury.

udes/ey-i as/o stated to

officer Tbvar» -tkat -ike only ojeapan used coas

Petitioner's ?hands !(RR3) l&l ).Tn officer Tovarj report

there cuas^no'1 reference to ex tree branch nor pipe*

(/?R3j 10.1).Officer Tovarj testified thai cohen ke met

Coiik uJesley* AAat nlcfht> S>ht could not tell him hoU)

iAe morACs on her arm AiappendXRR^J 119 )>AIthocACfk

uJe&ley, refused transport ro AAe hospifoi 6uA<?n AAe.

paramedic's evaluated her AAraA morning jshe testified

that *she oJent Ao AAe Aiospltal AAe next day after the

IncldentXK^'^'lfAID medical records cjere

Introduced into evidence* ffRPo", $'40, In Lane \A

STATE A151 SSC3M at 1&9 >the Aesiimony of a nurse j

paramedic , and Acoo police officer's as cJeli as

tkrouaU the victim's hospital records sko^u AAe Acts,

and proof that 'Ms,Lane f actually uJent Ao AAe

hospitalj but In Petitioner's, case j there Is no proof

or medical records shousinQ AAoA uJesAeyjever

Dentjjusi her testimony that she &ienA* There Is 'no

Medical report ^sboLolng that TJesley^ suffered froM

her Ihjuriiojs life *ske, Aesiifi^d Ao in Atrial/Ms. Land
. CJCXS examlnd at the hospital as ojefl by the paramedics

and nur.se/Atsj hone, suffered Trow nauseajvotnltlng,

dizziness j onof a concussion to the brain f

Linlife Uesley i Ais, Lane i actually coeni to the

hospital the day of AAe assaultJlic evidence Is Aegal

and factuu/y Insufficient to support ike conviction,

because the Appeal's court failed Ao prc?ve beyond

a reasonable douAA AhaA PeAiAlonerj used or exhibited

a deadly cseapon.

Ike State ,and AAe Court of Appeal's

must provid tie trier of fact cjlih some evidence >

nornnally through expert testimony, that the ueapon

CO as ''used' or Intended to be used In suck a coay ihai

it coas ''capable"of causing death or seriouse bodily

injury. Tex, PenalCode Ann, k07 (a) Or) &*/).

din ddan z Ig >CJounds

Inflicted on the Injured party are factors to be

considered In determining cohether o oJeapon Is a

deadly cseaponf'SEEA Danzig v. State ,SV6 S<U),**300>

30 fdfex.CrlmJpp, 1977), Ordinarily use merely of hands,

fist or olker Member's of He, body oJl/A not constitute on

aggravated assaultJSEE'i Turner v. Siotej ££Lf SdJr**1at

90, (TeK, Crlm Jpp M83X

Petitioner , coouid life, to otfeynpte to explain

hou* Desley <Gotten the nnarfs on her arm:

Adrst Cdesley>

could not have been beaten cjilk a pipe or tree branck,

because if this Court cooald please examen the.

photograph's of Liesley's injury on her armytkls Court

colli see that ike Icjo Marf* are scratch's* the maet&

9.
Icjo nnarfs Ore also Identical In shape and siz.ei

there Is no bruising shotsIn% that Ike marfs ojas

caused by betrig beaten, odesleyj Aofd half of the

truth to officer Tovar, about coho/happend AAiof

night Xt coould he. hard Ao heat somane, and Ieve,

identical marAls only centimeter's apart fram

Ike olker one* The hoo marks on Des/eyss arm

are curved at the end, a tree brunch nor a pipe

coould hai/e A<efA that Jf/nd ofmarAl colAh oaf

'bputslng j or SCJel/lngl AJe?sley's arm olose notsAets

bruising or ScJe/ling. ''SEE'fPatient Care.Report, that

coos completed ninety minutes after AAe alleged

offense dStai exhibit<2 ). Xf there is no braising or

sooel/lnct j hooj Is It capable of sousing serious bodily

Injury? the Injury on COesley's arm coas caused

by a finger-nail not a tree branch or pipe.

Petitionerj OJOu/d life to shoes AAe

three different Circumstances of his case'sHrsf,

Liesley / Aells officer iovar, thatthere cjus nota cJeapon

used. SecondjCdes/ey, Aold detective £vereAA, Ahat

a UnfnocJnUitness'jjos the one cjho told her Ahat shc

coas hit cslth apipe, but AAoi 'f/n/Cnocsnwitness rsas

her daughter csho cJas ai cjorf ot Ahat flmef£P31r7(b

$%)/thlrdlUesley>, testified that she sacj Ah& pipe

being used on her*(l?P3;2J?)l7hese arejust three of

the different inconsistent circumstanes of fetlt/oner

case,

10*
• PKMEK •

LdHEfEFDfE, fAEAIJSES CONSIDERED, Petitioner*

prays Ahat AA?Is Court grant Als PeAAtAori-for

DlscreAAonary AfeuAeod, and reverse AAls cause

and enter an order of acquittal.

Respectfully Submitted

^"ffjaotiA /foe /cf/n/AJRobert doe Afimble.

pro sefPetitioner,

McConnet! Unit

30OI SXnnlty driuc

l&eevillejTx 72/0 Zu
SERTIFICA TEOrSEMJCE

I certify that a true and' corre>cf copy off the

above foregoing Petition Az>r Discretionary

feviecjj has Aeen torcjarded by d,S, Ula!I,postage

prepaid, first class / Ac? AAe Attorney for AAie

?fde fCralgDoJKlns , at Dallas CountyDistrict

Attorney's office, FranKCrooj/ey CourtBuilding)

133 A/, Riverfront3J\/dXBd?j Dallas ,7x9T5X07*1311,

and Ao the ssfaife ProsecuAAng AtfoheA/',Pd,8oxlZ.H

osi Austin iTx 7%7ll on Anls fhe^-JA^^day of

& ,2/3 ISs-.

fobeetJoeKimble

Petitionerj Pro se

Xj #oherAJo~eA<AmblejTO,CjT,lt 193'V7JL9,being

presently Incarcerated in AAe Pic ConnellUnit ofthe

Texas Department of Criminal justice In AHeevllle*

County iTe%as j verify and dec/are underpenalty of perjury that fhe foreqolnq statements are

true and correct* Executed on AAAs JAe —EAday crP . fT—j^?-,/^ .,

-~<Pu3A&U&rcd&e Vf/n-t3ct<^

IA.
Affirmed and Opinion Filed May 28, 2015

In The

Court of Appeals

iFifttj District of ulexas 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 ChiefJustice Wright and Justices Myers and Evans

Opinion by ChiefJustice 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 isthe 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 offher daughter at work on that evening and went to see appellant

at about nine o'clock. They went toappellant's brother's apartment for dinner and then spent the
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 herforehead above that eye. Herface was very swollen, and she hadmarked 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,
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 ofthe 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 deadlyweapons, 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.
§ 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

-4-
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 ofthose 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

-5-
Court of Appeals

Jffiftlj District of utexas 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 ChiefJustice Wright.

Justices Myers and Evans participating.

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

Judgment entered May 28, 2015.