                                 vm-is
                        N0>QS-H-oot7a.'i-Ct    •       RECEIVEC
   n rl P\ N t\ L                                    C0URT 0F CRIMiNAL APPEALS
   UK itin                  ,rwr//£                       AUG182015
             COURT OF CRIMINAL 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. JIBS™
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,(JM 300,301lTex£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,tnJppl 19831,   --.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

A grand 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£
          Opion ion by Chief Justice. (aJright
Ajury found appellant jfober/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 the-
court 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 of Appeals
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
Areatnnen f for Cdes/ey j 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 at SOT, 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 on of 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, (Te K, Crlm Jpp M 83X
           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 shots In% that Ike marfs ojas
caused by betrig beaten, odes leyj 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 of marAl 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.
               Petitioner j OJOu/d life to shoes AAe
 three different Circumstances of his case'sHrsf,
 Liesley / Aells officer iovar, that there cjus nota cJeapon
 used. Secondj Cdes/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/AJ-
                        Robert doe Afimble.
                        pro sefPetitioner,

                        McConnet! Unit
                            30OI SXnnlty driuc
                            l&eevillejTx 72/0 Z-




                        u
              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-.
                                  fobeet Joe Kimble
                                 Petitionerj Pro se
Xj #oherAJo~eA<AmblejTO,CjT,lt 193'V7JL9,being
presently Incarcerated in AAe Pic ConnellUnit of the
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 —EA-
day crP     . fT—j^?-,/^ .,
                                 -~<Pu3A&U&rcd&e Vf/n-t3ct<^

                          I A.
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 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
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,
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.
§ 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 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




                                               -5-
                                Court of Appeals
                      Jffiftlj District of utexas at Dallas
                                     JUDGMENT


ROBERT JOE KIMBLE, Appellant                     On Appeal from the 283rd Judicial District
                                                 Court, Dallas County, Texas
No. 05-14-00724-CR       V.                      Trial Court Cause No. F-1355104-T.
                                                 Opinion delivered by Chief Justice Wright.
THE STATE OF TEXAS, Appellee                     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.
