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
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                      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.




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