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> 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) 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.