Grimaldo, Gilbert

• Court: Texas Supreme Court
• Decided: February 10, 2015
• Docket: PD-1445-14
• Status: Published

Opinion

BiCHVEDjN lHH$-ty ORIGINS FEB 06 2015 PD-1445-14

§ COURT OF CRIMINAL APPEALS

OF TEXAS vs

THE STATE OF TEXAS § AUSTIN, TEXAS

APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES THEREOF: COMES NOW. Gilbert Grimaldo Appellant's by and through his Appel lant's Appellate Pro-Se Gilbert Grimaldo and pursant to the provi sions of Article 44.45 of the Texas Code of Criminal Procedure and Texas Rule of Appellate Procedure 38, et seq. ,resPe^fullfMMjs COURT OF CRIMINAL APPEALS this Appellant's Petition For Discretionary Review. FEB 10 2015 STATEMENT OF THE CASE Abel Acosta, Clerk Appellant Gilbert Grimaldo was indicted in case number 1243882D for Aggravated Assault with a deadly weapon with a repeat offender notice alleging he had a prior conviction for murder. A jury conv icted Appellant of the offense. Appellant plead true to the repeat 'offender allegation and the trial court sentenced him to 60 years fin the Texas Department of criminal Justice Institutional Division. ''Notice of appeal was signed on December 20, 2012 an granted. Then '!on December 20, 2012 attorney Ken Gordon was appointed counsel for the appeal. Attorney Ken Gordon on June 28, 2013 filed a Motion To Withdraw and Brief In Support Of Motion Ander's Brief. Appellant has desire to file a Appellant's Pro-Se Brief was due on October 23, 2014 and filed a first extension was sought for January 23, 2014. Then Appellant filed a second extension to be timely filed on or 1before March 24, 2014, The State's file it's First Motion For Exten- gion of time for filing of State's Brief on April 20,2014 was due

on May 28,2014. The State's Second Motion For Exrension of time ;

:or filing of State's Brief on May 30,2014 was granted due on June 27,2014. State's Brief was filed on June 26,2014. The Appellant i filed Appellant's Objection To The State"s Brief on

The Court Of Appeals Second District Of Texas Fort Worth, Texas

ordered that the judgement of the trial court is affirmed. Appell

ant's Petition For Discretionary Review was due on 0ctober:18,2014. Appellant's Pro-Se First Motion for an Extension of time in which

•:o file the Petition for Discertionary Review, petition has been extended to Friday, December 19,2014.

[ ISSUE PRESENTED KSSUE 0NE:THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO FIND APPELL ANT GUILTY OF THE OFFENSE OF AGGRAVATED ASSAULT. f ISSUE TWO:THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO FIND THE USE OR EXHIBITION OF A DEADLY WEAPON.

ISSUE THREE-.THERE WAS LEGALLY INSUFFIENT EVIDENCE TO FIND APPELL ANT GUILTY OF AN AGGRAVATED ASSAULTY BASED ON THE EVIDENCE PRES*J SNTED.

i STATEMENT OF THE FACTS

tOn May 29, 2011, at 12:34 a.m.,•Arlington Police Officer Jason Mc- Gray stopped a car headed west on Interstate 30 in Arlington. Tex

as, for speeding. The driver was Appellant Gilbert Grimaldo. 4RR-

jl.7-18. On or about 11:30 to 12:00 a.m. victim witness voluntary statement Sandra Burrola [now Sandra Burrola Hudson] answered a knock on her apartment door. 4RR24; State"s Exhibit 24. Appellant

was on his knee's asking Ms. Burrola to take him back because he ioved her. When she tried to shut the door, he forced his way in

to her apartment. 4RR25. Appellant and Ms.Burrola had been in a common-law-wife relationship from January 10. 2009 which ended in

-2- February 2011. 4RR22. Ms. i^vtold said* Appellant hit her with his ?list and threatened to kill her children. He put a pillow over her icace and continued to hit her and choke her. 4RR25-26, 58. Ms.Bur-

tola's 13 vear old son, Joseph, walked into the livingroom and she "old him to call the police with her cellphone which was the only telephone in the house, Appellant took the phone away from Joseph 4RR26-27. Appellant dragged Ms. Burrola by her hair into the kitch en, put a kichten knife against her throat and told her she was go ing to die. The knife bieoke against her neck and caused scratched bruising. 4RR28-31, 60-61, 64; State's Exhibit 1,2,3. Ms. Burrola 1

;;vas able to break away and ran out to the stairs. Appellant follow-. ') £d her and pushed her down the stairs and then grabbed Joseph and lt jthrew him down the stairs. Ms. Burrola says Appellant threatening ,to kill her two children. Appellant forced Ms. Burrola and Joseph "~ back upstairs and into the apartment. 4RR34-35. Ms. Burrola testif ied that Appellant put a lighted cigarette against her eyelid in addition to other phsical injuries. 4RR37; State's Exhibit 7-11, 12, 13. Ms. Burrola went out on the balcony and jumped to the ground land ran to the apartment of David Brown. She used Mr. Brown's cell phone to call Fort Worth Police 911. She identified her voice on the (recording of that call which occured around 2:38 a.m. , 4RR43-44; i'State's Exhibit 16, 25. Ms. Burrola starting receiving e-mail mess- f 'ages from Appellant, "I'm sure u called cops n told them dat I tried do dis n dat 2 u n ur kids but ya not worth it not 1 bit bye hoe :. loose my nmbr nasty fat ass ugly bitch". 4RR52, 161-162; State's Exhibit 22. Fort Worth Police Detective was •a certified forensic :. computer examiner 4RR150-15L. He examined the e-mail recieved on Ms. •Burrola?s.computer :on;May 29, 2011, and established that the message

"3- jj -i tient to her address "sandi .memdoza 817@gmail.com" was from "gilbert- pvrimaldol969@yahoo.com" and was from a mbblephone device. 4RR155, ii57-158; State's Exhibit 22, 27. Since it was possible for someone

to have access to the user name and password and the e-mail ad4.::

«lress "gilbertgrimaldol969@yahoo.com", to send the message, he : could not identify the actual author or the number of the parti- dular phone used, although the sender would need to have the phone fo which that addressed was synced. 4RR163, 167. IJoseph Burrola was sleep when his mother's screams woke him and i mien he went into living room he saw his mother trying to keep Appellant from getting in the apartment. She tolled him to call |l;he police but Appellant took the phone away from him. 4RR72-73. ;le went back into his room but got up again when everything start- l

ed getting loud. He saw his mother limping up theLstairs saying ;j Appellant pushed her down the stairs and then Appellant grabbed 1 Ifoseph by the hair and told him to go get his "stupid A" mother. |rR73-74. Following his mother's instructions, Joseph went back to jiis room but he also checked to make sure his brother and sister were asleep. 4RR74. He then saw Appellant put a pillow over his $ Mother's face and he saw Appellant with a knife in front of Ms. iurrola. 4RR75. A short time later, he watched as his mother ran £>ut on the balcony, jumped over the railing and ran across the :. ij feourtyard. Appellant ran after Ms. Burrola and Joseph grabbed a golf club and chased Appellant. David Brown was outside and saw Ms. ffiurrola running towards his apartment. He also saw Appellant and fjoseph. Mr. Brown had Joseph throw the golf club on the ground. !4RR76-77, 96. Joseph testified that Mr.Brown told him to^g.^tbhis fbrother and sister an bring them to Mr. Brown apartment. He rem-

I 1 .; fmber that and unidentified female walked with him to his apartm- rl |nt and back to Mr.Brown's apartment. 4RR81. David Brown was on I . active-duty as a heavy equipement mechanic with the U.S. Navy and was, during May 2011, assigned to the Joint Reserve Base in Fort Worth. He personally knew Appellant Gilbert Grimaldo and Sandra urrola and her children. 4RR87,91. Around 2:30 a.m., he saw Ms. |urrola jump or fall from her balcony and ran toward his patio. 4- RR85,87-88,95,114. Ms. Burrola told him that Appellant had a knife |nd was trying to kill her.,4RR88,112. She used his cellphone to e|all 911. 4RR90. Mr.Brown's said he seen Gilbert come from the area of the stair well was on the side of Sandra apartment walking I toward Mr.Brown's apartment. 4RR90-91. Mr. Brown testified Gilbert it didn't have no weapon. 4RR102-103. Mr.Brown said Gilbert had no I blood on his clothes. 4RR110. Mr.Brown said Joseph came running t wath a golf club inhis hand and Mr.Brown had to hold him back. 4RR- I 9^5-96. Mr.Brown testified not in front of the -jury in vior dire I • t|hat Joseph was getting in troulbe at school and breaking into apartment building and is therefore having this child lie for her is i|n order to manipulate the testimony. 4RR116-117. Mr.Brown escort ed Appellant off the apartment premises and then went to Ms.Burrola I apartment to protect them. 4RR92-93,106,109,112,120. Appellant Gil-

b^ert Grimaldo elected not to testify. 4RR169-170. fThe jury convicted Appellant of Aggravated Assault as charged in tfie indictment. 4RR192. Following the Appellant's plea of true to f hjaving been convicted of murder on May 13,1986, and hearing the I tjestimony of other witnesses that Appellant committed other and j

pervious acts of domestic violence, the trial court sentence Appel- Amt to 60 years,, in the Texas Department of Criminal Justice In- i sjtitutional Division. 5RR7,75;CR133. I SUMMARY OF ARGUMENT fThe two major issues in this case are the use or exhibition of a deadly weapon and the identity of the asault. The trial court found there was sufficient evidence to convict for Aggravated Assault. In the issue, Appellant states that the evidence is legally insuffici ent to establish the element of use or exhibition of a deadly wea pon in 1243882D. At best the assault in the case made a movement towards knife of knives, there is no knife-weapon taken.into police custody an filed on the evidence list:.in^ease-number 1243882D, but |hat is not sufficient to establish use or exhibition of a deadly Weapon. The judge ment for Aggravated Assault in this case should sbe reversed.

The"third issue is the evidence regarding identity's legally in

sufficient. There was no description given but the complaintant's Ms. Burrola said ex-boyfriend Gilbert Grimaldo. There are two wit nesses her son Joseph and a friend Mr.Brown. The Appellant was not tarrested at the scene of this crime. But a warrant was issued and ^Appellant was arrested. There was no fingerprints or no DNA obtain ed none for gloves of which matched Appellant. Appellant Gilbert •has an alibi witness Wiliam Carlton. Detective and District Attorn ey failed to investigate Mr.Williams Carlton testimony for the de- •'j °fense of the Appellant. The Court issued a subpoena for the private detective to serve alibi witness Mr.William carlton but he was not 'served. The Court and District Attorney failed to subpoena alibi 'witness Mr.William Carlton for the defense. Also Appellant has two ^affidavit from witnesses that was on the list of witnesses but was I -6- not called to testify in the behalf of Appellant there names are D^avid Trevino and Geneva Labree [now Geneva Labree Grimaldo]. Ms. Burrola was not hospitalize for her injuries or no medical reports

of her injuries by a physician to show serious bodly injury or dea th by expert testimony. Appellant assert that the evidence is leg ally insufficient to convict him of this case. The judgement for Aggravated Assault in this case should be reversed and remanded to the lower court.

ARGUMENT

ISSUE ONE, RESTATED:THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO FIND APPELLANT GUILTY OF THE OFFENSE OF AGGRAVATED ASSAULT. iSSUE TWO. RESTATED:THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO FIND THE USE OR EXHIBITION OF A DEADLY WEAPON. A. Standard of Review

Appellant contends that the evidence is legal sufficiency is the

constitutional minimum requirement by the Due Process Clause of

the Fourteenth Amendment to sustain a criminal conviction Jackson V. Virginia, 443 U.S. 307, 215-16, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). The appellate standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. !ld. at 320, 99 S.Ct. 2781. The evidence is examined in the most favorable to the factfinder. Id. A successful legal sufficiency challenge will result in the rendition of an acquittal by the re viewing court. Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.Ct. ,2211, 72 L.Ed. 2d 652 (1982). [There is little dispite over the relevant facts in the case. When jview in the light most favorable to the jury's verdict. Those fact 's are appellant and the complainant lived together from January 10 i ' _7_ 2009 to the end February as common-law-wife. Complainant said Ap pellant held a knife to her neck threating to kill her and her ch ildren. The indictment alleged the offense of Aggravated Assault under section 22.02(a)(2) of the Penal Code, which provides that a person commits an offense if he uses deadly weapon while causeing bodily injury.Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2011), B. Law Requiring Use of Weapon

When a person is charge with using a deadly weapon, the evidence must establish that the weapon was actually deadly. Lockett v. St-

§tate, 874 S.W.2d 810, 814 (Tex.App.-Dallas 1994. pet.refd). The Eenal Code defines a "deadly weapon" as a knife or anything design ed, made, or adapted for the purpose of inflicting death or seri ous bodily injury; or anything that in the matter of its use or intended use is capable causeing death or serious bodily injury Tex. Pen. Code Ann. §§ 1.07 (a) (17)(A),(B)(Venon 2011). "Serious bodily injury" is defined as "bodily injury that creates a substantial risk of death or that causes death, serious permanm-

e.nt disfigurement or protracted loss or impairment of the function

c^f any: bodily member or organ."Tex. Pen. Code Ann. § 1.07 (a)(46) QVenon 20110. Because the complaintant Ms. Burola did not die or

actually suffer serious bodily injury" she was not hospitalize, no 4edical report by physician, no reported medical injuries and no services from Medstar Ambulance Service bill or testimony", the narrow issue inthe case is whether the weapon used by appellant

was capable of causeing death or serious bodily injury. Adam v.

State, 22 S.W.3d 581, 581(Tex.Crim.App.2002)(citing McCain v. St-

a.te, 22 S.W.3d 497, 503(Tex.Crim. App. 2000) ("am object is a deadly weapon if the actor intends a use of the object in which it would

., -8- i i'

ye capable of causeing death or serious bodily injury"). Therefore we must view the evidence in the light most favorable to the verd- fct and determine whether any rational jury could have found appel lant used a weapon in such a way that the weapon would be capable ef causeing death or serious bodily injury, (CR-89-100). :; C. Application To These Facts

JThe State offered evidence on this issue from five source. First testimony was Ms.Burrola said the object came from butcher block fjet, which she said Appellant dragged her to the kitchen and grab bed a butcher block knife from a butcher block set that broke into pieces by direct exmination district attorney Bangs. 4RR28-30. On qross-exmination Appellant's attorney Canas asked Ms.Burrola about t^he knife, she doesn't know what type of knife it was used in that kitchen. Her testimony is not clear to show what style of knife, size, shape or sharpness. 4RR65. Joseph testify see Appellant with a. knife. 4RR75. Mr.Brown testify that Appellant didn't have a wea pon. 4RR103. That he seen Appellant come from the stair well area. 4JRR91. Mr.Brown said Gilbert had no blood on his clothes. 4RR110. Opicer Stewart did not write or state that was a cut on her neck ajid clearly a small scratch or a weapon used in the family viol ence packed diagram report. 4RR137-138. Officer Stewart testimony there's no where he saids that he took into evidence a weapon. Of ficer Stewart has put no weapon into evidence see evidence list. 4RR128-140; See Evidence List. Detective J.M.Bayer testify to kni fe being a deadly weapon. 4RR145. But in Detective Bayer testimony tliere clearly no weapon taken into evidence see evidence list. 4RR- 140-149; Evidence List. Detective Baker testify that the glove was spt for DNA Testing and fingerprints testing. No fingerprints was found of Appellant. 4RR145-146. There is no DNA of Gilbert on the ;,-

jgloves. They weren't able to get anything off the glove. 4RR145- I1 446. Detective Bayer confirmed that there any other DNA testing Requested by the defense? No not at the time. 4RR146. There's no ijnedical reports records stated Ms.Burrola was treated by a physic ian or Medstar Ambulance service in testimony for injuries lacera- Hon or burns which consistent with being namely whether Appellant iised a weapon in such a way that the weapon would be capable of 'i'

>auseing death or serious bodily injury. In resolving this issue, |re are mindful that a weapon's capacity to cause death or serious

'podily injury must be supported by evidence related directly to I the circumstances of the criminal episode and not upon a hypothe

tical of causeing death or serious bodily injury. Johnston v. Str

jate, 115 S.W.3d 761, 763(Tex. App.-Austin 2003), aff'd, 145 S.W.3d |l5(Tex.Crim.App. 2004); Inre A.J.G., 131 S.W.3d 687, 694(Tex.App. |rCorpus Christi 2004 pet. denied). See 4RR64-65. if ' D- Conclusion 1For the record is picture's of a butcher block set, pieces of it

I'something" testimont of a knife but no weapen taken into evidence TJjust hypothetical claim of a weapon. See State's Exhibit 1,2; 4RR

|>5, Evidence List. We will begin with the issue of the knife, whi- ;ch is not a deadly weapon per se. Robertson v. State, 163 S.W.3d

[730, 732(Tex.Crim. App. 2005); Thomas v. State, 821 S.W.2d 616, 620 I |(Tex.Crim.App. 1991). However, a knife may become a deadly weapon and the court have recognized several factors, to consider when 'determine a knife was used as deadly weapon; (1) the physical pro- l ximity between the conplaintant and the knife; (2) threats or t-

Ivords by the defendant; (3) the size, shape and sharpness of the

I -10- % knife; (4) testimony about the knife's ability to inflict death or f . /^erious bodily injury; (5) the actual knife need not be introduced ;into evidence if witness is able to testify about the knife and xhe manner in which it was used; (6) assertive conduct by the actor; £nd (7) the location and severity of the wounds inflicted.TThomas |r. State, 821 S.W.2d 616, 619(Tex.Crim.App. 1991); .Ortiz v. State, §93. S.W.2d 892, 894(Tex.App.-Fort Worth 1999, no pet.); Garcia v. State, 17 S.W.3d 1, 5(Tex.App.-Houston[lst. Dist.]l995, pet. ref- I d). Either expert testimony of lay testimony may be sufficient to ,1 Support a deadly weapon finding English v. State, 647 S.W.2d 667, |68-69(Tex.Crim.App.1983); Bailey, 46 S.W.3d at 492. no one factor is determine, and the fact-finder must examine whether the knife I %s a deadly weapon. No expert testimony.was offered to support a f deadly weapon finding. The State is not required to introduce exp- |rt testimony to establish that instrument used in commission of $.rime is deadly weapon, as will permit conviction of aggravated I jj>ffenses; however, expert testimony can be particulary useful in supplementing meager evidence on the issue in order to meet the t. \i

Sufficiency requirement. Denham v. State,574 S.w.2d 129,130(Tex.

jprim.App.1978); Harris v. State, 562 S.W.2d 463(Tex.Crim.App.1978): Davidson v. State, 602 S.W.2d 272(Tex.Crim.App.1980); Lockett v.

|tate, 874 S.W.2d 810, 814(Tex.App.-Dallas 1994. pet. ref'l). Th- i ere was affirmative finding this is why appellant is challengeing |he deadly weapon finding. Ex parte Nelson, 137 S.W.3d 666(Tex.Crim. I App.2004). However, Ms.Burrola case, there was no evidence of a

|reapon and thus the conviction in trial cause 1243882D for the of- li . • . fense of Aggravated Assault should be reveral and an acquittal.rend- I!? ered on that charge of Aggravated Assault. | I -11- f;

I Issue three, restate:there was legally insufficient evidence to find appellant guilty of aggravated assault based on the evidence present ED.

A. Standard of Review 4'

I IAppellant contends that the evidence is legally insufficient to I support the verdict. The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found

essential elements of the offense beyond a reasonable doubt. See

[Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.Ct. 2781, 2786-27- i

87, 61 L.Ed., 2d 560(1979). Tucker v. State, 221 S.W.3d 780, 781 !> j[Tex. App. -Corpus Chirst 2007). The evidence is examined in the |ight most favorable to the verdict. Jackson, 443 U.S. at 320, 99 |.Ct. at 2789; Tucker, 221 S.W.3d at 781. A sucessful legal suffic- (i jlency challenge will result in rendition of an acquittal by the re- fiewing court. See Tibbs v.; Florida, 457 U.S. 31, 41-42, 102 S.C. Ill, 2217-2218, 72 L.Ed.2d 652(1982). | B. Law

4to be convicted of Aggravated Assault, a-person must intentionally or knowly cause bodily injury to complaintant and the defendant did Iise or exhibit a deadly weapon during the commission of the assault I To Wit: a knife that in manner of its use or inrended use was cap

able of causeing death or serious injury. Tex Penal Code Ann. § 22. |2 (a) 2 (Venon 2011). Appellant contends the evidence is insuffici ent to prove the deadly weapon element, and serious bodily injury. I C. Problems with the weapon and injruies jMs.Burrola is not sure what kind of knife or knives was used ques

tion by Court Appointed Attorney Mr.Canas. 4RR65 lines 10-16. Jose

ph testify to a knife but not what kind of knife. 4RR75. Mr.Brown

I -12- saids Appelant had no weapon. 4RR103. Mr. Brown said Appellant Gil- bert has no blood on his clothes. 4RR110. Officer Stewart did not

write or state where a cut on her neck was or a small scratch or a weapon used in the family violence packed diagram report. 4RR137- •138. Officer Stewart testimony there's no where he saids that he took into evidence a weapon. 4RR128-140; See Evidence List. Detect- Jive Bayer testimony ther clearly no weapon taken into evidence. 4RR- 1.40-149; See Evidence List. The picture's taken of abutcher block jset or pieces of "something" doesn't prove the element of a knife. .-Also these pieces of "something" wasn't entered into police evidence llist so that these pieces of "something " could be DNA Tested to (prove if this was part of the weapon or used in the assault, which ^Officer Stewart destoryed the pieces of"something" that he took a jpicture of. See State's Exhibit 1; Evidence List. There was no fing erprints found on the gloves and no DNA of Appellant. 4RR145-146. ^Appellant did file a Motion Requesting Appiontment of Counsel DNA T- festing with Affidavit telling why gloves and pieces of "something" ^should be tseted, check Court Docket Sheet, it will shows the pieces ^of "something" wasn't entered into evidence so that pieces of "some thing" could be tested for DNA Testing this why Detective Bayer cou ldn't have it tested when he requested DNA Testing on the gloves. URR145-146; See Evidence List; Trial Docket Sheet. This prove the 1;

3ury::didn' t t}r;ov

kdead weapon finding. ? -13- .'•The picture's show her with ascratch. See State's Exhibit 3. Not ice not one of the four witnesses saids they seen the cut and bl ood coming from the cut see all testimony. 4RR1-196. For the record Ms. Burrola did not go to the hospital, or hospitalized so on phys ician report or medical report or tsetimony or expert witness testi mony. No testimony from Medstar Ambulance Service that they served complaintant for any injuries because complaintant refused to be

treated by Medstar Ambulance Service. See Incident Detail Report pages 1-10 Clerk Record's.

D. Alibis, Denial of Right Compulsory on Service on Witness and Brady violation failed to investigate, notice of potentical ex culpatory information and evidence.

jon the day of this offense Officer Jason McCary stopped Appellant ifn a car for speeding. 4RR16-19. Appellant alibis witness the Court issued a subpoena by Gilbert Townes Private Investigator Lie. #A12- 8j83 failed to serve Mr. William Carlton subpoena. CR75; Exhibit .1. Private Investigator Gilbert Townes Lie. #A12883 served subpoena to Tracey Hernandez and David Trevino. See Exhibit 2,3. Appellant has put into the record the Affidavit's written by David Trevino and Ge neva Labree [now Geneva Labree Grimaldo]. CR118; Xehibit 4,5. This is Denial of Right Compulsory on Service on Witnesses. The Sixth Amendment of the United States Constitution gives every defendant the right to have witnesses called in order that they may testify oil the behalf at trial. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351(19- 712), Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923(196- 7J) . The right to offer the testimony of witnesses and to compel their attendance, if necessary is in plain terms the right to pre

sent the defendant's version of the facts as well as the prosecut ion's to the jury so it may decide where the truth lies. Just as an

If -14- " I accused has the right to confront prosecution's witnesses as for the purpose of challengeing their testimony, he has the right to pre- sent his own witnesses to establish a defense. This right is a fund- amaental element of due process of law. This is a Brady violation failed to investigate, notice of potential exculpatory information i and evidence. See Brady v. U.S., 397 U.S. 742, 90 S.Ct.1463.

E. Application to These Facts

i'lt's veey clear that the complaintant' s isn't clear on the weapon

because she tells recross-examination Court Appionted Attorney Mr. I • Ganas; 4RR65 lines 10-16:

,"• Q. Did you have any other knives in the kitchen besides these? :. A. Yes sir, Those are not my only knives. •I Q. so it could have been some other knife? ,', A. It could have possiblely had been. I mean, ij if one broke on you that easily, it might be a better '*• chance to get a different one. C

,JMs. Burrola testimony, so it clear to say it could have been a bu-

tlterknife. Her injurues weren't life threatening because there wasn't testimony from Medstar Ambulance Servie saying they served complaint ant for injuries, she refused Medstar Ambulance Services or a bill

for service. See Court Record Incident Detail Report pages 1-1.0. f!

Also no hospital physician testify of injuries, wasn't hospitalized

or no medical report or no expert witness testimony of injuries. Un

der the Jackson, standard and Tucker there is not legally sufficient

eVidence to convict Gilbert Grimaldo of Aggravated Assault. -,Under Rule [73] of Texas Rule of Appellant Procedure the Court sh ould granted the Appellant Memorandum Law pursuant to Rule 200 [c] V >i [2] of the Texas Rule Of Appellant Procedure to determine whether i

Tlie Court of Appeals holding was correct will reflect acquittal. The

Gourt of Appeals 919 F.2d 1074 vacated and remanded. Johnson v. St^

«|te, 548 S.W.2d 700 (Tex.Crim.App. 1997). Where alleged offense count •'i

-' -15- qf Aggravated Assault with a deadly weapon was committed on May 28, 2011. After effective date of new Penal Code 7, Lernell v. State |15 S.W.2d 486(Tex.Crim.App.1995); failure to object waives claims Of defects in the indictment but was or insufficiency claims. Sneed

^. State, 803 S.W.2d 833(Tex.Crim.App.1991 pet.Ref'd). Assault off- epse of causing bodily injury and causeing physical contact are res

ult offense, threatening another with imment body injury is a nature

of coduct offense. Green v. State, 831 S.W.2d 891(Tex.Crim.App.Corp

us Christi 1992 No.pet.). To qualityas a deadly weapon under this

section a knife must shown to be capable of causeing death or seri

ous bodily injury in the manner of its used or intended use. On rem

and the District Court should granted the judhement of conviction

motion for a new trial, motion in arrest of judgement and motion to

vjithdrawl as counsel. (1) assault with dangerous or deadly weapon.

('Tex.Crim.App. Hou.)Est. Dist.1992). Like a club board or knife, ham- f . mer is not a deadly weapon Pre-Se but depending on circumstances •j all thees items may become daedly weapon under Statue V.T.C.A. Penal

Code § 1:07(A)(11)(B), Bethel v. State, 842 S.W.2d 804; Indecent As sault .V.T.C.A. Penal Code § 22.021(A)(1)(B)(1). Vernon v. State, 841 \ » S,W.2d 407, Proctor v. State, 841 S.W.2d l(Tesx.Crim.App.1993). And

Appellant appealed; The _Gourt. of:_AppealE Wright, McCall and Kalenak, Circuit Judge held that (1) State criminal defendant has constitut

ional right to present Pro-Se Brief and motion of appeal and (2) ma- \ ' , terial question of facts, precluding summary judgement for same de

fendants here gives timely notice of appeal desination of record on l

appeal. Defendants here in gives timely notice of appeal due to le- galle and factually insufficiency of evidence; violation of due pro

cess rights reversible error that may have ocurred at trial: potent-

i -i6- ially improper argument remarks by State counsel, and to protect de- fendants rights to fundamental fairness. Appellant request that the i ' ' Aggravated Assaultv be remanded and reversed and acquittal. I i PRAYER FOR RELIEF I'

jWHEREFORE, PREMISES, CONSIDERED, Appellant respectfully prays that fche trial court's decision be reversed and judgement of acquittal rendered; or in the alternative, if this Court only sustain issue one or two, that the judgement in the cause be reversed and remanded i and for other such relief as allowed by law.

I Respectfully Submitted,

r*rt4/rfG | Appelant Pro-Se { TDCJ-ID #01829156 ,[. Mark W. Michael Unit t 2664 FM 2054 \ Tennessee Colony, TX 75886 ; CERTIFICATE OF SERVICE

fA:true and correct copy of the foregoing Appellant's Petiton For ; i.

^Discretionary Review has been forwarded to counsel for the State c . jby regular mail on the // day of December, 2014. b V

I I ^/&A»u Appellant Pro-Se i TDCJ-ID'#01829156 \- Mark W. Michael Unit 2664 FM 2054 I Tennssee Colon, TX 75886

Ice: File i

•17- EXHIBIT SUBPOENA CASEN0.1243882D DATE OF ISSUE: November 7,2012 THE STATE OF TEXAS INTHE297TH Vs. § DISTRICT COURT

TO ANY SHEkJT!^?^0 § TARRANTCOUNTY,TEXAS ^TToi^^.Sm^G^0^ PERS°N AUraORKE^ BY THE STATE OF TEXAS IN ACCORDANCE WITH there to testify onbehalfofthe above shown partT^SeSnlw^.S * ^ " ^ b?°W shoWn date "* time> *«and from ftjr to day and from term to term until d^ed^iSt ^ *°V0P"dfag"•* C°Urt- ^ *«remain omfS"^ to briDg •» him -d!»*-- Court the following instrument or instruments in writing or To appear as aWitness forthe DEFENSE. Witness fe to appear on 11-26-2012 AT 9-00AM. DANIELTREVINO

2?«9^™8BARNFIT ^ DALLAS' "•?521*'DALLAS C0UNTY WILLIAMCARLTON 603 NORTH ANGLIN ST., CLEBURNE, TX 76033 817-770-7260

HEREMTAIL NOT, ta, ofMs subpo™,^ te ^ ^^ ,ou haveexecutedthe*™ EDUARDO TANAS Attorney THOMAS A. WILDER District Clerk s~\J Tarrai 817-332ififl day of V( A°?*IC^^™f ~" : * andI withi^ the hearing of itottoiS: summoned^ T^Tr^lnd'bv £~^ "* ""0Btad by readinS *"***» ^poena to f^^^ to the withinlled hereinafter set forth as follows: ADDRESS Date Time Mileage Total Fees Summoned fo •' »->M LidJUuA-_^L£ rt/f Summoned

The following named witnesses not summoned for the {~£^r22^^ *«=^5^iSE£

—^V^^ County, Texas .•Deputy—

EXHIBIT 1 THE STATE OF TEXAS //'t*-/^ SUBPOENA CASE NO. 1243882D DATE OF ISSUE: November 7,2012

THE STATE OF TEXAS § INTHE297TH § Vs. § DISTRICT COURT

GILBERT GRIMALDO § TARRANT COUNTY, TEXAS TO ANY SHERIFF OR ANY PROPER PERSON AUTHORIZED BY THE STATE OF TEXAS IN ACCORDANCE WITH ART.24J01(b)C.C.P. - GREETINGS: You fare hereby commanded to summon the hereinafter named person or persons to be and personally appear before the above named court of Tarrant County, Texas, at theTarrant County Justice Center in the City of Fort Worth, at the below shown date andtime, then and there to testify on behalfof the above shown party in thestyled andnumbered action shown above pending in saidCourt, and there remain from day to day and from term to term until discharged by said Court. And'the said witness is further directed to bring with him and produce in Courtthe following instrument or instruments in writing or other tWng desired as evidence: NONE

To uppcSijs aWitness for the DEFENSE. Witness isto appear oa 11-26-2012 AT 9:0f; AM. riSftBLTREVINO *//-/3-/'Z- - j£~ dJ~»~j^ ft-/"»-'*- fO^T^- 807 N0RTH BARNETT ST., DALLAS, TX, 75211, DALLAS COUNTY 214-394-5718

WILLIAM CARLTON //-/*•/£ 7.57//" ^W^ /A Zt^^/Q 70 Lu^h^t^ * 603 NORTH ANGLIN ST., CLEBURNE. TX 76033 n / ' ' v' ' v "frSn€SJ0-7c . J/^- 7*

HEREIN FAIL NOT, but ofthis subpoena make due return, showing how you have executed the same. A disobedienceofthis subpoena is punishableby fine not exceedingfive hundred dollars, to be collected as fines and costs in other criminal'cases. EDUARDOCANAS THOMAS A. WILDER District Clerk Attorney ,.--•. ' Tarrant County, Texas 817-332-6060 By: Attorney PhoneNo. KASMIA D. MENDOZA, Deputy (Feldny cases. To beread to witness if served inTarrant County and to beexecuted bydelivering a copy to each witness named outside ofTarrafit County. May also be used for duces tecum.) JL

CAME TO HAND on the _/_ /77 J>>i± tL OFFICER'S - day of AA)^ft^^f/^ OF] RETURN , 20 )72- . and executed by reading the within subpoena to and within the hearing of the witnesses, surranoned in Tr.rrai»t County, and by delivering a true copy of this Writ to the within named witnesses summoned outside ofTarrant County, or byDuces Tecum, onthedates and at theplaces hereinafter set forth asfol ows: ADDRESS Date Time Mileage Total Fees Summoned Summoned

The fallowing named witnesses not summoned for the reasons set opposite their names in accordance with Art. 24.04 C.C.P.

/£~m^1L. County, Texas

By. - i fcputy —.

V"*

EXHIBIT 2 THE STATE OF TEXAS

SUBPOENA CASEN0.1243882D DATE OF ISSUE: November 7,2012

THE STATE OF TEXAS § IN THE 297TH I § Vs. § DISTRICT COURT

GILBERT GRIMALDO TARRANT COUNTY, TEXAS TO ArlY SHERIFF OR ANY PROPER PERSON AUTHORIZED BY THE STATE OF TEXAS IN ACCORDANCE WITH ART.24tol(b)C.C.P. - GREETINGS: Youfore hereby commanded to summon the hereinafter named person orpersons to be and personally appear before theabove named court of-JTarrant County, Texas, at the Tarrant County Justice Center inthe City ofFort Worth, atthe below shown date and time, then and there to'testify onbehalfof the above shown party in the styled and numbered action shown above pending in saidCourt, andthere remain from day to day and from term to.termuntil discharged by said Court. And'the said witness is further directed to bring with him and produce in Court the following instrument or instruments in writing or other thing desired as evidence: NONE

To appear as a Witnessfor the DEFENSE. Witnessis to appear on 11-26-2012 AT 9:00 AM. TRACEY HERNANDEZ 1362 VENTURA ST., ROCKWALL, TX 75087, DALLAS COUNTY 214-636-3525

i HEREIN FAIL NOT; but of this subpoena make due return, showing howyou have executed the same. A disobedienceof this subpoena is punishable by fine not exceedingfive hundred dollars, to be collectedas fines and costs in other criminal! cases. EDUJRDO CANAS THOMAS A.WILDER District Clerk Attorney „ ... /Tarrant County, Texas

817-332-6060 Br- • '•&•*'•••.'•* - •' •

/ • ~zfrl^' i /-OFFICER'SRETURN CAI&E TO.HAND on the /'

"^S-rrtf /7^V*^ck7.- <3;* Gktvun*^ MiLjff/A/p/lttZo IT

The fallowing named witnesses not summoned for the reasons set opposite their names inaccordance with Art 24.04 C.C.P.

r*«^./V*0

EXHIBIT 3