


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00165-CR
 
Uzoma Amuneke,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 
 

From the 272nd District
Court
Brazos County, Texas
Trial Court No. 06-02147-CRF-272
 

MEMORANDUM  Opinion

 




A jury convicted Uzoma Amuneke of
aggravated robbery and sentenced him to ten years in prison.  In two points of
error, Amuneke contends that the evidence is legally and factually insufficient
to support his conviction.  We affirm.
FACTUAL BACKGROUND
            Amuneke, his brother Obinna,
and cousin Udeze decided to visit a friend who owed Amuneke money.  At the
friend’s apartment, Amuneke determined that no one was home and suggested taking
something from the apartment.  Obinna and Udeze volunteered and eventually made
their way to the apartment.  Amuneke remained in the vehicle.  At some point,
Obinna and Udeze ran toward the vehicle and instructed  Amuneke to drive away
from the apartment complex.  During the drive, Amuneke noticed a machete in the
vehicle.  Udeze opened a window and disposed of the machete.  Amuneke had not
previously noticed the machete and did not know that the two men intended to
commit robbery with a machete.
Cory Welch and Ashley Simpson were inside
the apartment when Obinna and Udeze knocked on the door.  Simpson told Welch
that the men wanted to conduct a survey.  A few questions into the survey, Welch
grew uncomfortable.  The men suddenly entered the apartment and Udeze held a
machete by his side.  The men forced Welch and Simpson into a bedroom and
locked the door.  Obinna remained inside the bedroom and told the women, “We
are not here to hurt you.”  The women struggled with Obinna and managed to
escape.  As they ran out of the apartment, Welch noticed that the television
had been moved.  She then realized that the men intended to rob the apartment,
not harm Simpson or herself. 
Sergeant Brandy Norris testified that,
when she arrived at the scene, Welch and Simpson were “visibly upset, visibly
shaken,” “angry and scared.”  At some point, Norris spoke to Amuneke on the
telephone and he admitted that a machete was used during the robbery.  He admitted
that the machete was intended to make a point, not to hurt anyone, and had been
abandoned.  Police never recovered the machete.
 
 
ANALYSIS
            In points one and two,
Amuneke contends that the evidence is legally and factually insufficient to
support aggravated robbery because the State failed to show that the machete is
a deadly weapon.[1]
A deadly weapon constitutes “anything
that in the manner of its use or intended use is capable of causing death or
serious bodily injury.” 
Tex.
Pen. Code Ann. § 1.07 (a)(17)(B) (Vernon Supp. 2009).  Several factors aid this determination: (1) the size and shape of the object;
(2) the manner of its use or intended use; (3) the nature or existence of
inflicted wounds; and (4) any testimony of the object’s life-threatening
capabilities.  Villarreal
v. State, 255 S.W.3d
205, 209 (Tex. App.—Waco 2008, no pet.).
  The indictment alleged that Amuneke
“intentionally or knowingly threaten[ed] or place[d] [Simpson and Welch] in
fear of imminent bodily injury or death, and…did then and there use or exhibit
a deadly weapon, to-wit: a machete, that in the manner of its use and intended
use was capable of causing death and serious bodily injury.”
Amuneke contends that the State’s
evidence fails to establish that the machete is a deadly weapon because: (1) no
evidence establishes the sharpness or shape of the machete or provides an
adequate description of the machete; (2) the machete was never “lifted up or
placed at the girls’ throat,” the machete was not displayed in a “threatening
manner,” and Udeze, who had the machete, stayed in the living room, while
Obinna, who did not have the machete, stayed in the bedroom with the women; (3)
neither woman suffered injuries; and (4) no evidence establishes that the
machete was capable of causing serious bodily injury or death or was used in
such a manner to show an intent to use the machete to cause serious bodily
injury or death.
We first note that the record is not completely
devoid of a description of the machete.  Welch testified that the machete was
three-feet long.  Amuneke testified that the machete appeared to be
“regular-sized.”  Norris testified that a machete has a “fairly long blade with
a handle on it; sharpened on one side so you can cut down brush or whatever you
have.  It has a good long blade on it.”  She could not testify to the length,
sharpness, or color of the machete, but testified that a machete can vary in
length and sharpness.  As to the machete used during the robbery: 
DEFENSE COUNSEL: And you can’t testify
as to this machete because you haven’t seen it; you can’t testify as to whether
it could inflict bodily injury or death, can you?
And even if you had seen it, you don’t
know how sharp it was?
 
NORRIS: This specific one, no.
However, Norris testified that, sharp or
not, a three-foot-long piece of metal with a handle is capable of causing
serious bodily injury or death, depending on how it is used.
Additionally, the record contains
evidence regarding the machete’s manner of intended use and the victims’ fear
of death or serious bodily injury.  Where a weapon is not “aggressively
brandished, i.e., where the knife has not been used to wound the victim,
held against the victim’s neck, or waved in the victim's face,” “evidence is
sufficient if a knife is capable of causing death or serious bodily injury or
if it is displayed in a manner conveying an express or implied threat that
serious bodily injury or death will be inflicted if the desire of the person
displaying the knife is not satisfied.”  Billey v. State,
895 S.W.2d 417, 422 (Tex. App.—Amarillo 1995, pet. ref’d).
Welch testified that she and Simpson
were “terrified.”  Welch thought, “[W]e’re going to get raped; we’re going to
get murdered.”  She testified that no one swung the machete, but “[t]he
presence of the machete was in itself enough for Ashley and myself to be
terrified.”  She described the machete as a “scare tactic,” but at the time,
she believed that she might be harmed with the machete because “[w]hy else
would you come to a door, pose to be somebody that you’re not, push us into the
door, and then display a machete?”  Norris explained that individuals use
weapons during crimes to “gain compliance from the victims; to put fear in them
so they’ll do what they’re told to do.”  In her opinion, this happened on the
day of the robbery.  In his conversation with Norris, Amuneke admitted that the
machete was intended to make a point.
In light of the testimony, the jury
could reasonably conclude that the machete was displayed in a manner conveying
an “implied threat that serious bodily injury or death will be inflicted if the
desire of the person displaying the knife is not satisfied.”  Billey, 895 S.W.2d at 422.  Carrying the machete into the apartment
was an implied threat of deadly force to gain compliance from Welch and
Simpson.  The men intended that Welch and Simpson believe that the machete was
capable of causing serious bodily injury or death and Welch perceived this
intended threat.  See id. (“Where the victim testifies that he or she
was in fear of serious bodily injury or death, a verbal threat by the accused
is not required for the fact finder to conclude that threats were actually
made.”); see also Rodriguez
v. State, No. 06-03-00161-CR, 2004 Tex. App. LEXIS 5036, at
*14-15 (Tex. App.—Texarkana June 8, 2004, no pet.) (not designated for
publication) (“Rodriguez’
action in pointing a knife at Johnson was an implied threat of deadly force to
stop the efforts to effectuate his capture and an implied threat he would
thwart efforts to hinder his getaway.”  “Rodriguez intended for Johnson to
believe that the knife was capable of producing serious bodily injury or death,
and the fact-finder was warranted in so concluding.”).
The record also contains evidence
regarding the machete’s life-threatening capabilities.  Amuneke admitted that,
depending on how the machete is used, it could cause some damage.  Welch
testified that she feared for her life.  Norris testified that a machete is
capable of causing death or serious bodily injury.  See Perez v. State, No.
01-08-00817-CR, 2010 Tex.
App. LEXIS 2305, at *10-13 (Tex. App.—Houston [1st Dist.] Mar. 25,
2010, pet. ref’d) (not designated for publication) (officer testified that machete was capable of causing serious
bodily injury).  To establish that the machete was capable of causing death or
serious bodily injury, the
State was not required to show that the use or intended use of the machete
actually caused death or serious bodily injury.  See Tucker v. State,
274 S.W.3d 688, 691 (Tex. Crim. App. 2008); see also Denham v. State,
574 S.W.2d 129, 130 (Tex. Crim. App. 1978) (while the infliction of wounds is a
factor to consider, “[t]his
does not, however, mean that wounds must be inflicted before a knife can be
determined to be a deadly weapon”).
In summary, viewing all the evidence in
the light most favorable to the verdict, the jury could reasonably
conclude, beyond a reasonable doubt, that Amuneke committed the offense of aggravated
robbery by using or exhibiting a deadly weapon.  See Curry
v. State, 30
S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson
v. Virginia, 443
U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). 
The proof of guilt is not so weak nor the conflicting evidence so strong
as to render the jury’s verdict clearly wrong or manifestly unjust.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex.
Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000).  We overrule points one and two.
The judgment is affirmed.
 
 
FELIPE REYNA
Justice
Before Chief
Justice Gray,
Justice
Reyna, and
Justice
Davis
Affirmed
Opinion
delivered and filed September 8, 2010
Do not publish
[CR25]




[1]               At trial, Amuneke moved
for a directed verdict on the deadly weapon issue.  The trial court denied the
motion.


