Affirmed and Memorandum Opinion filed November 7, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-01143-CR

                IKECHUKWU CHRIS OBUDULU, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 23rd District Court
                         Brazoria County, Texas
                       Trial Court Cause No. 65035

                MEMORANDUM                      OPINION


      A jury convicted appellant of aggravated assault. The trial court sentenced
him to two years in prison. The sentence was suspended and appellant was placed
under community supervision for three years. Appellant filed a notice of appeal.
We affirm.

      In a single issue, appellant claims the evidence was legally insufficient to
support the jury’s verdict.    Appellant was charged with and convicted of
aggravated assault by intentionally or knowingly threatening his wife, Rosemary
Obudulu, with imminent bodily injury and using or exhibiting a deadly weapon, a
hammer. Appellant asserts the State failed to establish the hammer was a deadly
weapon or that he used or exhibited it in threatening his wife.

      A “deadly weapon” can be “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Tex. Penal Code
Ann. § 1.07(a)(17)(B) (West Supp. 2011). We evaluate “capability” in light of the
facts as they existed at the time of the offense. Drichas v. State, 175 S.W.3d 795,
799 (Tex. Crim. App. 2005). In determining whether an object is a deadly weapon,
jurors may consider factors such as (a) the accused’s words, (b) the object’s
intended use, (c) its size and shape, (d) testimony that the complainant feared death
or serious bodily injury, (e) the severity of any wounds inflicted, (f) the manner in
which the assailant allegedly used the object, (g) the physical proximity of the
parties, and (h) any testimony as to the weapon’s potential for causing death or
serious bodily injury. Romero v. State, 331 S.W.3d 82, 83 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d).

      Appellant argues there was no testimony regarding the weapon’s potential
for causing death or serious bodily injury. Appellant was angry and was less than
six feet away from Rosemary. After initially talking to Rosemary, he returned with
the hammer in his hand and then followed her downstairs with the hammer in his
hand. The hammer was admitted into evidence. The testimony of Rosemary and
Officer Guerrero established it was the hammer used by appellant. The hammer is
a Stanley brick hammer about 18 inches long. Rosemary testified that she was
afraid for her life, that she was very concerned about the hammer and “knew what
a hammer was capable of.” The jury viewed the hammer and based upon its size
and shape could reasonably have determined it was capable of causing death or

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serious bodily injury. The evidence is sufficient to support a finding that the
hammer was a deadly weapon. See Bethel v. State, 842 S.W.2d 804, 807-08
(Tex.App.—Houston [1st Dist.] 1992, no pet.) (concluding that hammer was used
as a deadly weapon)

      As to whether appellant used or exhibited the hammer, evidence establishing
the complainant’s perception of a threat, coupled with proof that a threat was
made, is sufficient to sustain a conviction for aggravated assault by threat.
Dobbins v. State, 228 S.W.3d 761, 765 (Tex. App.—Houston [14th Dist.] 2007,
pet. dism’d as untimely filed.) (citing Olivas v. State, 203 S.W.3d 341, 350 (Tex.
Crim. App. 2006)). “The gist of the offense of assault . . . is that one acts with
intent to cause a reasonable apprehension of imminent bodily injury....” Garrett v.
State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981).             A threat may be
communicated by action or conduct; it does not have to be verbalized. McGowan
v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984).

      Rosemary testified that on the day of the incident, appellant questioned her
about her whereabouts the previous night. She had taken the children to a youth
program at church and then to visit her cousin. She replied that she had already
told him where she had been. Appellant then went downstairs and came back with
a hammer. Appellant began questioning her again, asking for the names of the
people in the house and their phone numbers. He was less than six feet away and
his voice was loud. Rosemary went downstairs and appellant followed her, with
the hammer, and continued questioning her. Appellant did not put the hammer
down until she complied by writing down the names, addresses, and phone
numbers of the people she was with the night before.

      Rosemary contacted a shelter for victims of domestic violence and then the
police. She intended to move out but did not want to return to the house without

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the police. Rosemary testified her fear was caused by the hammer and out of that
fear, she gave appellant the information he demanded. Rosemary gave police a
written statement that appellant had threatened to kill her and cut her body into too
many pieces for an autopsy to be performed.         According to Rosemary, she took
“the threat, the hammer” seriously.

      Rosemary’s testimony clearly demonstrates appellant’s words and conduct
communicated a threat and that Rosemary perceived that threat. Accordingly,
there was sufficient evidence to support the jury’s finding that appellant threatened
Rosemary with imminent bodily injury by exhibiting a deadly weapon.              See
Dobbins, 228 S.W.3d at 765.

      For these reasons, appellant’s issue is overruled. The judgment of the trial
court is affirmed.




                                       /s/       Tracy Christopher
                                                 Justice



Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).




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