                                    NO. 07-05-0162-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                   APRIL 13, 2006
                          ______________________________

                                    JOE R. BROOKS,

                                                                Appellant

                                             v.

                                 THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-407,311; HON. CECIL G. PURYEAR, PRESIDING
                       _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Appellant Joe R. Brooks appeals his conviction of aggravated assault with a deadly

weapon. In doing so, he challenges in three issues the legal and factual sufficiency of the

evidence to support the jury finding that vise grips constituted a deadly weapon and the

failure of the trial court to allow appellant to represent himself at the punishment phase of

the trial. We affirm the judgment of the trial court.
                                Issue 1 - Deadly Weapon

       The standards by which we review the legal and factual sufficiency of the evidence

are well established. We refer the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004),

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and King v. State, 29 S.W.3d 556

(Tex. Crim. App. 2000) for an explanation of them.

       When a person is charged with using a deadly weapon, the evidence must establish

that the instrument used was actually deadly. Lockett v. State, 874 S.W.2d 810, 814 (Tex.

App.Dallas 1994, pet. ref’d). The Penal Code defines a “deadly weapon” as “anything

manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily

injury; or . . . 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)(A) & (B) (Vernon

Supp. 2005). While vise grips are not a deadly weapon per se, they may be shown to be

so via evidence of their size, shape, manner of use or intended use, and capacity to

produce death or serious injury. Additionally, evidence of the physical proximity between

the victim and the object, threats or words used by the assailant, the size and shape of the

weapon, the weapon’s ability to inflict death or serious bodily injury, and the manner in

which the defendant used the weapon are indicia susceptible to consideration. Nash v.

State, 175 S.W.3d 427, 430 (Tex. App.–Texarkana 2005, pet. ref’d); Bailey v. State, 46

S.W.3d 487, 491 (Tex. App.– Corpus Christi 2001, pet. ref’d). Expert testimony regarding

the deadly nature of an object may also be considered although it is not required, see

English v. State, 647 S.W.2d 667, 668-69 (Tex. Crim. App. 1983), and a weapon need not



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actually wound someone to qualify as a deadly weapon. Denham v. State, 574 S.W.2d

129, 130 (Tex. Crim. App. 1978).

        The evidence shows that appellant, who was loitering around a 7-Eleven in

Lubbock, 1) originally pointed the vise grips at customers in the parking lot as if he was

shooting a gun at them, 2) yelled at Nate Turner and Kyle Dilbeck as they left the store and

threatened to kill them, 3) changed his clothes several times out of a bag he was carrying

while continuing to yell and curse at them, 4) approached Turner and Dilbeck within two

feet of them,1 and 5) took a swing at Dilbeck with his fist after which the vise grips fell out

of his back pocket and he picked them up and swung them at Dilbeck. The vise grips were

admitted into evidence and described as “good size,” “pretty heavy,” and “solid steel.”

Dilbeck stated he felt threatened with imminent bodily injury and that if appellant had

actually struck him with the vise grips, it might have caused him serious bodily injury.

        Police Officer Chris Farmer also testified that the vise grips were capable of causing

serious bodily injury. Additionally, Officer Brad Hopper stated that by trying to strike

someone in the head with the vise grips as appellant did, a person could be seriously

injured or killed.

        In light of this evidence, a rational jury could have concluded, beyond a reasonable

doubt, that the weapon was capable of causing death or serious bodily injury in the manner

of its use or intended use. Thus, legally sufficient evidence supports the finding that

appellant used a deadly weapon during the assault. Moreover, when that finding is tested



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           Turner and Dilbeck were waiting on the police who had been called by the convenience store
m anager. They informed appellant that the police had been called, but appellant responded that he had “killed
all the co ps.” D ilbeck believe d ap pellant was und er the influen ce o f a na rcotic.

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against the entire record it is not manifestly unjust. Nor does it undermine our confidence

in the proceeding. It may well be that the evidence conflicted regarding whether appellant

actually swung the vise grips at Dilbeck. Yet, that conflict was for the jury to decide, and

there was ample evidence to support its decision. See Nash v. State, 175 S.W.3d at 430

(holding that a deadly weapon finding was supported by the object being placed against

the victim, a threat to kill the victim, a description of the size and shape of the object as well

as its ability to inflict harm or death, and the threatening manner in which it was used).

Thus, it also has the support of factually sufficient evidence.

                               Issue 2 - Self-Representation

       Appellant argues in his second issue that the trial court erred in not allowing him to

represent himself at the punishment phase of the hearing. We overrule the issue.

       Appellant, who had appointed counsel, notified the trial court on the day of trial

before voir dire commenced that he wished to represent himself. After admonishing

appellant, the trial court allowed him to do so but asked that appointed counsel remain in

court as standby counsel. In the middle of the guilt/innocence phase of the trial, appellant

suddenly changed his mind and asked that his appointed counsel be allowed to represent

him for the remainder of the trial. Again, the trial court agreed. However, prior to

commencement of the punishment hearing, appellant once more sought to represent

himself. At that time, the trial court refused the request. It is this ruling of which appellant

complains.

       A criminal defendant has the right to self-representation under the Sixth Amendment

to the United States Constitution. However, the right must be timely asserted which means



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before the jury is empaneled. McDuff v. State, 939 S.W.2d 607, 619 (Tex. Crim. App.

1997); Bansal v. State, 169 S.W.3d 371, 377 (Tex. App.–Beaumont 2005, pet. dism’d);

Birdwell v. State, 10 S.W.3d 74, 77 (Tex. Crim. App.–Houston [14th Dist.] 1999, pet. ref’d).

Appellant’s first request to represent himself was timely made, and the trial court granted

it. However, his second request was not made until just prior to commencement of the

punishment hearing. By that time, he had previously informed the court that he was “going

to let [appointed counsel] take control of it.” The court had also asked appellant if it was

all right if the jury was informed that he (appellant) had decided to have counsel represent

him the rest of the trial to which appellant responded, “[y]es, sir,” and the jury was so

informed. A defendant who initially asserts the right to represent himself may later

abandon that right by inviting participation by counsel and thereby waiving the right of self-

representation. Funderberg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986); Carroll

v. State, 176 S.W.3d 249, 254 (Tex. App.–Houston [1st Dist.] 2004, pet. ref’d); Garrett v.

State, 998 S.W.2d 307, 317 (Tex. App.–Texarkana 1999, pet. ref’d, untimely filed). Waiver

may be found if it reasonably appears to the court that the defendant has abandoned his

initial request to represent himself. Funderburg v. State, 717 S.W.2d at 642. Based on

the record before us, we find that the trial court reasonably could have so found.

Therefore, it did not err in denying appellant opportunity to represent himself during the

remainder of the trial.

       Having overruled each issue, we affirm the judgment of the trial court.



                                                  Per Curiam
Do not publish.


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