author: SAM NUCHIA, Justice.

text:
    Marvin P. BOND, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00599-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 16, 2004.
    Rehearing Overruled Oct. 25, 2004.

      Anthony M. Fisch, Law Office of Anthony M. Fisch, R. Scott Shearer, R. Scott Shearer, Esq., Houston, for Appellant.
    Charles A. Rosenthal, Jr., Dist. Atty.Harris County, Bridget Holloway, Asst. Dist. Atty.-Harris County, Houston, for State.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

SAM NUCHIA, Justice.

Appellant, Marvin Bond, appeals the trial court’s denial of relief on his pretrial application for a writ of habeas corpus seeking relief from double jeopardy. We affirm.

BACKGROUND

Appellant was indicted for the felony offense of driving while intoxicated. On July 29, 2002, which was the fourth day of his jury trial, appellant’s counsel, Anthony Fisch, informed the trial court that the next witness needed an interpreter. After first claiming that he had previously asked the court for an interpreter, Fisch admitted that he had not, and the court told Fisch to find one. The court then informed all parties that they were to be prepared the following day to proceed with the punishment phase of the trial and to have all necessary witnesses present in the event that the jury’s deliberations on guilt-innocence concluded quickly. The court announced that court would begin the next day at 8:00 a.m.

Fisch did not show up at court on July 30. At about 10:00 a.m., Mr. Sattlewhite from Fisch’s office appeared at court and stated that Fisch had called him at 6:30 a.m. and had said he was extremely ill, but that Fisch had not asked him to inform the court of the illness. The court issued a writ of attachment and a show-cause order for Fisch, and two deputies found Fisch’s home address and went there to serve the writ at about noon. They spoke to Fisch’s wife, who said that Fisch was not at home.

The court coordinator testified that, while the deputies were at Fisch’s house, Fisch called her and told her that he was sick, that he was at a “colonic place,” and that he had a doctor’s appointment at about 3:40 that afternoon. Fisch would not tell her the name of the doctor he was intending to see. Fisch said that the deputies were at his house, that his wife and children were crying, and that they (the court personnel) were “a bunch of Natzis.” The coordinator asked Fisch why, if he could drive around to other places, he could not come to court. He responded that he was sick and was not going to come there.' The assistant district attorney noted, on the record, that the witness who, according to Fisch, was scheduled to testify on that day had not shown up at the court.

In response to the trial court’s questions, appellant stated that he had not had any contact with Fisch, he had tried to contact Fisch and had left messages for him, he had left the court’s telephone number as well as his own cell phone number on Fisch’s answering machine and had asked Fisch to contact him, and he had not heard from Fisch.

One of the deputies testified that he was at Fisch’s home from 1:00 p.m. until 2:15 p.m. in an attempt to serve the writ of attachment and show-cause order. During that time, he spoke to Fisch on the telephone, and Fisch said he would be at his house in about 10 minutes. The deputy spoke to Fisch two or three times between 1:00 o’clock and 2:15, and Fisch promised to come to his house, but never did.

When court resumed on July 81, Fisch did not appear, but he was represented by Mr. Mitcham, who said he understood that Fisch was still ill. Mitcham offered faxed copies of a letter from a doctor and some medical records, which he acknowledged were difficult to read. The court did not admit these documents into evidence because they were not authenticated.

Appellant told the trial court that he had talked to Fisch for about three minutes the previous evening. They did not talk about the case, but Fisch asked whether the court had said anything in front of the jury and whether the court was upset. Appellant said that Fisch complained that “they” were harassing his family. The court explained to appellant that it could not remove Fisch as counsel because appellant had retained Fisch, but that the court could appoint an attorney to explain appellant’s options to him under the circumstances. Appellant said he would like to do that, and the court appointed an attorney, Ms. Miller, for appellant for the sole purpose of advising appellant as he decided how he wanted to proceed.

After a recess, the court stated several options that were available to appellant, including the option of sending the jury home and asking them to return the next day, when it could be determined whether Fisch would appear. Because appellant had had only one three-minute conversation with Fisch since the time that Fisch had claimed to be ill, and that conversation, according to appellant, did not include anything about the ease or any advice about how to proceed, the court said, “It appears to this Court that he has abandoned you as a client.” When asked what he wanted to do, appellant said, “Well, I can’t proceed with him. I don’t want to proceed with him. I don’t think I can get a fair trial. The jury probably knows by now. If they don’t, they have some kind of idea. So I have nothing else to do.” Appellant also told the court about a previous instance in which appellant had flown to Houston from Seattle, Washington for a court appearance and Fisch did not appear, claiming to be ill. This caused appellant to incur additional expenses because he had to change his return ticket so that he could be in court the following day. The following then occurred:

THE COURT: All right.... I just want to make doubly sure. You are requesting me to declare a mistrial. Ms. Miller has explained to you what a mistrial is.... Do you understand what that means?
[APPELLANT]: Yes, Ma’am.
THE COURT: Then I’ll allow you to fire Mr. Fisch. Is that what you want?
[APPELLANT]: Yes, ma’am.
THE COURT: I don’t want to put words in your mouth. I want you to tell me what you want.
[APPELLANT]: I cannot continue with him. I can’t use him as a lawyer.
THE COURT: What do you want me to do with this jury?
[APPELLANT]: I don’t believe they can be fair toward me or anybody in my situation as it stands right now.
THE COURT: Are you requesting to declare a mistrial?
[APPELLANT]: Yes, ma’am.

The court then found that the mistrial was not due to any act of the prosecution, but was based solely on the conduct of Fisch, who had abandoned appellant as a client. The court observed that the jury was angry and concluded that there was no way to know how that might affect the trial. Because appellant had been laid off from his job and had spent his savings to hire Fisch, the court appointed Ms. Miller to represent appellant in the DWI case.

Approximately one month later, appellant filed a pretrial application for writ of habeas corpus seeking relief from double jeopardy. Appellant contended that the mistrial was caused by the intentional and/or reckless conduct of the court by coercion, duress, and intimidation. Appellant argued that a second prosecution of the cause would constitute double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.

The court issued the writ of habeas corpus and held a hearing on the matter. At the hearing, Fisch testified that, on the sixth day of appellant’s trial, Fisch woke up feeling nauseated, throwing up, and having cold sweats. He said that he went to the emergency room of a hospital and also went to a doctor. He stated that he was unable to attend the trial that day or the next and that he learned that a mistrial had been declared while he was ill. He also testified that he was still the attorney of record on the case.

The trial court asked appellant whom he had wanted to be his attorney in the trial, and appellant testified that, when Fisch did not show up in the courtroom, he was very confused. Appellant said that he did not recall whether he had had any say over whether a mistrial had been declared. When asked whether he had wanted the impaneled jury to continue on his case, he said he could not answer that and had been “really confused.” He then agreed, in response to questions by the court, that he would have been happy to continue with Fisch and had wanted the same jury to continue to the conclusion of the case. Under cross-examination, appellant clarified that he thought that, if the events leading up to the mistrial had not happened, he could have got a fair trial. The court denied the requested relief.

DISCUSSION

In his sole issue, appellant contends that the trial court erred in denying the requested habeas corpus relief because double jeopardy bars a retrial of his case. Appellant argues that jeopardy attached when the jury was impaneled, and that he did not effectively consent to the mistrial because he was not represented by counsel at the time he consented.

Standard of Review

A trial court’s ruling in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion. Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App.-Houston [1st Dist.] 1996, no pet.). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990). In determining whether a court has abused its discretion, we view the evidence in the light most favorable to the trial court’s ruling. Crow v. State, 968 S.W.2d 480, 482 (Tex.App.-Houston [1st Dist] 1998, pet. ref’d).

Double Jeopardy

The Fifth Amendment of the United States Constitution prohibits the State from putting a person in jeopardy twice for the same offense. U.S. Const. amend V. In a jury trial, jeopardy attaches when the jury is impaneled and sworn. Crist v. Brete, 437 U.S. 28, 37, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978); Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Crim.App.1990). An exception to this rule exists if the defendant consents to a retrial or if a retrial is mandated by manifest necessity. Arizona v. Washington, 434 U.S. 497, 505, 98 S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); Ex parte Little, 887 S.W.2d 62, 65 (Tex.Crim.App.1994). Manifest necessity is not an issue in this case because appellant requested a mistrial. Therefore, we must determine whether, in spite of his request, appellant did not give his effective consent to the mistrial.

Appellant’s contention that he was not represented at the time he requested a mistrial is not supported by the record. The record reflects that the trial court appointed counsel to advise appellant regarding the effect of a mistrial and the options available to appellant. The trial court asked appellant on the record whether counsel had explained that a mistrial meant that the jurors would be excused and the case would start over as if there had been no trial. Appellant responded, “Yes, ma’am.” Thus, the record establishes that appellant was represented by counsel at the time he requested the mistrial.

Appellant contends that the trial court “provoked and prodded” appellant into requesting a mistrial and that the trial court created “a coercive and threatening environment.” Appellate counsel has again misrepresented the record. The trial court scrupulously honored appellant’s right to counsel and to be informed of what was occurring. Trial counsel’s conduct showed an egregious disregard for the welfare of his client. Furthermore, appellate counsel’s characterization of the trial court, including “despotic” and “erratic and irrational,” is offensive to this Court. We conclude that the trial court did not abuse its discretion in denying appellant’s requested relief.

We affirm the ruling of the trial court.

      . Although the record is not clear, it appears that two deputies attempted to serve the writ of attachment and show cause order on Fisch.

      .Appellant complains about the following actions of the trial court:
      1. Holding Fisch in contempt for failing to provide an interpreter. (In fact, the trial court held Fisch in contempt for being argumentative, including stating repeatedly that he had informed the court that he would need an interpreter before admitting that he had not.)
      2. Holding Fisch’s legal assistant in contempt for failing to cooperate with the court in finding Fisch.
      3. Sending deputies to Fisch's home with a writ of attachment.
      4. Telling appellant that Fisch was evading the writ. (In fact, the trial court said, "I think he's evading them.” The deputy’s testimony confirmed the court’s opinion.)
      5. Stating that Fisch had abandoned appellant. (The court’s statement, "It appears to this court that he has abandoned you as a client,” was based not only on Fisch’s failure to appear in court, but also on his failure to contact appellant.)
      6. Expressing doubts about the authenticity of Fisch’s medical records. (The records were not authenticated; someone had merely faxed copies to Fisch’s attorney, who did not attempt to authenticate them.)
      7. Informing appellant that Fisch did not call the court, when he did. (Fisch called the court coordinator only after the deputies went to Fisch’s home with a writ of attachment. He would not state where he was or where he was going.)
      8. Informing appellant that the jurors were angry at him for the delay. (In fact, the court did not say the jurors were angry at appellant.)

      9. Informing appellant that, unless a mistrial was declared, the court would appoint counsel to take over the case mid-trial after a 10-day delay to allow new counsel to learn about the case. (This is not true. Among the options mentioned by the court was the possibility of bringing the jury back the next day and seeing whether Fisch appeared.)

      .Counsel’s argument goes beyond the limits of zealous advocacy. He has misrepresented the facts, distorted the record, and falsely accused the trial court of highly unprofessional and unethical conduct. In our opinion, counsel’s statements exceed the very broad scope of permissible argument set forth in rule 3.01 of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary R. Prof’l Conduct 3.01, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex State Bar R. art. X, § 9).


source: Caselaw Access Project

license: Public Domain

text:
    Adrian Daniel GUAJARDO, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00313-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 7, 2004.
    Discretionary Review Refused April 13, 2005.

      Rosa Eliades, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, William J. Delmore, III, Chief Prosecutor, Appellate Div., Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

SAM NUCHIA, Justice.

Appellant, Adrian Daniel Guajardo, pleaded not guilty to sexually assaulting a child. A jury found appellant guilty and assessed punishment at 12 years in prison. Appellant asserts the following three points of error: (1) the factual insufficiency of the evidence to prove that appellant knowingly and intentionally committed a sexual assault; (2) jury charge error in the court’s provision of a correct definition of the offense of public lewdness in response to a jury question; and (3) ineffective assistance of counsel because appellant’s counsel did not object to the trial court’s providing the definition of the offense of public lewdness. We affirm.

A. BACKGROUND

Appellant became acquainted with D.L., a 15-year-old boy, through D.L.’s participation in his high school’s cheerleading program. The cheerleaders and their coaches held training sessions at appellant’s gymnastics center (the “gym”) where appellant assisted in the cheerleaders’ training. Appellant invited D.L. to a party to be held at the gym on the night of September 22, 2001. Appellant told D.L. that some high profile Olympic athletes would be at the party. D.L. obtained his mother’s permission to attend the party. His mother set a curfew of 11:00 p.m.

On the night of the party, appellant and his roommate, Raul Hernandez, picked D.L. up from his mother’s house and took him to their apartment near the gym before going to the party. While they were in appellant’s apartment, D.L. watched cheerleading videos and drank alcoholic beverages, supplied by appellant, with appellant and appellant’s friends. D.L. drank vodka and some shots of liquor. D.L., appellant, and the others then left for the party at the gym.

Alcohol was also served to the celebrants at the party, who appeared to D.L. to be predominantly teenagers. Appellant and D.L. left the party together after only 30 to 45 minutes and returned to appellant’s apartment shortly before D.L.’s 11:00 p.m. curfew. At the apartment, D.L. resumed drinking alcoholic beverages and began to feel nauseated. D.L. then passed out in appellant’s living room. The next memory D.L. had was of his throwing up in appellant’s bathroom. D.L. did not remember how he got from the living room to the bathroom; however, he did recall that appellant was in the bathroom with him and gave him a towel to clean himself up.

Appellant then either led or carried D.L. from the bathroom to his bed, where D.L. lay down and fell asleep. D.L. testified that he woke up when appellant pulled off D.L.’s boxers and performed oral sex on him. D.L. stated that he was too intoxicated to move or protest and that appellant also stuck his own penis into D.L.’s mouth. Later, D.L. woke up again and found that appellant was asleep. He gathered his clothes, dressed, called his mother and gave her directions to appellant’s apartment.

D.L.’s mother testified that, when D.L. did not arrive home at 11:00 p.m., she repeatedly called his cell phone and appellant’s cell and home phones. At approximately midnight, she finally reached appellant, who told her that D.L. was sick and intoxicated and that he believed D.L. should stay at appellant’s apartment. D.L.’s mother disagreed, and the two made arrangements for appellant to take D.L. to the gym where his mother would pick him up in a few minutes. D.L.’s mother testified that she waited at the gym until approximately 3:00 a.m., but appellant did not show up. Later, when she received her son’s call and picked him up, he did not tell her about the assault. Appellant’s only attempt to call D.L.’s mother was after he awoke to find D.L. gone. D.L.’s mother testified that D.L. was withdrawn in the weeks following the incident, did not want to speak to friends, and was unusually quiet.

D.L. testified that appellant contacted him a few months after the assault and told him that someone had watched the sexual assault and that a videotape might exist. After this telephone call, D.L. told his grandmother about the sexual assault. His mother and grandmother contacted a police officer with whom the grandmother was acquainted. D.L. stated that, approximately a month after he told his grandmother about the sexual assault, appellant contacted him again. D.L. testified that appellant said he could stop the videotape from being distributed to all of the local high schools if D.L. had another sexual encounter with him. D.L. told his mother and grandmother about the second call.

B. DISCUSSION

1. Factual Insufficiency

In his first point of error, appellant asserts that the State’s case relies entirely on the testimony of D.L., that D.L.’s testimony is not credible, and that, therefore, the evidence is factually insufficient to support appellant’s conviction. Specifically, appellant argues that D.L.’s testimony is not credible because D.L. was acutely intoxicated, was unconscious for a period of time, and testified that he did not resist the alleged attack. Appellant also attacks D.L.’s credibility by offering a possible motivation for D.L. to make a false allegation — that D.L. was afraid appellant would inform high school officials and cheerlead-ing coaches about his drinking.

In a factual sufficiency review, we view all the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App., 2004) (citing Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App., 2004)). The appellate court should not substitute its own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App.1996).

Appellant’s argument goes to D.L.’s credibility as a witness and is a matter for the determination of the jury. The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 671 (Tex.App.-Houston [1st Dist.] 2003, pet. ref’d). The jury may believe all, some, or none of any witness’s testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App.1986) (stating that jury “could choose to believe or not believe the witnesses, or any portion of their testimony”).

We hold that the evidence was factually sufficient for the jury to be rationally justified in finding guilt beyond a reasonable doubt. We overrule appellant’s first point of eiTor.

2. Jury Charge

In his second point of error, appellant asserts that the trial court erred in defining the offense of public lewdness in the jury charge. Appellant did not timely and properly object at trial; however, he claims that he suffered egregious harm from the error. Because we hold that there was no error, we do not reach the harm analysis. Nguyen v. State, 811 S.W.2d 165, 167 (Tex.App.-Houston [1st Dist.] 1991, pet. ref’d) (“When reviewing a trial court’s jury instructions, the appellate court should first determine whether the charge given was erroneous.”).

On direct examination, appellant testified that he had previous convictions for public lewdness, credit card abuse, and theft by check. Before deliberations on guilt-innocence, the jury was instructed to consider appellant’s prior convictions for impeachment purposes only. In his closing argument, appellant’s counsel reminded the jury of appellant’s public lewdness conviction and stated that there was no evidence that appellant had ever used “force.” The jury, after beginning its deliberations on guilt-innocence, sent out a question asking the court for the definition of public lewdness. The court submitted a correct definition of public lewdness to the jury with no objection from defense counsel.

Appellant now asserts that the trial court, by providing the definition of public lewdness, emphasized the conviction unduly, informed the jury about the specific facts of the case, and commented on the weight of the evidence.

When the trial judge responds substantively to a jury question during deliberations, that communication essentially amounts to an additional or supplemental jury instruction. Daniell v. State, 848 S.W.2d 145, 147 (Tex.Crim.App.1993). A trial court has broad discretion in submitting proper definitions to the jury. Roise v. State, 7 S.W.3d 225, 242 (Tex.App.-Austin 1999, pet. ref’d). A trial court is allowed to give a supplemental instruction if requested by the jury. See Garza v. State, 55 S.W.3d 74, 77 (Tex.App.-Corpus Christi 2001, pet. ref’d) (stating that, if prerequisites of article 36.16 are met, court may give supplemental charge); Tex.Code Crim. Proc. Ann. art. 36.16 (Vernon Supp.2004). The question of whether the trial court erred by providing the jury with the correct statutory definition of a prior conviction in response to a jury request is one of first impression in this court. However, in Dodson v. State, a case decided by the Tyler Court of Appeals, the defendant had a prior conviction for aggravated perjury, which was presented to the jury in the form of a judgment and sentence. 699 S.W.2d 251, 256 (Tex.App.-Tyler 1985, no pet.). During the punishment phase, the jury sent a note to the court asking, “[wjhat is aggravated perjury?” Id. (alteration in original). Over defense counsel’s objection, the trial court provided the jury with the correct statutory definition of aggravated perjury. Id. The court of appeals held that this was not error, stating that “if the title of an offense is not self-explanatory to lay jurors, a correct definition thereof is helpful and prevents speculation as to the meaning and character of the prior offense.” Id. We find Dodson sufficiently analogous to this case and the Tyler court’s reasoning persuasive. We hold that, when the jury has heard evidence of a prior conviction, providing the jury with a statutorily correct definition of that offense in response to a jury question is not error. We overrule appellant’s second point of error.

3. Ineffective Assistance of Counsel

In his. third point of error, appellant argues that his trial counsel was ineffective because he did not object to the supplemental charge defining the offense of public lewdness. Because it was not error to provide the definition, counsel was not ineffective for failing to object. Collum v. State, 96 S.W.3d 361, 367 (Tex.App.-Austin 2002, no pet.) (“[Cjounsel does not render ineffective assistance of counsel by failing to preserve an error that is not reversible.”).

We overrule appellant’s third point of error.

C. CONCLUSION

We affirm the judgment of the trial court.

      . In his testimony, D.L. sometimes refers to Mr. Hernandez as "Rafael” rather than "Raul.”

      . When appellant makes no timely and proper objection to the jury charge, we consider the complaint on appeal only if appellant shows egregious harm. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998); Almanza v. State, 686 S.W.2d 157, 159 (Tex.Crim.App.1985).

      . The trial court submitted this instruction to the jury: Public Lewdness — A person commits an offense if he knowingly engages in a sex act in a public place or, if not in a public place, he is reckless about whether another is present who will be offended or alarmed by him. Public lewdness is a class A misdemeanor.


author: LAURA CARTER HIGLEY, Justice.

text:
    Samuel R. PURCHASE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00747-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 2004.

      Samuel Reben Purchase, Seabrook, pro se.
    Dan McCrory, Asst. Dist. Atty., Houston, for appellee.
    Panel consists of Justices NUCHIA, HANKS, and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Samuel R. Purchase, appeals the denial of his application for a post-conviction writ of habeas corpus. According to appellant’s application, he was convicted of the felony offense of theft and placed on community supervision for four years. In both of his applications to the trial court and in his appeal to this court, appellant bases his right to relief on Code of Criminal Procedure article 11.01 and Texas Constitution article V, section 8. See Tex.Code Crim. Proc. Ann. art. 11.01 (Vernon 1977); Tex. Const. art. V, § 8.

In its brief, the State contends that this appeal should be dismissed because we lack jurisdiction. We agree.

There is no right of appeal from a refusal to issue the writ of habeas corpus when the trial court did not consider and resolve the merits of the petition. See Ex parte Okere, 56 S.W.3d 846, 850 (Tex.App.-Fort Worth 2001, pet ref’d); Ex parte Gonzales, 12 S.W.3d 913, 914 (Tex.App.-Austin 2000, pet. ref’d); cf. Ex parte Hargett, 819 S.W.2d 866, 869 (Tex.Crim.App.1991) (holding that if trial court reaches merits of habeas corpus application, its ruling is appealable even if trial court refused to issue writ). The crucial question to be answered is not whether the trial court issued the writ, but whether the court considered and resolved the merits of the petition. See Okere, 56 S.W.3d at 850; Gonzales, 12 S.W.3d at 914. An examination of the record in this appeal reveals that the trial court “denied” the writ without hearing evidence or argument regarding appellant’s claims, and without expressing an opinion on the merits of those claims. Because the court did not consider and resolve the merits of appellant’s habeas corpus application, we hold that we are without appellate jurisdiction. See Gonzales, 12 S.W.3d at 914.

Accordingly, we dismiss the appeal for lack of jurisdiction.


author: ELSA ALCALA, Justice.

text:
    Stevie Aaron PETRO, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00820-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 2004.
    Discretionary Review Refused March 16, 2005.

      Kurt B. Wentz, Houston, TX, for Appellant.
    Dan McCrory, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Appellant, Stevie Aaron Petro, pleaded not guilty to aggravated robbery. A jury found appellant guilty and sentenced him to confinement for five years in prison and a fine of $2000. In two issues, appellant contends that the evidence is legally and factually insufficient to sustain his conviction. We affirm.

Background

On November 7, 2002, at approximately 9:00 p.m., as Geraldine Ukegby and Grace Bassey walked to their car parked at an apartment complex in southwest Houston, appellant pointed a gun at Ukegby’s head and demanded her purse. When Ukegby gave appellant her purse, he and an accomplice fled. Ukegby and Bassey drove their car around the apartment complex until they encountered a peace officer in his patrol car and reported the robbery to him. Because the peace officer was at the complex for an unrelated matter, he directed the women to wait in their car while he attempted to summon another officer to the scene to assist them. The women parked their car behind the officer’s patrol car. After waiting about 30 minutes for another peace officer to arrive, the women saw appellant walking through the apartment complex and notified the peace officer. The officer took appellant to the patrol car, where both women identified him as the robber. The officers searched the area and never found the gun used in the robbery, Ukegby’s purse, or the man who accompanied appellant during the robbery. At appellant’s trial, both women identified appellant in court as the armed gunman who took Ukegby’s purse.

Sufficiency of the Evidence

Appellant’s two issues challenge the legal and factual sufficiency of the evidence to support his conviction for aggravated robbery.

A person commits aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Tex. PeN.Code. Ann. § 29.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2). “In the course of committing theft” means conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate flight after the commission of theft. Id. § 29.01(1). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Id. § 31.03(a).

In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817-18 (Tex.Crim.App.2004). In conducting a factual-sufficiency review, we must discuss the evidence that appellant asserts is most important in allegedly undermining the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). In conducting the factual sufficiency review, we must also employ appropriate deference to the factfinder so that we do not substitute our judgment for that of the fact finder. Zuniga v. State, 144 S.W.3d 477, 481-82 (Tex.Crim.App.2004). Unless the available record clearly reveals a different result is appropriate, an appellate court conducting a factual sufficiency review must defer to the factfinder’s determination concerning the weight given contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

Appellant’s legal and factual sufficiency complaints concern his identification as the perpetrator of the aggravated robbery. He contends that the women’s identifications of him are not sufficiently reliable to be legally or factually sufficient to support his conviction. Appellant makes eight challenges to the women’s identifications of him.

1. Lack of Physical Evidence

Appellant suggests that the evidence is insufficient to support his guilt because no physical evidence supports the women’s identifications of him. Appellant points to the undisputed facts in the record, which show that neither the gun used to commit the robbery nor any of the fruits of the crime were found in appellant’s possession or were subject to his control after his arrest.

A reasonable jury could have rationally determined that the 30-minute time lapse between the time of the offense and the time of appellant’s arrest allowed appellant sufficient time to dispose of any physical evidence that may have connected him to the offense. Given the circumstances presented here, which include the women’s positive identifications of appellant, the jury could reasonably have concluded, that the absence of physical evidence to connect appellant with the offense was immaterial. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.Crim.App.1971) (holding that testimony of eyewitness alone sufficient to support jury’s verdict); see also Johnson v. State, 176 S.W.3d 74, 78, 2004 WL 1472064, at *3 (Tex.App.-Houston [1st Dist.] July 1, 2004, no pet. h.) (designated for publication) (holding that differences in witness testimony and lack of physical evidence are factors for jury to consider in weighing evidence).

2. Descriptions of Robber’s Height

Appellant contends that the evidence to support his conviction is insufficient because the two women described the robber’s height differently. The record contains conflicting evidence concerning the robber’s height. Bassey testified the robber was about five feet and four inches tall, but Ukegby testified the robber was five feet and ten inches tall. Ukegby’s description of the robber’s height, however, is consistent with the description of appellant’s height given by Officer Boutte, the officer who transported appellant to the police station on the night of the robbery. Despite the inaccuracy of Bassey’s estimation of appellant’s height, Bassey testified that she got a good look at appellant while he committed the robbery and she was “positively sure” of her identification of him. The jury could have reasonably determined that the discrepancy in Bassey’s description of the robber’s height was minor when considered with the certainty of her identification of appellant. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App.1978) (concluding that four-inch discrepancy in description of robber’s height compared to defendant’s actual height and discrepancy in description of his hair length was minor discrepancy when considered with all evidence).

3.Lack of Hood on Appellant’s Jacket

Appellant contends that the evidence is inconsistent because the women described the robber as wearing a jacket with a hood, but appellant’s jacket did not have a hood. The undisputed record shows that when appellant was arrested, he was wearing a black, hooded sweatshirt underneath a black outer jacket that did not have a hood. Additionally, although the officer testified that appellant’s jacket did not have a hood, the officer said appellant “had a hood on him.” Whether the hood was on the sweatshirt or on the jacket, the undisputed evidence shows that appellant wore clothing with a hood on it. A reasonable jury could have rationally concluded that the women’s clothing description was sufficiently similar to the officer’s description of appellant’s clothing to be reliable. We defer to the jury the weight to give any contradictory testimonial evidence concerning appellant’s attire under these circumstances because the resolution of the issue turns on an evaluation of credibility and demeanor of the witnesses at trial. See Johnson, 23 S.W.3d at 8.

4. Description of Word on Robber’s Jacket

Appellant contends that neither woman reported to the officer that the robber’s jacket had the word “cowboy” written on the back of it and that the women did not mention that description until after appellant’s jacket was shown to them at trial. The record shows, however, that the officer testified that he could not recall whether or not the women reported that the robber’s jacket had the word “cowboy” on the back. At trial, both Ukegby and Bas-sey identified appellant’s jacket as the same jacket worn by the robber. Appellant’s complaint is, in essence, an assertion that the women’s testimony is unbelievable because their trial testimony changed to conform to the physical evidence. Under these circumstances, we defer to the determination of the jurors, who heard the women testify, concerning what weight to give allegedly contradictory testimony, because resolution of contradictions necessarily turns on evaluation of credibility and demeanor. See Johnson, 23 S.W.3d at 8.

5. Descriptions of Robber’s Voice

Appellant contends that the women’s identification of him as the robber cannot be accurate because their descriptions of his voice differ. Ukegby testified that the robber’s voice was “deep,” while Bassey testified that his voice was “medium-heavy” and “medium, not too deep.” Although the women used different adjectives to describe the robber’s voice, both women recognized and identified appellant’s voice as that of the robber’s. What weight to give the differing descriptions of the robber’s voice is a matter best left to the jury because resolution turns on evaluation of credibility and demeanor. Id. Under the circumstances presented here, a reasonable jury could have rationally found that the descriptions of the robber’s voice were consistent with the appellant’s.

6.Failure to Identify Appellant Immediately in Court

Because Ukegby did not immediately identify appellant in court when she was asked to identify him, appellant maintains the evidence is insufficient to establish his identity as the robber. The record shows the following dialog:

State’s attorney: Ms. Ukegby, I’m going to ask you, do you see the person that robbed you that night here in the courtroom?
Witness: No.
State’s attorney: Okay. So you cannot identify anyone in the courtroom as to who robbed you?
Witness: No.
State’s attorney: If you can’t, that’s fine. I just need to know.
Witness: That’s him right there (indicating).

The cold record offers no explanation concerning the reasons for the delay in Ukeg-by’s identification. The jury, however, was present to observe the circumstances of Ukegby’s in court identification, and was therefore in the best position to assess the weight and credibility of the identification. Under these circumstances, we will not disturb that identification on appeal. See id.

7. Descriptions of Direction of Robber’s Gun

Appellant contends that the evidence supporting his conviction is insufficient because Ukegby testified that the gun was pointed at her head, but Bassey testified that the gun was pointed at Ukegby’s neck. The undisputed evidence shows that the gun was pointed above Ukeby’s shoulders. The weight to give any discrepancy concerning whether the gun was pointed at the complainant’s head or neck is a matter best resolved by the jury based on their evaluation of the witnesses’ credibility and demeanor. See id.

8. Circumstances of Identification of Appellant at Scene

Appellant argues that neither woman faced appellant directly while identifying him when he was detained in the backseat of the patrol car on the night of the robbery. According to the record, both women stood on the side of the patrol car while identifying the detained appellant. Complainant was “a hundred percent” sure and her companion was “positively sure” of their identification of appellant at the scene of the robbery. Whether the women directly faced appellant or not at the scene, the record shows they were positive about their identification of appellant as the robber. Because the jury’s resolution turned on evaluation of credibility and demeanor of the witnesses at trial, we defer to the jury assessment of the weight to give appellant’s identification at the scene. See Johnson, 23 S.W.3d at 8.

Summary

The jury heard both women testify that appellant pointed a gun at Ukegby and demanded her purse. Both women remembered and recognized appellant’s face and voice as those of the robber. Appellant’s arrest occurred near the area of the robbery within 30 minutes of the offense, after a sufficient length of time for him to have disposed of any physical evidence linking him to the crime. Any discrepancies in the descriptions of the robber’s clothing and physical characteristics, and any discrepancies in the manner of the witnesses’ in-court and out-of-court identifications are matters best left for the jury’s evaluation of the credibility and demeanor of the witnesses who appeared before them. See id.

Viewing all of the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that appellant robbed Ukegby with a firearm. We conclude that the evidence is legally sufficient to prove the essential elements of the offense of aggravated robbery beyond a reasonable doubt. See Swearingen, 101 S.W.3d at 95.

After viewing the evidence in a neutral light, we conclude that the evidence supporting the verdict is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. See Escamilla, 143 S.W.3d at 817-18. Therefore, the jury was rationally justified in finding appellant guilty of aggravated robbery beyond a reasonable doubt. See id. We conclude that the evidence is factually sufficient to prove the essential elements of the offense of aggravated robbery beyond a reasonable doubt. See Johnson, 176 S.W.3d at 78, 2004 WL 1472064, at *3 (holding testimony sufficient to support conviction for aggravated robbery because conflicting testimony concerning perpetrator’s identity and lack of physical evidence were factors for jury to consider in weighing evidence).

We overrule appellant’s two issues.

Conclusion

We affirm the judgment of the trial court.

      . Appellant asserts that we should apply the Texas Supreme Court’s legal-sufficiency analysis used in In re J.F.C., 96 S.W.3d 256 (Tex.2002), and in In re C.H. 89 S.W.3d 17 (Tex.2002). We reject this argument and apply the well-established criminal standard of legal sufficiency review. See Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003).

      . We again reject appellant’s assertion that we should apply the Texas Supreme Court’s factual sufficiency analysis used in In re J.F.C., 96 S.W.3d 256 (Tex.2002), and in In re C.H. 89 S.W.3d 17 (Tex.2002). We apply the criminal factual sufficiency standard of review, as recently restated by the Court of Criminal Appeals in Escamilla v. State, 143 S.W.3d at 817-18 (Tex.Crim.App. 2004).

      .Appellant also claims that the evidence is insufficient because he resided at the apartment complex and cooperated with peace officers when he was arrested, and because others were present at the apartment complex that night. Appellant claims it would be illogical for him to walk past complainant as she sat in the car after the robbery if he had just robbed her minutes earlier. These circumstances, which show that appellant lived nearby the location of the offense, cooperated with authorities, and behaved illogically, and that others were present at the apartment complex, are all circumstances properly left to the jury in its assessment of the credibility of the evidence and the weight to give the testimony concerning appellant’s guilt. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

      . The first four challenges pertain to appellant’s challenges to the legal and factual sufficiency of the evidence, but the latter four challenges concern only his factual sufficiency complaint.


text:
    Robert Wayne WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-00373-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 2004.

      David Suhler, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Harris County, Alan Curry, Assistant District Attorney, Houston, TX, for Appellee.
    Panel consists of Justices NUCHIA, ALCALA, and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

Appellant, Robert Wayne Watson, who appeared pro se at trial, pleaded not guilty to the felony offense of forgery of a commercial instrument. A jury convicted appellant, and the trial court assessed punishment at 10 years in prison. In two issues, appellant contends that (1) the trial court abused its discretion by limiting voir dire and (2) the trial court’s conduct resulted in fundamental error that rendered appellant’s pro se representation ineffective. We affirm.

Background

Appellant was Gloria Allen’s neighbor and visited her often until her sons requested that he cease his visits. Allen suffered from a mental illness and was later hospitalized for bipolar disorder.

On September 3, 2002, appellant took a power of attorney form to a notary, Estella Butler, to have the form notarized. The power of attorney purportedly granted appellant authority over Allen’s bank accounts. Although Butler initially declined to notarize the power of attorney, because Allen had not signed the document in her presence, she notarized the document after speaking to a person on the telephone, whom appellant claimed was Allen. Appellant told Butler that Allen was in the hospital and that Allen would sign Butler’s notary register after she was released from the hospital.

Appellant took the notarized power of attorney to Washington Mutual Bank, where Allen had an account. Washington Mutual, however, would accept only a power of attorney executed on one of the bank’s pre-printed forms. Within an hour, appellant returned to the bank with the new power of attorney, again notarized by Butler without Allen’s being present. After comparing Allen’s signature on the power of attorney with the signature on file and finding that they were similar, the bank added appellant to Allen’s account. Appellant then withdrew $3,000 from Allen’s account.

A few days after appellant was added to Allen’s account, Allen learned that someone posing as her son was withdrawing money from her account. After Allen alerted the bank that the withdrawals were unauthorized, the bank put a restriction on Allen’s account and advised Allen to file a police report. Appellant was arrested on September 6, 2002, when he attempted to withdraw an additional $1,000 from Allen’s account.

Voir Dire Limitation

In his first issue, appellant contends that the trial court abused its discretion by denying him the opportunity to conduct voir dire by “going into the facts of the case.” Appellant contends that Standefer v. State, 59 S.W.3d 177, 179 (Tex.Crim.App.2001), prohibits only improper commitment questions during voir dire and does not prohibit lawyers from going into the facts of the case. See Standefer, 59 S.W.3d at 182-83 (holding that commitment questions are improper if hypothetical questions seek commitments from prospective jurors that would not give rise to valid challenge for cause).

The State contends that appellant’s voir dire was improper because it was a “global fishing expedition” disallowed by Barajas v. State, 93 S.W.3d 36, 38, 41-42 (Tex.Crim.App.2002). See id. at 38-40 (holding that defense counsel could not ask jurors whether they could be fair and impartial in indecency case involving nine-year-old victim because question constituted global fishing expedition); see also Boyd v. State, 811 S.W.2d 105, 120 (Tex.Crim.App.1991) (holding that questions inquiring what factors jurors considered proper for imposition of death penalty was improper fishing expedition). We agree with the State.

The trial court has broad discretion over the jury selection process. Barajas, 93 S.W.3d at 38. The chief rationale supporting limiting voir dire is that selection could go on forever without reasonable limits. Id. The propriety of a particular question is within the discretion of the trial court, and this discretion is abused only when a proper question about a proper area of inquiry is prohibited. Id. A proper question seeks to discover a juror’s views on an issue applicable to the case. Id. An otherwise proper question becomes impermissible, however, if it attempts to commit the juror to a particular verdict based on particular facts. Id. In addition, a trial judge may prevent a voir-dire question that is so vague or broad in nature as to constitute a global fishing expedition. Id. at 39. A trial court may properly exercise its discretion to “require that parties phrase questions in a way that is precise enough to glean relevant information from the venire member’s answer.” Id.

Appellant complains of the following dialogue that transpired during his voir dire examination:

APPELLANT: Now, if you have taken the time and wrote a power of attorney—
STATE: Your Honor, I object at this time. I think Mr. Watson is going a little bit too much in the facts of the case.
THE COURT: I haven’t heard the question yet, please.
APPELLANT: Thank you, Your Honor. If you had taken the time and the type of power of attorney to act for someone, do you see anything wrong with that? Do you see anything wrong with it if you take a power of attorney, type it and allowed this person here to sign it?
STATE: I would object again at this time for the same reason.
THE COURT: Sustain the objection.
APPELLANT: Do you believe that a person could notarize a power of attorney by phone, by voice, recognize the person’s voice?
STATE: Your Honor, I would object again for the same reason earlier.
THE COURT: Sustained.
APPELLANT: Now, do you believe a person that is taking medication that they could use that for an excuse to say I don’t remember or I don’t recall or I am under medication?
STATE: Object. It’s too close to the facts of the case.
THE COURT: Sustained.

The trial court properly exercised its discretion to sustain the State’s objections to appellant’s voir dire because appellant did not phrase his questions in a manner that was “precise enough to glean relevant information from the venire member’s answer.” Id. Voir dire questions that ask jurors to comment on how they will evaluate the evidence in the case are improper. See id. (“For example, the most' effective question would be ‘under the evidence that will be introduced in this case, would you convict the defendant?’ Obviously, neither the State nor the defendant should be able to ask such a question.”).

Appellant’s indictment alleged that, on or about September 6, 2002, appellant “did then and there unlawfully, and with intent to defraud and harm,” forge Gloria Allen’s signature on the Washington Mutual durable power of attorney, “which purported to be the act of another who did not authorize that act, by possessing it with intent to utter it and while knowing it. was forged.” Appellant’s prohibited questions concerned (1) whether the potential jurors saw anything wrong with someone preparing a power of attorney for someone else to sign; (2) whether the potential jurors believed that a person could notarize a power of attorney by phone and recognize a person’s voice; and (3) whether a medicated person might not . remember events. These broadly-phrased questions do not appear to apply to appellant’s forgery indictment.

'To the extent that the questions might have been relevant to appellant’s defense, however, he has not demonstrated their relevancy in his appeal or in the record. Even if the subject matter of the questions might have been a proper inquiry for voir dire, appellant has not demonstrated that the questions were properly phrased in a way that was “precise enough to glean relevant information from the venire member’s answer.” See id.

We conclude that, as phrased, the questions amounted to nothing more than a “global fishing expedition” to determine the prospective jurors’ specific knowledge and thoughts about powers of attorney, notaries, and the effects of medication on people’s memories. See id. Accordingly, the trial court did not abuse its discretion by refusing to permit appellant to explore these broad subject areas.

We overrule appellant’s first issue.

Trial Court’s Conduct

In his second issue, appellant contends that comments and conduct by the trial court resulted in fundamental error that compels a new trial. According to appellant, the trial court denied appellant due process of law and the fair trial guaranteed to him by the Fifth, Sixth, and Fourteenth Amendments of the federal constitution as well as article 1, sections 10 and 19 of the Texas Constitution. See U.S. Const. amends. V, VI, XIV; Tex. Const. art. 1 §§ 10,19.

Appellant did not object to the trial court’s comments. An appellate court may, however, “tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court.” Tex.R. Evid 103(d); see Jasper v. State, 61 S.W.3d 413, 420 (Tex.Crim.App.2001); Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App.2000) (plurality op.). In Blue, a plurality of the Court of Criminal Appeals held that a trial court’s comments, “which tainted [the defendant’s] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.” Id.; see Jasper, 61 S.W.3d at 421. Even if we were bound to follow the plurality opinion in Blue, appellant’s complaints here do not rise to the level that mandated a new trial in Blue. See Jasper, 61 S.W.3d at 420.

A. Interjections by the Trial Court

Appellant contends that the trial court took over the role of the prosecutor by making objections on behalf of the State and thus conveyed the court’s opinion of the case to the jury. During appellant’s questioning of witnesses in his role as his own attorney, the trial court made the following statements: “Is that a question or a statement?”; “Let’s get to the question.”; “I think she has already answered the question.”; “You don’t have to answer that question. Excuse me. That’s an improper question. You don’t have to answer it.”; “Excuse me. That’s about six questions in one. Ask a question, please.”; “She has already said she didn’t give you the power of attorney. Is that clear? Ask the next question.”; “She has answered the question.”; “If you know, you can answer it, if you know.”; “Are you testifying or are you asking questions? Excuse me, are you testifying or asking questions?”; “Let’s move on.”; “That’s enough. You have testified from a document that is not in evidence.”; “This is in evidence. I’m not going to have her testify to everything this is on a document that is already in evidence.”; “We are not going to have you read the entire power of attorney, sir.”; “Read it [a letter from appellant’s brother] verbatim. Don’t summarize.”; “Excuse me, sir. That’s not the answer to the question you asked. The question was why was she to meet you there.”

Interjections by a trial court that correct misstatements or misrepresentations of previously admitted testimony, or that clear up points of confusion, are not improper. See Jasper, 61 S.W.3d at 421. We cannot conclude that the trial court violated appellant’s fundamental rights by expediting and maintaining control over the trial. See id. (holding that trial court has broad discretion to expedite and maintain control over trial).

B. Admonishments by the Trial Court

Appellant also complains that the trial court admonished him about the dangers of self-representation in the presence of the jury. The record shows the following:

APPELLANT: Your Honor, I would like to offer this into evidence.
THE STATE: State objects under hearsay and authentication rules.
THE COURT: I don’t know what it is that they are trying to offer. Have you seen what it is he is trying to offer?
THE STATE: I believe it’s what’s in his hand.
THE COURT: What is it? What exhibit?
APPELLANT: Your Honor—
THE COURT: Just mark it right now, please.
THE STATE: The State does object to the admission of both under hearsay and authentication rules.
THE COURT: May I see them, please? Sustained.
APPELLANT: Your Honor, may I ask—
THE COURT: They are not admitted.
APPELLANT: May I ask why?
THE COURT: They don’t follow the required rules. As an attorney, you would know, if you had elected not to represent yourself, as I told you you shouldn’t do.

The trial court’s statements, that appellant was not following required rules in his pro se representation and that the court had told appellant that he should not represent himself pro se, may have conveyed the court’s opinion that it believed that appellant had not chosen wisely by acting as his own attorney. The comments did not, however, convey the court’s opinion about appellant’s guilt or innocence. We cannot conclude that the trial court violated appellant’s fundamental rights even if the trial court appeared irritated at appellant in his role as his own defense attorney. See id. (holding that any irritation by trial court at attorney does not translate to indication of court’s views about defendant’s guilt or innocence).

C. Trial Court’s Requiring Question and Answer Format

Finally, appellant contends that the trial court forced appellant “to ask himself questions and then answer the question ... to make [a]ppellant look like a fool in the eyes of the jury.” However, the court explained to the jury why the appellant was not testifying in narrative form: “I have required of this defendant that he must actually state the question that he intends to answer, to give the State an opportunity to make an objection. So that’s why [the appellant] will be asking the question and then answering the question ....” By instructing appellant to pose questions of himself before providing an answer, the trial court provided the State the opportunity to object to the question before the jury heard the answer. We note further that, after the trial court fully admonished appellant regarding the consequences of self-representation before trial began, appellant acknowledged that he understood the risks of self-representation and agreed to be held to the same standards of conduct as an attorney. We cannot conclude that the trial court violated appellant’s fundamental rights by requiring appellant to present his testimony in question and answer form. See Jasper, 61 S.W.3d at 421 (holding that trial court has broad discretion to maintain control over trial).

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.

      . In Blue, the trial court informed the venire of the following: the defendant and the State were bargaining over how the defendant would plead; the defendant could not decide whether to plead; the defendant was delaying the trial; the judge wanted the defendant to plead guilty to save time; and the trial court felt obliged to apologize for the delay caused by the defendant. Blue v. State, 41 S.W.3d 129, 130 (Tex.Crim.App.2000) (plurality op.).


author: SHERRY RADACK, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Sergio MALDONADO, Appellee.
    No. 01-03-00774-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 14, 2004.

      David P. Weeks, Dist. Atty., Huntsville, for Appellant.
    Leslie G. Hardy, Huntsville, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
   OPINION

SHERRY RADACK, Chief Justice.

This is a State’s appeal from the trial court’s granting of a motion to suppress evidence. Appellee, Sergio Maldonado, was charged with possession of less than one gram of a controlled substance. See Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp.2004). Maldonado filed a motion to suppress, contending that the evidence seized in connection with his detention and arrest was seized without a valid warrant, probable cause, or other lawful authority, thereby violating his federal and state constitutional rights. The trial court granted Maldonado’s motion and did not file findings of fact. In a single point of error, the State contends that the trial court abused its discretion by granting Maldonado’s motion to suppress. We affirm.

BACKGROUND

At the suppression hearing on the motion, the only witness to testify was the arresting officer, Walker County Sheriffs Deputy K. Allen. Allen testified to the following events. On April 6, 2002, he responded to a retaliation call at a private home. When he arrived at the scene, Allen saw two men, appellee and David Newman, standing near the open doors of a red Camaro. Allen saw both men place something inside the car and then walk away from the car. Allen asked the men to identify themselves. Once he determined that neither man lived at the address, Allen continued talking with the men in order to evaluate the situation further.

Maldonado told Allen that the two men had been riding around town all day and had stopped to see someone named “Jimmy.” Maldonado also informed Allen that he was the driver of the Camaro. After gathering this information, Allen contacted dispatch and was advised that the alleged retaliation victim was named “Jimmy.” Allen was also advised by dispatch that the Department of Public Safety (DPS) had an outstanding arrest warrant for Maldonado. Because he had been advised that there was an outstanding arrest warrant for Maldonado, Allen placed him in custody. In doing so, Allen placed Maldonado’s hands on the back of the Camero to check for weapons. As Allen handcuffed Maldonado, he looked through the back window of the Camaro and saw two shotguns in the back. Allen questioned Maldonado about the shotguns and then escorted him into the back of the squad car.

After placing Maldonado in custody, Allen and another deputy searched Maldonado’s car because their suspicions were aroused by (1) the existence of the shotguns on the scene of a retaliation call, and (2) Maldonado’s and Newman’s behavior of “digging in the front seat” while “the other one was standing behind him.” “In fear,” Allen searched the car specifically for weapons and ammunition. The search revealed marihuana inside a Crown Royal bag, a bent spoon in a sunglasses case, baggies containing residue believed to be methamphetamine, and syringes in the visor above the driver’s side seat.

The State did not present the warrant for Maldonado’s arrest at the suppression hearing. However, Allen testified that dispatch advised him the warrant was valid. Allen explained that, pursuant to Walker County policy, after a police officer stops an individual and gives the individual’s name to dispatch, dispatch checks for any outstanding warrants. Upon discovering any outstanding warrant, dispatch calls and confirms the warrant with the issuing agency. Once dispatch determines the warrant is good, dispatch will advise the officer to arrest the individual in question. Allen testified that dispatch confirmed that there was an outstanding warrant on Maldonado.

No other witnesses testified at the suppression hearing. At the conclusion of the hearing, the trial court granted Maldonado’s motion to suppress and the State did not request any findings of fact or conclusions of law.

DISCUSSION

Standard of Review

In reviewing the trial court’s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, giving “almost total deference to a trial court’s determination of historic facts” and reviewing de novo the court’s application of the law of search and seizure. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997)). If the issue involves the credibility of a witness, such that the demeanor of the witness is important, then greater deference will be given to the trial court’s ruling on that issue. Guzman, 955 S.W.2d at 87. In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). Accordingly, the trial court may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. Id.

When, as here, the trial court does not make findings of fact, we assume that the trial court made implicit findings that support its ruling, provided those implied findings are supported by the record. Sims v. State, 84 S.W.3d 805, 807-08 (Tex.App.-Houston [1st Dist.] 2002, no pet.). We will sustain the trial court’s ruling if the ruling is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex.Crim.App.2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App.2002)).

Analysis

In this case, the only evidence presented was the testimony of Allen, the arresting officer. No arrest warrant was admitted into evidence. Therefore, the determination of probable cause and the existence of a valid warrant rested entirely on Allen’s credibility. See Ross, 32 S.W.3d at 856. In Ross, the Court of Criminal Appeals discussed a similar suppression motion, which was granted after a hearing wherein the only evidence presented was the testimony of the arresting officer. Id. at 854. In Ross, as in this case, the trial court did not file findings of fact. Id. The Court of Criminal Appeals reasoned as follows:

We see two possible theories upon which the trial court’s ruling may rest, either the testimony of the agent was credible, but the facts established by that testimony do not constitute probable cause (or reasonable suspicion for the initial detention); or the trial court did not find the testimony of the agent to be credible. Because we agree with the Court of Appeal’s conclusion that Agent Darnell’s testimony (if believed) added up to reasonable suspicion for the initial stop and probable cause for the initial arrest, we will not presume that the trial court impliedly found that the facts simply did not add up to reasonable suspicion or probable cause; to do so would be to presume error. The trial court, however, was free to disbelieve all of the agent’s testimony. As the sole trier of fact and judge of credibility, the trial court was not compelled to believe the agent’s testimony, even if uncontrovert-ed, based on credibility and demeanor. Because the evidence, if believed, would compel a denial of the motion to suppress, the record supports the second theory that the trial court did not find the agent’s testimony to be credible based on demeanor, appearance, and tone. Given the absence of any factual findings, the appellate presumption of the regularity of a trial court’s judgment, and which party had the burden of proof, the trial court’s implied factual findings were dispositive of the ultimate constitutional question of probable cause. We hold that the trial court was in its discretion in disbelieving the testimony of the agent and granting the motion to suppress.

Ross, 32 S.W.3d at 856-57 (footnotes deleted).

Likewise, in this case, the trial court was free to disbelieve all of Allen’s testimony, even though uncontroverted, based on credibility and demeanor. See id. “Without findings of fact, there is simply no set of ‘concrete’ facts upon which to conduct a de novo review.” State v. Guo, 64 S.W.3d 662, 667 (Tex.App.-Houston [1st Dist.] 2001, no pet.). We hold, therefore, that the trial court was within its discretion in granting the motion to suppress. Accordingly, we overrule the State’s sole point of error.

CONCLUSION

We affirm the order of the trial court.

      . During the hearing, defense counsel presented Allen’s incident report narrative as Defense Exhibit 1.