author: ALMA L. LÓPEZ, Chief Justice.

text:
    Aurelio FLORES, Appellant, v. The STATE of Texas, Appellee.
    No. 04-03-00304-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 22, 2004.

      Mark Stevens, San Antonio, for appellant.
    Alan E. Battaglia, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

Aurelio Flores (“Flores”) was found guilty by a jury of the capital murder of Porfirio DeLeon (“DeLeon”) and sentenced to life imprisonment. Flores’s conviction was appealed and subsequently affirmed. Flores’s motion seeking an order to require post-conviction DNA testing was denied. On appeal, Flores contends that the trial court erred in denying the motion because Flores met the statutory requirements to make testing mandatory. We affirm the trial court’s judgment.

BACKGROUND

On February 8, 1994, Flores was sentenced to life imprisonment for the capital murder of DeLeon. Flores had been indicted and jointly tried with his brother, Robert Flores. During the trial, two knives that were found in a car owned by Richard Ruiz (“Ruiz”), a key witness for the State, were introduced into evidence. The defense relied on the two knives with small traces of human blood to link Ruiz to the murder of DeLeon, who suffered multiple stab wounds. Although the knives were introduced into evidence during the trial, DNA testing technology at the time could not provide any reliable DNA results due to the small amount of blood that was actually present on the knives.

At the initial hearing on Flores’s motion for DNA testing, the trial court enumerated the following issues that were not in dispute: (1) Flores was serving 99 years in the Texas Department of Criminal Justice Institutional Division for capital murder; (2) Flores filed a pro se motion for DNA testing with the court on December 17, 2001; (3) Flores’s appointed counsel later filed a supplemental motion requesting DNA testing; (4) the State filed two responses identifying the location of the evidence requested; (5) the serology reports at the time of the original trial indicated that DNA tests could not be performed because of the small amount of blood on the knives; (6) the record indicated that the knives were recovered in a vehicle owned by Ruiz; and (7) Ruiz admitted owning the knives.

During the course of the hearing, the trial judge questioned defense counsel as to whether the DNA results could prove Flores’s innocence since the evidence indicated that more than one person was involved in the murder. The trial judge questioned whether the DNA results could do anything more than possibly implicate Ruiz, along with Flores, in the commission of the crime. The hearing was recessed to determine whether any DNA from De-Leon existed.

On March 7, 2003, the hearing resumed, and Flores informed the court that no samples of DNA from DeLeon could be located. The court denied the requested testing based on the absence of any biological evidence from DeLeon that could be compared to the DNA results from the blood on the knife.

STANDARD OP REVIEW

We review a trial court’s decision denying a motion for post-conviction DNA testing under the bifurcated standard of review articulated in Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002). We afford almost total deference to a trial court’s determination of issues of historical fact and application of law-to-fact issues that turn on credibility and demean- or. Id. Application of law-to-fact issues that do not turn on credibility and demean- or are reviewed de novo, including the ultimate question of whether the trial court was required to grant a motion for DNA testing under Article 64.01 of the Texas Code of Criminal Procedure. See id. Accordingly, because this appeal does not involve any credibility or demeanor determinations made, we review the trial court’s legal conclusion de novo. The scope of evidence that an appellate court may review on appeal from the denial of a post-conviction motion for DNA testing is not limited to evidence relating to the motion and/or hearing on the motion for DNA testing. See Jacobs v. State, 115 S.W.3d 108, 112-113 (Tex.App.-Texarkana 2003, pet. ref'd).

Discussion

In his sole point of error, Flores claims that the trial court erred in denying his motion for post-conviction DNA testing based on the absence of any DNA evidence of the victim. Flores asserts that the trial court misinterpreted the plain wording of Article 64.03 and erroneously denied his motion based on a requirement not enumerated in the statue.

A court may order post-conviction DNA testing only if three requirements are satisfied: (1) the evidence still exists and is in a condition making DNA testing possible; (2) the evidence has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and (3) identity was or is an issue in the case. Tex.Code Crim. Proc. Ann. art. 64.03(a)(1)(A),(B) (Vernon 2004). Additionally, the convicted person must also establish by a preponderance of the evidence that: (1) he or she would not have been convicted if exculpatory results had been obtained through DNA testing; and (2) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice. Tex.Code Crim. Proc. Ann. art. 64.03(a)(2),(A),(B) (Vernon 2004). A court shall order post-conviction DNA testing only when the convicted person satisfies the burden under Subsection (a)(2) and the court finds the requirements listed in Subsection (a)(1) have been satisfied. Tex. Code Crim. Proc. Ann. art. 64.03(c) (Vernon 2004).

The trial court’s order states that the evidence did not exist making forensic DNA testing possible because no known biological evidence of the victim was in existence that could be compared to any potential biological evidence on either of-the two knives. There is no dispute that the two knives with traces of blood found in Ruiz’s car still exist and are in a condition making DNA testing possible. The knives have remained in the possession of the State, thereby showing the proper chain of custody. Identity was an issue in the case, since Flores contended that Ruiz was the perpetrator of DeLeon’s murder. Finally, there is no evidence that Flores filed the motion to cause unreasonable delay to the execution of his sentence or the administration of justice. Accordingly, Flores appears to have satisfied four of the five requirements that would compel a trial court to order DNA testing.

In order to be entitled to the testing, however, Flores was still required to prove by a preponderance of evidence that he would not have been convicted if exculpatory results were obtained through DNA testing. To meet this requirement, Flores must show that “a reasonable probability exists that exculpatory DNA tests will prove [his] innocence.” Kutzner v. State, 75 S.W.3d 427, 438 (Tex.Crim.App.2002).

Although the existence of a DNA sample for comparison purposes is not an express requirement of Article 64.03, a trial court is not precluded from considering the absence of a comparison sample when conducting its analysis under Article 64.03(a)(2)(A). The purpose of Flores’s motion was to prove that the blood on the knife was that of DeLeon. In this case, without any biological evidence from De-Leon, the testing of the DNA found on the knives would be inconclusive. Most importantly, without any biological evidence from DeLeon, no reasonable probability exists that Flores may prove his innocence through exculpatory results. A trial judge is not required to grant a convicted person’s request for DNA testing absent this particular showing. See Dinkins v. State, 84 S.W.3d 639, 643 (Tex.Crim.App.2002). A showing under Article 64.03(a)(2)(A) is not made if the DNA results would merely “muddy the waters.” See Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App.2002).

The trial court’s order states, “There is no known biological evidence of the victim in existence to compare the potential biological evidence which may exist on the two knives which movant requests to be tested.” As a result, the court concludes, “The evidence does not exist making forensic DNA testing possible.” Absent the existence of a comparison sample of DNA from the victim, the trial court did not abuse it’s discretion in denying Flores’s motion because Flores failed to satisfy his burden of showing under Article 64.03(a)(2)(A) that exculpatory results could be produced to prove his innocence.

Conclusion

The trial court’s judgment is affirmed.


source: Caselaw Access Project

author: JAMES T. CAMPBELL, Justice.

license: Public Domain

text:
    In the Interest of S.M.L.D., A Child.
    No. 07-04-0060-CV.
    Court of Appeals of Texas, Amarillo.
    Sept. 23, 2004.

      C.J. McElroy, Vance E. Ivy, Packard, Hood, Bednarz Johnson & Ivy, L.L.P., Amarillo, for appellant.
    Habón Y. Mohamed, Asst. Potter County Atty., Amarillo, for appellee.
    Edward K. Norfleet Jr., Amarillo, for ad litem.
    Before QUINN and REAVIS and CAMPBELL, JJ.
   OPINION

JAMES T. CAMPBELL, Justice.

Appellants Shelly Carter and Dwayne Lynn Dale appeal the termination of their parental rights to the child S.M.L.D. The child was removed from Carter’s care after the child tested positive for cocaine and methamphetamines at birth. We will affirm the trial court’s judgment.

On August 2, 2002, Carter went to the hospital and was informed by the hospital staff that her baby was to be delivered that day. After arguing with the anesthesiologist, Carter left the hospital and went home. When she arrived home, Dale, the child’s father, was there smoking crack cocaine. Carter testified that she “took a hit” of cocaine at that time. S.M.L.D. was bom on August 5, 2002, and tested positive for both cocaine and methamphetamines at the time of her birth. The child suffered from drug withdrawal symptoms and, as a result, was placed in a neonatal intensive care unit for a week following her birth. To alleviate symptoms of withdrawal from the drugs, she was medicated with phenobarbital for several days. On her release from the hospital August 9, she was taken' into the possession of the Texas Department of Protective and Family Services.

On August 12, 2002, the department filed an original petition for protection of the child and seeking conservatorship. A full adversary hearing was held August 22, 2002, and the department was appointed temporary managing conservator of the child. In October of 2003 the department amended its original petition to seek termination of parental rights of Carter and Dale, if reunification of the child with the parents could not be achieved. On December 22, 2003, a final hearing was held and neither parent appeared. A judgment was entered terminating Carter’s and Dale’s parental rights. Both Carter and Dale filed motions for a new trial alleging they did not receive notice of the final hearing. The motions for new trial were granted and another final hearing was held on February 13, 2004, at which both parents appeared represented by counsel. Following the non-jury trial, a judgment was entered terminating the rights of both parents. The department was named managing conservator of the child. Both Carter and Dale filed timely notices of appeal.

Issues

Carter and Dale each present two issues, that the evidence presented at trial was legally insufficient and factually insufficient to support the judgment of termination under Section 161.001., They also challenge the court’s finding that termination of their parental rights was in the best interest of the child. The judgment may be affirmed if it is supported by evidence sufficient to establish that one of the grounds listed in Section 161.001(1) exists and that termination is in the best interest of the child as required by Section 161.001(2). In re A. V., 113 S.W.3d 355, 362 (Tex.2003); In re P.E.W., 105 S.W.3d 771, 777 (Tex.App.-Amarillo-2003, no pet.).

The trial court found that appellants knowingly placed or allowed the child to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, Section 161.001(1)(D); that appellants engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, Section 161.001(1)(E); and that termination of parental rights between appellants and their child was in the best interest of the child, Section 161.001(2). Because we find the evidence sufficient to support the findings under Section 161.001(1)(E) and Section 161.001(2), we consider only the evidence addressing those grounds.

Law

Findings under Section 161.001 must be based on clear and convincing evidence. Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam.Code Ann. § 101.007. The clear and convincing evidence burden of proof requires a higher level of appellate scrutiny in reviewing the legal and factual sufficiency of the evidence. In re J.F.C., 96 S.W.3d 256 (Tex.2002); In re C.H., 89 S.W.3d 17, 23 (Tex.2002).

In reviewing legal sufficiency, we look at all the evidence, in the light most favorable to the judgment, to determine if the trier of fact could reasonably have formed a firm belief or conviction that grounds existed for termination under the Family Code. Tex. Fam.Code Ann. §§ 161.001, 161.206(a) (Vernon 2002 & Supp.2004); In re J.F.C., 96 S.W.3d at 265-66. In review of a factual sufficiency challenge we must consider all the evidence the fact finder could reasonably have found to be clear and convincing, determining whether, on the entire record, the fact finder could reasonably form a firm belief or conviction of the truth of the department’s allegations. See In re J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d at 25, 27-29. In so doing, we consider whether disputed evidence is such that a reasonable fact finder could have resolved it in favor of its finding. If, in light of the entire record, disputed evidence that a reasonable fact finder could not have resolved in favor of the finding is so significant as to prevent a fact finder reasonably from forming a firm belief or conviction of the truth of the finding, then the evidence is factually insufficient. See In re J.F.C., 96 S.W.3d at 266.

In the context of our review of the evidence that appellants’ conduct endangered the child’s physical or emotional well-being, to “endanger” means to expose to loss or injury; to jeopardize. Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987). Although “endanger” means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child must actually suffer injury. In re M.C., 917 S.W.2d 268, 269 (Tex.1996). A danger to the child’s well-being may be inferred from parental misconduct. Boyd, 727 S.W.2d at 533. An endangerment inquiry under Section 161.001(1)(E) focuses on the conduct of the parent, including the parent’s actions or omissions or failures to act. See In re D.T., 34 S.W.3d 625, 634 (Tex.App.Fort Worth 2000, pet. denied).

Endangerment — Carter

We first consider the legal sufficiency of the evidence Carter engaged in conduct that endangered S.M.L.D.’s physical or emotional well-being. On appeal Carter argues that the only evidence before the trial court bearing on that issue concerned her conduct after the child was removed from her possession. She argues that she could not have endangered the child physically or emotionally during the limited interaction she was permitted with the infant after her birth. Carter’s argument ignores the effect of her drug use on her unborn child, and case law establishing that a mother’s use of drags during pregnancy may be conduct which endangers the physical and emotional well-being of the child. In re W.A.B., 979 S.W.2d 804, 807 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); see In re U.P., 105 S.W.3d 222, 234 (Tex.App.-Houston [14th Dist.] 2003, pet. denied); Dupree v. Texas Dep’t Protective and Regulatory Servs., 907 S.W.2d 81, 84 (Tex.App.-Dallas 1995, no writ).

Carter admitted that she used cocaine two days before her child’s birth, even though she knew it could be dangerous to the unborn child. A department caseworker testified that immediately after birth, the child was placed in a neonatal intensive care unit for over a week, suffering withdrawal symptoms from exposure both to cocaine and to methamphetamines, Evidence of Carter’s drug use during pregnancy, and the distress suffered by the child after delivery, demonstrates how Carter harmed the physical well-being of the child. Carter’s ingestion of drugs while pregnant did more than expose the child to injury; see Boyd, 727 S.W.2d at 533, it brought about actual physical harm to the infant.

Termination under Section 161.001(1)(E) typically requires evidence of more than a single act or omission. In re D.M., 58 S.W.3d 801, 812 (Tex.App.-Fort Worth 2001, no pet.); In re J.N.R., 982 S.W.2d 137, 142 (Tex.App.-Houston [1st Dist.] 1998, no pet.). In determining whether a parent has engaged in a course of conduct endangering a child, we may look at the conduct both before and after the child’s birth. In re D.M., 58 S.W.3d at 812; In re M.J.M.L., 31 S.W.3d 347, 351 (Tex.App.-San Antonio 2000, pet. denied); Avery v. State, 963 S.W.2d 550, 553 (Tex.App.-Houston [1st Dist.] 1997, no writ). The evidence is that Carter’s ingestion of cocaine before the birth of her child was not an isolated event, but was part of a course of conduct of the use of illegal drugs. See In re R.W., 129 S.W.3d 732, 739 (Tex.App.-Fort Worth 2004, pet. denied) (court may consider drug use and its effect on parent’s life and ability to parent as contributing to endangering course of conduct); In re U.P., 105 S.W.3d at 234; Dupree, 907 S.W.2d at 84. Carter testified she used marijuana during the first three months of her pregnancy. Her drug use continued after the child was removed from her care, in the face of periodic drug tests that placed her relationship with her child in jeopardy. See In re J.N.R., 982 S.W.2d at 142 (considering conduct jeopardizing parental rights as part of course of conduct endangering well-being of child). The department, as part of her service plan, required Carter to submit to random drug tests. The caseworker testified she did not submit to all the testing required by her service plan. Nevertheless, testimony indicated she tested positive for drugs in June, July and December of 2003. The record contains sufficient clear and convincing evidence for the court to have reasonably formed a firm belief or conviction that Carter engaged in conduct that endangered the physical and emotional well-being of her child, and is thus legally sufficient to support that finding. Tex. Fam.Code Ann. § 161.001(1)(E).

Considering the entire record, the evidence also is factually sufficient to support the finding. The facts of Carter’s cocaine use prior to S.M.L.D.’s birth and of its effect on her child are not disputed. There was conflicting testimony at trial concerning the number of Carter’s positive drug tests during the months before trial, but the conflict in evidence is one the court could resolve in favor of its finding. See In re J.F.C., 96 S.W.3d at 266.

Endangerment — Dale

We apply the same analysis to the court’s finding that Dale engaged in conduct or knowingly placed S.M.L.D. with persons who engaged in conduct that endangered the physical or emotional well-being of the child. Dale argues he never took any actions to harm the child. He contends his rights were terminated only because he had been incarcerated for the majority of the child’s life. Like Carter, Dale ignores the danger to S.M.L.D. from Carter’s use of drugs two days before her birth. In considering whether Dale had engaged in endangering conduct, the court was entitled to take into account his role in the presence of cocaine in the child’s body at birth. See Dupree, 907 S.W.2d at 85. At trial, Dale acknowledged providing Carter the cocaine she smoked before S.M.L.D.’s birth.

The court also could consider the effect of Dale’s drug use on his life and ability to parent S.M.L.D. See In re R.W., 129 S.W.3d 732, 739. The effect of drug use on Dale’s life was illustrated during his testimony by his agreement with the attorney ad litem that, when he gave Carter a “hit” off the crack cocaine he was smoking, he was “just too high” to think about the consequences. Dale also acknowledged at trial his addiction to drugs. Although Dale testified to a desire to abstain from drugs, and to his participation in a twelve-step recovery program required by the department, he acknowledged continued drug use.

Dale attended trial, but was incarcerated at that time, following revocation of his parole. He testified he would remain incarcerated for nine to eighteen months. He also testified his drug use was a cause of the revocation.

A parent’s mere imprisonment is not conduct that endangers the emotional or physical well-being of a child, but it is a factor the court could consider on the issue of endangerment. See Boyd, 727 S.W.2d at 533-34; In re R.W., 129 S.W.3d at 743; In re D.T., 34 S.W.3d at 638.; In re J.N.R., 982 S.W.2d at 142. Dale’s imprisonment was at least partially the result of his course of conduct of using illegal drugs and, coupled with the other undisputed evidence of that course of conduct and its effect on the well-being of the child, provides both legally and factually sufficient evidence that he engaged in conduct that endangered S.M.L.D.’s physical and emotional well-being. See In re R.W., 129 S.W.3d at 739; Dupree, at 84.

Best Interest of Child

We next address whether the department established that termination of Carter’s parental rights was in the best interest of the child, overcoming the strong presumption that the best interest of a child is served by keeping custody in the natural parent. See, e.g., In re D.M., 58 S.W.3d at 814. Holley v. Adams, 544 S.W.2d 367 (Tex.1976), sets out factors that may bear on the question of best interest, including desires of the child; emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future; parental abilities of the individuals seeking custody; programs available to assist these individuals to promote the best interest of the child; plans for the child by these individuals or by the agency seeking custody; the stability of the home or proposed placement; the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions of the parent. Id. at 371-72. The Holley list is not exhaustive, though, and evidence on each factor is not required to support a finding that termination is in the child’s best interest, particularly if there is undisputed evidence that the parental relationship endangered the safety of the child. In re C.H., 89 S.W.3d at 27.

The evidence offered to prove grounds for termination is also relevant in determining if termination is in the child’s best interest. In re C.H., 89 S.W.3d at 28. We have stated our conclusion that Carter’s course of conduct involving the use of drugs posed a danger to her child.

The evidence concerning Carter’s willingness and ability to address her drug usage was conflicting. Testimony indicated that the department referred Carter to Ms. Sorrells, a therapist, with whom she met once a week for approximately eleven months, beginning sometime after the birth of S.M.L.D. Even though Sorrells was designated by the department to treat Carter, at some point the department concluded she was not making progress with Sorrells and transferred Carter to a new therapist. On Carter’s counsel’s cross-examination of department caseworker Rachel Buckalew, an excerpt from a letter written by Sorrells was read into the record. In the letter, Sorrells stated that Carter admitted her drug use and had developed a plan to prevent relapse into drug use. Sorrells reported that Carter consistently attended counseling sessions and when CPS determined she should see a new therapist, Carter wanted to continue with Sorrells at her own expense.

The letter indicated Carter was willing to undergo more intense treatment, such as inpatient rehabilitation, if needed. Sor-rells stated that Carter was beginning to address her problems when a change in therapist was ordered by the department. Buckalew’s testimony controverted the conclusions stated in Sorrells’ letter. Buckalew testified that when she called Sorrells to complete a report to the court, she “stated everything differently” than what appeared in the letter. Buckalew did not believe Carter had made any progress in addressing her drug abuse problem. Buckalew testified that Carter tested positive for controlled substances in June, July and December 2003.

Carter also testified concerning her counseling experience with Sorrells and concerning her drug usage. Carter testi-fled she wanted nothing to do in the future with persons who use drugs. Sorrells’ letter indicated Carter’s relapse prevention plan included staying away from people and places associated with drugs. Considering the entire record, and keeping in mind the role of the trial court in a bench trial as judge of the credibility of witnesses, the evidence does not prevent the conclusion that Carter would continue her course of conduct involving drug abuse, endangering her child in the future.

Carter testified she was forty years old. She and Dale had never married, but had been together for fifteen or sixteen years, “on and off.” Testimony also revealed they had no other children together, but each had two other children. Carter’s two children were adults, ages 19 and 21. Dale’s two children were teenagers, living with his ex-wife.

The evidence concerning the stability of the home Carter would provide the child also was mixed. On appeal, Carter cites evidence that she had, until two months before trial, maintained a home. She resided in a rented house for six years, but was evicted two months prior to trial when she lost HUD funding for the home. Her testimony indicated she did not have a permanent place to live and was uncertain where she would be living in the future. At the time of trial, Carter was unemployed and had not held a job for two years. Carter also testified she was diagnosed with hepatitis C during her pregnancy with S.M.L.D.

Carter argues she demonstrated her care and concern for the child by attending the visitation the department allowed her. She argues she had no opportunity to establish a relationship with her child because the department took custody of 5.M.L.D. at the hospital. Evidence indicates that Carter complied with some of the department’s requirements in an effort to regain custody of her child by completing the FAME program and parenting classes.

The evidence concerning the best interest of the child with respect to termination of Dale’s parental rights included Dale’s testimony that while incarcerated, he met the department’s requirements by taking a parenting class and receiving counseling. He and Carter both testified that Dale regularly maintained employment when not incarcerated. As noted, though, Dale admitted to continued drug use. He twice had participated in a SAFPE program, but continued using drugs when he was released on parole and even when participating in a twelve-step recovery program. He candidly acknowledged that “there’s really no guarantee” the next few years would be different from recent years with respect to his drug use.

Dale offered no specific plans for caring for S.M.L.D.’s needs. When Dale was asked where S.M.L.D. should be placed until he was released from prison, he requested she be returned to Carter. The future of Dale’s relationship with Carter is unclear from the testimony. Carter testified that Dale planned to come live with her on his release from prison, but that plan is difficult to reconcile with Carter’s expressed intention to avoid drug abusers, given Dale’s admitted continuing problem with drug abuse.

The uncontroverted evidence supporting the trial court’s finding that Carter engaged in conduct endangering her child’s well-being, together with the evidence of the likelihood of further danger to the child’s well-being from her drug abuse, and evidence of her inability to provide for the needs of the child, including Carter’s lack of employment and of a place to live, support the court’s finding that termination of Carter’s parental rights was in S.M.L.D.’s best interest. Similarly, the undisputed evidence of Dale’s endangering course of conduct and of his continuing drug abuse, his lack of any plan for the infant’s care other than her return to Carter, and the uncertainty of Carter and Dale’s own future, support the same finding with respect to Dale. With respect both to Carter and Dale, evidence contrary to the finding came largely through their own testimony, and in any event was not so significant as to prevent the trial court reasonably from forming a firm belief or conviction of the truth of the finding. See In re J.F.C., 96 S.W.3d at 266. At the time of trial, S.M.L.D. remained in foster care and appeared well bonded to her foster parents. The department plans to allow the child to be adopted. The record contains legally and factually sufficient clear and convincing evidence for the court to have determined that termination of the parent-child relationship between the child and each of her biological parents was in the child’s best interest.

Accordingly, we overrule the issues urged by Carter and by Dale, and affirm the trial court’s judgment.

      . All references in this opinion to Section 161.001 are to Texas Family Code Annotated § 161.001 (Vernon 2002).

      . Further evidence of Carter's drug use after S.M.L.D.’s birth is provided by the letter from her therapist Sorrels, discussed later in this' opinion.

      . Dale’s testimony also indicated he was charged with assaulting Carter’s adult son.

      . Even under the more stringent standard of review we must apply to termination findings, we must maintain due regard for the role of the fact finder. See In re C.H., 89 S.W.3d at 26. That role includes the task of resolving credibility issues and carries with it the authority freely to choose to believe all, part or none of the testimony of a particular witness. See In re R.D.S., 902 S.W.2d 714, 716 (Tex.App.-Amarillo 1995, no writ).

      . Carter testified she had stayed with her adult son temporarily since her eviction and had kept her furniture and dogs at his residence. She also testified, though, that she was "not getting along” with her son. Dale testified his parole violation involved, in part, a charge that he assaulted Carter's son. Carter also testified that, by the time of trial, both her son and her daughter were incarcerated.

      . Substance Abuse Felony Program. Tex. Crim. Proc.Code Ann. art. 42.12 § 14 (Vernon Supp.2004).


author: WANDA McKEE FOWLER, Justice.

text:
    Wesley Lanier RICHARDS, Appellant v. The STATE of Texas, Appellee.
    No. 14-03-00194-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 28, 2004.
    Rehearing Overruled Dec. 23, 2004.

      Lewis Dickson, Houston, for appellant.
    Carol M. Cameron, Houston, for appel-lee.
    En Banc Court consists of Chief Justice HEDGES, Justices YATES, ANDERSON, HUDSON, FOWLER, FROST, SEYMORE and GUZMAN. Justice EDELMAN concurring in result only.
   EN BANC OPINION

WANDA McKEE FOWLER, Justice.

Appellant pleaded no contest to misdemeanor possession of a controlled substance and the trial court assessed punish-ment at six months’ deferred adjudication. In six issues, appellant contends the trial' court erred in denying his motion to suppress evidence because (1) he should have been given alternatives to having his car impounded, (2) the applicable written guidelines of the Houston Police Department are unconstitutionally vague, (3) the police officers unconstitutionally acted in bad faith by impounding his car, and (4) the search of his car was unconstitutional because it was not conducted pursuant to any established inventory guidelines. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 10, 2001, Houston Police Department Officers Terry Shane Seagler and David Myers were working on a special assignment of guarding the mayor’s house on Potomac. The officers were in plain clothes and in an unmarked pickup truck. Officer Seagler observed appellant’s car approaching and saw a passenger, Steve Douglas, throw a pumpkin at a parked car. The pumpkin damaged the, parked car’s trunk and left tail light.

The officers pursued appellant and observed him run a stop sign, fail to signal a turn, speed, and run a stop light. The officers caught up with appellant and Officer Seagler identified himself as a police officer. Appellant then stopped his car on Russet, a dead-end street. The officers requested backup and interviewed appellant, Douglas, and two additional juvenile passengers.

Officers David Giannavola and Joseph Antonio Mora, Jr. independently arrived in response to the request for backup. The officers determined that Officers Seagler and Myers would complete the report and file charges, and Officers Giannavola and Mora would transport appellant and Douglas to jail. Officers Seagler and Myers returned to the scene on Potomac.

Officer Mora arrested appellant for traffic violations, arrested Douglas for criminal mischief, and took the juveniles into custody for curfew violations. Officer Mora observed that appellant’s car was illegally parked because it was not within eighteen inches of the curb. He decided to impound and tow the car and called a wrecker to the scene.

Before appellant’s car was towed, Officer Mora conducted an inventory. He unlocked the car’s trunk with the key and found a closed red backpack. He opened the backpack and found marijuana and what was later determined to be peyote. Appellant indicated the backpack was his and Officer Mora arrested him for possession of marijuana.

Appellant was initially charged with misdemeanor possession of marijuana. He moved to suppress the evidence obtained through the inventory of his car and a suppression hearing was conducted. The State dropped the misdemeanor charge in favor of proceeding on a felony charge of possession of peyote.

Appellant again moved to suppress the evidence obtained through the inventory of his car. Because the relevant facts had not changed, the parties agreed to have the motion decided on the basis of the transcript from the prior misdemeanor hearing. The trial court denied appellant’s motion to suppress.

ANALYSIS

In six issues, appellant contends the trial court erred in denying his motion to suppress because (1) he should have been given alternatives to having his car impounded, (2) the applicable written guidelines of the Houston Police Department are unconstitutionally vague, (3) the officers unconstitutionally acted in bad faith by impounding his car, and (4) the search of his car was unconstitutional because it was not conducted pursuant to any established inventory guidelines.

I. Standard of Review

We reverse a trial court’s ruling on a motion to suppress only if it abused its discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. We view the evidence in the light most favorable to the trial court’s ruling, and must sustain the ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case.

II. Absence of a Warrant

The State first argues that it had no burden of proving the legality of the search because appellant did not meet his burden of proving the search was performed without a warrant. The only direct indication that the search was performed without a warrant was the misdemeanor hearing judge’s statement that, “It’s a warrantless arrest. The State’s going to go forward.”

When a defendant seeks to suppress evidence on the basis that a search was performed in violation of the Fourth Amendment, the initial burden is on the defendant to rebut the presumption of proper police conduct. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986). A defendant must meet that burden by demonstrating the search was performed without a warrant. Id. Once the defendant rebuts this presumption, the burden of proof shifts to the State to either produce evidence of a warrant or prove the reasonableness of the search. Id. at 9-10.

We have previously held that a defendant must meet his burden by producing affirmative evidence showing there was no warrant; circumstantial evidence will not suffice. See, e.g., Telshow v. State, 964 S.W.2d 303, 307 (Tex.App.-Houston [14th Dist.] 1998, no pet.); White v. State, 871 S.W.2d 833, 836-37 (Tex.App.-Houston [14th Dist.] 1994, no pet.). In the case most factually similar to this one, we held that the defendant did not meet his burden even though the trial court impliedly found he did so and the prosecutor stated during argument that the arrest was warrantless. See Hightoarden v. State, 846 S.W.2d 479; 481 & n. 2 (Tex.App.-Houston [14th Dist.] 1993), pet. dism’d as improvidently granted, 871 S.W.2d 726 (Tex.Crim.App.1994). Under this line of authority, appellant would not have met his burden even though the trial court impliedly found he did so and the trial court stated the arrest was warrantless. However, this line of authority is not without criticism. See Gulley v. State, No. 14-00-00310-CR, 2001 WL 1103248, at *1-2 (Tex.App.-Houston [14th Dist.] Sept. 20, 2001, pet. ref'd) (Murphy, J., dissenting) (not designated for publication); Sims v. State, 980 S.W.2d 538, 541 (Tex.App.-Beaumont 1998, no pet.) (Burgess, J., concurring) (“Only the Houston courts have adopted this rule that the absence of a warrant must be established by direct evidence.”). In light of this criticism and the Court of Criminal Appeals’ recent decision in Bishop v. State, 85 S.W.3d 819 (Tex.Crim.App.2002), we will revisit the issue.

In Russell, the key Court of Criminal Appeals case on this issue, it appears the defendant met his burden without producing affirmative evidence showing there was no warrant. See Russell, 717 S.W.2d at 10-13. The Court wrote, “From Officer Graves’ testimony it is obvious that no warrant was obtained.” Id. at 10. However, at no point in the officer’s testimony did the officer state the arrest was war-rantless, nor was the officer asked whether it was warrantless. Id. at 11-13. Further, it appears the Court’s decision was based on circumstantial evidence from its statement that the lack of a warrant was obvious based on the testimony. See id. at 10; see also Sims, 980 S.W.2d at 541 (Burgess, J., concurring). Thus, our requirement that the showing be based on affirmative evidence appears to be more stringent than the requirement of the Court of Criminal Appeals.

In Bishop, the Court of Criminal Appeals reversed this court’s decision that the defendant failed to meet her burden because she failed to produce affirmative evidence showing there was no warrant. Bishop, 85 S.W.3d at 822. The appellant only claimed that the arrest was warrant-less in her unsworn motion to suppress; her affidavit contained no such statement. Bishop v. State, No. 14-00-00792-CR, 2001 WL 893309, at *2 (Tex.App.-Houston [14th Dist.] Aug. 9, 2001) (not designated for publication), rev’d, 85 S.W.3d 819. Relying on Telshow, this court held that she failed to produce any affirmative evidence because an unsworn motion is not evidence. Id. The Court of Criminal Appeals reversed, holding that the trial court should have considered the allegation in the motion to suppress. Bishop, 85 S.W.3d at 822. The Bishop case is not directly on point, because it turned on the issue of whether an unsworn motion to suppress should be considered in addition to the affidavits when determining whether the defendant had shown the arrest was without a warrant. See id. However, it is an indication that a defendant can meet the burden of showing there was no warrant with less than affirmative evidence.

Based on Russell and Bishop, we hold that a defendant can meet his burden of demonstrating that an arrest was performed without a warrant with circumstantial evidence. To the extent that Telshow and similar cases hold to the contrary, they are overruled. See Telshow, 964 S.W.2d at 307; White v. State, 871 S.W.2d 833, 836 (Tex.App.-Houston [14th Dist.] 1994, no pet.); Highwarden, 846 S.W.2d at 481 & n. 2; Johnson v. Stole, 834 S.W.2d 121, 123-24 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd). We therefore turn to the record to determine if it demonstrates the arrest was performed without a warrant.

To begin with, the misdemeanor hearing judge stated that the ease involved a warrantless arrest and she impliedly found so when she placed the burden of proceeding on the State. The State accepted this burden without objection. Although not evidence, this is a rather significant indication that the search was performed without a warrant. When the judge has already impliedly found that police searched a car without a warrant, requiring the defendant to produce additional evidence that the search was performed without a warrant would accomplish little other than setting a procedural trap for the unwary. See Allen v. State, 552 S.W.2d 843, 846 (Tex.Crim.App.1977) (“The law does not require a useless thing to be done.”).

The evidence in the record also demonstrates the search was performed without a warrant. Officers Seagler and Myers pursued appellant because they saw an occupant in the car appellant was driving throw a pumpkin at a parked car. Officer Seagler testified that neither he nor Officer Myers noted the license plate of the car until after appellant had been stopped and that he only “quickly glanced” at appellant’s driver’s license to make sure it was valid. He also testified that appellant was not free to leave at that time, indicating that appellant was already under arrest. See Kunkel v. State, 46 S.W.3d 328, 330 (Tex.App.-Houston [14 Dist.] 2001, pet. ref'd) (“An arrest is complete when a person’s liberty of movement is restricted or restrained.”). From this evidence it is obvious that the arresting officers did not arrest appellant pursuant to a warrant. We therefore hold appellant met his burden of showing the arrest was performed without a warrant and address his complaints.

III. Alternatives to Impoundment

In his first three issues, appellant contends the trial court erred in denying his motion to suppress because he was not given alternatives to having his car impounded. The three specific alternatives appellant argues he was not given were (1) leaving his car legally parked at the scene, (2) releasing his car to one of the passengers, and (3) leaving the car at the nearby home of one of the passengers.

To ensure the validity of its impound-ments, the Houston Police Department has established a written policy for its officers to follow when the owner is taken into custody. That policy provides the following:

Prisoners are responsible for the disposition of their vehicles unless such vehicles are subject to seizure or needed as evidence. Prisoners will choose one of the following alternatives for the disposition of them vehicles:
a.Release to Another Party. The vehicle may be released to a third person. Officers must ensure the third person has a valid driver’s license and insurance before being allowed to operate the vehicle.
b. Leave Vehicle Parked. Vehicles may be left at the scene if they are legally parked. If the vehicle is to be left on private property, permission should be obtained from the property’s owner or manager.
c. Prisoner-Requested Tow. The vehicle may be towed at the prisoner’s expense.

Houston Police DepaRtment, General Order no. 600-10, § 7 (Nov. 19, 1999). The first two alternatives are also required by common law. See, e.g., Stephen v. State, 677 S.W.2d 42, 44 n. 1 (Tex.Crim.App.1984) (stating the police should respect a prisoner’s wish to leave his car with a companion who had a valid driver’s license); Josey v. State, 981 S.W.2d 831, 842-13 (Tex.App.Houston [14th Dist.] 1998, pet. ref'd) (examining the availability of both options); Smith v. State, 759 S.W.2d 163, 167 (Tex.App-Houston [14th Dist.] 1988, pet. refd) (holding that the prisoner should have been allowed to choose whether to leave his car parked in a public parking lot). Appellant was thus entitled to either of them regardless of police procedure. See Stephen, 677 S.W.2d at 44 n. 1 (holding that a policy that only allowed release to relatives was “much too narrow”). The third alternative, a prisoner-requested tow, was not argued to the attention of the trial court, so we will not consider it here. See Tex.R.App. P. 33.1(a).

The policy states that a police-authorized tow is permissible when “the prisoner is not present or is medically incapable of or unwilling to select from [these] alternatives.” GENERAL ORDER 110. 600-10, § 7. The policy does not address a situation when none of the alternatives are available, presumably because whenever a police-authorized tow is possible a prisoner-requested tow will also be possible. However, we hold that a police-authorized tow is also permissible when a prisoner is incapable, for other than medical reasons, of selecting from these alternatives.

First, appellant argues he should have been permitted to leave his car legally parked at the scene. Two officers testified that the car was not legally parked because it was more than eighteen inches from the curb. Although appellant contends the car could have been moved several inches closer to the curb and thus legally parked, the police were not required to offer this option. See Josey v. State, 981 S.W.2d 831, 843 (Tex.App.Houston [14th Dist.] 1998, pet. ref'd). In Josey, the defendant’s car could have been moved so that it was safely parked on the grass by the side of the road, but at the time of the impoundment the officers did not know who owned the car and thus could not determine if the owner would have preferred to leave the car parked there as an alternative to impoundment. Id. Similarly, the officers here did not know who owned the car driven by appellant. The evidence in the record indicates that the car had been rented, but there is no evidence that the officers knew at the time of impoundment that the car had been rented to appellant, or even whether it was in fact rented to appellant. Therefore, there was no “objectively demonstrable evidence that [the alternative], did, in fact, exist.” Id. (quoting Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.-Dallas 1992, pet ref'd)).

Second, appellant argues he should have been allowed to release the car to one of his passengers. The two passengers other than appellant and Douglas, who was under arrest for criminal mischief, were both juveniles. Although there was conflicting testimony as to whether appellant was pulled over after midnight or shortly before midnight, the judge was to determine the weight to give conflicting testimony. We cannot say that it was an abuse of discretion for the trial court to determine that the impoundment occurred after midnight and that the juvenile passengers were unable to take possession of the car due to the midnight curfew. Additionally, there is again no evidence that the officers knew at the time of impoundment that the car had been rented to appellant. Josey, 981 S.W.2d at 843.

Third, appellant argues that he should have been allowed to leave the car at the nearby home of one of the passengers. However, parking the car at a nearby home is neither an option under the police policy or the common law. See General ORDER no. 600-10, § 7; Mayberry v. State, 830 S.W.2d 176, 180 (Tex.App.-Dallas 1992, pet. ref'd) (“It was not incumbent upon the officers to locate the occupant of the house to determine whether appellant’s car could remain in the driveway.”). Further, the police were not required to allow either appellant or the passenger to move the car to the nearby home for the same reasons the first two alternatives were not available.

Because none of the alternatives argued at the trial court by appellant were available, the impoundment of his car was permissible. We overrule appellant’s first three issues.

IV. Vagueness

In his fourth issue, appellant contends that the police guideline that “[v]ehicles may be left at the scene if they are legally parked” is impermissibly vague. Appellant raises the question of whether this guideline requires that the car already be legally parked at the time of the impoundment or whether the guideline permits a car be moved so that it is legally parked. However, we do not need to resolve this question.

The common law already recognizes the possibility that a car may be moved in order to be left legally parked if it is reasonable to do so. See Josey, 981 5.W.2d at 843. In Josey, the impoundment was upheld because the officers were unaware of the owner of the vehicle, not because it would have been unreasonable to move the car from the road to the grass next to the road. Id. Because the common law recognizes that a car may be moved in order to be left legally parked, it is of no consequence whether the police guideline purports to limit that right. See Benavides v. State, 600 S.W.2d 809, 812 (Tex.Crim.App.1980) (“[T]he Fourth Amendment protection against seizures cannot be whittled away by a police regulation.”).

Although we agree with appellant that a car may be moved in order to be left legally parked if it is reasonable to do so, for the reason stated in section III, supra, that alternative was not available to appellant. We overrule appellant’s fourth issue.

V. Bad Faith

In his fifth issue, appellant contends the officers impounded his car in bad faith. Appellant alleges the arresting officers demonstrated bad behavior in (1) directing appellant to stop the car, (2) instructing appellant to move the car to the opposite side of the street, (3) blocking the car and forcing appellant to stop when he was moving it to the opposite side of the street, (4) criticizing appellant’s parking as not being “technically legal,” (5) failing to present appellant with the alternatives provided by the department policy, (6) ignoring the alternative of leaving the car at the passenger’s house, (7) refusing to allow the car to be moved in order to be legally parked, (8) holding the passengers during the investigation and thereby denying appellant the opportunity to release the.car to one of them, and (9) towing the car to the scene of the incident.

As we have already held, however, the alternatives of releasing the car to a passenger and allowing the car to be left legally parked were unavailable. The officers could not have acted in bad faith in failing to offer unavailable options. Although there is some evidence the officers did not offer the alternatives because they were unaware of the policy, such ignorance would not rise to the level of bad faith. We overrule appellant’s fifth issue.

VI.Guidelines

In his sixth issue, appellant contends the inventory search of the car’s trunk and the backpack were not conducted pursuant to any established department guidelines. The department policy provides,

Whenever a prisoner authorizes a non-consent tow, the officer will personally conduct an inventory of the vehicle and will complete the Towed Vehicle Disposition Record form. A detailed inventory list will be written on the form. Officers must be specific in identifying inventoried items. General terms such as miscellaneous property will not be used.

Geneeal ORDER no. 600-10, § 7. The policy does not specifically provide whether officers are authorized to search locked trunks or closed backpacks.

Either standardized criteria or established routine must regulate the opening of closed containers during an inventory search. Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990); Moberg v. State, 810 S.W.2d 190, 195 (Tex.Crim.App.1991) (quoting Wells). The criteria or routine regulating inventory searches must be designed to produce an inventory and not serve as “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4, 110 S.Ct. 1632; see also Moberg, 810 S.W.2d at 196.

The officer performing the inventory testified that, although there was no written guideline, he was trained to inventory any container he had access to, including a locked trunk if he has the key for it. Thus, although there is apparently no written policy governing inventory searches of closed containers, there is evidence of an established routine governing the opening of closed containers. The trial court therefore did not abuse its discretion in finding that the inventory search was permissible.

Further, there is no evidence that the search was a ruse to discover incriminating evidence; searching the locked trunk and backpack furthered the purpose of allowing inventory searches. “[I]nventory procedures serve to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger.” Colorado v. Bertine, 479 U.S. 367, 372, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). The opening and inventory of easily-accessible containers serves both to protect the owner’s property and to insure against false claims. See Illinois v. Lafayette, 462 U.S. 640, 647-48, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983) (holding the opening and inventory of a shoulder bag was reasonable despite the possible alternative of securing the bag as a whole). We overrule appellant’s sixth issue.

We affirm the judgment of the trial court.

Justice EDELMAN concurred in result only.

      . Appellant argued that de novo review would be appropriate because the trial court ruled based on the transcript of the misdemeanor hearing, and the trial court was therefore in no better position than we are to judge the credibility of the witnesses. Appellant relied on a case in which de novo review was held to be appropriate for a similar reason when the hearing was held based on affidavits. See State v. West, 20 S.W.3d 867, 870-71 (Tex. App.-Dallas 2000, pet. ref'd); see also Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Crim.App.1997). The Court of Criminal Appeals has clarified its position in Guzman, however, and held that a deferential standard of review is appropriate when the trial court makes its decision based solely on affidavits. Manzi v. State, 88 S.W.3d 240, 243-44 (Tex.Crim.App.2002). In light of this ruling we will apply a deferential standard of review.

      . It appears that we relaxed this requirement in at least one recent opinion. See McGee v. State, 23 S.W.3d 156, 162 (Tex.App.-Houston [14th Dist.] 2000), rev'd on other grounds, 105 S.W.3d 609 • (Tex.Crim.App.2003) ("[I]t is clear from the record that appellant's arrest was warrantless.”). The McGee case dealt with the issue only in passing, however, and did not detail what evidence demonstrated the arrest was warrantless. See id. Nor did the McGee case discuss our holdings in cases such as Telshow; it relied solely on the Court of Criminal Appeals’ opinion in Russell. See id. at 161.

      . The Court states that the appendix contains "[t]he only testimony concerning the return of appellant to the police station.” Russell, 717 S.W.2d at 9 n. 3. Thus, while the appendix does not contain the full testimony of the officer, it apparently contains all of the evidence relevant to whether the arrest was war-rantless.

      . We also note that the question is only whether the officers arrested appellant pursuant to a warrant, not whether there were any outstanding warrants for appellant. See Johnson v. State, 834 S.W.2d 121, 124 n. 3 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd).

      . Nor is there any evidence that the rental agreement would have permitted the car being released to one of the juvenile passengers.

      . The authority cited by appellant states that an inventory search, not an impoundment, may be invalidated by bad faith. See Colorado v. Bertine, 479 U.S. 367, 372-73, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); Trujillo v. State, 952 S.W.2d 879 (Tex.App.-Dallas 1997, no writ.). Because the evidence does not indicate that the officers acted in bad faith, we do not need to address the issue of whether an impoundment may also be invalidated by bad faith.

      . The officer’s testimony was,
      Q: Do you have any guidelines for the trunk?
      A: Yes. If the ignition key goes with the vehicle, if it opens the trunk, I inventory that. Any access I inventory.
      Q: Excuse me—
      Court: Hold on. I get to talk. And you don’t get the interrupt me. That’s a guideline?
      A: That’s how I was trained.


text:
    Adel SHESHTAWY, Tri-Max Industries, Inc., and Drill Bit Industries, Inc., Appellants, v. Amal SHESHTAWY, Appellee.
    No. 04-03-00109-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 29, 2004.
    Rehearing Overruled Oct. 21, 2004.

      Richard N. Countiss, Countiss Law Firm, Eileen M. Gaffney, Houston, for appellants.
    Shawn R. Casey, Karen D. Poe, Houston, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SARAH B. DUNCAN, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Chief Justice.

This is an appeal from a divorce case dissolving the marriage of Adel Sheshtawy (“Adel”) and his wife, Amal Sheshtawy (“Amal”). Adel asserts seven issues on appeal, and Tri-Max Industries, Inc. (“TMI”) and Drill Bit Industries, Inc. (“DBI”) assert one issue challenging the trial court’s award of a 60% interest in patents to Amal. Because the trial court erred with regard to the patent award, spousal maintenance award, and the imposition of a lien on Adel’s separate property, we reverse the portion of the trial court’s judgment relating to the division of property and remand the cause for further proceedings consistent with this opinion. The remainder of the trial court’s judgment is affirmed.

BACKGROUND

Adel and Amal were married on May 16, 1996. Adel filed for divorce on December 14, 2000. Amal filed an answer and a counter petition for divorce on February 6, 2001. Amal also filed a third party cross-petition against DBI and TMI, alleging that the corporations are the alter egos of Adel.

Both Adel and Amal appeared pro se at trial while DBI and TMI were represented by counsel. At the end of the trial, the trial court announced his rulings and directed Adel to prepare a judgment and set the case for entry of judgment. After a few continuances, a hearing for the entry of judgment was held on September 13, 2002. Although Adel again appeared pro se, Amal was represented by counsel at the hearing. The trial court entered judgment on the divorce decree prepared by Amal’s counsel.

Patent Award

In Adel’s first issue on appeal and TMI/DBI’s sole issue on appeal, Adel and TMI/DBI contend that the trial court erred in awarding Amal a 60% interest in any and all patents existing or applied for during the marriage, including United States Patent No. 6,189,631B1. Adel and TMI-DBI contend that the award was erroneous because: (1) federal law preempts state law and forbids such an award; (2) Adel does not own the patent; and (3) the evidence is legally or factually insufficient to support the award. Adel and TMI/DBI argue that the specific patent was not among the exhibits offered at trial; therefore, there was no evidence introduced at trial that Adel acquired or owned such a patent during the marriage. Moreover, Adel and TMI/DBI entered into a development agreement before the marriage pursuant to which Adel assigned his rights in any resulting patents to TMI/DBI.

With regard to the preemption claim, Adel and TMI/DBI primarily rely on the Fifth Circuit’s decision in Rodrigue v. Ro-drigue, to contend that federal law preempts community property law in regard to patents. 218 F.3d 432 (5th Cir. 2000). However, in Rodrigue, the Fifth Circuit actually held that federal law did not preempt Louisiana’s community property law in regard to copyrights. Id. at 442. The Fifth Circuit stated, “We discern nothing in the Act’s plain wording or legislative history to indicate that Congress— fully aware of the existence of community property laws in a number of states — had any intention of preempting that entire body of non-federal law as well.” Id. at 440. At least one Texas court has noted that patents taken out during the marriage and the income generated from those patents are community property. Alsenz v. Alsenz, 101 S.W.3d 648, 653 (Tex.App.Houston [1st Dist.] 2003, pet. denied); see generally John A. Thomas, Who Owns the Invention?, 62 Tex. B.J. 996, 1002 (1999) (recognizing joint ownership of a patent may be created by divorce). Since we have not been provided authority to support Adel’s preemption claim and have found authority applying Texas’s community property laws to patents, we conclude that federal law does not preempt community property law in regard to patents.

We next consider the sufficiency of the evidence supporting the patent award. Adel and TMI/DBI challenge the trial court’s implied finding that Adel owned the patents during the marriage. In reviewing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. See Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.2002). In reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence and may overturn the finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). If we overturn a finding on a factual sufficiency ground, we must “clearly state why the [ ] finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust.” See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

Our review of the record reveals minimal evidence regarding Adel’s inventions and patents. At trial, Adel testified he owned 16 patents, all of which had been registered before the marriage. Adel stated that he had not registered any patents during the marriage. Although Amal elicited testimony from Deborah Panzer, a former accounting secretary at TMI/DMI, indicating that Adel had invented some new drill bits in the last 3 to 4 years, Amal failed to proffer evidence showing that Adel had registered a patent during the marriage. At the conclusion of trial, the trial court orally announced its decision:

[T]he Court is awarding Mrs. Shesh-tawy, since Mr. Sheshtawy testified that he was not an employee of the company and not a shareholder of the company, then any patents, trademarks, copyrights or pending application for patents, trademarks or copy rights would be community property. [I]f those were filed ... any time during the marriage, I’ll award Mrs. Sheshtawy a 60 percent interest in those items.... He’s testified there aren’t any, so it shouldn’t be a problem!.]

This ruling demonstrates the trial court’s assessment that no evidence had been offered to show Adel filed any patents during the marriage.

At the hearing on the entry of the divorce decree, the decree proposed by Amal made mention of a specific patent. At this point, Amal was represented by an attorney, Shawn Casey. Casey offered a certified copy of a document from the patent office that allegedly showed that a specific patent was “actually in [Adel’s] name [and] acquired during the course of the marriage.” Although the record reflects that this document was admitted into evidence, the document is not part of the record. In response, Adel argued that Amal knew that the patent had been under development since 1995 and belonged to DBI. Adel explained to the trial court that he was a party to an agreement with DBI. Under the terms of the agreement, DBI bought Adel’s concept for a tool, paid for its development, and paid for the resulting patent. The trial court confronted Adel regarding his inconsistent testimony that he had not registered any patents during the marriage. Adel responded that he had been questioned regarding whether he owned any patents during the marriage and that he had not owned any patents because they belonged to DBI under their 1995 agreement. Although the product development agreement was not admitted as evidence at the hearing, it is included in the record as an attachment to Adel’s “motion to modify, correct or reform the final decree of divorce.”

Following the foregoing arguments at the hearing, the trial court signed a divorce decree that awarded Amal a “sixty percent (60%) interest in and to any and all patents, trademarks, copyrights and any other pending patent applications or continuations in part applications and reissued or re-examined applications continuation or divisional relating thereto (hereinafter collectively called “patent”), existing or applied for during the period of [Adel] and [Amal]’s marriage, including but not limited to, a sixty percent (60%) undivided interest in United States patent No. 6,189,-631B1 filed November 12, 1998 and issued February 20, 2001 entitled “Drilling Tools With Extendable Elements”.... Accepting that Casey’s unsworn reference to a certified copy of a document from the patent office is legally sufficient to support the trial court’s general award of patent rights, the evidence is factually insufficient to support the award of the specific patent. The document is not contained within our record, and Casey’s unsworn statement did not reveal the patent number or the nature of the patented invention. Furthermore, Adel’s alleged ownership of any patents filed during the marriage was substantially called into question by Adel’s unrefuted testimony regarding the existence of the 1995 product development agreement between Adel and DBI. Because the agreement was not introduced into evidence, but was only attached to a post-judgment motion, the record does not conclusively establish that Adel did not own any patents filed during the marriage; however, a finding that Adel owned any such patents is contrary to the great weight and preponderance of the evidence. We sustain Adel’s first issue and TMI/DBI’s sole issue.

Spousal Maintenance

In his second issue, Adel contends that the trial court erred by ordering spousal maintenance in the amount of $600 per month for three years because the minimal legal and evidentiary requirements that must be satisfied to impose a spousal maintenance order were not met. We review an award of spousal maintenance under an abuse of discretion standard. Smith v. Smith, 115 S.W.3d 303, 305 (Tex.App.-Corpus Christi 2003, no pet.); Alexander v. Alexander, 982 S.W.2d 116, 119 (Tex.App.-Houston [1st Dist.] 1998, no pet.). Thus, we will not disturb an order awarding spousal maintenance unless the trial court acts arbitrarily or unreasonably, or without any reference to guiding rules and principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); Limbaugh v. Limbaugh, 71 S.W.3d 1, 12 (Tex.App.Waco 2002, no pet.).

The Texas Family Code authorizes trial courts to award spousal maintenance only if the parties meet certain eligibility requirements. Tex. Fam.Code Ann. § 8.051 (Vernon Supp.2004). When, as here, “the spouse from whom maintenance is requested was convicted of ... a criminal offense that also constitutes an act of family violence under Title 4 and [the] offense occurred: (A) within two years before the date on which a suit for dissolution of the marriage is filed; or (B) while the suit is pending,” the requesting spouse is eligible for spousal maintenance. Tex. Fam.Code Ann. § 8.051(1) (Vernon Supp.2004). Once a court determines that a spouse is eligible for maintenance payments, section 8.052 provides a non-exhaustive list of factors the court may consider in determining “the nature, amount, duration, and manner of periodic payments.” See Tex. Fam.Code Ann. § 8.052 (Vernon Supp.2004); Limbaugh, 71 S.W.3d at 12-13. Generally, it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in:

(1) seeking suitable employment; or
(2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.

Tex. Fam.Code Ann. § 8.053(a) (Vernon Supp.2004). This presumption does not apply, however, “to a spouse who is not able to satisfy the presumption [ ] because of an incapacitating physical or mental disability.” Tex. Fam.Code Ann. § 8.053(b) (Vernon Supp.2004). Thus, a spouse who is unable to seek employment or develop employment skills due to an incapacitating physical or mental disability can in essence rebut the presumption with proof of his or her disability.

Adel contends, in part, that the trial court erred in awarding spousal maintenance to Amal because she failed to rebut the presumption that spousal maintenance is unwarranted. Our review of the record reveals that Amal presented no evidence that she had been diligently seeking employment or developing skills necessary to become self-supporting. Amal’s only testimony regarding employment was delivered at a pretrial hearing on temporary orders. At that hearing, Amal testified that she had not sought employment after Adel and Amahs separation because she did not have legal residency papers, and she admitted that she had not attempted to apply for legal residency papers after the separation. Moreover, Amal offered no evidence that she had an incapacitating physical or mental disability. Therefore, Amal failed to provide any evidence to rebut the presumption that spousal maintenance was unwarranted, and the trial court abused its discretion in ordering spousal maintenance in the divorce decree. Adel’s second issue is sustained.

Motion to Recuse

In his third issue, Adel contends that his two recusal motions were erroneously denied and that the visiting judge erroneously quashed the subpoena served on the trial judge, the Honorable Frank Rynd. First, Adel contends that the visiting judge erroneously quashed the subpoena regarding Judge Rynd because Adel would have elicited testimony relevant to Judge Rynd’s alleged impartiality. Adel, however, made no attempt to secure an offer of proof or present a bill of exception memorializing the substance of the testimony he sought to elicit from Judge Rynd. Thus, Adel has failed to preserve error with regard to the granting of the motion to quash. Akin v. Santa Clara Land Co., 34 S.W.3d 334, 339 (Tex.App.-San Antonio 2000, pet. denied) (failure to make an offer of proof waives any complaint about the exclusion of the evidence on appeal); Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex.App.-Houston [14th Dist.] 1997, no writ).

Second, Adel contends that the visiting judge erroneously denied his motion to recuse because the evidence demonstrated that Judge Rynd’s “impartiality might reasonably be questioned,” and Judge Rynd had a personal bias in favor of Amal and a prejudice against Adel. Rule 18b(2) of the Texas Rules of Civil Procedure provides that a judge shall recuse himself in any proceeding in which “his impartiality might reasonably be questioned,” or “he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Tex.R. Civ. P. 18b(2). If a motion to recuse is denied, the judge’s ruling “may be reviewed for abuse of discretion on appeal from the final judgment.” Tex.R. Civ. P. 18a(f).

The visiting judge denied Adel’s motion to recuse on the grounds that Adel had failed to present any evidence to support the motion. In an effort to show Judge Rynd’s alleged destruction and manipulation of the record, Adel elicited the testimony of Judge Rynd’s court reporter, who testified that she only recorded hearings when instructed by the trial judge and that at least two hearings had not been recorded. This testimony does not show a destruction or manipulation of the record. In an effort to show Judge Rynd’s partiality for Amal, Adel elicited the testimony of Shawn Casey, Amal’s attorney at the end of the trial and in post-trial proceedings, who testified that he and Judge Rynd had both been members of the same social club in college; he had been a speaker at Judge Rynd’s swearing in ceremony; Judge Rynd had dinner at his home; and he had contributed to Judge Rynd’s campaign. Adel alleges that Casey’s testimony shows a long and close relationship between Judge Rynd and Casey and serves as evidence that Judge Rynd was partial to Casey and his client, Amal.

In his argument at the recusal hearing, Adel also eluded to sections of the trial record which he argued showed disparaging and belittling remarks by Judge Rynd to Adel. However, “judicial remarks during the course of a trial that are critical or disapproving or even hostile to counsel, parties, or their cases, ordinarily do not support recusal.” Ludlow, 959 S.W.2d at 271. “Such remarks may [support recusal] if they reveal an opinion deriving from an extrajudicial source, and such remarks will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Id. Here, during the recusal hearing, Adel offered two excerpts from the trial record into evidence to show Judge Rynd’s alleged favoritism for Amal and antagonism toward Adel. We do not believe these excerpts reveal any statements that support recusal.

Having reviewed the recusal hearing record, we do not find that the visiting judge acted arbitrarily or unreasonably, or without any reference to guiding rules and principles, in ruling on Adel’s motion to recuse. E.I. du Pont de Nemours & Co., 923 S.W.2d at 558. Thus, the visiting judge did not abuse his discretion in denying Adel’s motion to recuse. Adel’s third issue is overruled.

Deed of Trust on Separate Property

In his fourth issue, Adel contends that the trial court erred in ordering him to secure a deed of trust on his separate property in favor of Amal in order to secure Adel’s assumption of the community indebtedness. Adel argues that the circumstances in this case do not authorize the trial court to impose a lien on his separate property.

When dividing marital property on divorce, trial courts may impose equitable hens on one spouse’s separate real property to secure the other spouse’s claim for economic contribution or right of reimbursement for community improvements to that property. Tex. Fam.Code Ann. § 3.407 (Vernon Supp.2004); Heggen v. Pemelton, 836 S.W.2d 145, 146 (Tex.1992). Trial courts, however, may not impress such liens simply to ensure a just and right division. Heggen, 836 S.W.2d at 146.

Here, Adel and Amal borrowed $135,000 and secured the loan with a hen on Adel’s separate property, which was their home. The divorce decree ordered Adel to assume this community debt. In addition, the decree ordered Adel to secure, execute, acknowledge, and surrender a deed of trust on the home in favor of Amal in order to secure his assumption of the community debt. The trial court did not find that Amal had a claim for economic contribution or a claim of a right of reimbursement for community improvements to Adel’s separate property. Thus, the trial court erred by imposing an equitable hen on Adel’s separate property for reasons other than to secure Amahs claim for economic contribution or Amal’s right of reimbursement. See Heggen, 836 S.W.2d at 146. We sustain Adel’s fourth issue.

Trial Preparation

In his fifth issue, Adel contends that he was denied his constitutional right to have adequate time to prepare for trial. Adel was incarcerated ten days before trial under an order of commitment that was issued by the trial court because Adel failed to comply with the trial court’s temporary orders. Since Adel appeared pro se, he argues his incarceration made it difficult for him to prepare for trial. However, Adel failed to move for a continuance at trial and instead opposed Amahs motion for a continuance. Thus, Adel failed to preserve this issue for our review by failing to move for continuance on the grounds that he did not have adequate time to prepare for trial. See Gonzalez v. Nielson, 770 S.W.2d 99, 101 (Tex.App.-Corpus Christi 1989, wilt denied). Adel’s fifth issue is overruled.

Division of Property

In his sixth issue, Adel contends that the trial court abused its discretion in dividing the community estate because (1) the court could not award the patent rights to Amal as a matter of a law, (2) there was no justification for giving Amal a 60% interest in patent rights that developed from a concept solely developed by Adel before marriage, and (3) the trial court ordered Adel to pay in its entirety the only sizeable community debt. It is well settled that Texas courts are given wide discretion to divide the property of the community estate in a manner that the court deems “just and right,” and this discretion will not be disturbed on appeal unless it is clearly demonstrated that the trial court has abused its discretion. Tex. Fam.Code Ann. § 3.63 (Vernon 1993); Smith v. Smith, 715 S.W.2d 154, 155 (Tex.App.-Tex-arkana 1986, no writ); Allen v. Allen, 646 S.W.2d 495, 496 (Tex.App.-Houston [1st Dist.] 1982, no writ). The mere fact that the community estate is unequally divided does not constitute an abuse of discretion. Zamora v. Zamora, 611 S.W.2d 660, 662 (Tex.Civ.App.-Corpus Christi 1980, no writ).

“Once reversible error affecting the ‘just and right’ division of the community estate is found, the court of appeals must remand the entire community estate for a new division.” Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex.1985). When a trial court mischaracterizes separate property as community property, the error requires reversal because the subsequent division divests a spouse of his or her separate property. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.1977); McElwee v. McElwee, 911 S.W.2d 182, 189 (Tex.App.-Houston [1st Dist.] 1995, pet. denied). Similarly, when a trial court includes a valuable asset belonging to a third party in its division, the mischaracterization of the third party’s property is reversible error affecting the trial court’s “just and right” division, and the entire community estate must be remanded for a new division. Hopf v. Hopf, 841 S.W.2d 898, 902 (Tex.App.-Houston [14th Dist.] 1992, no pet.).

With regard to the patent awards, we previously held that the evidence is factually insufficient to support the trial court’s characterization of the patent rights. Because the trial court may have mischarac-terized property belonging to a third party as a part of the community estate, the division of the entire community estate must be remanded for the trial court to reconsider. See Hopf, 841 S.W.2d at 902.

Adel also raises a complaint regarding the trial court’s division of the community debt. Because this issue is likely to arise when the trial court considers the division of the community estate on remand, we briefly address Adel’s complaint. The trial court ordered Adel to pay the most sizeable community debt, which had been reduced to $120,000 from its initial principal balance of $135,000. Adel argues that by allocating this entire debt to Adel, the trial court’s division of the property was manifestly unfair. Testimony varied regarding the use of the loan proceeds. Amal testified that the proceeds were placed in an account for the benefit of TMI/DBI while Adel testified that much of the proceeds were used to cover the losses of American Medical Supply, another company that was owned by Adel. Under both accounts, the debt was incurred by the couple for Adel’s business or business activities. Thus, the trial court did not abuse its discretion by ordering Adel to pay this debt. See Morris v. Morris, 894 S.W.2d 859, 863 (Tex.App.Fort Worth 1995, no writ) (holding that it was not abuse of discretion to award the husband debts that were incurred by him for his business). Adel’s sixth issue is overruled.

Judicial Consent to File Suit

In his seventh issue, Adel contends the trial court erred by imposing an anti-suit injunction, prohibiting Adel from suing third parties who were collaterally involved in the matter. Adel conceded, however, that no written order exists with regard to such an injunction. Instead, Adel raises this issue in the event “the court’s actions can be construed as a continuation of the injunction.” Because Adel is unable to provide a record cite to a written order, the record does not support his contention. Without support in the record, Adel’s seventh issue has not been preserved for this court’s consideration. See Tex.R.App. P. 33.1, 38.1(h).

Conclusion

The portion of the trial court’s judgment relating to the division of the community estate is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. The remainder of the trial court’s judgment is affirmed.

      . Adel admits that he was convicted of assaulting Amal and that the offense occurred on November 6, 2000. He disputes his guilt, and his conviction is currently on appeal.


author: BOB PEMBERTON, Justice.

text:
    Randall MILLSLAGLE, Appellant, v. The STATE of Texas, Appellee.
    No. 03-03-00560-CR.
    Court of Appeals of Texas, Austin.
    Sept. 30, 2004.
    Discretionary Review Dismissed Feb. 2, 2005.

      John W. Stickels, Austin, for appellant.
    Michael S. Wenk, Crim. Dist. Atty, San Marcos, for appellee.
    Before Justices KIDD, B.A. SMITH and PEMBERTON.
   OPINION

BOB PEMBERTON, Justice.

A jury found appellant Randall Millsla-gle guilty of two counts of indecency with a child by contact and one count of aggravated sexual assault of a child. See Tex. Pen.Code Ann. § 21.11 (West 2003), § 22.021 (West Supp.2005). After finding that appellant was a habitual offender, the jury assessed a twenty-five-year prison term for each of the indecency counts and a twenty-eight-and-one-half-year term for the aggravated sexual assault. In thirteen points of error, appellant contends that a written statement he gave to the police should not have been admitted in evidence and that the court improperly cumulated the sentences. We will overrule these contentions and affirm the convictions.

Appellant unsuccessfully moved to suppress a written custodial statement he gave to San Marcos police officer Scott Johnson. In the statement, appellant described an incident in which the complainant masturbated him. Appellant asserts that he gave the statement after being threatened by the police and after his request for counsel was denied. See U.S. Const. amends. V, VI; Tex. Const. art. I, § 10; Tex.Code Crim. Proc. Ann. art. 1.05 (West 1977), arts. 38.22, .23 (West Supp.2005).

Johnson first interviewed appellant on August 29, 2002, two days after his arrest. During this interview, which was videotaped but not admitted in evidence at trial, appellant denied the accusations made by the complainant and agreed to take a polygraph examination. On September 2, Johnson took appellant to a private room in the jail infirmary where the examination was to be administered by Sergeant Walt Goodson of the Texas Department of Public Safety.

Goodson testified at the suppression hearing that, as a routine part of the polygraph examination process, he conducted a pretest interview of appellant. Before this interview began, Goodson advised appellant of his rights orally and in writing, and appellant signed a written waiver of his rights that was admitted in evidence at the hearing. See Tex.Code Crim. Proc. Ann. art. 38.22, § 2. During this interview with Goodson, appellant admitted for the first time that there had been sexual contact between himself and the complainant. Goodson told Johnson, who was waiting outside the room, that appellant was prepared to give a partial confession.

Johnson testified that he entered the room and questioned appellant about what he had told Goodson. After appellant admitted an act of sexual contact with the complainant, Johnson asked appellant to reduce his statement to writing. Appellant did so, on a police form containing a preprinted waiver of rights. It is this statement that appellant asserts was erroneously admitted in evidence. After the statement was signed, Goodson returned to the room and administered the polygraph test.

Both Johnson and Goodson testified that appellant never asked to speak to a lawyer and never indicated that he wished to invoke his right to remain silent. Johnson also testified that no threats or promises were made to appellant. The officers’ testimony was corroborated by the two written waivers of rights, one signed by appellant at 9:45 a.m. on September 2 and the other printed at the top of the confession form on which, beginning at 11:00 a.m. that same day, appellant wrote the statement at issue.

In his own testimony, appellant conceded that he agreed to take a polygraph test. He said, however, that Goodson did not conduct a pretest interview. Instead, Goodson merely explained the procedure and then administered the test. According to appellant, Goodson told him after the test was completed that “there were a couple of problems with a couple of the things that I said.” Johnson then entered the room and “started insinuating things and started calling me a liar. And that’s when I told him — I says, ‘Look. I’m not comfortable with this. I thought it was just a polygraph. I want a lawyer.” Appellant testified that Johnson told him he “didn’t need a lawyer” and that “if he has any chance at all to get me the max, he was going to do it.” Appellant repeated his request for a lawyer, but was again rebuffed by Johnson. Appellant said, “Well, I told him that I didn’t want to talk anymore. He just kept going and asking me questions. And he — he got mad and stormed out.”

According to appellant, Goodson returned to the room and told him that Johnson “was pissed” and that “he is not the guy to make mad, that he is going to try to get the maximum on me.” Appellant said that by this point, “I’m truly scared.” He added, “I was crying. I was already crying. He kept just threatening me, telling me all of these things.” The officers continued to take turns questioning appellant, “like a tag team,” until appellant agreed to make a statement. Appellant testified that neither officer ever advised him of his rights and that his requests for an attorney were ignored.

When we review a trial court’s ruling on a motion to suppress a confession, we apply the standard of review enunciated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). See Maestas v. State, 987 S.W.2d 59, 62 (Tex.Crim.App.1999). That is, we defer to the trial court’s factual determinations but review de novo the court’s application of the law to the facts. Guzman, 955 S.W.2d at 89.

Appellant’s challenges to the admission of his written statement are predicated on the assumption that his testimony at the suppression hearing was true and uncon-tradicted. But in fact, the two officers testified to a completely different version of the relevant events. As the trier of fact at the suppression hearing, the district court had the discretion to believe the officers when they testified that appellant did not ask for a lawyer and that no threats were made to induce the confession, and to disbelieve appellant’s testimony to the contrary. On appeal, we defer to the trial court’s credibility determinations.

Viewing the record from the suppression hearing in the light most favorable to the court’s ruling, we hold that the district court did not err by refusing to suppress appellant’s written confession on the ground that his request for counsel was denied. We also hold that the court did not err by refusing to suppress the confession on the ground that it was coerced and involuntary. Points of error one through ten are overruled.

Next, appellant contends that his written statement should not have been admitted because the interrogation that immediately preceded it was not recorded. Appellant cites article 38.22, but this statute does not speak directly to his contention. Although the failure to record appellant’s oral statements to Johnson and Goodson on the morning of September 2 rendered those oral statements inadmissible under section 3 of the statute, that section does not govern the admissibility of appellant’s subsequent written statement. Tex.Code Crim. Proc. Ann. art. 38.22, § 3. The admissibility of appellant’s written custodial statement was governed by article 38.22, section 2, which was clearly satisfied. Id. art. 38.22, § 2.

Appellant refers us to our opinion in Horton v. State, 78 S.W.3d 701 (Tex.App.Austin 2002, pet. ref'd). There, as here, the defendant gave a voluntary oral statement that was inadmissible because it was not recorded. Id. at 705. Immediately thereafter, the defendant gave a written statement that, like appellant’s written statement, satisfied the statutory requisites. Id. at 706. Contrary to appellant’s apparent belief, this Court did not hold in Horton that the written statement was tainted by the inadmissible oral statement. In fact, we upheld the admission of the written statement. Id.

Appellant also cites the opinion in Urias v. State, 104 S.W.3d 578 (Tex.App.-El Paso 2003, pet. granted). In that case, the court held that an oral custodial statement should not have been admitted because the record showed that the police did not scrupulously honor the defendant’s request that the questioning stop. Id. at 587. This opinion offers no support to appellant’s argument under this point of error.

We hold that under the circumstances shown here, the failure to record appellant’s oral statements did not render inadmissible his later written statement. Point of error eleven is overruled.

In his remaining points of error, appellant contends the district court erred by cumulating his sentence for aggravated sexual assault with the concurrent sentences imposed for indecency with a child. Appellant concedes that the cumulation order was authorized by the penal code. See Tex. Pen.Code Ann. § 3.03(b)(2)(a) (West 2003). He argues, however, that the order violated his due process rights because there was no jury finding beyond a reasonable doubt that the offenses arose out of the same criminal episode. He further complains that he was not given notice of the State’s intention to seek the “same criminal transaction” finding. He relies on the holding in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and found beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Appellant’s arguments are based on a misreading of section 3.03. Texas trial courts have the discretion to order cumulative sentences in virtually every case. See Tex.Code Crim. Proc. Ann. art. 42.08(a) (West Supp.2005). The principal exception to this rule is found in penal code section 3.03(a), which provides that when a defendant is found guilty at a single trial of more than one offense arising out of the same criminal transaction, the sentences for each offense must run concurrently. Tex. Pen. Code Ann. § 3.03(a) (West 2003). Section 3.03(b)(2)(A) creates an exception to this exception; that is, it exempts certain offenses, including indecency with a child and aggravated sexual assault of a child, from the application of section 3.03(a). Tex. Pen.Code Ann. 3.03(b)(2)(A). Because of the nature of the offenses for which appellant was convicted, the trial court was authorized to cumulate the sentences whether or not the offenses arose out of the same criminal episode.

In addition, the court’s cumulation order did not have the effect of increasing appellant’s punishment beyond the statutory maximum for any of the offenses for which he was convicted. The jury found beyond a reasonable doubt that appellant had two previous felony convictions, the second of which was for a crime committed after the earlier conviction became final. See Tex. PemCode Ann. § 12.42(d) (West Supp. 2005). Because appellant was determined to be a habitual offender, he was subject to a maximum prison term of ninety-nine years or life for each offense. Id. The cumulative total of appellant’s sentences is fifty-three and one-half years. Points of error twelve and thirteen are overruled.

The judgments of conviction are affirmed.