OPINION
A jury fоund appellant, Mario Herrera Ponce, guilty of the felony offense of aggravated assault and found that he used a deadly weapon, a firearm, during the commission of the offense. The trial court assessed punishment at 10 years confinement and a $10,000 fine. In two points of error, appеllant contends that (1) the evidence was factually insufficient to support his conviction, and (2) he was denied the opportunity to voir dire and challenge ven-irepersons regarding their ability to follow the law on punishment.
Factual Background
On November 16, 1992, appellant was parked outside Olga Sanchez’s apartment. Appellant and Sanchez had been in a previous relationship and had a child together. The child and Florberta Ravanales, appel *109 lant’s sister, lived in the apartment with Sanchez. Appellant had come to visit his child. While he was waiting, Sanchez and her boyfriend, Mario Prichard, the cоmplainant, arrived and entered the apartment.
The complainant then left the apartment and approached appellаnt’s truck. Appellant and the complainant exchanged words and engaged in a physical confrontation. As the argument ensued, appellаnt pointed a gun at the complainant. The two struggled for control of the gun and it went off, shooting the complainant in the head. Appellant fled to Mexico, and was later arrested on September 8, 2000, in North Carolina.
Sufficiency of the Evidence
In his first point of error, appellant contends that the evidence was fаctually insufficient to support his conviction. In reviewing the factual sufficiency of the evidence, we examine all of the evidence in a nеutral light and ask whether proof of guilt is so obviously weak or greatly outweighed by contrary proof as to indicate that a manifest injustice has oсcurred.
King v. State,
A person commits aggravated assault if he intentionally, knowingly, or recklessly causes serious bodily injury to another, or intentionally or knowingly threatens or injures another with a deadly weapon. See Tex Pen.Code Ann. §§ 22.01, 22.02(a)(2) (Vernon 2003). A deadly weapon is defined as a firearm or anything manifestly designеd, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 2003).
Appellant contends that the evidence is factually insufficient to support the finding that he intentionally shot the complainant. Appellant contends that the pistol accidentally fired when the two men were struggling for the gun.
Intent
“Proof of a defendant’s mental state must almost always depend upon circumstantial evidence.”
Varnes v. State,
The circumstаntial evidence supporting the finding that appellant intentionally shot the complainant is not so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. Sanchez and Ravanales testified that they saw appellant and the complainant arguing and fighting. Appellant testified that he grabbed a pistol from his glove compartment and pointed it at the complainant. The two men struggled for the gun аnd two shots were fired. The complainant sustained a shot to the head. Appellant drove over the complainant’s head as he fled the scene in his vehicle.
Self-Defense
Appellant also contends that he was acting in self defense. To support his argu *110 ment, appellant testified that he had recently argued with the complainant over the phone. According to appellant, the complainant threatened to kill him during the phone conversation. He said that on the night of the shooting, he saw the complainant stop at his vehicle and get what he thought was a weapon.
The jury is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of their testimony.
Sharp v. State,
We overrule appellant’s first point of error.
Yoir Dire on Punishment
In his second point of error, appellant contends that he was denied the opportunity to voir dire and challenge venire-persons under Article I, Section 10 of the Texas Constitution and Article 35.16(a)(2) of the Code of Criminal Procedure concerning their ability to follow the law on punishment. A brief rеcitation of the pertinent facts is appropriate.
On July 15, 2002, before voir dire began, the trial court informed appellant that he would only bе able to receive probation from the court. With the court aware he was relying on this information, appellant requested a jury trial, but elеcted to have the court assess punishment. During voir dire, the court informed the jury that they would not be assessing punishment in the event appellant was found guilty.
On July 16, 2002, at the close of the guilt/innocence phase, but before deliberation, the court informed appellant that it had given him misinformation. The cоurt explained that in the event appellant was found guilty of an offense and the jury made a special finding that he used a deadly weapon, he would be ineligible to receive probation from the court. See Tex. Code Crim. Proc. Ann. Art. 42.12 (Vernon Supp.2003) (community supervision not allowed if defendant used a deadly weapon in commission of offense). However, if he elected to have the jury assess punishment, it could consider probation. Id. The сourt allowed appellant to change his election from having the court assess punishment to having the jury assess punishment. The court and apрellant’s counsel explained to him that, during jury selection, neither the court nor appellant’s counsel had the opportunity to discuss punishment with the jury. Upon understanding that he would not be. able to voir dire the jury concerning the issue of probation at that, point, appellant elected tо have the jury assess punishment.
A timely motion at trial is required in order to preserve error. Tex.R.App. P. 33.1(a)(1);
Thomas v. State,
In a similar case, the Dallas Court of Appeals determined that a defendant’s failure to properly object waived his complaint about erroneous advice he received that impacted his election as to who would assess his punishment.
See, e.g., Payne v. State,
No. 05-91-01532-CR,
We overrule appellant’s second point of error.
Conclusion
We affirm the judgment of the trial court.