                                  NO. 07-10-0086-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                 DECEMBER 13, 2010


                                TIMOTHY S. BARBIAN,

                                                                 Appellant
                                            v.

                                THE STATE OF TEXAS,

                                                                 Appellee
                          _____________________________

           FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

         NO. 2010-426,409; HONORABLE CECIL G. PURYEAR, PRESIDING


                                Memorandum Opinion


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

      Timothy S. Barbian challenges his conviction for aggravated assault with a

deadly weapon by contending the evidence is not factually sufficient to sustain it.

According to appellant, the victim had insufficient credibility to be believed. Thus, the

verdict was improper. We affirm the judgment.

      Appellant’s notice of appeal and brief were filed before the Court of Criminal

Appeals issued its decision in Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App.

LEXIS 1240 (Tex. Crim. App. October 6, 2010). There, it did away with factual sufficency
review and instead simply required that we consider the evidence only to determine

whether a rational trier of fact could have found the elements of the offense beyond a

reasonable doubt. Id. at *57. Appellant was afforded the opportunity to rebrief in light of

Brooks and, upon doing so, argues that we should refuse to apply Brooks at all, that the

decision has no precedential value because it is unpublished, and that we should refuse

to apply it retroactively.

       Initially, we note that the opinion has been designated for publication. Id. at *59.

Moreover, the Court noted that there is no meaningful distinction between a factual

sufficiency and legal sufficiency review, and thus a separate factual sufficiency

challenge should not be addressed. Id. at *57-58. Because this opinion does serve as

precedent and since appellant concedes that he has not raised a legal sufficiency

challenge, there is nothing for us to consider.

       However, we note parenthetically that the credibility issues that appellant raises

with respect to the victim were placed before the jury. We cannot substitute our opinion

of her believability for that of the jury; nor could we do so before Brooks. See Lancon v.

State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (holding that the jury is the sole

judge of the credibility of the witnesses and the weight to be given their testimony and

may choose to believe all, some, or none of the evidence presented). Moreover, there

was evidence that corroborated portions of the victim’s testimony, including some found

in appellant’s bedroom and vehicle. So, even if Brooks was inapplicable, the evidence

supporting his conviction would nonetheless be factually sufficient.




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      Accordingly, we affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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