
                              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all, that the decision has no precedential value because it is  unpublished,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.


      Accordingly, we affirm the judgment.

                                        Brian Quinn
                                        Chief Justice
Do not publish.
