Opinion filed January 13, 2011




                                                     In The


   Eleventh Court of Appeals
                                                    __________

                                            No. 11-09-00181-CR
                                                __________

                               JESSE RAY STEWART, Appellant

                                                       V.

                                    STATE OF TEXAS, Appellee


                               On Appeal from the County Court at Law

                                              Brown County, Texas

                                       Trial Court Cause No. 0700744


                                 MEMORANDUM                   OPINION
       The jury convicted Jesse Ray Stewart of assault involving family violence, and the trial
court assessed his punishment at confinement in the Brown County Jail for 120 days. We affirm.
       In his sole issue on appeal, appellant challenges only the factual sufficiency of the
evidence to support his conviction. We note at the outset of our analysis that the Texas Court of
Criminal Appeals has now held in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that
there is “no meaningful distinction between the Jackson v. Virginia1 legal-sufficiency standard

       1
        Jackson v. Virginia, 443 U.S. 307 (1979).
and the Clewis2 factual-sufficiency standard”; that the Jackson v. Virginia standard is the “only
standard that a reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond a reasonable
doubt”; and that “[a]ll other cases to the contrary, including Clewis, are overruled.” Brooks, 323
S.W.3d at 895, 902, 912 (footnotes added). Accordingly, a challenge to the factual sufficiency
of the evidence is no longer viable. We also note that appellant did not have the benefit of the
opinion in Brooks when this case was briefed. We will review appellant’s factual sufficiency
challenge under the legal sufficiency standard set forth in Jackson v. Virginia. Under this
standard, we must review all of the evidence in the light most favorable to the verdict and
determine whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
       In conducting a legal sufficiency review, we are required to defer to the jury’s role as the
sole judge of witness credibility and the weight their testimony is to be afforded. Brooks, 323
S.W.3d at 899. Appellant acknowledges that there is evidence supporting the jury’s verdict. He
summarizes this evidence as follows:
                Officer Trey Weatherman, an officer with the City of Brownwood Police
       Department, was called as the State’s first witness. He testified that on June 23,
       2007 at approximately 10:15 a.m. he was dispatched to a domestic disturbance in
       the City of Brownwood. As he arrived at the residence he saw Sylvia McClung
       step out of the doorway and Appellant step out behind her. Officer Weatherman
       testified that Sylvia McClung turned around and Appellant shoved her in her
       upper chest region knocking her to the ground. He immediately exited his patrol
       car and placed Appellant under arrest and placed him in the rear seat of his patrol
       vehicle. Officer Weatherman testified that Sylvia McClung was crying and that
       he noticed an abrasion on her right forearm which he described as “a good
       scratch”. He agreed that it was “like a scrape”. He stated that the abrasion
       appeared to be fresh.

(Record references omitted). Appellant bases his evidentiary challenge on testimony indicating
that McClung, the alleged victim of the offense, denied suffering any harm or pain as a result of
appellant’s actions and that she provided an alternate explanation for the scrape on her arm. To
the extent that McClung may have given contradictory testimony, it was within the jury’s
province to resolve any inconsistencies in the evidence. We conclude that a rational jury could



       2
           Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

                                                              2
have determined beyond a reasonable doubt that appellant committed an assault involving family
violence. Appellant’s sole issue is overruled.
                                       This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                       TERRY McCALL
                                                       JUSTICE

January 13, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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