

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precedential value because it is unpublished, and that we should refuse to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.   

