









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-01-00123-CR
______________________________


PHILLIP W. BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 71st Judicial District Court
Harrison County, Texas
Trial Court No. 96-0008X





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	Phillip W. Brown appeals the revocation of his community supervision, alleging ineffective
assistance of counsel.  In September of 1997, pursuant to a plea bargaining agreement, Brown
pleaded guilty to the charge of aggravated assault with a deadly weapon, for which the court deferred
adjudication of guilt and placed him on community supervision for ten years.  In June of 2001, the
State moved to proceed with the adjudication of guilt, alleging that Brown had violated the terms
and conditions of his community supervision.  At the hearing on the motion to adjudicate, the trial
court found Brown guilty of violating his supervision terms.  It then adjudged him guilty of the
original charge of aggravated assault with a deadly weapon and sentenced him to ten years'
confinement. 
	A defendant may not appeal the trial court's determination to adjudicate an original offense
on violation of community supervision.  Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon
Supp. 2002) provides as follows: 
	On violation of a condition of [deferred adjudication] community supervision [i.e.,
probation] imposed under Subsection (a) of this section, the defendant may be
arrested and detained as provided in Section 21 of this article. The defendant is
entitled to a hearing limited to the determination by the court of whether it proceeds
with an adjudication of guilt on the original charge.  No appeal may be taken from
this determination . . . .
 The plain meaning of Article 42.12, § 5(b), is that an appellant whose deferred adjudication
community supervision has been revoked and who has been adjudicated guilty of the original charge,
may not raise on appeal contentions of error in the adjudication of guilt process.  Connolly v. State,
983 S.W.2d 738, 741 (Tex. Crim. App. 1999).  One example of such an impermissible challenge is
a claim of ineffective assistance of counsel at the hearing on the motion to adjudicate.  See Cooper
v. State, 2 S.W.3d 500, 504 (Tex. App.-Texarkana 1999, pet. ref'd), which is exactly the challenge
Brown now purports to raise.  Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b), specifically prohibits
such an appeal.  We therefore may not consider this contention of error.  
	The judgment is affirmed.

							William J. Cornelius
							Chief Justice

Date Submitted:	May 16, 2002
Date Decided:		May 17, 2002

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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-09-00107-CR
                                                ______________________________
 
 
                                    DAVID HEATH FOUSE,
Appellant
 
                                                                V.
 
                                     THE STATE OF TEXAS, Appellee
 
 
                                                                                                  

 
 
                                         On Appeal from the 8th Judicial District Court
                                                           Hopkins County, Texas
                                                          Trial Court
No. 0820355
 
                                                        
                                          
 
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                              Memorandum Opinion by Justice Carter




                                                     MEMORANDUM 
OPINION
 
            David
Heath Fouse has filed an appeal from six convictions.  Three are for the first degree felony of
aggravated sexual assault on a child (under fourteenB.P.), and three are for
the second degree felony of sexual assault on a child (under seventeenR.R. and
C.J.).  A single brief has been filed to
address all six appeals.  Fouse testified
at trial.  He admitted that he was
convicted in 1999 of the felony offense of assault on a peace officer and the
state jail felony offense of burglary of a building, and admitted having sexual
intercourse with B.P. and C.J.   
            In
this case, Fouse was accused of sexually assaulting R.R., a child younger than
seventeen years of age,[1]
a second degree felony enhanced by one prior conviction, causing punishment to
be assessed at the first degree level. 
According to R.R., Fouse entered into her home without invitation and
used force to sexually assault her.  At
that time, Fouses best friend had recently broken up with R.R., who was
fifteen years old; at that point, in 2008, Fouse was twenty-seven years
old.  Fouse denied having any
relationship of any sort with R.R.  The
jury found him guilty and assessed punishment for that act at sixty years
imprisonment.
            On
appeal, Fouse raises a single issue:  contending
that we should reverse and remand his conviction for sexual assault on a child
as to victim R.R.  He argues that the
evidence is factually insufficient to support the verdict.  
            In
a factual sufficiency review, we review all the evidence, but do so in a
neutral light instead of the light most favorable to the verdict.  We determine whether the evidence supporting
the verdict is either too weak to support the fact-finders verdict, or,
considering conflicting evidence, is so outweighed by the great weight and
preponderance of the evidence that the jurys verdict is clearly wrong and
manifestly unjust.  Laster v. State,
275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim.
App. 2008); Roberts v. State,
220 S.W.3d 521, 524 (Tex. Crim. App. 2007).[2]
            In
this case, the testimony of R.R. and Fouse is diametrically opposed.  Fouse contends he never went to R.R.s house
during the relevant time period and never had any sexual relationship with
her.  R.R. testified that Fouse not only
had sexual relations with her when she was fifteen years of age, but also that
he used force in doing so.  This is
precisely the kind of situation that calls on a jury to evaluate the evidence
and arrive at a decision about the facts. 
Even if contradictory witness testimony may be compelling, the jury is
the sole judge of what weight to give to such testimony.  Lancon, 253 S.W.3d at 705.  We should afford almost complete deference
to a jurys decision when that decision is based upon an evaluation of
credibility.  Id. (citing Marshall v. State, 210
S.W.3d 618, 625 (Tex. Crim. App. 2006)). 
Here, the jury determined R.R.s testimony was the more credible of the
two.
            The
jury had evidence before it from which it could have reached one of two
diametrically different conclusions.  It
exercised its function as the trier of facts, there is evidence to support its
finding, and the contrary was not proven by the great weight and preponderance
of the evidence to such an extent that the verdict is clearly wrong and
unjust.  See Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App.
2003).  The evidence is thus factually
sufficient to support the verdict.
            We
affirm the judgment.
 
 
                                                                        Jack Carter
                                                                        Justice
 
Date Submitted:          April
28, 2010
Date Decided:             April
29, 2010
 
Do Not Publish
 




1Tex.
Penal Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2009). 


[2]In
this analysis, we use a hypothetically correct jury charge to evaluate both the
legal and factual sufficiency of evidence.  Grotti v. State, 273 S.W.3d 273 (Tex.
Crim. App. 2008).  Such a charge
accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the States burden of proof or unnecessarily restrict
the States theories of liability, and adequately describes the particular
offense for which the defendant was tried. 
Villarreal v. State, 286 S.W.3d 321 (Tex. Crim. App. 2009); Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
 


