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The plain meaning of Article 42.12, § 5(b), is that an appellant whose deferred adjudication community supervision has been revoked and who has been adjudicated guilty of the original charge, may not raise on appeal contentions of error in the adjudication of guilt process.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 fourteenB.P.), and three are for the second degree felony of sexual assault on a child (under seventeenR.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, Fouses 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-finders verdict, or, considering conflicting evidence, is so outweighed by the great weight and preponderance of the evidence that the jurys 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 jurys 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
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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 States burden of proof or unnecessarily restrict the States 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).