Opinion
12-22-00249-CR
11-30-2023
AALERIEN HENRY, APPELLANT v. THE STATE OF TEXAS, APPELLEE
DO NOT PUBLISH
Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 007-1673-21)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
MEMORANDUM OPINION
PER CURIAM.
Aalerien Henry appeals his conviction for aggravated assault with a deadly weapon. Appellant's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant filed a pro se response. We affirm.
Background
Appellant was charged by indictment with aggravated assault with a deadly weapon. He pleaded "not guilty," and the matter proceeded to a jury trial. At trial, the evidence showed that Quinnlynn Franklin and Comelia Redwine had children together. One night, while Redwine and four other individuals were at Appellant's apartment, Appellant and Redwine argued on the phone with Franklin. Sometime after the call ended, Appellant, Redwine, and the others went searching for Franklin in Appellant's car. They located him in his car in a Walmart parking lot. Appellant and another member of the party exited the car and fired an AR-15 at Franklin's car from a wooded area, narrowly missing him.
A second-degree felony punishable by imprisonment for a term not more than twenty years or less than two years, and a possible fine not to exceed $10,000.00. See Tex. Penal Code Ann. §§ 22.01(a)(2) (West Supp. 2023), 22.02(a)(2), (b) (West Supp. 2023); 12.33 (West 2019).
The next day, the police searched Appellant's apartment and found four of the party members there. Appellant and Redwine were not present, nor was the AR-15. The police located a rifle case and ammunition in Appellant's closet. Ultimately, the jury found Appellant "guilty" as charged and assessed his punishment at imprisonment for a term of eighteen years and a $10,000 fine. This appeal followed.
Analysis Pursuant to Anders v. California
Appellant's counsel filed a brief in compliance with Anders v. California and Gainous v. State. Appellant's counsel relates that he has reviewed the record and found no arguable grounds for appeal. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978), Appellant's brief contains a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced.
In compliance with Kelly v. State, Appellant's counsel provided Appellant with a copy of the brief, notified Appellant of his motion to withdraw as counsel, informed Appellant of his right to file a pro se response, and took concrete measures to facilitate Appellant's review of the appellate record. See Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
Appellant contends in his pro se response that the trial court erred by (1) admitting a codefendant's hearsay statement in violation of the Confrontation Clause, (2) admitting a codefendant's hearsay statement that did not comply with Texas Rule of Evidence 803(24), (3) failing to properly instruct the jury on the law of parties and apply the law to the facts, (4) submitting an instruction that Appellant acted alone, (5) denying Appellant's motion for an instructed verdict, (6) admitting an accomplice's statement without sufficient evidence of its trustworthiness, (7) admitting an investigator's testimony without proof of Appellant's presence at the crime scene, and (8) "allowing the none finding of the weapon" because there was insufficient evidence that a weapon was found.
When faced with an Anders brief and a pro se response by an appellant, an appellate court can either (1) determine that the appeal is wholly frivolous and issue an opinion explaining that it has reviewed the record and finds no reversible error or (2) determine that arguable grounds for appeal exist and remand the cause to the trial court so that new counsel may be appointed to brief the issues. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We conducted an independent review of the record in this case and found no reversible error. See id. We conclude that the appeal is wholly frivolous. See id.
Conclusion
As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991), Appellant's counsel has moved for leave to withdraw. See also In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for consideration with the merits. Having done so and finding no reversible error, we grant counsel's motion for leave to withdraw and affirm the trial court's judgment.
Appellant's counsel has a duty to, within five days of the date of this opinion, send a copy of the opinion and judgment to Appellant and advise him of his right to file a petition for discretionary review. See Tex. R. App. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. Should Appellant wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or he must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from either the date of this opinion or the date that the last timely motion for rehearing was overruled by this court. See Tex. R. App. P. 68.2(a). Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3(a). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 S.W.3d at 408 n.22.
JUDGMENT
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.