Aalerien Henry v. the State of Texas

NO. 12-22-00249-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

AALERIEN HENRY, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

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. 1 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.

1
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. 2
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.

2
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).

2
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.

Opinion delivered November 30, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

3
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

NOVEMBER 30, 2023

NO. 12-22-00249-CR

AALERIEN HENRY,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1673-21)

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.

By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.