ALVIN PETER HENRY JR v. THE STATE OF TEXAS (2017)

Court of Criminal Appeals of Texas.

ALVIN PETER HENRY, JR., Appellant v. THE STATE OF TEXAS

NO. PD-0511-15

Decided: March 01, 2017

DISSENTING OPINION

I would grant Appellant's motion for rehearing because the evidence was insufficient to show beyond a reasonable doubt that he was convicted of aggravated robbery in 2002 as alleged for enhancement purposes.

Mr. Coleman's response “Okay” to the question, “And then he went to prison in 2002 for aggravated robbery, right?” proved nothing. Similarly, the prosecutor's statement to Dr. Bell that appellant had “been to prison ․ for aggravated robbery once” proved nothing, and Dr. Bell's response, “He has a history of violence” did not prove an aggravated robbery conviction.

The closest the State came to proving the conviction was appellant's testimony that he had “been to prison” for aggravated robbery; but there was nothing to link him to the particular aggravated robbery conviction used for enhancement. Thus, this case is distinguishable from Wood v. State, 486 S.W.3d 583, 585 (Tex. Crim. App. 2016).

For these reasons, I dissent to the denial of Appellant's motion for rehearing on this issue.

KEEL, J., filed an opinion dissenting to the denial of Appellant's Motion for Rehearing, in which WALKER, J., joined.