Zipper v. State, 03-24-00547-CR, February 20, 2026.
On appeal from the 119th District Court of Tom Green County
Synopsis
The Third Court of Appeals affirmed multiple felony convictions, including murder and aggravated assault, after conducting an independent review of the record pursuant to an Anders brief. The court held that no arguably meritorious grounds for appeal existed and granted counsel’s motion to withdraw, effectively solidifying the finality of the appellant’s criminal record.
Relevance to Family Law
For the Texas family law practitioner, this criminal affirmation is a potent evidentiary tool in suits affecting the parent-child relationship (SAPCR). Under Texas Family Code § 153.004, the court is prohibited from appointing a parent as a joint managing conservator if there is a history or pattern of family violence or certain sexual/violent offenses. When a party in a custody battle is a criminal defendant, they often attempt to mitigate the impact of a conviction by claiming it is “subject to appeal.” An Anders affirmation—which declares an appeal “frivolous”—provides the family law litigator with a definitive “finality” argument. It allows for the immediate application of § 153.004’s rebuttable presumptions against conservatorship and access without the specter of a future reversal or “pending” status clouding the family court’s judgment.
Case Summary
Fact Summary
Paul Daniel Zipper was charged with a series of violent and obstructive offenses: murder, aggravated assault with a deadly weapon, tampering with physical evidence (specifically, intent to impair a human corpse), and evading arrest with a vehicle. Zipper entered a plea of guilty to all charges. The matter proceeded to a bench trial on the issue of punishment. The trial court assessed a significant sentence: fifty years for the murder, twenty years each for the assault and tampering charges, and ten years for evading arrest. Following the sentencing, Zipper’s court-appointed counsel determined that any appeal would be without merit and filed an Anders brief and a motion to withdraw. Zipper filed a pro se response to the Anders brief, prompting the Court of Appeals to conduct a full, independent review of the entire record.
Issues Decided
The Court decided whether there were any arguably meritorious grounds for appeal following a voluntary guilty plea and a bench trial on punishment. Additionally, the court reviewed whether appellate counsel satisfied the procedural and ethical requirements for withdrawal under the Anders framework.
Rules Applied
The court applied the standards set forth in Anders v. California, 386 U.S. 738 (1967), and Garner v. State, 300 S.W.3d 763 (Tex. Crim. App. 2009). These rules require appointed counsel to provide a professional evaluation of the record demonstrating why there are no arguable grounds for reversal. Furthermore, the court applied Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014), regarding the notification requirements for an appellant’s pro se access to the record and the right to file a response.
Application
In its analysis, the Third Court of Appeals reviewed the underlying plea and sentencing proceedings. Because Zipper pleaded guilty, the potential issues for appeal were significantly narrowed to jurisdictional defects or the voluntariness of the plea. The court examined counsel’s brief, which demonstrated that the trial court followed proper admonishments and that the sentences imposed fell within the legal statutory ranges for first, second, and third-degree felonies. Despite the appellant filing a pro se response, the Court’s independent review confirmed that the evidence supported the convictions and that the trial court’s exercise of discretion during the punishment phase revealed no reversible error. Consequently, the court found that the constitutional requirements of Anders were met because the appeal lacked any “arguable grounds” for relief.
Holding
The Court of Appeals affirmed the trial court’s judgments of conviction for all four offenses. The court held that after an independent review of the record, the appeal was wholly frivolous and without merit.
The court further granted counsel’s motion to withdraw. By doing so, the court confirmed that the Concho Valley Regional Public Defender’s Office had fulfilled its obligations to the client and the court, leaving the convictions intact and final for all subsequent legal purposes.
Practical Application
In high-conflict family law litigation, a conviction for murder or aggravated assault is often the “death penalty” for a parent’s conservatorship rights. However, litigators often encounter the “due process” delay where a convicted parent argues that the family court should stay proceedings or defer judgment until the criminal appeal is exhausted. Zipper v. State underscores that once an Anders brief is filed and affirmed, the “frivolousness” of the appeal is a matter of judicial record. Practitioners should use these opinions to move for summary judgment on the issue of JMC status or to seek permanent injunctions under TFC § 153.004, arguing that the Anders affirmation removes any reasonable doubt regarding the finality of the conviction.
Checklists
Exploiting the Anders Affirmation in SAPCR
- Monitor the Criminal Docket: Track the filing of any Anders briefs in a party’s pending criminal appeal.
- Request Judicial Notice: File a motion for the family court to take judicial notice of the Court of Appeals’ memorandum opinion finding the appeal frivolous.
- Invoke TFC 153.004: Once the Anders opinion is issued, move to invoke the mandatory restrictions on conservatorship and the requirement for supervised access.
- Admissibility of Evidence: Use the “no reversible error” finding to block the convicted parent from attempting to re-litigate the facts of the crime in the family court under a “wrongful conviction” theory.
Countering the “Pending Appeal” Delay
- Check the Record for a Plea: If the party pleaded guilty (as Zipper did), highlight to the family court that the scope of appeal is legally narrowed, making a reversal highly improbable.
- File for Temporary Orders: Use the criminal conviction—even while on appeal—as “extraordinary circumstances” to limit access immediately under TFC § 105.001.
- Highlight the Sentence: Emphasize the length of the sentence (e.g., Zipper’s 50-year term) to argue that the “best interest of the child” necessitates immediate finality in the family court regardless of the criminal appellate timeline.
Citation
Zipper v. State, Nos. 03-24-00547-CR, 03-24-00548-CR, 03-24-00549-CR (Tex. App.—Austin Feb. 20, 2026, no pet. h.) (mem. op., not designated for publication).
Full Opinion
Family Law Crossover
The “weaponization” of Zipper v. State lies in the intersection of criminal finality and the “Best Interest” standard. In Texas, a parent’s conviction for aggravated assault or murder triggers the most restrictive provisions of the Family Code. When a criminal appellate court issues a memorandum opinion affirming a conviction via Anders, it essentially signals to the world that there are no “arguable” grounds that the conviction was unjust.
Family law litigators should use this “frivolousness” finding to shut down any “equitable” arguments the convicted parent might make about being “wrongly accused” or “expecting a new trial.” In a trial before the bench in a SAPCR, the Zipper opinion serves as a shield against the parent’s testimony. If the appellate court says the record contains no reversible error, the family law court has a clear path to find that the “history or pattern of violence” is legally indisputable. Use this case to push for a directed verdict on conservatorship if the opposing party’s only defense is the existence of an ongoing criminal appeal.
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