When the Appeal Fails: Using Affirmed Felony Convictions to Secure Finality in SAPCR and Fault-Based Divorce Claims

Zipper v. State, 03-24-00549-CR, February 20, 2026.

On appeal from the 119th District Court of Tom Green County

Synopsis

The Third Court of Appeals affirmed a trial court’s judgment of conviction for multiple felonies—including murder and aggravated assault—after a court-appointed counsel filed an Anders brief. Following an independent review of the record, the court determined the appeal was frivolous, effectively finalizing the appellant’s status as a convicted felon and granting counsel’s motion to withdraw.

Relevance to Family Law

For the Texas family law practitioner, the finality of a felony conviction is often the “silver bullet” in complex litigation. Under Texas Family Code § 6.004, a court may grant a divorce on fault-based grounds if a spouse has been convicted of a felony and imprisoned for at least one year. Furthermore, convictions for violent offenses like murder or aggravated assault provide a near-insurmountable predicate for the termination of parental rights or the denial of managing conservatorship under § 153.004. This ruling highlights the moment of “appellate finality”—once an Anders brief is accepted and the conviction affirmed, the criminal defendant’s ability to challenge the underlying facts in a collateral SAPCR or divorce proceeding is virtually extinguished.

Case Summary

Fact Summary

Appellant Paul Daniel Zipper pleaded guilty to four distinct and serious felony offenses: murder (first-degree), aggravated assault with a deadly weapon (second-degree), tampering with or fabricating physical evidence with intent to impair a human corpse (second-degree), and evading arrest with a vehicle (third-degree). Following a bench trial on the issue of punishment, the trial court sentenced Zipper to a significant term of years, led by a fifty-year sentence for the murder charge. Zipper’s court-appointed counsel subsequently filed an Anders brief and a motion to withdraw, stating that after a professional evaluation of the record, there were no arguable grounds for appeal. Zipper filed a pro se response, challenging the outcome.

Issues Decided

The central issue was whether the appellate court, after conducting an independent review of the record and considering both the Anders brief and the appellant’s pro se response, could identify any arguably meritorious grounds for appeal that would prevent the affirmance of the conviction.

Rules Applied

The court relied on the framework established by Anders v. California, 386 U.S. 738 (1967), and its Texas counterparts, Garner v. State and Bledsoe v. State. These cases dictate that when counsel files a brief asserting an appeal is frivolous, the appellate court must conduct its own thorough review of the record. The court also observed the procedural requirements of Kelly v. State, ensuring that the appellant was properly notified of his right to review the record and file a pro se response.

Application

The Court of Appeals performed a comprehensive “audit” of the trial court record, including the plea proceedings and the punishment phase. Because Zipper entered a guilty plea, the potential for reversible error was already substantially narrowed. The court reviewed the evidence presented during the punishment phase and the statutory ranges for the offenses charged. In its narrative analysis, the court determined that the procedures followed by the 119th District Court were legally sound and that counsel’s assessment of the case as “frivolous” was accurate. Even when weighed against the appellant’s pro se response, the record contained no legal errors that would support a non-frivolous argument for reversal.

Holding

The Court of Appeals affirmed the judgments of conviction across all four cause numbers. The court held that no arguably meritorious grounds for review existed, thereby upholding the sentences for murder, aggravated assault, tampering with evidence, and evading arrest.

The court further granted the motion to withdraw filed by the Concho Valley Regional Public Defender’s Office. The court clarified that the grant of the initial motion to withdraw by the original lead counsel effectively released the entire public defender’s office, rendering subsequent motions for substitution or withdrawal moot.

Practical Application

Family law litigators can use this affirmance to achieve finality in parallel civil proceedings. When a party in a SAPCR or divorce is facing criminal charges, the civil case often lingers in a stay or faces evidentiary hurdles regarding the Fifth Amendment. Once the Court of Appeals issues an opinion affirming the conviction—especially via Anders—the “convicted” status is solidified. This allows the family lawyer to move for summary judgment on the issue of fault in a divorce or to move for a directed verdict on the “history of violence” issues in custody disputes.

Checklists

Securing the Fault-Based Divorce

• Confirm the Sentence Length
  • Ensure the decree reflects a conviction and imprisonment for at least one year as required by § 6.004.
• Verify the Non-Testimony Requirement
  • Confirm the conviction was not obtained based on the petitioner’s testimony to satisfy statutory requirements.
• Establish Finality
  • Obtain the Mandate from the Court of Appeals to prove the conviction is no longer subject to ordinary appeal.

Weaponizing the Conviction in SAPCR

• Invoke Statutory Presumptions
  • Use the aggravated assault conviction to trigger the § 153.004(b) presumption against Joint Managing Conservatorship.
• Limit Visitation and Access
  • Apply the “deadly weapon” finding from the affirmed judgment to argue for supervised visitation or no access under § 153.004(d).
• Predicate for Termination
  • Utilize the affirmed murder conviction to satisfy the requirements of § 161.001(b)(1)(L) or (Q) for the termination of the parent-child relationship.

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.).

Full Opinion

The full opinion can be found here: [URL: https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=ee5aa7df-655c-4201-ae74-74bfe49d36f9&MediaID=25c3dbb1-67e0-46c3-be3d-9d8285fcc038&coa=03&DT=Opinion]

Family Law Crossover

The Zipper affirmance is a strategic milestone for a family law practitioner representing a spouse or a child’s other parent. The murder and aggravated assault convictions are particularly “weaponizable.” Under the Texas Family Code, a conviction for an offense involving family violence or a violent felony creates a massive shift in the burden of proof.

Specifically, in a modification suit, this affirmance constitutes a “material and substantial change in circumstances” as a matter of law. Litigators should not merely plead the conviction; they should plead the affirmance. An Anders affirmance is particularly strong because it signals that even with a court-appointed advocate’s scrutiny, there was no legal basis to challenge the defendant’s guilt or the severity of the punishment. In the eyes of a family court judge, this eliminates the “he said/she said” and replaces it with an immutable fact: the parent is a danger to society, and by extension, a danger to the best interests of the child.

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