Christian Gagner v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: June 27, 2024
• Docket: 13-23-00479-CR
• Status: Published

Opinion

NUMBERS 13-23-00478-CR, 13-23-00479-CR, 13-23-00480-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CHRISTIAN GAGNER, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 105TH DISTRICT COURT OF KLEBERG COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Tijerina and Peña Memorandum Opinion by Justice Peña

Appellant Christian Gagner appeals the trial court’s orders revoking his community

supervision and adjudicating him guilty of various offenses under three separate cause numbers. In the first case, 1 appellant was adjudicated guilty of assault against a family

member by impeding breathing, see TEX. PENAL CODE ANN. § 22.01, and unlawful

restraint, see id. § 20.02, both enhanced to second-degree felonies because appellant

was found to be a repeat felony offender. See id. § 12.42(a). In the second case, 2

appellant was adjudicated guilty of engaging in organized criminal activity, see id. § 70.02,

enhanced to a first-degree felony because appellant was a repeat felony offender, see id.

§ 12.42(b), and felon in possession of a firearm, a third-degree felony. See id. § 46.04. In

his third case, 3 appellant was adjudicated guilty of continuous violence against the family,

see id. § 25.11, enhanced to a second-degree felony because appellant was a repeat

felony offender. See id. § 12.42(a).

After being adjudicated guilty in all three cases, appellant was sentenced as

follows, with all sentences to run concurrently: twenty years’ imprisonment as to both

counts in his first case; twenty years’ imprisonment as to count one and ten years’

imprisonment as to count two in his second case; and twenty years’ imprisonment as to

the sole count in his third case. Appellant’s court-appointed counsel has filed an Anders

brief stating that there are no arguable grounds for appeal. See Anders v. California, 386

U.S. 738, 744 (1967). We affirm the trial court’s judgments.

I. ANDERS BRIEF

Pursuant to Anders v. California, appellant’s court-appointed appellate counsel

1 Trial court cause number 22-CRF-0186; appellate cause number 13-23-00478-CR.

2 Trial court cause number 22-CRF-0316-2; appellate cause number 13-23-00479-CR.

3 Trial court cause number 22-CRF-03186; appellate cause number 13-23-00480-CR.

2 filed a brief and a motion to withdraw with this Court, stating that his review of the record

yielded no grounds of reversible error upon which an appeal could be predicated. See id.

Counsel’s brief meets the requirements of Anders as it presents a professional evaluation

demonstrating why there are no arguable grounds to advance on appeal. See In re

Schulman, 252 S.W.3d 403, 406 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (“In Texas,

an Anders brief need not specifically advance ‘arguable’ points of error if counsel finds

none, but it must provide record references to the facts and procedural history and set

out pertinent legal authorities.” (citing Hawkins v. State, 112 S.W.3d 340, 343–44 (Tex.

App.—Corpus Christi–Edinburg 2003, no pet.))); Stafford v. State, 813 S.W.2d 503, 510

n.3 (Tex. Crim. App. 1991).

In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel

Op.] 1978) and Kelly v. State, 436 S.W.3d 313, 319–22 (Tex. Crim. App. 2014),

appellant’s counsel carefully discussed why, under controlling authority, there is no

reversible error in the trial court’s judgments. Appellant’s counsel also informed this Court

in writing that he: (1) notified appellant that counsel has filed an Anders brief and a motion

to withdraw; (2) provided appellant with copies of both pleadings; (3) informed appellant

of his rights to file a pro se response, to review the record prior to filing that response,

and to seek discretionary review if we conclude that the appeal is frivolous; and

(4) provided appellant with a form motion for pro se access to the appellate record that

only requires appellant’s signature and date with instructions to file the motion within ten

days. See Anders, 386 U.S. at 744; Kelly, 436 S.W.3d at 319–20; see also In re

Schulman, 252 S.W.3d at 408–09. In these cases, appellant filed neither a timely motion

3 seeking pro se access to the appellate record nor a motion for extension of time to do so.

Appellant did not file a pro se response in any case.

II. INDEPENDENT REVIEW

Upon receiving an Anders brief, we must conduct a full examination of all the

proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S.

75, 80 (1988). We have reviewed the record in each case, and we have found nothing

that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28

(Tex. Crim. App. 2005) (“Due to the nature of Anders briefs, by indicating in the opinion

that it considered the issues raised in the briefs and reviewed the record for reversible

error but found none, the court of appeals met the requirements of Texas Rule of

Appellate Procedure 47.1.”); Stafford, 813 S.W.2d at 511.

III. MOTION TO WITHDRAW

In accordance with Anders, appellant’s counsel has asked this Court for

permission to withdraw as counsel. See Anders, 386 U.S. at 744; see also In re

Schulman, 252 S.W.3d at 408 n.17. We grant counsel’s motion to withdraw. Within five

days from the date of this Court’s opinion, counsel is ordered to send a copy of this opinion

and this Court’s judgment to appellant and to advise him of his right to file a petition for

discretionary review. 4 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at

4 No substitute counsel will be appointed. Should appellant wish to seek further review by the Texas

Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or timely motion for en banc reconsideration that was overruled by this Court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See id. R. 68.4.

4 411 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006).

IV. CONCLUSION

We affirm the trial court’s judgments.

L. ARON PEÑA JR. Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed on the 27th day of June, 2024.