Kristopher L. Gardner v. The State of TexasAppeal from 114th District Court of Smith County (memorandum opinion per curiam)

Annotate this Case

Download PDF

NO. 12-13-00245-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS KRISTOPHER L. GARDNER, APPELLANT § APPEAL FROM THE 114TH V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM Kristopher L. Gardner 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). We affirm. BACKGROUND Appellant was charged by indictment with the offense of aggravated assault with a deadly weapon, a second degree felony. The indictment also included a felony enhancement paragraph. Appellant entered an open plea of guilty to the offense charged in the indictment. Appellant and his counsel signed various documents in connection with his guilty plea, including a stipulation of evidence in which Appellant swore, and judicially confessed, to the offense alleged in the indictment, admitted that he committed each and every element alleged in the indictment, and stated that he was guilty as charged. He also pleaded true to the enhancement paragraph. The trial court found the evidence sufficient to substantiate Appellant s guilty plea. After a punishment hearing, the trial court adjudged Appellant guilty of aggravated assault with a deadly weapon, found the enhancement paragraph to be true, made an affirmative finding of a deadly weapon, a firearm, and assessed his punishment at life imprisonment. This appeal followed. ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA Appellant s counsel filed a brief in compliance with Anders and Gainous, stating that he has diligently reviewed the appellate record and is of the opinion that the record reflects no reversible error and that there is no error upon which an appeal can be predicated. From our review of counsel s brief, it is apparent that counsel is well acquainted with the facts in this case. In compliance with Anders, Gainous, and High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978), counsel s brief presents a chronological summation of the procedural history of the case, and further states that counsel is unable to raise any arguable issues for appeal. We have reviewed the record for reversible error and have found none.1 See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). CONCLUSION As required, Appellant s counsel has moved for leave to withdraw. See In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We are in agreement with Appellant s counsel that the appeal is wholly frivolous. Accordingly, his motion for leave to withdraw is hereby granted, and the trial court s judgment is affirmed. See TEX. R. APP. P. 43.2. 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 further review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or he must file a pro se petition for discretionary review. See In re Schulman, 252 S.W.3d at 408 n.22. 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 that was overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See 1 Counsel for Appellant certified that he provided Appellant with a copy of his brief and informed Appellant that he had the right to file his own brief. Appellant was given time to file his own brief, but the time for filing such a brief has expired and we have received no pro se brief. 2 TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4; In re Schulman, 252 S.W.3d at 408 n.22. Opinion delivered April 30, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (DO NOT PUBLISH) 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT APRIL 30, 2014 NO. 12-13-00245-CR KRISTOPHER L. GARDNER, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-0295-13) 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 Appellant s counsel s motion to withdraw is granted, 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., Griffith, J., and Hoyle, J. THE STATE OF TEXAS MANDATE ********************************************* TO THE 114TH DISTRICT COURT OF SMITH COUNTY, GREETING: Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 30th day of April, 2014, the cause upon appeal to revise or reverse your judgment between KRISTOPHER L. GARDNER, Appellant NO. 12-13-00245-CR; Trial Court No. 114-0295-13 By per curiam opinion. THE STATE OF TEXAS, Appellee was determined; and therein our said Court made its order in these words: 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 Appellant s counsel s motion to withdraw is granted, the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed. WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the xx day of April, 2014. CATHY S. LUSK, CLERK By: _______________________________ Chief Deputy Clerk

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.