Keller v. State

Full title: ELIJAH KELLER, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Oct 12, 2005

No. 10-05-00157-CR (Tex. App. Oct. 12, 2005)

Opinion

No. 10-05-00157-CR

Opinion delivered and filed October 12, 2005. DO NOT PUBLISH.

Appeal from the 52nd District Court, Coryell County, Texas, Trial Court No. Fdp-04-17177. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Keller pleaded guilty to second-degree-felony possession of cocaine. See TEX. HEALTH SAFETY CODE ANN. § 481.115(a), (d) (Vernon 2003); see id. § 481.102(3)(D) (Vernon Supp. 2004-2005). Keller appeals. Keller's counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We affirm. The brief reviews the trial court's overruling of Keller's motion to suppress evidence. Although counsel informed Keller of the right to file a brief, Keller did not file one. The State did not file a response. We must, "after a full examination of all the proceedings, . . . decide whether the case is wholly frivolous." Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex.Crim.App. 1991); Coronado v. State, 996 S.W.2d 283, 285 (Tex.App.-Waco 1999, order) (per curiam), disp. on merits, 25 S.W.3d 806 (Tex.App.-Waco 2000, pet. ref'd). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 439 n. 10 (1988). Arguments are frivolous when they "cannot conceivably persuade the court." Id. at 436. An appeal is not wholly frivolous when it is based on "arguable grounds." Stafford at 511. We determine that the appeal is wholly frivolous. Accordingly, we affirm. Counsel must advise Keller of our decision and of his right to file a petition for discretionary review. See Sowels v. State, 45 S.W.3d 690, 694 (Tex.App.-Waco 2001, no pet.).