Opinion
No. 10-07-00050-CR
Opinion delivered and filed January 2, 2008. DO NOT PUBLISH
Appeal from the 82nd District Court Falls County, Texas, Trial Court No. 8324. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Michael Smith was convicted of burglary of a habitation with the intent to commit an assault. See TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2003). He was sentenced to 20 years in prison. Smith appealed. Smith's counsel filed an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We affirm. Counsel's brief reviews the legal and factual sufficiency of the evidence, potential error in voir dire, the trial on the merits, the jury charge, and potential error in the punishment phase of the trial. Although counsel and this Court informed Smith of the right to file a brief, Smith 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, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (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 Smith 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.), overruled in part on other grounds, Meza v. State, 206 S.W.3d 684, 689 (Tex.Crim.App. 2006); see also Ibarra v. State, 226 S.W.3d 481, 483 (Tex.App.-Waco 2006, no pet.). We grant counsel's motion to withdraw filed September 6, 2007.