Elijah Keller v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00157-CR Elijah Keller, Appellant v. The State of Texas, Appellee From the 52nd District Court Coryell County, Texas Trial Court No. FDP-04-17177 MEMORANDUM Opinion 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.). TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed October 12, 2005 Do not publish [CR25] 0.9in; margin-right: 0.6in">(b)modify the trial court’s judgment and affirm it as modified; (c)reverse the trial court’s judgment in whole or in part and render the judgment that the trial court should have rendered; (d)reverse the trial court’s judgment and remand the case for further proceedings; (e)vacate the trial court’s judgment and dismiss the case; or (f)dismiss the appeal. Tex. R. App. P. 43.2. Attached to the joint motion is a copy of the “Compromise Settlement Agreement and Release” entered into by the parties. Because the parties have clearly indicated their desire to resolve this cause, we will construe the parties’ request as a request to reverse the trial court’s judgment and remand to the trial court for further proceedings, an action which we are authorized to take and which will effectuate the result desired by the parties. See Tex. R. App. P. 43.2(d). Therefore, we will grant the parties’ agreed motion, reversing the judgment of the trial court and remanding this cause to that court with instructions to enter a judgment which reflects the agreement of the parties. See Rothlander v. Ayala, 943 S.W.2d 546 (Tex. App.—Waco 1997, no writ); see also Innovative Office Sys., Inc. v. Johnson, 911 S.W.2d 387 (Tex. 1995). PER CURIAM Before Chief Justice Davis, Justice Cummings, and Justice Vance Reversed and remanded Opinion delivered and filed July 8, 1998 Do not publish