


 
IN THE
TENTH COURT OF
APPEALS










 

No. 10-03-00128-CR
 
Rogerio Martinez, Jr.,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the 410th District Court
Montgomery County, Texas
Trial Court # 02-08-05359
CR
 

MEMORANDUM 
Opinion

 
          Rogerio Martinez, Jr. pleaded guilty to one count of aggravated
robbery and one count of aggravated assault with a deadly weapon.  Tex.
Pen. Code Ann. § 29.03 (Vernon 2003), § 22.02 (Vernon Supp. 2004-05).  There was a plea agreement that his sentence
would not exceed fifteen years’ confinement. 
The court sentenced him to twelve years and granted him the right to
prosecute an appeal.  Martinez’s appointed counsel filed an Anders brief.  Martinez filed a pro se response contending: (1)
he accepted the plea bargain agreement due to the victim’s use of the Fifth Amendment;
and (2) because he has no memory of the incident, the crime could not have been
aggravated.  The State waived its right
to file a brief.  
          Because
Martinez’s contentions and our independent review of the
record reveal no issues of arguable merit, we will affirm the judgment.
Martinez’s
Contentions
           Martinez argues that he accepted the plea bargain because
of the victim’s improper use of the Fifth Amendment.  Martinez refers to the victim’s responses to two questions
during the punishment phase about whether he was aware that Martinez had been previously committed to a mental
institution.  Because those responses
occurred during the punishment phase, it is difficult to imagine how they could
have influenced the plea Martinez had already made.
          Martinez argues that the crime could not have been
aggravated because he was in an ‘altered state of mind’ and now has no memory
of the incident.  However, Martinez pleaded guilty to aggravated robbery and
aggravated assault with a deadly weapon. 
Thus, the record does not support his issue.
          We
find that Martinez has presented no issue of arguable merit based
on the current state of the record.
Independent
Review
          We
have conducted an independent review of the record to discover whether there
are arguable grounds for appeal.  See Stafford v.
State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991).  We determine
there are none.  The indictment invoked
the district court’s jurisdiction, and the court assessed punishment within the
statutory range of punishment for the offenses.


CONCLUSION
          Finding
no issue of arguable merit, we affirm the judgment.
 
BILL VANCE
Justice
 
 
Before Chief
Justice Gray,
Justice Vance,
and
Justice Reyna
          (Chief Justice Gray dissenting)
Affirmed
Opinion delivered
and filed December 8,
 2004
Do not publish
[CR25]

