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

          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

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