Leon Jernigan v. the State of Texas

AFFIRMED; Opinion Filed October 7, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00483-CR

LEON JERNIGAN, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F21-70147-U

MEMORANDUM OPINION
Before Justices Molberg, Breedlove, and Kennedy
Opinion by Justice Kennedy
Appellant Leon Jernigan entered into an open plea agreement, pursuant to

which he waived his right to a jury trial and entered a plea of guilty to the charged

offense of stalking. After conducting a hearing, the trial judge accepted appellant’s

plea of guilty, found him guilty of the charged offense, and sentenced appellant to

twelve years’ confinement. We affirm the trial court’s judgment. Because all issues

are settled in law, we issue this memorandum opinion. See TEX. R. APP. P. 47.4.
ANDERS

Appellant’s appointed appellate counsel filed an Anders brief and a motion to

withdraw, stating she had made a thorough review of the entire appellate record and

that, in her opinion, there are no meritorious issues on appeal. See Anders v.

California, 386 U.S. 738, 744 (1967). Counsel certified that she delivered a copy of

the brief to appellant, and by letter dated December 4, 2023, we advised appellant of

his right to file a pro se response by January 3, 2024, and cautioned that failure to

file a pro se response by that date would result in the case being submitted on

the Anders brief alone. See Kelly v. State, 436 S.W.3d 313, 319–21 (Tex. Crim.

App. 2014) (noting appellant has right to file pro se response to Anders brief filed

by counsel). Appellant has not filed a pro se response.

An Anders brief must “contain a professional evaluation of the record

demonstrating why, in effect, there are no arguable grounds to be advanced.” High

v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). This evaluation

requires not only that counsel refer the court to anything in the record that might

arguably support the appeal, citing applicable authorities, but it also requires

appellate counsel to discuss the evidence introduced at trial, which entails providing

the reviewing court with ready references to the record. Stafford v. State, 813

S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).

After court-appointed appellate counsel files an Anders brief asserting that no

arguable grounds for appeal exist, we must independently examine the record to

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determine whether an appeal is “wholly frivolous.” Anders, 386 U.S. at

744 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether case is “wholly frivolous”). An appeal is

wholly frivolous when it lacks any basis in law or fact; an argument is frivolous if it

cannot “conceivably persuade the court.” See In re Schulman, 252 S.W.3d 403, 407

n. 12 (Tex. Crim. App. 2008).

If, after conducting an independent review of the record, we conclude either

that appellate counsel has not adequately discharged his or her constitutional duty to

review the record for any arguable error, or that the appeal is not wholly frivolous,

notwithstanding appellate counsel’s efforts,” we abate the appeal and return the

cause to the trial court for the appointment of new appellate counsel. Meza v. State,

206 S.W.3d 684, 689 (Tex. Crim. App. 2006).

With these principles in mind, we turn to considering counsel’s Anders brief

after we briefly discuss the factual and procedural background of the case before us.

BACKGROUND

In March 2020, appellant met T.D. on Facebook, and soon thereafter they

began a romantic relationship. Although she liked him initially, T.D. began to notice

that appellant would be upset with her when she spent time with her parents or her

child from a previous relationship without him, when she missed a phone call from

him, or when she returned home from work and did not call him. On or about

August 7, T.D. decided to end the relationship and told appellant not to go to her

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home. That day and in spite of T.D.’s statement, appellant went to her home. When

she answered the door, T.D. told appellant to leave, but he pushed his way into her

home. Appellant asked how she could leave and do “this” to him before he hit her

in the face, injuring her eye and lip. T.D. knelt down to protect her face, screaming.

Appellant instructed her to take a shower with the door open. After she had finished

her shower, T.D. attempted to run out of the apartment, but appellant blocked the

door and remained at the apartment for approximately three to four hours before

leaving.

In the months that followed, appellant would not leave T.D. alone, despite her

repeated statements to do so. He showed up at her home in different cars; he

attempted to grab her child while T.D. was walking with the child to her car; he sent

her hundreds of emails between October and December of 2021; and he called her

at the hospital where she worked, often using false names. In response to appellant’s

actions and threats, T.D. invited her sister to live with her, obtained a restraining

order against appellant, and purchased a gun to protect herself and her family. She

also made a complaint with the hospital police, and fliers were posted around the

hospital to warn staff and employees “to be on the lookout for [appellant.]”

On or about the end of January 2022, appellant was arrested. He was

arraigned on the offenses of stalking and assault causing bodily injury family

violence. He was later indicted with the offense of stalking, enhanced with a

previous conviction of murder. On December 15, 2022, pursuant to a plea

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agreement, appellant waived his right to a jury trial entered an open plea of guilty to

stalking.1 Following his plea, the trial court conducted a hearing at which appellant’s

signed, written judicial confession and stipulation of evidence was admitted into

evidence, as well as many of the emails appellant had sent to T.D., which she had

forwarded to the police. T.D. testified as to appellant’s conduct against her,

specifically his uninvited appearances at her home that caused her to fear for her and

her family’s physical safety from injury or death, as well as his repeated electronic

communications with her that caused her to feel—among other negative emotions—

angry and scared. Several witnesses, including appellant, testified in his defense.

At the conclusion of the hearing, the trial court accepted appellant’s plea of guilty,

found him guilty of the charged offense, sentenced appellant to twelve years’

confinement, and certified his right of appeal.

DISCUSSION

Pursuant to the guidelines set forth in High v. State, 573 S.W.2d 807, 813

(Tex. Crim. App. [Panel Op.] 1978), appellant’s counsel provides a thorough

recitation of the facts in the record with record references, citations to legal

authorities, and her professional evaluation and analysis of any potential meritorious

grounds for appeal.

1
No indictment for the assault offense appears in the record, and the only offense to which appellant
entered a plea of guilty was the stalking offense.
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Counsel indicates that she reviewed the entire appellate record including the

indictment, his waiver of his right to a jury trial, the transcript of the hearing, and

the clerk’s record. Appellant’s counsel concluded the indictment conferred

jurisdiction upon the trial court and that no complaint was made to the indictments

such that nothing was presented for appellate review. See TEX. CODE CRIM. PRO. art.

1.14 (waiver of rights and objections on appeal); Bohannan v. State, 546 S.W.3d

166, 171 (Tex. Crim. App. 2017) (citing TEX. CONST. art. V, § 12(b)) (presentment

of indictment to court invests that court with jurisdiction over case). Appellant’s

counsel also detailed her review of appellant’s waiver of jury, voluntariness of his

plea, the trial court’s admonishments, sufficiency of the evidence, performance of

trial counsel, and whether punishment was disproportionate, concluding appellant

received a fair trial free from reversible error.

After reviewing the hearing record for any objections and the performance of

trial counsel, appellant’s counsel concluded he received reasonably effective

assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668 (1984).

Appellant’s counsel states she reviewed the record to determine whether an

excessive punishment argument exists. Counsel notes that trial counsel preserved

error by objecting on the basis that the appellant’s sentence constituted cruel and

unusual punishment and on the basis that the sentence violated the objective of the

penal code. See TEX. PENAL CODE § 1.02; TEX. R. APP. P. 33.1. Counsel correctly

concludes that appellant’s sentences are within the statutory ranges and that, given

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the nature of the offense and details of the underlying conduct and appellant’s prior

convictions, nothing in the record suggests the punishment assessed is grossly

disproportionate to the crimes or does not comport with the objectives of the Penal

Code.

The State waived its opportunity to file an appellee’s brief but filed a letter, in

which the State agrees that there are no arguable issues for reversal, but identifies an

error that appellant’s counsel overlooked—the trial judge failed to orally admonish

appellant about the possible negative effects a guilty plea could have under

immigration law. See TEX. CODE CRIM. PROC. art. 26.13(a)(4), (d), (d-1) (requiring

this admonishment to be delivered orally and in writing). Nevertheless, the State

argues, and we agree, that this error does not present an arguable issue. The record

shows that appellant is a United States citizen, so any failure to admonish him about

the immigration consequences of his guilty pleas is harmless error. See VanNortrick

v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007) (“[W]hen the record shows a

defendant to be a United States citizen, the trial court’s failure to admonish him on

the immigration consequences of his guilty plea is harmless error.”). Thus, the error

does not present an arguable issue. See Davilacontreras v. State, No. 05-21-00995-

CR, 2022 WL 4396145, at *1 (Tex. App.—Dallas Sept. 23, 2022, no pet.) (mem.

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op., not designated for publication) (concluding that appeal was frivolous even

though trial court committed the same error on essentially the same facts).2

We have reviewed the entire record and counsel’s brief. See Bledsoe v. State,

178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005) (explaining appellate court’s duty

in Anders cases). We agree the appeal is frivolous and without merit. We find

nothing in the record that might arguably support the appeal.

MOTION TO WITHDRAW

In accordance with Anders, counsel has filed a motion to withdraw from the

case. See Anders, 386 U.S. at 744; Jeffery v. State, 903 S.W.2d 776, 779–80 (Tex.

App.—Dallas 1995, no pet.) (“If an attorney believes the appeal is frivolous, he must

withdraw from representing the appellant. To withdraw from representation, the

appointed attorney must file a motion to withdraw accompanied by a brief showing

the appellate court that the appeal is frivolous.”). We grant counsel’s motion to

withdraw. Within five days of the date of this Court’s opinion, counsel shall send a

2
As we did in Davilacontreras v. State, we limit our holding to the facts presented in this case: if the
record affirmatively shows that a defendant is a United States citizen, the trial judge’s erroneous failure to
give an oral admonishment about immigration consequences does not present an arguable issue that makes
an Anders brief inappropriate. 2022 WL 4396145, at *1, n.1. We distinguish our decision in Jessie v. State,
in which we struck an Anders brief for failure to discuss several potential errors appearing in the record,
only one of which was failure to give an immigration-consequences admonishment. See No. 05-20-00995-
CR, 2022 WL 1164657, at *2–3 (Tex. App.—Dallas Apr. 20, 2022, order) (mem. op., not designated for
publication) (also noting a defect in an indictment and multiple errors in the judgments). And we
distinguish this case from those in which the admonishment is not given and the defendant’s citizenship
does not appear on the face of the record. See Gist v. State, No. 07-08-0030-CR, 2009 WL 1577968, at *1–
2 (Tex. App.—Amarillo June 5, 2009, order) (per curiam) (mem. op., not designated for
publication) (requiring rebriefing because trial judge did not give immigration-consequences
admonishment), disp. on merits, 2009 WL 3320203 (Tex. App.—Amarillo Oct. 14, 2009, no pet.) (mem.
op., not designated for publication) (affirming conviction because, although original appellate record was
silent as to defendant’s citizenship, supplemental record showed that he was a United States citizen).
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copy of the opinion and judgment to appellant and advise appellant of his right to

pursue a petition for discretionary review. See TEX. R. APP. P. 48.4.

CONCLUSION

We affirm the trial court’s judgment.

/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 47
230483F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LEON JERNIGAN, Appellant On Appeal from the 291st Judicial
District Court, Dallas County, Texas
No. 05-23-00483-CR V. Trial Court Cause No. F21-70147-U.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and
Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

Judgment entered this 7th day of October, 2024.

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