                                                                        ACCEPTED
                                                                    01-15-00517-CR
                                                         FIRST COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                                                               12/7/2015 6:25:07 PM
                                                              CHRISTOPHER PRINE
                                                                             CLERK

           No. 01-15-00517-CR
           No. 01-15-00518-CR
                                                   FILED IN
                 IN THE                     1st COURT OF APPEALS
                                                HOUSTON, TEXAS
                                            12/7/2015 6:25:07 PM
          COURT OF APPEALS
                                            CHRISTOPHER A. PRINE
                                                    Clerk
                FOR THE

       FIRST DISTRICT OF TEXAS

             AT HOUSTON
    ______________________________

        JOHN HENRY SKILLERN
                    Appellant

                   VS.

         THE STATE OF TEXAS
                     Appellee

     _____________________________

          APPELLANT’S BRIEF
              (Anders Brief)
_______________________________________

  On Appeal from the 182nd District Court
             Harris County, Texas
 Trial Court Cause Nos. 1436278 & 1436279
     _____________________________

                 Kyle B. Johnson
                 SBN: 10763570
                 917 Franklin, Suite 320
                 Houston, Texas 77002
                 Tel: (713) 223-4100
                 Fax: (713) 224-2889

                 ATTORNEY FOR
                 JOHN HENRY SKILLERN
                              TABLE OF CONTENTS

INDEX OF AUTHORITIES             iii

INTERESTED PARTIES iv

STATEMENT REGARDING ORAL ARGUMENT                     v

CITATIONS TO THE RECORD v

PRELIMINARY STATEMENT            2

STATEMENT OF THE CASE            2

STATEMENT OF FACTS 4

     The State Witnesses 4
     The Defense Witnesses       6
     Closing Arguments 7
     Punishment 7

POSSIBLE AREAS OF CONCERN               7

     Was it error to admit several photographs taken off the appellant’s device
     over a 403 objection?       7

     Were the appellant’s sentences unconstitutionally excessive? 7

CONCLUSION         10

CERTIFICATE OF SERVICE           11

CERTIFICATE OF COMPLIANCE               12




                                             ii
                               INDEX OF AUTHORITIES

Cases

Anders v. California, 386 U.S. 738 (1967)         2

Darden v. State, 430 S.W.2d 494, 496 (Tex.Crim.App.1968) 9-10

High v. State, 573 S.W. 2d 807 (Tex.Crim.App. 1978) 2

Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973)     9

Kelly v. State, 436 S.W. 3d 313 (Tex.Crim.App. 2014) 2

Kimithi v. State, 546 S.W.2d 323, 327 (Tex.Crim.App. 1977) 8

Noland v. State, 264 S.W.3d 144, 151 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd)
      9

Smith v. State, 256 S.W.3d 341, 343–44 (Tex.App.-San Antonio 2007, no pet.)       9

Statutes

Tex. Penal Code § 12.42(a) 9

Tex. Penal Code § 12.42(b) 9

Texas Penal Code § 22.01(b)       9

Tex. Penal Code § 43.26(d) 7

Tex. Penal Code § 43.26(g) 7

Tex.R.App. P. § 33.1(a)    9

Tex. R. Evid. § 403 8




                                            iii
                               INTERESTED PARTIES

Judge:               The Honorable Jeannine Barr
                          Presiding Judge, 182nd District Court
                          Harris County, TX
                          1201 Franklin
                          Houston, TX 77002

Prosecutors:               Mr. Stephen Driver (trial)
                           Assistant District Attorney
                           Harris County District Attorney’s Office
                           1201 Franklin, Suite 600
                           Houston, TX 77002

                           Mr. Alan Curry (appeal)
                           Assistant District Attorney
                           Harris County District Attorney’s Office, Appellate
                           1201 Franklin, Suite 600 Floor
                           Houston, TX 77002

Defense Attorneys:         Mr. David L. Garza (trial)
                           102 South Lockwood Drive
                           Houston, TX 77002

                           Mr. Kyle B. Johnson (appeal)
                           917 Franklin, Ste 320
                           Houston, TX 77002

Defendant:                 Ms. John Henry Skillern




                                           iv
                  STATEMENT REGARDING ORAL ARGUMENT

                                  Oral argument is waived.




                           CITATIONS TO THE RECORD

      The Record consists of a one-volume clerk’s record in each case which will be

cited “CR” followed by the Case Number and then the document “Bates Stamp” number

(e.g. “CR/1436278 - 003") and two volumes of Court Reporter’s Records which will be

cited by volume number followed by the page number (e.g. “Vol. 1 - p. 26").




                                           v
                                  No. 01-15-00517-CR
                                  No. 01-15-00518-CR


                                         IN THE

                                 COURT OF APPEALS

                                        FOR THE

                             FIRST DISTRICT OF TEXAS

                                   AT HOUSTON
                          ______________________________

                               JOHN HENRY SKILLERN
                                           Appellant

                                           VS.

                                THE STATE OF TEXAS
                                            Appellee

                           _____________________________

                              APPELLANT’S BRIEF
                                  (Anders Brief)
                    _______________________________________

                        On Appeal from the 182nd District Court
                                   Harris County, Texas
                       Trial Court Cause Nos. 1436278 & 1436279
                           _____________________________


TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

       NOW COMES KYLE B. JOHNSON, counsel appointed on the appellant’s appeal,

and files this Anders brief and respectfully shows the Court the following:


                                            vi
                              PRELIMINARY STATEMENT

       In compliance with the requirements of Anders v. California, 386 U.S. 738 (1967),

High v. State, 573 S.W. 2d 807 (Tex.Crim.App. 1978) and Kelly v. State, 436 S.W. 3d 313

(Tex.Crim.App. 2014), court-appointed counsel on this appeal states that he has diligently

reviewed the entire appellate record in this case as well as the applicable case law. In his

opinion, the record presents no plausible grounds for appeal.

       The undersigned attorney has 1) written a letter to the appellant notifying him of

counsel’s opinion, 2) provided the appellant with a copy of this Anders Brief along with a

copy of counsel’s Motion to Withdraw, 3) informed the appellant of his right to file a pro

se response and of his right to review the record preparatory to filing that response, 4)

informed the appellant that, should he choose to invoke his right to file a pro se response,

he should sign and date a Motion to Review the Appellate Record (a form for which was

included with the letter) and return it to the Court of Appeals within ten days of the date

of the accompanying letter, 5) provided the appellant with the mailing address for the

Court of Appeals, 6) advised the appellant of her right to file a Petition for Discretionary

Review with the Court of Criminal Appeals should she fail to get relief at the lower level,

and 7) provided the appellant with the mailing address for the Court of Criminal Appeals.

                              STATEMENT OF THE CASE

       On March 5, 2015, the appellant appeared in court and plead “guilty” to the

offense of Possession of Child Pornography (C# 1436278), a third degree felony

                                             vii
(enhanced by the prior felony conviction of Aggravated Sexual Assault of a Child), and to

the offense of Promotion of Child Pornography (C# 1436279), a second degree felony

(enhanced by the prior felony conviction of Aggravated Sexual Assault of a Child). The

appellant also plead “true” to the enhancement paragraph in each case.

       There was no agreement with the State as to punishment. The trial court made no

findings of guilt and the cases were reset for sentencing so that a Pre-Sentence

Investigative Report could be prepared. The trial court certified that the appellant

retained the right to appeal in each case at the time of the pleas. (CR/1436278 - 046;

CR/1436279 - 047).

       On May 20, 2015, the appellant appeared in Court for sentencing and, after a

hearing was held and both sides argued, the appellant was sentenced to 20 years in the

Possession of Child Pornography case (CR/1436278 - 056) and to 45 years in the

Promotion of Child Pornography case. (CR/1436279 - 054). The sentences were ordered

to run concurrently.   1



       The appellant filed a notice of appeal on May 20, 2015. (CR/1436278 - 059;

CR/1436279 - 057). One extension of time to file the appellant’s brief has been granted

and the current due date is December 7, 2015.




                                 STATEMENT OF FACTS

       The appellant appeared in court on May 20, 2015 and a sentencing hearing was
       1 The State had filed a motion to stack the sentences but that was denied.
                                                viii
held. At the outset, the trial court asked if there were any objections to the Pre-Sentence

Investigative Report and each side responded that there were not. (Vol. 1 - p. 5). The

State then called its first witness, Matthew Gray. (Vol. 1 - p. 8).

                                        State Witness

       Matthew Gray testified that he was a forensic investigator in the Child

Exploitation Unit of the Harris County DA’s office. According to Mr. Gray, he was

involved in the search of the appellant’s home in July of 2014 pursuant to a search

warrant. Mr. Gray testified that, as a result of that search, an iPad-like tablet and a phone

were recovered. According to Mr. Gray, he searched the devices and “observed some

images of child pornography, and videos of the defendant masturbating and ejaculating.”

He also observed “some conversations that appeared to be between the defendant and

other collectors of child pornography talking about sexually abusing children.” It

appeared to Mr. Gray that the appellant and others were trading pictures. (Vol. 1 - pp. 8-

12).

       State Exhibits 2 through 15 were identified as images taken off the devices found

at the appellant’s residence. The defense objected to Nos. 9, 10, 11, 14 and 15 as being

“highly prejudicial and not probative”. Those objections were overruled and all of the

photographs were admitted. (Vol. 1 - pp. 14-15).

       Mr. Gray testified that there was a child referred to in some text messages as

“Betty Blue”. According to Mr. Gray, this child was referred to as the appellant’s step-

daughter and it appeared from the text messages that the appellant was sexually abusing

the child. The defense objected that there was no evidence that sexual abuse was actually
occurring and that objection was overruled (but the trial court indicated it might change

its ruling after hearing more evidence). (Vol. 1 - pp. 15-16).       2



       Mr. Gray discussed the content of the text messages that were taken off of the

appellant’s phone. (State Exhibit Nos. 2-7). (Vol. 1 - pp. 15-18). Mr. Gray testified that

there was an accompanying video that he was unable to extract from the phone and which

depicted a “child exiting a shower and was unclothed.” He testified that he was able to

take screen shots from the video and those were depicted in State Exhibits 14 and 15.

(Vol. 1 - p. 19).

       Mr. Gray testified that there also were emails found on the appellant’s phone that

were of a similar nature to the text messages. (Vol. 1 - p. 20). State Exhibit No. 16 was

admitted without objection. Mr. Gray identified this as a video taken off one of the

appellant’s devices and described it as a well known video in which a young girl of

approximately 10 years of age has sex with a grown man. (Vol. 1 - pp. 30-32).

       On cross examination, Mr. Gray agreed that the text messages on the appellant’s

phone only discussed the appellant sexually abusing his step-daughter. Mr. Gray

admitted that he did not know whether the abuse actually was occurring. (Vol. 1 - pp. 37-

38). After the testimony of Mr. Gray, the State rested. (Vol. 1 - p. 39).

                                        Defense Witnesses

       The defense called Raymond Skillern, the defendant’s younger brother. Mr.

Skillern testified that he was aware of the charges against the appellant and that the

        2 Ultimately, the trial court will state that it’s sentences were not in any way based on a
belief that this abuse actually had occurred.
                                                    10
appellant had once before been sentenced to 20 years in the Institutional Division of the

Texas Department of Corrections (presumably for the Aggravated Sexual Assault of a

Child case). According to Mr. Skillern, the appellant served the entire 20 year sentence.

(Vol. 1 - pp. 40-42).

       Mr. Skillern basically testified that there were people out there that cared for the

appellant and that clearly he needed some type of treatment for his problems. (Vol. 1 -

pp. 42-45). The State had no questions. The defense then called the appellant.

       John Skillern, the appellant, testified that, until he got out of prison (which,

according to his brother, was in 2013), he never used a computer. He testified that the

girl he referred to in his texts was the daughter of a woman in Thailand with whom he

had an on-line relationship and he had never actually met the daughter. According to the

appellant, he used his texts and emails to try to get other men to send him pictures of their

penises and develop relationships with them. (Vol. 1 - pp. 47-51).

       According to the appellant, while he was in the penitentiary, he asked for help

many times. He was told that he would have to be within two years of his release and

even then he was not able to get any treatment. (Vol. 1 - pp. 51-53).

       On cross, the appellant agreed that he continued to communicate with the woman

in Thailand after he was arrested for this offense. He denied that he ever had actually

sexually assaulted a child. He did admit that he had video-taped a child at his workplace.

(Vol. 1 - pp. 57-65). After the appellant’s testimony, both sides closed.   3




      3 There were no objections (of any consequence) during the testimony of the three
punishment witnesses.
                                             11
                                     Closing Arguments

       Both sides gave brief closing arguments during which there were no objections.

(Vol. 1 - pp. 69-73).

                                         The Sentence

       At the conclusion of closing arguments, the trial court made it clear that it was not

basing its decision on any belief that the appellant had actually sexually abused the child

referred to as “Betty Blue” in the texts taken off his phone. With that, the trial court

found the appellant guilty in each case, as well as the enhancement paragraphs to be true,

and assessed the appellant’s punishment at 20 years in the Possession of Child Porn case

and at 45 years in the Promotion of Child Porn case. (Vol. 1 - p. 74).

                             POSSIBLE AREAS OF CONCERN

       Given the fact that the appellant plead guilty to the offenses in question and went

to the trial court for punishment, there is very little potential for reversible error here.

While trial counsel could not find any issues upon which to base a request that the

appellant’s conviction and sentence be reversed, the following possible area of concern

will be discussed:

              1.    Was it error to admit several photographs taken off the appellant’s
device over a 403 objection?

              2.        Were the appellant’s sentences unconstitutionally excessive?

                The admission of several photographs over a 403 objection.

       The only substantive objections made during the punishment phase were to several

of the photographs found on the appellant’s device. The objections made were that the
                                               12
photos were “highly prejudicial and not probative” (presumably under Tex. R. Evid. 403).

The objections were overruled and the photographs were admitted.

       Even assuming those photographs were improperly admitted over proper

objection, there will be a strong presumption that the trial court made only proper use of

those photos. See Kimithi v. State, 546 S.W.2d 323, 327 (Tex.Crim.App. 1977)(“[t]he

trial court, as the finder of fact at the punishment stage of the trial, is presumed to have

disregarded any evidence that was improperly admitted.”). This issue simply does not

present any grounds upon which to base an appeal.

                      Were the appellant’s sentences excessive?

       First it should be noted that the sentences assessed by the trial court were legal in

that they fell within the applicable statutory range of punishment. Possession of Child

Pornography is a felony of the third degree. Tex. Penal Code § 43.26(d). Promotion of

Child Pornography is a felony of the second degree. Tex. Penal Code §43.26(g). With the

appellant’s prior felony conviction for Aggravated Sexual Assault of a Child, each range

was raised one degree. Therefore, the sentences of 20 years for possession and 45 years

for promotion were within the applicable statutory range. See and Tex. Penal Code §

12.42(a) (third degree enhanced to a second with prior final felony conviction) and Tex.

Penal Code § 12.42(b) (a second degree enhanced to a first degree with prior final felony

conviction).

       Secondly, it must be noted that there was no complaint at trial that the sentences

assessed were excessive. To preserve a complaint that a sentence is grossly

                                              13
disproportionate, constituting cruel and unusual punishment, a defendant must present to

the trial court a motion stating the specific grounds for the ruling desired. Noland v.

State, 264 S.W.3d 144, 151 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd). As a

prerequisite to presenting a complaint for appellate review, the record must show that the

complaint was made to the trial court and that the trial court either ruled or refused to rule

on that complaint. Tex.R.App. P. 33.1(a). Even if there was a complaint here that the

appellant’s sentences were excessive, nothing in that regard was preserved for appeal.

       Even had the issue been preserved, it is unlikely the reviewing court would

consider the appellant’s sentences constitutionally excessive. Sentences that fall within

the statutory limits are generally not considered excessive under the Eighth Amendment.

Smith v. State, 256 S.W.3d 341, 343–44 (Tex.App.-San Antonio 2007, no pet.); See

Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App.1973) (holding that sentence falling

within range prescribed by legislature was not excessive or cruel and unusual); Darden v.

State, 430 S.W.2d 494, 496 (Tex.Crim.App.1968) (“If the punishment is within that

prescribed by the statute, it is beyond the province of this Court to pass upon the question

of excessive punishment”).

       Here, the appellant’s sentences fell within the statutory limits and, given this

record, it is impossible to argue that the appellant’s sentences were constitutionally

excessive.   4



         4 Counsel recognizes that there is an exception to the rule that sentences within the range
of punishment are not excessive in violation of the Eighth Amendment. There may be a
constitutional issue when the sentences are grossly disproportionate to the offenses for which the
defendant has been convicted. These situations are exceedingly rare, however, and for the most
part, a fact finder’s discretion to impose any punishment within a prescribed statutory range is
                                                 14
                                      CONCLUSION

       Given the fact that it will be presumed that the trial court made only proper use of

all evidence admitted and no argument can be made that the sentences were

constitutionally excessive given this record, counsel cannot ask the Court to set aside the

appellant’s judgment or sentence.




essentially “unfettered.” See Ex parte Chavez, 213 S.W.3d 320, 323 (Tex.Crim.App.2006).
There simply is not enough of a record here concerning what would be considered
disproportionate to make that argument here. No case could be found where sentences of this
type were considered “cruel and unusual”. In fact, just the opposite was the case. Such an
argument is made especially difficult here where the appellant had just finished a 20 year
sentence for Sexual Abuse of a Child.
                                               15
                                        Respectfully submitted,




                                         /s/ Kyle B. Johnson
                                        Kyle B. Johnson
                                        SBN: 10763570
                                        917 Franklin, Suite 320
                                        Houston, Texas 77002
                                        Tel: (713) 223-4100
                                        Fax: (713) 224-2889

                                        ATTORNEY FOR APPELLANT



                                CERTIFICATE OF SERVICE

        I do hereby certify that a true and correct copy of the above and foregoing
document has been forwarded to all counsel of record on this 20th day of October, 2015,
to wit:

      Mr. Alan Curry
      Appellate Division
      Harris County District Attorney’s Office
      1201 Fannin
      Houston, Texas 77002

      Mr. John Skillern
      Inmate # 2001974
      Cotulla Unit
      610 FM 624
      Cotulla, Texas 78014


                                        /s/ Kyle B. Johnson
                                        Kyle B. Johnson


                          CERTIFICATE OF COMPLIANCE

                                           16
        I certify that this brief is in compliance with Texas R. App. Proc. Rule 9.4(i)(3) in
that it contains 2013 words.



                                           /s/ Kyle B. Johnson
                                           Kyle B. Johnson




                                              17
