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

_____________________________

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

ACCEPTED

01-15-00517-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/7/2015 6:25:07 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/7/2015 6:25:07 PM CHRISTOPHER A. PRINE Clerk
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 stepdaughter 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