John Henry Skillern v. State

Opinion issued August 30, 2016

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-00517-CR

NO. 01-15-00518-CR

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JOHN HENRY SKILLERN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case Nos. 1436278 & 1436279

MEMORANDUM OPINION

Appellant, John Henry Skillern, pleaded guilty without an agreed

recommendation on punishment to the third-degree felony offense of possession of

child pornography and the second-degree felony offense of promotion of child

pornography.1 After appellant pleaded true to the allegations in an enhancement

paragraph, the trial court found the enhancement allegations true and assessed

appellant’s punishment at twenty years’ confinement and forty-five years’

confinement, respectively, to run concurrently. The trial court certified that the case

is not a plea-bargain case and that appellant has the right to appeal. Appellant timely

filed a notice of appeal.

Appellant’s appointed counsel on appeal has filed a motion to withdraw, along

with a brief stating that the record presents no reversible error and the appeal is

without merit and is frivolous. See Anders v. California, 386 U.S. 738, 87 S. Ct.

1396 (1967).

Counsel’s brief meets the Anders requirements by presenting a professional

evaluation of the record and supplying us with references to the record and legal

authority. See id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807,

812–13 (Tex. Crim. App. 1978). Counsel indicates that he has thoroughly reviewed

the record and is unable to advance any grounds of error that warrant reversal. See

Anders, 386 U.S. at 744, 87 S. Ct. at 1400; Mitchell v. State, 193 S.W.3d 153, 155

1

See TEX. PENAL CODE ANN. § 43.26(a) (West Supp. 2015) (possession of child

pornography); id. § 43.26(e) (promotion of child pornography). Appellant was

convicted of possession of child pornography in trial court cause number 1436278,

which resulted in appellate cause number 01-15-00517-CR, and promotion of child

pornography in trial court cause number 1436279, which resulted in appellate cause

number 01-15-00518-CR.

2

(Tex. App.—Houston [1st Dist.] 2006, no pet.). Counsel has also informed us that

he delivered a copy of the appellate record and the brief to appellant and informed

him of his right to file a response. See In re Schulman, 252 S.W.3d 403, 408 (Tex.

Crim. App. 2008); see also Kelly v. State, 436 S.W.3d 313, 319 (Tex. Crim. App.

2014) (holding that appellate counsel who files Anders brief must “take concrete

measures to initiate and facilitate the process of actuating his client’s right to review

the appellate record, if that is what his client wishes”).

In his pro se response, appellant argues that he did not receive his Miranda

warnings, that the arresting officers used excessive force, that the State’s witness at

the sentencing hearing committed perjury, that the trial court improperly admitted

evidence, that his sentences violated the Eighth Amendment, and that his trial

counsel rendered ineffective assistance.

We have independently reviewed the entire record in this appeal, and we

conclude that no reversible error exists in the record, there are no arguable grounds

for review, and the appeal is frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at

1400 (emphasizing that reviewing court—and not counsel—determines, after full

examination of proceedings, whether appeal is wholly frivolous); Garner v. State,

300 S.W.3d 763, 767 (Tex. Crim. App. 2009) (reviewing court must determine

whether arguable grounds for review exist); Bledsoe v. State, 178 S.W.3d 824, 826–

27 (Tex. Crim. App. 2005) (same); Mitchell, 193 S.W.3d at 155 (reviewing court

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determines whether arguable grounds exist by reviewing entire record). We note

that an appellant may challenge a holding that there are no arguable grounds for

appeal by filing a petition for discretionary review in the Court of Criminal Appeals.

See Bledsoe, 178 S.W.3d at 827 & n.6.

We affirm the judgment of the trial court and grant counsel’s motion to

withdraw.2 Attorney Kyle B. Johnson must immediately send appellant the required

notice and file a copy of the notice with the Clerk of this Court. See TEX. R. APP. P.

6.5(c).

PER CURIAM

Panel consists of Justices Jennings, Keyes, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

2

Appointed counsel still has a duty to inform appellant of the result of this appeal

and that he may, on his own, pursue discretionary review in the Court of Criminal

Appeals. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per

curiam).

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