CAUSE NO. 20462-HC-4, et al.

EX PARTE § IN THE DISTRICT COURT

ORIAN LEE SCOTT § LAMAR COUNTY, TEXAS

§ 6th JUDICIAL DISTRICT

APPLICANT'S OBJECTIONS TO TRIAL COURT'S

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Comes now the Applicant, Orian Lee Scott, by and through his attorney of

record, Allison Secrest, and pursuant to T.R.A.P 73.4(b)(2), files the following

objections to the trial court's Order Approving Findings ofFact and Conclusions of

Law, hereafter referred to as "Findings," which were filed on November 3, 2015.

I.

The Applicant previously filed Proposed Findings ofFact and Conclusions of

Law as to Application for Writ ofHabeas Corpus, hereinafterreferred to as "Proposed

Findings" or "Proposed Conclusions." Reference will be made throughout these

objections to Applicant's proposed findings offact and conclusions oflaw which, it

is respectfully submitted, are fully supported by the record and more accurately

describe what happened at trial and ultimately result in the conclusion that the

granting of relief in this matter should have been recommended by the trial court.

The trial court failed to consider Applicant's Proposed Findings of Facts and

WR-83,185-09

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 11/20/2015 4:32:28 PM

Accepted 11/23/2015 8:07:32 AM

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 11/23/2015 ABEL ACOSTA, CLERK 
Conclusions of Law in deciding that Applicant's writs of habeas corpus should be

denied without the need for a hearing. See Findings at page 18 ofthe Supplemental

Clerk's Record. Objection is lodged to the trial court not considering them, for

summarily agreeing to the State's "Proposed Findings", hereafter referred to as

"State's Proposed Findings" and for not adopting all of the proposed findings

submitted by the Applicant to the trial court for its consideration.

II.

Trial Court's Findings:

2 -4. Objection is lodged to the trial court's findings that the sentences had

discharged for the possession ofchild pornography,sentencesfor sexual

performance of a child, and that "no other" sentences were discharged

as ofNovember 24,2014, according to the September 8,2015 affidavit

of Charley Valdez.' Thefactthatthe Applicant is no longerin prisonis

not relevant because he is still being confined and restrained unlawfully.

The Applicant is on parole and must register for the rest of his life as a

registered sex offender. He is not allowed to leave the State, nor can he

leave his assisted living home for a single night. The Applicant must

comply with the rules of parole, including having to wear a GPS

monitor. To be entitled to habeas corpus relief, an applicant must

establish that he was either "confined" or "restrained" unlawfully at the

time that the application was filed. See Dahesh v. State, 51 S.W.3d 300,

302 (Tex.App.-Houston [14th Dist] 2000, pet. refd). "The terms

"confinement" and "restraint" encompass incarceration, release on bail

or bond, release on community supervision or parole, or any other

restraint on personal liberty." Ex parte Davis, 748 S.W.2d 555, 557

(Tex.App.-Houston [1st Dist] 1988, pet. refd).

Charley Valdez is employed as the Program Supervisor for the Classification and Records Department of

the Texas Department ofCriminal Justice Institutions Division.
It has been consistently held that a conviction producing collateral legal

consequences may entitle one to relief even though he has been

discharged from confinement on that conviction. To condition his

entitlement to reliefupon another conviction and confinement and then

invocation of Article 11.07 is to deny constitutional protection against

"restraint in his liberty" short of confinement. That an applicant is not

in the actual physical custody of the government at the time of filing

does not preclude his application nor deprive the trial court of

jurisdiction to consider it.12 Ex parte Harrington, 310 S.W.3d 452

(Tex.Crim. App. 2010). It is ofno effect that the Applicant is no longer

confined to the custody of the Texas Department of Criminal Justice

because he is still being confined unlawfully by numerous collateral

consequences stemming from these convictions.

5(a). Objection is lodged to the trial court's finding that John Nix rendered

effective assistance ofcounsel to the applicant. As has been previously

argued in the Legal Memorandum and Briefin Support ofApplication

for Writ ofHabeas Corpus, and as will be further addressed herein, there

is no viable strategy in failing to lodge timely, specific objections to

egregiously improper jury arguments made by the prosecutor. Despite

knowing that the Applicant did not have any criminal history

whatsoever, the prosecutor argued that he had abused other boys and

just had not gotten caught, arguing "[i]s a person like Applicant going

to move from town to town to town to town after he has been convicted?

No. Once he's caught or once suspected, he moves to another town."

(RR 3, 27). (Emphasis added).

Mr. Nix failed to object to this outrageously false and misleading

statement. He also failed to object to the prosecutors argument that

Applicant abused children when he was working as a school teacher,

"[h] has moved from state to state to state to state to state. He also

worked as a teacher. You heard him tell the boys that. That ought to

scare the daylights out ofyou. How many victims, how long ofa trail of

victims, has he left?" (RR 4, 21).

In his affidavit, John Nix stated that he "may not have objected because
it might have drawn the jury's particular attention to the argument." But

this does not countenance a strategy of not preserving error on appeal

especially in a very serious case like this one. Without lodging a timely,

specific objection and obtaining a ruling on the same, not only was error

not preserved but no curative instruction was provided to the jury by the

trial court. The fact that the evidence at the guilt/innocence phase was

strong does not address harm/prejudice at the punishment phase ofthe

proceedings due to the unobjected to argument ofthe prosecutor. It is

common knowledge that lack of remorse or empathy on the part of a

defendant aggravates a sentence. Especially on the heels ofnot putting

on any defense in mitigation of punishment, the comments served to

prejudice the applicant at the punishment phase of the trial. The

arguments were "extreme" and manifestly improper. Wesbrookv. State,

29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Pointing out that

Applicant did not call any witness to testify on his behalfthe prosecutor

argued:

[Q]uite frankly, what's most telling of all about his

character is who has come here to testify and tell you what

a good person he is? If he was really a saint, where are

those people? Where is a former principle [sic], where is

a former neighbor, where is anybody to come and tell you

something about him? They are not here. That speaks

volumes as to this man's character. That speaks volumes

to the trail of victims that he's left behind, and you know

that to be true.

(RR4,21).

5(b). During their closing argument in the punishment phase, the prosecutor

went outside ofthe record and argued that the Applicant was a sexual

predator who would have sexually assaulted the complainants,

" he was a pervert and has been a pervert all of his life. That's what he

is ... now think about what would have happened ifthis had continued

on. There is no question that the boys would have been sexually

assaulted." (RR 4,33). Judge Lovett commented in front ofthe jury that

the prosecutor's arguments were "a fair assumption based upon the
record." (RR 4, 34). In his affidavit, John Nix stated that was not

ineffective for failing to object to the trial court's comments about Mr.

Scott because "that comment was attributed to Judge Lovett, who died

on September 29, 2011." Without lodging a timely, specific objection

and obtaining a ruling on the same, not only was error not preserved but

no curative instruction was provided to the jury by the trial court.

Objection is lodged to the trial court finding that John Nix's failure to

object to the trial judge's unfair comments "that the prosecutor's

arguments were a fair assumption based on evidence" was reasonable.

5(c). Objection is lodged to the trial court's finding that it was reasonable for

John Nix to fail to put on a mitigation case at punishment especially

based on the facts herein. There was no defense strategy ofnot calling

any family members who were willing and available who could have

testified that throughout the applicant's life he had been a law abiding,

wonderful brother, was caring, loving, generous, hard working and had

achieved great success as a school teacher and mentor in all of the

communities where he served.

Arguing that he anticipated that the State would call the complainants

to testify and that their testimony would be painful for the jury to hear

and he felt that his client's behavior was "repulsive" does not constitute

a reasonable trial strategy for not putting on readily available mitigating

evidence. The jury was deprived ofconsidering the testimony from able

and sympathetic witnesses as to positive character attributes that were

highly relevant to a fair determination of a sentence in this case. The

jury had already been thoroughly saturated with the nature ofthe crime.

What they knew very little about was the good character and worth of

the applicant.

The trial court failed to considerthat "[t]he sentencing stage ofany case,

regardless ofthe potential punishment, is 'the time at which for many

defendants the most important services ofthe entire proceeding can be

performed." Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983). In light

ofthe facts in this case that the underage boys were improperly filmed

while taking a shower and that the video tapes ofthe boys masturbating

in the shower were kept by Mr. Scott, the jury desperately needed to
hear readily available testimony from a host ofgood characterwitnesses

who could have provided a far different perspective on the character,

worth, background, and positiveattributes ofthis defendant in assessing

a fair and just sentence. There simply was no down side in presenting

the kind of evidence which is reflected in Appendice C- E. (See

Proposed Conclusion, No. 50). The failure to put on a case in

mitigation; on behalfofthe applicant was not reasonably likely to render

reasonably effective assistance; moreover, there is a reasonable

probability that a less severe sentence would have been assessed in this

case in the absence of defense counsels' deficient performance.

5(d). Objection is lodged to the trial court's finding that it was reasonable for

the defense not to object to the stacking ofsentences fori 00 years in the

Texas Department ofCriminal Justice on the basis ofcruel and unusual

punishment because, as the State argues, an objection would have been

futile and was in the discretion ofthe trial court. Quite to the contrary,

defense counsel owed their client the fidelity of protecting him from

egregious error being committed. Even iftrial counsel was ofthe view

that an objection would have been futile, it was strictly incumbent upon

him to attempt to preserve the matter for appeal. Frangias v. State, 392

S.W.2d 642, 656 (Tex. Crim. App. 2013). This omission cannot be

based on a strategy or tactical decision. Courts cannot excuse

"unreasonable decisions parading under the umbrella of strategy, or

fabricate tactical decisions on behalfof counsel when it appears on the

face ofthe record that counsel made no strategic decision at all." Moore

v. Johnson, 194 F.3d 586 (5th Cir. 1999).

5(e). Objection is lodged to the trial court's finding that there were "nonerrors on Nix's part (which) could not cause error in their cumulative

effect." While rare, the "cumulative effect of several instances may

require reversal, even though no single one considered alone would

warrant such a result. United States v. Canales, 744 F2d. 413, 430 (5th

Cir. 1984). See Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir.1992)

(en banc) (holding that claim of cumulative error does not entitle state

prisoner to habeas corpus relieve unless claim ofcumulative errorrefers

to errors, rather than mere unfavorable rulings or events, and the errors

more likely than not caused a suspect verdict), cert, denied, 508 U.S.
960, 11 S.Ct. 2928, 124 L.Ed.2d 679 (1993). Applicant was denied the

effective assistance ofcounsel by all ofthe instances where his attorney

failed to object to the improper and egregious final arguments made by

the prosecutors, for failing to object to the judge improperly

commenting on the evidence in front of the jury, for his attorney's

failure to call a single witness or put forth any favorable evidence in

mitigation of a less severe punishment during the punishment phase of

the trial, and for failing to object to the 100year sentence that Applicant

received. All of these instances of ineffective assistance of counsel

cumulatively infected the trial with unfairness having a prejudicial

impact on Applicant and denied him the right to a fair trial.

6. Objection is lodged to the trial court's finding that at all times material

to the State's prosecution that John Nix rendered effective assistance of

counsel. InStricklandv. Washington, 466 U.S. 668,104 S. Ct. 2052,80

L. Ed. 2d 674 (1984), the Supreme Court held that in order to establish

ineffective assistance ofcounsel, a convicted defendant must show: (1)

that his trial counsel's performance was deficient, in that counsel made

such serious errors he was not functioning effectively as counsel, and (2)

that the deficient performance prejudiced the defense to such a degree

that the defendant was deprived of a fair trial, "a trial whose result is

reliable." Id. 466 U.S. at 687, 104 S. Ct. at 2064. Although the entire

representation must be reviewed, "the right to effective assistance of

counsel... may in a particular case be violated by even an isolated error

of counsel if that error is sufficiently egregious and prejudicial."

Murray v. Carrier, All U.S. 478,106 S. Ct. 2639,2649-2650,91 L. Ed.

2d 397 (1986), citing UnitedStates v. Cronic, 466 U.S. 648, 657, n.20,

104 S. Ct. 2039, 2046, n.20, 80 L. Ed. 2d 657 (1984).

Mr. Nix should have objected to each of the numerous false and

meritless arguments that the State made during their final argument

which were obviously calculated to incite and anger the jury before they

retired to consider Applicant's sentence. Even one instance ofdeficient

performance by trial counsel that results in prejudice to his client can

amount to ineffective assistance ofcounsel but here Mr. Nix committed

several errors of omissions by failing to object.
Why Mr. Nix failed to object to the State's appalling argument that

Applicant had moved around the country after abusing children in order

to avoid police detection is beyond comprehension. He did nothing to

combat the State's supposition that not only was Applicant a bad man

for having done the acts that the jury had just found him guilty of but

that he also committed countless extraneous acts that were never even

alleged, much less proven, beyond a reasonable doubt. By failing to

object and ask for an instruction to disregard and then moving for a

mistrial, in these circumstances, cannot be mistaken as a "strategy"

because it afforded no advantage to Applicant (refusing to indulge

presumption ofreasonableness as to "tactical" decision that afforded no

advantage to the defense). Strickland, 104 S.Ct. at 2066. Because of

this, there is a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been

different." Id. at 2068.

7. Objection is lodged to the trial court's finding that the performance of

Scott's trial counsel was not deficient and should have found that this

deficient performance caused prejudice to Mr. Scott. With respect to the

burden ofshowing prejudice, it is clearly less than a preponderance of

evidence. As the Fifth Circuit has held,

[B]oth the performance and prejudice components ofthe

ineffectiveness inquiry are mixed questions of law and

fact." Strickland, 466 U.S. at 698, 104 S. Ct. at 2070. We

ask if there is a "reasonable probability that, but for

counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694, 104 S.

Ct. at 2068. Strickland explained that "[t]he result of a

proceeding can be rendered unreliable, and hence the

proceeding itself unfair, even if the errors of counsel

cannot be shown by a preponderance of the evidence to

have determined the outcome." Id.

Belyeu v. Scott, 67 F.3d 535,540 (5th Cir. 1995) (emphasis added). The

record established that there was a reasonable probability that the

petitioner's sentence would have been significantly less severe had
defense counsel presented the favorable mitigating evidence to the jury

Applicant had never been in any legal trouble and was eligible for

probation but received the maximum possible punishment on each and

every count. The facts of this case were bad but tempered by

Applicant's outstanding work history and commitment to serving his

community as a well-respected teacher for decades, coupled with the

reality that Applicant had no criminal history and had never so much as

been accused of anything illegal prior to these charges. The jury

decided his fate in a vacuum. There was a wealth offavorable character

evidence that could have been offered by defense counsel from the un

called character witnesses and the jury did not get to consider any ofthis

mitigating evidence when they ultimately decided to sentence Applicant

to the maximum sentence on each and every charge. Unlike in

Strickland, Applicant did not even touch the boys, much less commit

murder. What Applicant did was not excusable but there can be no doubt

that he was prejudiced by trial counsel's deficient performance when the

sentence that the jury recommended amounted to a life sentence and was

one that did not fit the crimes that were actually committed.

8. Objection is lodged to the trial court's finding that the applicant's writs

of habeas corpus should be denied.

Respectfully submitted,

(UAj.A&KS NUULAJt*Jo

ALLISON SECREST

ALLISON SECREST., P.C.

State Bar No. 24054622

808 Travis Street, 24lh Floor

Houston, Texas 77002

(713)222-1212

(713) 650-1602 (FAX)

Email: allison@allisonsecrestlaw.com
Attorney for Applicant,

ORIAN LEE SCOTT

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Applicant's

Objections to Trial Court's Findings of Fact and Conclusions of Law was mailed by

certified mail to Mr. Gary Young, District Attorney, 119 North Main Street, Paris,

Texas, 75460 on this 20th day November, 2015.

CkU i AA

ALLISON SECREST