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
Lawas to Applicationfor WritofHabeas Corpus, hereinafterreferredto 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 ofreliefin 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 CLERKConclusions ofLaw in deciding that Applicant's writs ofhabeas 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 dischargedforthepossessionofchildpornography, sentences for sexual 

### performance ofa child, and that "no other" sentences were discharged 

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

### ofCharleyValdez.' ThefactthattheApplicantis no longerin prisonis not relevantbecausehe is still beingconfinedand restrainedunlawfully. The Applicant is on parole and must register for the rest ofhis 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 thatthe 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 aconvictionproducing collateral legal consequences may entitle one to relief even though he has been discharged from confinement on that conviction. To condition his entitlementto reliefupon another conviction and confinement and then invocation ofArticle 11.07 is to deny constitutional protection against "restraint in his liberty" short ofconfinement. That an applicant is not in the actual physical custody ofthe government at the time offiling 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 effectthatthe Applicant is no longer confined to the custody ofthe Texas Department ofCriminal 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 beenpreviously argued in the Legal Memorandum and Briefin Support ofApplication for WritofHabeas Corpus, and as will be furtheraddressedherein, there 

### is no viable strategy in failing to lodge timely, specific objections to egregiously improperjury 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 ofatrail of victims, has he left?" (RR 4, 21).


### In his affidavit, John Nix stated that he "may not have objectedbecause

### it might have drawnthejury's particularattentionto the argument." But this does not countenance a strategy ofnot 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 notpreserved butno curative instructionwas providedto thejuryby 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 ofremorse or empathy on the part ofa defendantaggravates a sentence. Especially on the heels ofnotputting
on any defense in mitigation ofpunishment, 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 Applicantdid 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? Ifhe 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 ofvictims 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 ofhis 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." (RR4,33). Judge Lovettcommented in front ofthejurythat 

### the prosecutor's arguments were "a fair assumption based upon therecord." (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 aruling on the same, not only was errornotpreservedbut 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 ofthe 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 thathis client's behaviorwas "repulsive" does not constitute areasonable trial strategy for not putting on readily available mitigating 

### evidence. Thejurywas deprived ofconsideringthe testimony from able and sympathetic witnesses as to positive character attributes that were highly relevant to a fair determination ofa sentence in this case. The jury had already beenthoroughly saturated with the nature ofthe crime. What they knew very little about was the good character and worth of the applicant.
The trial courtfailed 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 thatthe video tapes ofthe boys masturbating in the shower were kept by Mr. Scott, the jury desperately needed to

### hear readily availabletestimony from a host ofgoodcharacterwitnesses who could have provided a far different perspective on the character, 

### worth, background, and positiveattributesof this defendant in assessing a fair andjust 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; onbehalfof the applicant was notreasonably 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 ofdefense counsels' deficient performance. 5(d). Objection is lodgedto the trial court's finding that it was reasonable for 

### the defense not to objectto the stacking ofsentences fori 00 years in the Texas Department ofCriminal Justice on the basis ofcruel and unusual 

### punishmentbecause, 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 ofprotecting him from egregious error being committed. Even iftrial counsel was ofthe view 

### that an objection would have been futile, it was strictly incumbentupon him to attemptto 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 behalfofcounsel when it appears on the face ofthe record thatcounsel 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. UnitedStates 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 ofcumulative error does not entitle state prisonerto habeas corpus relieve unless claimofcumulative 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 allofthe 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 ofthe jury, for his attorney's failure to call a single witness or put forth any favorable evidence in 

### mitigation ofa less severe punishment during the punishmentphase of the trial, and for failing to object to the 100year sentence that Applicant received. All ofthese instances ofineffective assistance ofcounsel 

### 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 thatJohn 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 orderto establish 

### ineffective assistance ofcounsel, a convicted defendantmust show: (1) that his trial counsel's performance was deficient, in that counsel made 

### such seriouserrors he was notfunctioning effectivelyas counsel, and (2) 

### that the deficient performance prejudiced the defense to such a degree that the defendant was deprived ofa 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 aparticularcase be violatedby 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 calculatedto incite and angerthejurybefore they retiredto considerApplicant'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 ofomissions by failing to object.Why Mr. Nix failed to object to the State's appalling argument that Applicanthad moved aroundthe country afterabusing childrenin 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 ofbut 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" decisionthataffordedno 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 ofthe 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 

### deficientperformancecaused prejudice to Mr. Scott. Withrespectto 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 ofthe evidence to have determined the outcome." Id. 

### Belyeuv. 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 thejury did not get to considerany 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 deficientperformance 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 ofhabeas 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.comAttorney 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