                                                                                   WR-83,185-08
                                                                    COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                  Transmitted 11/20/2015 4:17:22 PM
                                                                    Accepted 11/23/2015 8:07:27 AM
                         CAUSE NO. 20462-HC-4, et al.                                ABEL ACOSTA
                                                                                             CLERK

EX PARTE                              §        IN THE DISTRICT COURT
                                                                  RECEIVED
                                                            COURT OF CRIMINAL APPEALS
                                                                  11/23/2015
      ORIAN LEE SCOTT                 §        LAMAR           ABEL ACOSTA, CLERK
                                                       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 of Fact and Conclusions of

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

                                          I.


      The Applicant previously filed Proposed Findings of Fact and Conclusions of

Law as to Application for Writ ofHabeas Corpus, hereinafter referred to as "Proposed

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

objections to Applicant's proposed findings of fact and conclusions of law 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
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 of the 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, sentences for 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.' The factthat the 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 of Criminal 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 relief upon 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 Brief in Support of Application
      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 of the
      proceedings due to the unobjected to argument of the 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 of the 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 if this 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 of not 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 consider that "[t]he sentencing stage ofany case,
      regardless of the potential punishment, is 'the time at which for many
      defendants the most important services of the entire proceeding can be
      performed." Vela v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983). In light
      of the 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 character witnesses
      who could have provided a far different perspective on the character,
      worth, background, and positive attributes 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 of sentences fori 00 years in the
      Texas Department of Criminal Justice on the basis of cruel and unusual
      punishment because, as the State argues, an objection would have been
      futile and was in the discretion of the trial court. Quite to the contrary,
      defense counsel owed their client the fidelity of protecting him from
      egregious error being committed. Even if trial counsel was of the 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 behalf of 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 "non-
      errors 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 error refers
      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 100 year 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 of counsel 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 of showing prejudice, it is clearly less than a preponderance of
     evidence. As the Fifth Circuit has held,

           [B]oth the performance and prejudice components of the
           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 of favorable 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
