Ex parte Scott

541 S.W.3d 104

EX PARTE Orian Lee SCOTT, Applicant

Nos. WR-83,185-07

WR-83,185-08

WR-83,185-09

WR-83,185-10

WR-83,185-11

WR-83,185-12.

Court of Criminal Appeals of Texas.

Delivered: October 18, 2017

Allison Secrest, Allison Secrest., P.C., Houston, for Applicant.

Denton Walker, Assistant County Attorney, Paris, Stacey Soule, State's Attorney, Austin, for the State.

OPINION

Hervey, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Alcala, Richardson, Yeary, Newell, and Walker, JJ., joined.

Orian Lee Scott was convicted of nine offenses in three separate indictments and was sentenced to a total of 100 years' confinement.¹ We filed and set these writ applications to decide whether his counsel was ineffective at the punishment stage of trial. We will deny relief.

I. BACKGROUND

A. Facts

In August 2003, Applicant, Orian Lee Scott, moved to Maxey, outside of Paris, Texas, and he started asking around town for a few boys to help him move and unpack boxes. A mother of twin teenage boys heard about Scott's inquiries and got in touch with him.² He told her that he was looking to hire some teenage kids to help out around his house. He also told her that he would pay her boys ten dollars an hour each. The mother thought that was an exceptionally high wage, and she agreed to let her kids work for Scott the rest of the summer.³ The boys worked Monday through Friday. Once school began, however, the job was supposed to end, but Scott said that he still needed help around the house maintaining his yard, painting his barn, and bathing his dogs. The boys' mother agreed to let her kids work on Saturdays during the school year. They worked about six hours each Saturday. Around Thanksgiving, Scott asked them whether they had a friend that could also help around the house. They said that they did, and their friend started working for Scott too.

When the kids first started bathing Scott's dogs in the summer, they would do it outside and usually did not wear shirts. On one occasion, Scott videotaped them washing his dogs, allegedly because he needed to "test" an old camera. As the days got colder, however, Scott told the boys to bathe the dogs in his guest bathroom. He even suggested to one of them that the dogs would not mind if the kids bathed them in the nude. The boy refused. Later, Scott provided each of them with swim trunks to use so that their clothes would not get dirty when they washed the dogs.⁴

After awhile, Scott encouraged the kids to take a shower after bathing the dogs and doing yard work. The shower in Scott's guest bathroom had no curtain, and Scott never installed one, even though the boys took showers there almost every week for over six months.⁵ Scott told them that, if they cleaned up (i.e., showered at his house), he would treat them to dinner and a movie.⁶ One of the twins testified that he and his brother thought that the bathroom was a little creepy and that they even looked for a camera at one point but never found one. Unfortunately, there was a camera. The clock radio in the bathroom had a hidden camera in it, which was pointed directly at the bathtub. It was later discovered that the hidden camera was hooked up to a VCR system and that Scott had filmed almost every shower the boys had taken. The videos that Scott recorded showed that the boys would often masturbate while they showered. They also showed that Scott adjusted the hidden camera numerous times to get a better angle, and one of the videos even showed Scott in the bathroom simulating masturbation to check the angle of the camera. Scott also installed a light in the bathroom that was above the shower so that he could see better. After he was arrested, police discovered a newly drilled hole in the bathroom opposite the hidden camera that would have given a camera operator a full-frontal view of the children while showering and masturbating.

Scott would occasionally allow the boys to use his computer to play games, and one day while on the computer, the twins found pornographic images of young boys. They told their mother, who later called the police. The police searched Scott's home and seized recordings of the kids masturbating in the shower, thousands of digital images of child pornography on Scott's computer, thousands of images of child pornography Scott kept on physical media at his house (e.g., DVDs, CDs, over 400 floppy disks, etc.), and photographs in a shoe box of underage teenage boys in swimsuits at what appeared to be a pool party. It looked like the photographs were taken through a window or sliding glass door. Police also noticed that Scott was almost finished building a swimming pool at his house.

B. Procedural Posture

In three separate indictments, Scott was charged with three counts of inducing a sexual performance by a child, three counts of producing or promoting a sexual performance by a child, and three counts of possession of child pornography. Each indictment referred to a different victim. Scott pled guilty to the child-pornography charges but went to trial on the other counts. The jury found him guilty of all six of the remaining charges. For each of the inducing-a-sexual-performance convictions, the jury sentenced Scott to twenty years' confinement (for a total of sixty years); for each of the producing-or-promoting convictions, the jury sentenced Scott to ten years' imprisonment (for a total of thirty years); and for each of the possession-of-child-pornography convictions, the jury sentenced Scott to ten years' confinement (for a total of thirty years). The trial judge ordered the inducing-a-sexual-performance convictions and the producing-or-promoting convictions to run consecutively and for Scott's child-pornography convictions to run concurrent to his stacked sentences. In all, Scott was sentenced to 100 years' confinement.

On appeal, Scott raised various arguments, including that the evidence was legally insufficient to support his convictions for inducing a sexual performance by a child. Scott v. State , 173 S.W.3d 856, 869 (Tex. App.—Texarkana 2005). The court of appeals agreed, and it rendered acquittals on those counts. Id. On discretionary review, this Court left in place the court of appeals' judgments entering acquittals. Scott v. State , 235 S.W.3d 255, 261 (Tex. Crim. App. 2007). Scott later filed a post-conviction writ application alleging ineffective assistance of counsel. We remanded the application to the habeas court because the record was insufficiently developed. In particular, we instructed the habeas judge to respond to Scott's ineffective-assistance claim and to determine if any of his sentences had been discharged. Ex parte Scott , Nos. WR-83,185-07, -08, -09, -10, -11, & -12, 2015 WL 4594085 (Tex. Crim. App. July 29, 2015) (not designated for publication) (per curiam order). Although the judge noted which sentences Scott had discharged, he did not make a recommendation regarding whether Scott should get relief on the basis of ineffective assistance of counsel at the punishment phase. Ex parte Scott , Nos. WR-83,185-07, -08, -09, -10, -11, & -12, 2015 WL 8954906 (Tex. Crim. App. Dec. 16, 2015) (not designated for publication) (per curiam order). We remanded the application again, and the habeas court entered findings of fact and conclusions of law recommending that we deny relief on the ineffective-assistance issue. We filed and set Scott's application to determine whether his counsel was ineffective at the punishment phase. Id.

II. HABEAS CORPUS

A. Claims

Scott argues that his counsel performed deficiently in a number of respects:

• by failing to produce any mitigating evidence at the punishment stage to support a lesser sentence, namely eliciting good character evidence from family members and calling Dr. JoAnn Ondrovick to testify that Scott would be a good candidate for her rehabilitation program;

• by failing to object to Scott being sentenced to 100 years in prison as a violation of the Eighth Amendment prohibition on cruel and unusual punishment;

• by failing to object to the stacking of Scott's sentences;

• by making a deficient argument during closing;

• by not objecting to various instances of improper argument by the State during its closing; and

• by not objecting to a comment on the weight of the evidence made by the trial judge.

B. Findings and Conclusions

The habeas court did not hold a hearing, but numerous affidavits were submitted, including two from Quannah Dixon (Scott's sister), two from Michael Scott (one of Scott's brothers), two from Orian Scott (Applicant), and two from trial counsel. The habeas court found trial counsel's affidavits credible, but not those of Dixon, Michael, or Applicant, and it entered a number of relevant findings and conclusions:

• [Defense counsel]'s failure to call witnesses to testify on behalf of [Scott] ... was reasonable in that family witnesses refused to attend trial and the expert witness [Ondrovick] consulted by [defense counsel] was hostile to [Scott] and her testimony would have been harmful to [Scott].

• [Scott] was not prejudiced[.] [T]he very type of evidence [Scott] would solicit from [his brother and sister]—that [he] was a successful, career educator, had serious medical problems and a family that loved him—was presented to the jury by [defense counsel] during his closing argument without objection from the prosecutor.

• [Defense counsel]'s decision not to call Ondrovick was reasonable and appropriate in that she would have testified that [Scott] was not a suitable candidate for her treatment program and that she was angry about having to come to court during the holiday season.

• [Scott]'s sentence was not violative of the 8th Amendment prohibition against cruel and unusual punishment in that each sentence was within the statutory range of punishment for the offenses of conviction as provided by the Texas Penal Code.

• [Defense counsel]'s failure to object to the trial court's sua sponte stacking of sentences would have been futile

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