Scott, Orian Lee, WR-83,185-08

Background

Orian Lee Scott, convicted of offenses including possession of child pornography and sexual performance of a child, received heavily stacked sentences (100 years total) and is subject to parole and lifetime sex-offender registration.
Scott filed applications for writs of habeas corpus challenging his convictions/sentences and asserting ineffective assistance of trial counsel at the punishment phase.
The trial court adopted the State’s proposed findings and denied habeas relief without a hearing; Scott filed objections to the trial court’s Findings of Fact and Conclusions of Law.
Scott asserts he remains "restrained" by collateral consequences (parole conditions, GPS monitoring, registration, travel restrictions) and so is entitled to habeas review despite not being in physical custody.
Principal claims: (1) trial counsel (John Nix) failed to timely object to inflammatory and factually unsupported prosecutorial arguments and to the trial judge’s comments; (2) counsel failed to present any mitigation witnesses or evidence at punishment; (3) counsel failed to object to the stacking of sentences; and (4) these errors cumulatively prejudiced Scott.
Scott contends the trial court erred by (a) not adopting his proposed findings and (b) finding counsel effective and denying relief.

Issues

Issue	Plaintiff's Argument (Scott)	Defendant's Argument (State / Trial Court)	Held
Habeas jurisdiction / "restraint" despite release from physical custody	Collateral consequences (parole, registration, GPS, travel limits) constitute ongoing restraint making habeas available	Trial court relied on TDCJ affidavit indicating sentences discharged and denied relief	Trial court denied habeas; Scott objects that collateral restraints suffice for jurisdiction
Trial court’s adoption of findings	Trial court improperly adopted State’s proposed findings and ignored Scott’s proposed findings	Trial court accepted State’s findings and denied relief without a hearing	Trial court approved Findings; Scott preserved objection
Ineffective assistance — failure to object to prosecutor’s inflammatory arguments and judge’s comments	Counsel unreasonably failed to object to prosecutors’ extraneous, prejudicial statements and judge’s in-court comment; failure forfeited chance for curative instruction and appeal	Trial court found counsel’s decisions reasonable (tactical choice) and not deficient	Trial court found counsel effective; Scott contends Strickland error and prejudice at punishment
Ineffective assistance — failure to present mitigation and to object to sentence stacking (and cumulative error)	Counsel unreasonably declined to call available character/mitigation witnesses and did not preserve objections to sentence stacking; errors cumulatively prejudiced sentencing	Trial court found non-errors and that any omissions did not create reversible cumulative error	Trial court denied relief; Scott argues reasonable probability of a lesser sentence if mitigation presented and objections preserved

Key Cases Cited

Dahesh v. State, 51 S.W.3d 300 (Tex. App. 2000) (conviction producing collateral legal consequences can support habeas relief even after release)
Ex parte Davis, 748 S.W.2d 555 (Tex. App. 1988) (confinement and restraint include parole and other restraints on liberty)
Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) (applicant need not be in physical custody for habeas jurisdiction when collateral restraints exist)
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (limits on prosecutorial jury argument; extreme arguments may be improper)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong standard for ineffective assistance of counsel)
Murray v. Carrier, 477 U.S. 478 (U.S. 1986) (isolated counsel errors may violate right to effective assistance if sufficiently prejudicial)
United States v. Cronic, 466 U.S. 648 (U.S. 1984) (certain deficiencies may be so severe they require relief without detailed prejudice showing)