Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Orian Lee Scott hired three teenage boys to do various tasks around his home, which included yard work, painting and bathing his dogs. He paid the boys $10 an hour for their work and also treated them to dinners and movies if they would get “cleaned up” before going out. Several times during the months that they worked for Scott, the boys complied with his requests to take showers in the curtainless shower in his guest bathroom, which Scott had equipped with a hidden video camera. The boys often masturbated while showering and were unaware that Scott videotaped them. Scott kept video recordings of the boys in the shower. Authorities charged Scott with nine offenses in three indictments � one indictment for each of the boys. Each indictment charged three separate, identical offenses: “Count One: inducing a sexual performance by a child by actual lewd exhibition of the genitals or anus, or masturbation. “Count Tw producing or promoting a sexual performance by a child. “Count Three: possession of child pornography.” Before trial, the state timely filed a notice of its intent to consolidate all nine of the counts. Scott objected and moved to sever the three Count Three allegations from the other two counts pursuant to Texas Penal Code �3.04. The trial judge denied Scott’s motion and consolidated all of the counts. Scott pleaded guilty to Count Three in all three indictments. A jury convicted him of the additional charges. For each of the Count One convictions, the jury sentenced him to 20 years (for a total of 60 years); for each of the Count Two convictions, Scott received a 10-year sentence (for a total of 30 years); and for each of the Count Three convictions, he received 10 years. The trial judge ordered the sentences for each Count One conviction to run consecutively with the sentences for each count two conviction. Scott appealed the convictions arguing, among other things, that legally insufficient evidence proved the induce element of the offenses charged in each count one; and the consolidation of all the offenses charged was improper and affected Scott’s substantial rights. The 6th Court of Appeals reversed and rendered judgments of acquittal on Scott’s convictions on each Count One, finding the evidence legally insufficient “to prove Scott induced any of the boys to engage in sexual conduct.” The 6th Court also reversed and remanded for a new trial on his convictions on each Count Two and reversed and remanded for a new punishment trial on his convictions on each Count Three, because “the trial court’s refusal to sever the trial of Counts Two from Counts Three, to which Scott had pled ‘guilty,’ was harmful error � affecting the conviction on each Count Two and affecting the punishment on each Count Three.” The CCA ultimately granted one of the state’s grounds for review: “Did the Court of Appeals utilize an improper standard of review in connection with its harmless-error analysis?” HOLDING:The CCA let stand the 6th Court’s judgments reversing each Count One. The CCA then reversed the judgments of the 6th Court pertaining to each Count Two and Count Three offense and affirmed the trial court’s judgments as to those counts. With regard to the state’s second ground, the CCA held that the trial judge’s failure to sever the offenses did not affect Scott’s substantial rights and was therefore harmless. The 6th Court erred in reversing the convictions and remanding for new trials on each Count Two and in remanding for new punishment hearings on each Count Three. A trial judge’s failure to grant a mandatory severance under �3.04 is subject to a harm analysis, and the error is harmless if it did not adversely affect the defendant’s substantial rights. Section 3.04 provides: “(a) Whenever two or more offenses have been consolidated or joined for trial under Section 3.02, the defendant shall have a right to a severance of the offenses.” So on Scott’s timely request, the trial judge was required to sever the Counts Three from the other counts. The state argued that the 6th Court erred in holding that Scott’s substantial rights were harmed by the trial judge’s refusal to sever the counts. The circumstances surrounding Scott’s guilty plea to each count alleging possession of child pornography would be admissible in a trial on the other counts, the state argued. The only difference that a severance of the possession of child pornography counts, the CCA stated, would have made is that the jury would not have heard Scott’s actual guilty plea to the possession offense. Common sense compels the conclusion, the CCA stated, that the jury would have known that Scott possessed the videotapes at issue in each Count Three, even if the matter was severed Thus, under the specific facts of this case where there was “so much overlap” in the evidence used to support the charged offenses, the CCA did not find that Scott’s substantial rights were affected by the trial judge’s failure to sever the count three allegations. OPINION:Keasler, J., delivered the opinion for a unanimous court.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.