Orian Lee Scott v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00043-CR

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ORIAN LEE SCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 20464

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Orian Lee Scott appeals from his convictions on 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. The trial court stacked the jury's recommended sentences for each conviction, resulting in a total prison term of 100 years. The cases have been appealed separately, but have been briefed together.

            Because the briefs and arguments raised therein are identical in all three appeals, for the reasons stated in Scott v. State, No. 06-05-00041-CR, we likewise resolve the issues in this appeal. Because the State produced legally insufficient evidence that Scott "induced" the sexual conduct as contemplated by Tex. Pen. Code Ann. § 43.25(b) (Vernon Supp. 2004–2005), we reverse and render a judgment of acquittal with respect to the convictions for inducing a sexual performance of a child. Since we have determined there was harm associated with the trial court's error in failing to sever Counts III to which Scott pled guilty and which were subject to mandatory rather than discretionary severance, we reverse and remand the matter for a new trial on Counts II concerning production or promotion of a sexual performance and a new punishment hearing on Counts III to which Scott pled "guilty." See Tex. Code Crim. Proc. Ann. art. 26.14 (Vernon 1989), art. 44.29(b) (Vernon Supp. 2004–2005); Wheat v. State, 160 S.W.3d 631, 634 (Tex. App.—Waco 2005, no pet.).

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          July 13, 2005

Date Decided:             September 8, 2005

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