- Court of Appeals of Texas, Ninth District
- HOLLIS HORTON, JUSTICE
A trial court convicted appellant Ben Charles Lambeth of continuous sexual abuse of a child and aggravated sexual assault against a child, with concurrent sentenced of 30 and 20 years. The trial court allowed the complaining witness to testify with a service dog in the witness box, out of the jury's sight, as a comfort item. Appellant raised two issues on appeal: That the trial court erred by allowing the service dog, and the trial court should have excluded testimony from appellant's former step-daughter that he repeatedly sexually assaulted her as a minor. On the servive dog issue, the court found that the trial court properly made findings of fact as required by Tex. Code Crim. Proc. art. 38.074 §3(b), which governs comfort items. Specifically, the trial court found the witness' testimony would be more reliable with the dog, and that the dog was brought into the court outside the jury's presence. The court overruled appellant's argument that the dog alerted the jury to its presences by making sounds during testimony, thereby prejudicing the jury. The court found that the record did not establish what sounds, if any, the dog made. The court also found that the jury would not have been prejudiced even if it had known about the dog. Appellant argued that the jury was prejudiced because it could have inferred the witness suffered a psychological injury based on her use of the dog, but the court found that direct evidence established the witness suffered a psychological injury from sexual abuse, and thus any inference regarding the dog was inconsequential. On the issue of the former step-daughter's testimony, appellant argued it had little probative value because the state had physical evidence of assaults against the witness. However, the court found that the state did not have physical evidence of continuous assault, and the step-daughter's testimony was admissible to show the allegations regarding the witness were consistent with appellant's character for repeatedly abusing underage girls. The court affirmed the trial court's judgment.
Ben Charles Lambeth v. The State of Texas, Beaumont Court of Appeals, Case No. 09-15-00297-CR, 6/21/17.
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