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Lambeth v. State

Court of Appeals of Texas, Ninth District, Beaumont

June 21, 2017

BEN CHARLES LAMBETH, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on April 24, 2017

         On Appeal from the 410th District Court Montgomery County, Texas Trial Cause No. 13-11-12055 CR (Count 1 and Count 2)

          Before McKeithen, C.J., Horton and Johnson, JJ.

          OPINION

          HOLLIS HORTON, Justice

         Ben Charles Lambeth appeals a judgment rendered following a jury trial in which he was found guilty of having engaged in the continuous sexual abuse of a child and of having committed an aggravated sexual assault against a child. See Tex. Penal Code Ann. §§ 21.02(b), 22.021(a)(1)(B)(v), (2)(B) (West Supp. 2016). The offenses were tried before the same jury. Lambeth received a thirty-year sentence for his conviction for continuous sexual abuse and a twenty-year sentence for his conviction for aggravated sexual assault. In addition to his prison sentence in the aggravated sexual assault case, the jury also found that Lambeth should pay a $7, 500 fine. After the trial court pronounced Lambeth's sentences, it ordered the sentences to be served concurrently.

         Lambeth filed identical briefs in his appeals, and the briefs present two issues. In issue one, Lambeth argues the trial court erred by allowing a service dog[1] to sit in the witness box at the complaining witness's feet while the complaining witness testified during the guilt-innocence phase of his trial. In issue two, Lambeth contends the trial court should have excluded the testimony of his former step-daughter, who testified during his trial that Lambeth repeatedly sexually assaulted her while she was a minor and living in Lambeth's home. We overrule Lambeth's issues, and we affirm the judgments in Cause Number 13-11-12055 CR (Count I-continuous sexual abuse) and in Cause Number 13-11-12055 CR (Count II-aggravated sexual assault).

         Background

         During Lambeth's trial, the State asked the trial court to allow the complaining witness, a minor, to use a service dog, positioned at her feet, in the witness box, and out of the jury's sight while she testified during the guilt-innocence phase of the trial. The State also advised the trial court that it intended to have a police officer, who worked with the service dog, place the dog in the witness box with the witness before the jury entered the courtroom. The State explained that the service dog would be removed from the witness box after the jury left the courtroom.

         At the defendant's attorney's request, the trial court conducted a hearing regarding the State's proposal to allow the complaining witness to use a comfort item, in this case, a service dog, while testifying. See Tex. Code Crim. Proc. Ann. art. 38.074, § 3(b) (West Supp. 2016) ("On the motion of any party, . . . the court shall allow the child to have a toy, blanket, or similar comforting item in the child's possession while testifying or allow a support person to be present in close proximity to the child during the child's testimony if the court finds by a preponderance of the evidence that: (1) the child cannot reliably testify without the possession of the item or presence of the support person, as applicable; and (2) granting the motion is not likely to prejudice the trier of fact in evaluating the child's testimony."). During the hearing, the trial court examined the complaining witness regarding whether the witness needed the service dog to sit with her while she testified. In questioning the witness, the trial court informed the witness that the law required the court to find that the witness's testimony would not be reliable unless the trial court allowed the service dog to sit with the witness while testifying. The trial court asked the complaining witness "will it make a significant difference to you if you have [the service dog] with you?" The complaining witness replied that having the service dog with her "would help me feel like there is someone there with me so I don't feel so alone, because I've been nervous about this for quite awhile." The trial court then pointed out that it needed to determine whether the complaining witness's testimony would be reliable based on using the dog, and asked: "[W]ill you be able to recall things and reliably answer questions more likely if you have that -- if you have that dog with you?" The complaining witness replied that she would. The trial court found, by a preponderance of the evidence, that to "ensure the reliability" of the complaining witness's testimony, the court would allow the witness to use the service dog while she testified.

         The service dog was placed in the witness box at the complaining witness's feet before the jury heard the complaining witness's testimony, and before the jury entered the courtroom. At that point in the trial, and before the jury entered the courtroom, the trial court noted that "[t]he dog is at [the witness's] feet in the witness box, which is not visible - - the dog is not visible in any way by the jury."

         Testifying With a Service Dog

         In Lambeth's first issue, Lambeth advances two complaints about the witness's use of the service dog as a comfort item during his trial. First, Lambeth complains that during the hearing conducted on the proposal to use the dog, the trial court failed to make the express findings that he argues are required by article 38.074, section 3(b) to justify a trial court's decision to allow a witness to use a comfort item while testifying in a trial. Id. Nevertheless, the record shows the trial court did make several oral findings during the hearing on the proposal to use the service dog. For example, the trial court indicated during the hearing that the trial court did not believe the complaining witness's testimony would be sufficiently reliable unless the service dog was present. Additionally, the trial court expressly noted at the conclusion of the hearing and before the jury returned to the courtroom that the service dog was not visible. In our opinion, that finding indicates the trial court did not view the service dog's use as prejudicial. Given the various comments the trial court made together with the oral findings that it made during the hearing, it is apparent the trial court was aware of article 38.074's requirements concerning the conditions that must be established to justify the use by a witness of a comfort item while testifying in a trial. See Tex. Code Crim. Proc. Ann. art. 38.074, § 3(b)(1), (2). Based on the trial court's oral findings in the hearing and its ruling, we imply the trial court made the findings required to support its ruling that allowed the dog to be in the witness box at the complaining witness's feet while she testified in the trial. See generally State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008) (noting that if the trial court fails to make an express finding on an issue to resolve questions of disputed fact on a motion to suppress, the necessary findings will be inferred to support the ruling "if the record evidence (viewed in the light most favorable to the ruling) supports [the trial court's] implied fact findings").

         We further note that Lambeth's attorney never asked the trial court to provide more specific findings than it made during the hearing that concerned the proposal to use the dog. See Tex. Code Crim. Proc. Ann. art. 38.074, § 3(b)(1), (2). To the extent that Lambeth argues that the trial court's findings failed to track the language in article 38.074, section 3(b), his complaints were not preserved for appellate review. Tex.R.App.P. 33.1(a) (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request).

         Lambeth also complains that the complaining witness's use of the dog as a comfort item while testifying was prejudicial. According to Lambeth, the measures undertaken to prevent the jury from learning of the service dog's presence were unsuccessful, and he asserts that when the complaining witness testified, the service dog made sounds. Lambeth claims the sounds the dog made would have alerted the jury to the dog's presence, and that upon the jury's discovery that the complaining witness needed a dog while testifying, the jury would have necessarily concluded that Lambeth had inflicted a significant psychological injury on the complaining witness given the witness's need for the dog. Lambeth concludes that the jury would have been overly ...


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