Motion to Exclude Service Dog Accompanying the
State’s Witness Before the Jury

Jason D. Cassel

CAUSE NO.  	
STATE OF TEXAS	§ 	IN THE DISTRICT COURT
§

vs.	§
§
§

 	 JUDICIAL DISTRICT

 	 COUNTY, TEXAS

MOTION TO EXCLUDE SERVICE DOG ACCOMPANYING THE  STATE’S WITNESS BEFORE THE JURY

COMES NOW the Defendant, by and through his undersigned counsel, Jason D. Cassel, who makes this motion to exclude the presence of the State’s “service” dog from accompanying the State’s witness before the jury and in support of would show the following:

I.

The Defendant stands accused of aggravated sexual assault of child. The complainant is a nine year old female. The State has supplied the complainant with a “service” dog to accompany her to and at the witness stand during her testimony before the jury though she has no known disability. The “service” dog in question has been supplied by the Smith County District Attorney’s Office. The State has advertised their intended use of this dog in trials through the media and even advertised the price at $50,000. (See local news story, http://www.kltv.com/story/14079329/macy-the-dog- comforts-abused-children-only-of-her-kind-in-tx?redirected=true).

II.

Texas Health and Safety Code §121.002 provides that:

“Assistance animal” means an animal that is specially trained or equipped to help a person with a disability and that:

(A) is used by a person with a disability who has satisfactorily completed a specific course of training in the use of the animal; and
(B) has been trained by an organization generally recognized by agencies involved in the rehabilitation of persons with disabilities as reputable and competent to provide animals with training of this type.
“Person with a disability” means a person who has a mental or physical disability, including mental retardation, hearing impairment, deafness, speech impairment, visual impairment, or any health impairment that requires special ambulatory devices or services.

Furthermore, §121.006 provides that a person who uses an assistance animal with a harness or leash of the type commonly used by persons with disabilities who use trained animals, in order to represent that his or her animal is a specially trained assistance animal when training of the type described in Section 121.002(1)(B) of this chapter has not in fact been provided, is guilty of a misdemeanor and on conviction shall be punished by a fine of not more than $200.

III.
Counsel believes the presence of “Macy” the “service” dog will prejudice the defendant and deny him due process of law, right to a fair trial, and violate the confrontation clause of the Sixth Amendment of the United States Constitu- tion, Article 1 Sec. X of the Texas Constitution and Articles 1.03, 1.04 and 1.05 of Texas Code of Criminal Procedure.

Generally, our courts have found allowing the witness to carry an item with them to the witness stand or allowing a family member to stand next to the witness to be a “procedural modification” to the trial. See generally Sperling v. State,
924 S.W.2d 722, 726 (Tex. App.—Amarillo 1996, pet. ref’d) (witness allowed to take a teddy bear with them to testify.); Carmona v. State, 880 S.W.2d 227 (Tex. App.—Austin 1994), vacated & remanded on other grounds, 941 S.W.2d 949 (Tex.Crim.App. 1997) (witness’ sister was allowed to hold her hand while testifying.); Conrad v. State, 10 S.W.3d 43 (Tex.App.—Texarkana 1999, pet. ref’d) (witness’ mother allowed to stand next to him while testifying.).
These opinions instruct that this Court must determine: (1) whether an important state interest exists, and (2) whether the procedural modification used in this trial was necessary to further that interest. See Carmona, 880 S.W.2d at 233, citing Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).

The presence of “Macy the service dog” is much more than a modification; rather her presence alters the court- room dynamic. In each of the cases cited herein where a modification was permitted, the court permitted a person or inanimate object to accompany the witness or the testimony was taken via closed circuit television. While one would naturally expect a family member to offer and provide support as one would also expect a teddy bear to be comfort- ing to a child. A service dog, however, has a unique place in our society. As indicated above, the Health and Safety Code not only defines service animals but also imposes criminal penalties for having an impostor service animal. For instance, when we as member of society see a person on the street, store, movie theater, or restaurant with a service dog, we assume that their need or disability has been evaluated and validated by someone of authority because our law regulates the use of service animals and prohibits their improper use or one from falsely representing an animal to be a service animal.
For these reasons, we subconsciously believe a doctor or other qualified person has evaluated that person and ap- proved or prescribed the use of a specially and expensively trained “service” dog. We do not question why that person has the service dog or if they really need the assistance, we assume the need is genuine and has been validated.
Here, the complainant would enjoy that same instant credibility to her claims. Once the jury sees “Macy” with the complainant, they will naturally believe that someone with expertise must have evaluated and validated her need, providing credence to her claims. The jury will tend to believe her before she says a word and no instruction this court could give would be adequate to prevent the harm. Instead, an instruction would only further point out the obvious and reinforce to the jury to disregard what they already believe, that the presence of “Macy the service dog” is significant and meaningful.

PRAYER

WHEREFORE PREMISES CONSIDERED, Counsel prays that this Court hold a hearing outside the presence of the jury and prior to the witness and “service dog” entering the courtroom, and after hearing exclude “Macy the service dog” from accompanying the complainant to the witness stand.

Respectfully submitted, ALBRITTON LAW FIRM
By:   	 JASON D. CASSEL
SBN 24006970
P.O. Box 2649
Longview, Texas 75606
Tel: 903-757-8449
Fax: 903-758-7397 jdc@emafirm.com

Attorney for Defendant,

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument has been hand delivered to the
District Attorney presently assigned to this case, on this the  	day of  	, 2011.

JASON D. CASSEL

CAUSE NO.  	
STATE OF TEXAS	§ 	IN THE DISTRICT COURT
§

vs.	§
§
§

 	 JUDICIAL DISTRICT

 	 COUNTY, TEXAS

ORDER
On this day came on to be heard the Accused’s Motion to Exclude Service Dog Accompanying the State’s Witness
Before the Jury. The Court having considered the motion is of the opinion that said motion should be:

 	GRANTED and Macy shall not be present with the witness before the jury.

SIGNED and ENTERED this _ day of      , 2011.

JUDGE PRESIDING