Lape v. State

• Decision Date: 03 November 1994
• Docket Number: No. 14-92-01183-CR,14-92-01183-CR
• Parties: Bruce LAPE, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 949

893 S.W.2d 949

Bruce LAPE, Appellant, v. STATE of Texas, Appellee.

No. 14-92-01183-CR.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 3, 1994.

Discretionary Review Refused Feb. 26, 1995.

Stanley G. Schneider, Houston, for appellant.

Scott A. Durfee, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ELLIS, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

Bruce Lape, appellant, was charged under a two count felony indictment with aggravated sexual assault of a child. A jury found him guilty on both counts. After appellant pled true to the two enhancement paragraphs, the trial court assessed punishment at thirty years confinement on each count in the Texas Department of Criminal Justice, Institutional Division. The sentences were ordered to run concurrently. Appellant brings eleven points of error in this appeal from the judgment. We reverse and remand for a new trial.

Appellant and Felicia Lape were married on December 17, 1981. At the time of the marriage, Felicia Lape's natural daughter, Elizabeth Arellano ¹ (Arellano), was approximately three and a half years old. The couple separated in 1987 or 1988. After the separation, Arellano, appellant's stepdaughter, visited him on weekends. The visits took place at the townhome of Rita Lape, appellant's mother. Appellant and his son, Jason Lape, had resided at the townhome since appellant and Felicia Lape separated. During these visits, Arellano would share a bedroom with appellant or her brother Jason.

Arellano claimed that appellant began to molest her during these weekend visits and assaulted her thirty to forty times over the next year and a half. She was approximately ten years old when the assaults began. Appellant contended at trial that the allegations were manufactured by Arellano and her mother. Appellant's theory at trial was that Arellano and Felicia Lape made up the allegations of sexual assault so that Felicia Lape could regain custody of Jason Lape, the natural son of appellant and Felicia Lape. Appellant had been awarded temporary custody of Jason after the couple separated.

The last assault allegedly occurred in June of 1990. In August, Arellano told Christina Rangel, the daughter of Felicia Lape's boyfriend, that appellant had raped her; however, she told Christina to keep it a secret and she did. In May of 1991, Arellano told her mother's boyfriend, Jose Rangel, about the abuse. Approximately a week after Arellano made her outcry to Jose, Felicia Lape took Arellano to Texas Children's Hospital. At the hospital, Arellano was given a gynecological examine by Dr. Clifford Mishaw. Dr. Mishaw testified that he observed a subtle irregularity in Arellano's genitalia. He stated that the irregularity could have been caused by previous trauma to the tissue consistent with Arellano's allegations of sexual abuse.

On May 25, 1991, Felicia Lape contacted the Houston Police Department. On June 7, 1991, Arellano, accompanied by her mother, went to the police station to give a statement about the assaults. On June 10, 1991, Jason Lape gave a videotaped statement to the police. He stated that he had twice witnessed appellant assaulting Arellano.

The jury found appellant guilty on both counts of the indictment. The court sentenced appellant to thirty years on each count. The sentences were ordered to run concurrently. Appellant brings this appeal.

In points of error one and two, appellant contends the trial court erred in limiting his right to cross-examine witnesses and that the cumulative effect of these rulings caused his right to confront witnesses and to present a defense to be abrogated, thereby denying him the right to a fair trial in violation of the United States and Texas Constitutions.

In these points of error, appellant complains about the trial court's alleged improper exclusion of cross-examination in the following six areas:

1. Whether Jason Lape was coached in his answers prior to giving his statement to the police.

2. Whether Arellano made other allegations of sexual abuse against other members of her family or appellant's family.

3. Whether Arellano and her mother lied to the police in a previous prosecution of appellant for injury to a child.

4. What Arellano's propensity for telling the truth was.

5. What Jason Lape's propensity for telling the truth was.

6. Whether Arellano made threats to do whatever it took to gain custody of Jason Lape.

We find that appellant has waived any complaint under points of error one and two. First, an allegation that the cumulative effect of two or more errors by the trial court denied appellant a fair trial is not a proper ground of error and presents nothing for review. Hollis v. State, 509 S.W.2d 372, 375 (Tex.Crim.App.1974); Christopher v. State, 819 S.W.2d 173, 178 (Tex.App.--Tyler 1991, pet. ref'd). Thus, points of error one and two are overruled on this basis.

Second, Texas Rule of Appellate Procedure 74(f) states, in pertinent part:

A brief of the argument may present separately or grouped the points relied upon for reversal. The argument shall include: (1) a fair, condensed statement of the facts pertinent to such points, with reference to the pages in the record where the same may be found; and (2) such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.

TEX.R.APP.P. 74(f). (emphasis added)

Appellant does not include even a single record citation in his argument under points of error one and two. He does not identify where in the record he attempted to elicit the testimony he claims the trial court disallowed. Appellant does not point to any place in the record where the trial court denied him the right to cross-examination in the six areas complained of; in other words, he fails to point this court to that place in the record where he received a ruling from the trial court on his complaint. Appellant must cite us to the specific portion of the record where the objection occurs. Id. The statement of facts in this case consists of over nine hundred pages. We have no duty to search the record to find reversible error. See Green v. State, 682 S.W.2d 271, 292 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985). Nothing is preserved for review if the appellant does not direct the court to the proper place in the record where we may find the complained of error. Cook v. State, 611 S.W.2d 83, 87 (Tex.Crim.App. [Panel Op.] 1981). Because appellant did not provide this court with any record citations, points of error one and two can also be overruled on this basis. ²

In his third and fourth points of error, appellant contends the trial court erred in sustaining the State's objection to appellant's cross-examination of Officer Mike Martin. The questions concerned allegations allegedly made by Arellano against other male members of her family. Appellant claims the trial court's action violated his rights under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.

Appellant has failed to separately analyze or argue his state and federal grounds contained in points of error three and four. This failure allows a court to overrule the constitutional challenges as multifarious. Murphy v. State, 864 S.W.2d 70, 72 (Tex.App.--Tyler 1992, pet. ref'd). Merely citing Article I, Section 10 of the Texas Constitution is not sufficient. See Murphy, 864 S.W.2d at 72. Because appellant has not provided separate argument or analysis on his constitutional claims, we will not review each constitutional challenge independently. See id.

Outside the presence of the jury, Officer Mike Martin of the Houston Police Department testified about additional sexual abuse allegations made by Felicia Lape during an interview with Officer Martin. Felicia Lape accused her brother, Armando Cantania, and appellant's brother, Terrence Lape, of sexually abusing Arellano. In support of the introduction of this testimony appellant's counsel stated:

I would offer it as a prior inconsistent statement of Mrs. Lape. Mrs. Lape when she was on the witness stand today and I asked her about this conversation with Mr. Martin, she said she did not accuse anybody else of sexual misconduct, that she simply talked about some other things and, in fact, she said in one situation there was touching on the chest but she never made a charge of sexual abuse against anyone. The officer has just testified that Mrs. Lape told him that she considered Armando's touching of the breast of Elizabeth to be sexual abuse. Mrs. Lape denied on the stand today that she had ever said that to him and she's denied her second statement regarding Terrence. So I would offer his testimony as prior inconsistent statement of that witness, Mrs. Lape.

The trial court refused appellant's request to present this cross-examination before the jury. At trial, appellant's sole theory for the admission of this testimony was that it was a prior inconsistent statement of Felicia Lape and as such, it was admissible to impeach her credibility. On appeal, however, appellant argues that the testimony was admissible to impeach the credibility of the complainant, Elizabeth Arellano. The ground for admission was never presented to the trial court; therefore the court was never given an opportunity to rule on the question of whether the testimony was admissible to impeach Arellano's testimony. Thus, because appellant's objection at trial does not comport with his complaint on appeal, error was not preserved. Fuller v. State, 827 S.W.2d 919, 928 (Tex.Crim.App.1992), cert. denied, 509 U.S. 922, 113 S.Ct. 3035, 125 L.Ed.2d 722 (1993); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986); Mayfield v. State, 828 S.W.2d 568, 570 (Tex.App.--Houston [14th Dist.] 1992, pet. ref'd); see TEX.R.APP.P. 52(a).

While an appellant should be given great latitude in cross-examining witnesses in order to reveal possible...