LYNN ARTHUR TAYLOR,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00326-CR
LYNN ARTHUR TAYLOR,FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
                APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS, AND BURNETT
OPINION PER CURIAM
MARCH 20, 1989
        Lynn Arthur Taylor appeals his conviction for robbery. Punishment was assessed at fifty years' confinement.
        Appellant's attorney has filed a brief in which appellant's attorney says that he has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. Appellant has filed a pro se brief wherein he contends: (1) that the in-court identification was impermissibly tainted by an unduly suggestive pretrial photographic line-up; (2) the evidence is insufficient to support his conviction; (3) the court erred in denying appellant's motion for mistrial; (4) error occurred when the indictment was not read into the transcript; (5) enhancing the punishment in this offense serves to punish appellant a second time for a crime for which he has already been punished; (6) the verdict form appears to have been changed; and (7) he contends that he did not write any confession. We affirm the judgment of the trial court.
        On January 21, 1988, Eloise West was working as the only sales clerk in a convenience store in Irving, Texas. Early that morning, appellant entered the store and asked for some cigarette rolling papers. He did not tender enough money to purchase the papers and left the store. A short time later he returned with another man who was carrying something that appeared to be a folded pillow case. Appellant said "this is a holdup." He then tied the clerk's hands with a white shoestring while his accomplice placed cartons of cigarettes into a pillow case. Appellant took Ms. West's key, and opened the cash register, removed the small amount of money it contained, and took Ms. West's purse. During the robbery, she carefully studied the distinctive characteristics of appellant's sneakers.
        Appellant and his companion left. Shortly thereafter, Lieutenant Roe entered the store and showed Ms. West his badge and asked if she was all right. Ms. West gave the officer a description of the robbers' height and a description of their shoes. Officer Roe and two other police cars chased the suspects. The suspects abandoned their car and fled on foot. After pursuing the suspects, Officer Woodward returned to the car and conducted an inventory search. In the trunk, he discovered a sheet containing a large number of cigarettes.
        William Thauoue testified that he was awakened by barking dogs at approximately 3:00 a.m. on January 21, 1988. He observed a man running between the houses in his Grand Prairie neighborhood. Believing the man was going to break into his house, he stopped a police car and told the officer what he had observed. He described the man he had seen as wearing blue jeans, a cap, and a jogging jacket. Approximately one hour later, the officers returned to Mr. Thauoue's home with appellant; he identified appellant as the man that he had seen running through his yard earlier. In court he positively identified State's exibits 9 and 12 as the cap and jacket the man wore on January 21, 1988.ñ His in-court identification of the cap and the jacket relied upon this identification at his residence.
        Officer Berg of the Grand Prairie police department testified that in the early morning hours of January 21, 1988, while on routine patrol he received a radio dispatch that Irving police were in hot pursuit of two robbery suspects into the city of Grand Prairie. He testified that canine officers were called out to help in the search for the suspects after they abandoned their auto. Berg observed a man run across the street. Appellant ran into a parked patrol unit and was arrested. Appellant was wearing State's Exhibits 9 and 12 at that time.
        Officer Howman of the Irving Police Department identified State's Exhibit 11 as the white tennis shoes that appellant was wearing at the time of his arrest. Officer Chism testified that he attempted without success to locate fingerprints at the convenience store. He also attempted without success to get fingerprints from the abandoned automobile. He attempted to lift fingerprints from the cigarette cartoons and succeeded in finding two smeared partial prints, too smeared to make a comparison.
                In appellant's second point of error, he contends that the evidence is not sufficient to support the conviction. In determining the sufficiency of the evidence, this Court's inquiry is limited to determining whether, examining the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sutherlin v. State, 682 S.W.2d 546, 548-549 (Tex. Crim. App. 1984). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984) cert. denied 474 U.S. 865 (1985). Applying the foregoing analysis to the facts presented in this case, we conclude that viewing the evidence in the light most favorable to the verdict a rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. Appellant's second point of error is overruled.
        In appellant's first point of error, he contends that the in-court identification by Ms. West was impermissibly tainted by an unduly suggestive pretrial photographic line-up. The crux of his complaint is complainant's statement that the officer told her that a photograph of the person that robbed her store was included in the photographic spread. In order to preserve error appellant must make a specific objection stating the grounds for the ruling that he desires. Goodrich v. State, 632 S.W.2d 349, 351 (Tex. Crim. App. 1982); TEX. R. APP. P 52 (a). During the State's direct examination of Ms. West, she identified appellant as the man that robbed her on January 21, 1988. Defense did not object to the identification; moreover, during cross-examination defense counsel informed the jury that Ms. West had picked appellant's photo from the pretrial photographic line-up. Appellant has waived any error; accordingly, his first point of error is overruled.
        In his third point of error, appellant contends that the trial court erred in denying defense counsel's motion for a mistrial. During the cross-examination of Ms. West the following occurred:
 
         [Defense Counsel] Q. And about how long after the Defendant left the store did Lieutenant Roe show up?
 
         [Witness] A. Well, he saw them getting in the car, and he saw them lugging this pillow case with all our cigarettes, and he figured something was going on.
 
         [Defense Counsel] Objection, Your honor.
 
         [The Court] Well, I will sustain the objection as to what he may have figured.
 
         [Defense Counsel] May the jury be instructed to disregard?
 
         [The Court] I will instruct the jury to disregard.
 
         [Defense Counsel] And the defense respectfully requests a mistrial.
 
         [The Court] I will deny it in light of the Court's instruction.
Except for extreme cases, an instruction to disregard will cure error. Edminson v. State, 520 S.W.2d 386, 387 (Tex. Crim. App. 1975). The Court of Criminal Appeals has found far more egregious errors resulting from unresponsive answers to be cured by an instruction to disregard. See e.g., Wright v. State, 571 S.W.2d 24, 26 (Tex. Crim. App. 1978). We conclude that the error resulting from the unresponsive answer was cured by the court's order to disregard. Appellant's third point of error is overruled.
                In his fourth point of error, appellant contends that error occurred when the indictment was not read into the transcript. However, the statement of facts affirmatively shows that appellant was arraigned and that the indictment was read to him. The court reporter did not record the indictment verbatim when read. Appellant did not object at the time; however, he filed a motion which read in pertinent part: "respectfully moves this Honorable Court to instruct the Court Reporter of this Court to take down in shorthand or by any other method of verbatim recordation, all trial proceedings, including the oral motions presented on behalf of the Defendant, the oral argument on all motions . . . ." The record reflects that the trial judge granted the motion, although it does not reflect the date on which the motion was granted. The motion for the court reporter to record the proceedings does not specifically ask that the reporter take down the indictment as read at arraignment. The Court of Criminal Appeals has held that arraignment was not part of trial by jury. Eckels v. State, 153 Tex. Crim. 402, 220 S.W.2d 175, 177 (1949). Since arraignment is not part of the trial proceeding, but rather a proceeding held before trial on the merits, the motion as granted did not require the reporter to record the indictment verbatim as read at arraignment. Article 26.02 of the Code of Criminal Procedure establishes that the purpose of arraignment is to fix the accused identity and hear his plea. Both were done in this case; and appellant does not contend that he was improperly arraigned. Appellant's fourth point of error is overruled.
        In his fifth point of error, appellant asserts that enhancement of punishment in this case based upon conduct that he has already been punished for amounts to being punished twice for a single act of wrongdoing. The Court of Criminal Appeals has specifically held:
 
 
        ...no separate offense known as "Habitual Felony Offender" existed, and Section 12.42(d), supra, did not create an offense, inflict additional punishment for the prior offense, or authorize a conviction on the habitual criminal charge. The statute merely classified and caused a more severe punishment to be assessed because of the offender's persistence in crime.
Washington v. State, 677 S.W.2d 524, 527 (Tex. Crim. App. 1984). Appellant's fifth point of error is overruled.
        In his sixth point of error, appellant contends that the verdict appears to have been changed without any specific reference to the record. The record does not reflect that appellant made any type of objection to the verdict as received from the jury. Further, the record reflects that the following occurred when the jury returned the verdict in this case.
         [The Court] All right. Be seated, please. Mr. Foreman, has the jury reached a unanimous verdict in the case?
         [The Foreman] Yes sir, we have.
         [The Court] All right. Will the defendant please stand and face the jury? And I'll ask the foreman to read the verdict of the jury.
         [The Foreman] We, the jury, find the defendant guilty of the offense of robbery as charged in the indictment.
         [The Court] All right. If you will give it to the bailiff, please. You may be seated, Mr. Taylor. Is this the verdict of each and every member of the jury? If this is your verdict please indicate by raising your right hand. All right. The record will reflect that the jury all raised their right hand. The Court accepts the verdict of the jury, and it will be filed in the papers of the case...
The record clearly reflects that the verdict of guilty was the true and correct verdict of each and every member of the jury. The docket sheet does however, contain the following entry: "Defendant elects to go to the jury in the event he is found Not Guilty." The Not is crossed through. This recitation is simply the Court's notation that the appellant elected to have the jury assess punishment should he be convicted. This Court has previously held that an entry on a docket sheet is not a judgment or decree of the court. Loper v. Hosier, 148 S.W.2d 889, 891 (Tex. App.--Dallas 1941, writ dism'd judgmt cor.); Forby's KOA v. BHP Water Supply Corporation, 730 S.W.2d 428,430 (Tex. App.--Dallas 1987, no writ). We overrule appellant's sixth point of error.
        Finally, appellant contends that he wrote no confession. At the time that trial court admitted into evidence a confession that purported to be the voluntary statement of appellant appellant's objection was:    
 
         Your Honor, at this time the defendant would object to the introduction of State's Exhibit 14 [a handwritten confession taken by a police detective] and 15 [appellant's typed and signed confession] into evidence based upon the objection that was made earlier and [sic] the out of court hearing and their specifics.
At a sub rosa hearing, defense counsel proffered the following objection to the confession:
 
        Yes, Your honor. The defense does object to the introduction of a purported voluntary statement they made coming into evidence to the extent it seems clear from the totality of the circumstances that an improper predicate has not been laid by the State of Texas to cause this document to be introduced.
        They did not call in this witness, Debra Price, to testify about what she did or didn't participate in. Seems Investigator Vardiman is confused on the facts to the extent he kept my client for an extended period of time, many hours?
        My client wasn't allowed to eat. Not allowed to make phone calls before the statement was made, nor after the statement was made. Seems clear promises were made to my client to induce him to make the statement. Seems clear the investigator has a selective memory. He can't recall certain things, but recalls my client seeing two Texas Rangers were there. Seems to me what my client said are too outrageous to be disbelieved.
        Seems the statement shouldn't come in because the State failed to show that no promises were made to my client in terms of keeping the bitch off him by Investigator Vardiman, or the initial, older investigator who pulled him from the cell earlier that morning. Under the circumstances the statement wasn't in any way voluntary and ask the statement [sic] the defense's motion to suppress be granted.
 
Later at the conclusion of the sub rosa hearing the defense offered the following:
 
        Your Honor, just simply put I think the Court has heard the testimony, and it seems like it's even more clear now that there were some promises made to my client. And my client has explained it to the Court. And certainly the State did not rule out that possibility by bringing all of the jail records down here to show the absence of that person or some person pulling my client out of the jail that was described. And there was testimony that there were about 16 investigators that work at the Irving Police Department. And Investigator Shelly explained that there are 23 with the Irving Police Department, and certainly some police officer that my client doesn't know did those things that he has testified about.
If an objection at trial differs from the complaint voiced on appeal, nothing is preserved for review. Burdine v. State, 719 S.W.2d 309, 319 (Tex. Crim. App. 1986). Appellant did not urge his appellate objection at trial; therefore, he has preserved nothing for review. Had appellant properly preserved error for appellate review, what he complains of is not error. We are unaware of any requirement that the person making a voluntary statement actually transcribe the statement. The Court of Criminal Appeals has held that a voluntary statement need not be drafted using the identical words the person giving the statement used. Knight v. State, 538 S.W.2d 101, 106 (Tex. Crim. App. 1975). The evidence adduced at trial showed that the confession attributed to appellant was written by the police officer that interviewed him. The trial court made specific findings of fact that the confession was the voluntary act of appellant and that the confession was admissible. Appellant's final point of error is overruled.
        The judgment is affirmed.
        
 
                                                          PER CURIAM
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00326.F
 
 
File Date[01-02-89]
File Name[880326]