WILLIAM HENRY WATTS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed March 5, 1992.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-90-01007-CR
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WILLIAM HENRY WATTS, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F89-74925-HI
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O P I N I O N
Before Justices Stewart, Chapman, and Rosenberg
Opinion By Justice Stewart
        William Henry Watts appeals from a jury conviction of the offense of aggravated robbery. The jury assessed punishment at ten years' confinement and a $2000 fine. In three points of error, he argues that (1) the evidence is insufficient to support the conviction because the identification testimony was tainted by an impermissibly suggestive pretrial one-on-one confrontation, (2) the prosecutor committed error with an improper jury argument, and (3) the conviction must be set aside because the jury foreman failed to sign the punishment verdict form. For the reasons given below, we affirm the trial court's judgment.
BACKGROUND FACTS
        Nadeen Emeir, the night shift manager for Pizza Inn, testified that on December 15, 1989, a man, appellant, entered the restaurant, pointed a sawed-off shotgun at him, and demanded Emeir "[g]o get the money right now." Emeir stated that he went to the cash register with appellant at his side holding the gun. He gave appellant the money and appellant tried to exit through the back door, but could not unlock it. Emeir testified that he and the delivery driver, Sandor Hajdar, threw plastic glasses at appellant in an attempt to stop him or slow down his escape. Emeir stated that appellant then tried to exit through the emergency fire door, but could not open the door. Appellant finally left the restaurant through the front door and got into a red pickup truck. Emeir testified that he tried to pull the license plate off the truck and that Hajdar kicked the side panels of the truck to make identification easier. Patricia Baggito, a waitress, testified that she ran from the restaurant after she saw appellant, the gun, and Emeir near the cash register. She stated that she ran across the street to call for help.
        Emeir, Hajdar, Baggito, the delivery driver David Oggle, and the cook Leonard Bennett Melrose, Jr. identified appellant in court as the man who robbed Emeir at gunpoint. Hajdar and Baggito identified appellant in a photo lineup several days after the robbery. Emeir, Melrose, and Oggle were unable to identify appellant from the photo lineup shown them.
        Farmers Branch Police Officer Charles R. Taylor testified that he found appellant passed out in his truck by the side of a road on December 20, 1989. Taylor contacted the Mesquite Police Department because of a report about an armed robbery involving that truck. Mesquite Police Investigator Robert Caruthers testified that the license plate number from the truck involved in the armed robbery was registered to appellant.
        Appellant testified that he spent all day drinking and denied committing the robbery. He stated that he loaned his truck to someone, but he could not remember to whom.
SUFFICIENCY OF THE EVIDENCE
        Appellant argues in his first point of error that the evidence is insufficient to support the conviction. He specifically contends that an impermissibly suggestive pretrial procedure tainted the in-court identification of appellant by Hajdar and Baggito and that the identification of appellant by Emeir, Hajdar, Baggito, Oggle, and Melrose is unreliable and not credible.
        The State responds that appellant did not object to the in-court identification testimony on the grounds that he presents on appeal. The State points out that appellant only objected to the admission of a photo identified by Hajdar on the basis of bolstering former unimpeached in-court identification testimony. The State contends that the evidence is sufficient to support the conviction and that, by making one objection at trial and by raising a different issue on appeal, appellant presents nothing for review.
        The failure to object constitutes a procedural default that prevents the defendant from later raising the issue on appeal. Perry v. State, 703 S.W.2d 668, 670 (Tex. Crim. App. 1986). In Perry, the complaining witness did not identify the appellant in a photo lineup, but he did, without objection, make an in-court identification of the appellant as the man who robbed him. Id. at 670. There, the court held that the failure of the appellant to complain or object in the trial court about the pretrial identification procedure or the in-court identification waived the error for purposes of appeal. Id. at 671. Because appellant did not object to the in-court identification of him by Emeir, Baggito, Oggle, and Melrose, we conclude that appellant waived the error, if any, as to these witnesses and presents nothing for review.
        Appellant did, however, object to Hajdar's identification testimony. At trial, appellant complained the State was attempting to bolster former unimpeached identification testimony. The trial court sustained appellant's objection. An objection to bolstering is not equivalent to appellant's complaint on appeal about impermissibly suggestive pretrial identification procedures. We conclude that, because appellant's objection on appeal does not comport with the objection at trial, appellant waived error. Cravens v. State, 687 S.W.2d 748, 752 (Tex. Crim. App. 1985).
        In reviewing the sufficiency of the evidence, this Court's inquiry is limited to determining whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App.), cert. denied, 112 S. Ct. 202 (1991). In determining the sufficiency of the evidence, we must consider all evidence, whether or not properly admitted. Deason v. State, 786 S.W.2d 711, 713 (Tex. Crim. App. 1990); Henson v. State, 794 S.W.2d 385, 388 (Tex. App.--Dallas 1990, pet. ref'd). Moreover, the jury as the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Coe v. State, 683 S.W.2d 431, 438 (Tex. Crim. App. 1984). The jury is entitled to accept one version of the facts and to reject another. Sallings v. State, 789 S.W.2d 408, 412 (Tex. App.--Dallas 1990, pet. ref'd).
        In the case at bar, both Hajdar and Baggito identified appellant in a photo lineup several days after the robbery. All of the witnesses identified appellant in court and appellant did not object to the in-court identifications. The witnesses testified that appellant had a sawed-off shotgun with him during the robbery and held it at his side. Emeir testified that appellant pointed the shotgun at him and demanded money. Emeir and Hajdar also described the truck and the license plate used in the robbery and it matched the vehicle registered to appellant. We conclude that, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found that appellant committed the offense of aggravated robbery. We overrule appellant's first point of error.
JURY ARGUMENT
        Appellant argues in his second point of error that the prosecutor committed reversible error during the punishment phase closing argument because she asked the jury to speculate on future events and to assess punishment based on them. The State maintains that the trial court's instruction to the jury to disregard the prosecutor's statement cured the error.
        The prosecutor argued, "Ladies and gentlemen, you don't know what Mr. Watts can do. Maybe this time they were lucky, but next time, maybe not. You don't want--" Appellant objected to the argument. The trial court sustained the objection, instructed the jury to disregard the prosecutor's statement, and denied appellant's motion for mistrial.
        Following an objectionable argument, an instruction by the trial court to disregard the comment will normally cure the error unless the remark is so inflammatory that its prejudicial effect cannot reasonably be removed by the instruction. Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990). To constitute reversible error, the argument must be extreme or manifestly improper, or inject new and harmful facts into evidence. Id. A trial court's prompt action in instructing the jury to disregard the comment is generally sufficient to protect the rights of the accused. Norris v. State, 788 S.W.2d 65, 72 (Tex. App.--Dallas 1990, pet. ref'd).
        The prosecutor's comment was not so extreme or prejudicial that it could not be cured by an instruction to disregard. Accordingly, we hold that the trial court's instruction to the jury to disregard the prosecutor's comment was sufficient to cure the error in the improper jury argument. We overrule appellant's second point of error.
PUNISHMENT VERDICT FORM
        In appellant's third point of error, he argues that his conviction must be set aside because the punishment verdict form was not signed by the jury foreman. Appellant asserts that the failure of the foreman to sign the verdict form left the punishment assessed in doubt and, as such, the verdict is void. The State responds that appellant did not object in the trial court to the absence of the foreman's signature on the verdict form and that this failure prevents appellant from raising error on appeal. Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986).
        Alleged error is not preserved in the absence of a timely and specific objection. Tex. R. App. P. 52(a). In Shelton v. State, 441 S.W.2d 536, 538 (Tex. Crim. App. 1969), the appellant claimed for the first time on appeal that the punishment verdict was invalid because it had a different name signed as foreman from the name signed as foreman on the guilt verdict. The court stated that if the appellant had brought the matter to the trial court's attention, then the original foreman could have cured the error by signing the punishment verdict. Id. The court held that, in the absence of an objection and request to poll the jury, no error was shown. Id.; see also Renner v. State, 758 S.W.2d 890, 891 (Tex. App.--Corpus Christi 1988, pet. ref'd) ( verdict signed by presiding juror only is valid in absence of objection).
        Here, appellant did not object to the lack of the foreman's signature on the punishment verdict form. Appellant did not ask to poll the jury and gave no reason why he should not be sentenced. Therefore, appellant did not give the trial court an opportunity to cure the error. We find that, by failing to give the trial court an opportunity to cure the complained-of error, appellant waived any error in the verdict form. Moreover, the error, if any, was harmless. We overrule appellant's third point of error.
        We affirm the judgment of the trial court.
 
 
 
                                                          
                                                          Annette Stewart
                                                          Justice
 
 
Do Not Publish
Tex. R. App. P. 90
901007F.U05
 
 
File Date[03-05-92]
File Name[901007F]