Curtis William Watts was convicted by a jury of aggravated rape. The court assessed his punishment, enhanced by one prior felony conviction, at confinement from fifteen years to life. On this appeal, Watts challenges the sufficiency of the evidence, the State's identification testimony, the State's jury argument, and the court's finding that the enhancement paragraph in the indictment was true. Finding no merit in any of these grounds, we affirm.
SUFFICIENCY OF THE EVIDENCE Appellant makes three complaints concerning sufficiency of the evidence. First, he argues that the evidence did not show his guilt of aggravated rape, i.e., that he compelled complainant to have sexual intercourse by threatening her withserious bodily injury, as alleged in the indictment. Second, he urges that the evidence did not prove he had sexual intercourse with complainant. Finally, he maintains that the testimony of the twelve-year-old complainant is so incredible or plainly wrong that the verdict based upon it cannot stand.
In considering these complaints, we must review the evidence on appeal in the light most favorable to the jury's verdict.Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Cr.App. 1981); Garza v. State, 622 S.W.2d 85, 90 (Tex.Cr.App. 1981) (en banc) (on State's motion for rehearing). The verdict will not be disturbed if there is evidence to support it. Bowden v. State, 628 S.W.2d 782, 784 (Tex.Cr.App. 1982) (en banc) (on appellant's motion for rehearing). See Griffin v. State, 614 S.W.2d 155,159 (Tex.Cr.App. 1981).
The testimony most favorable to the verdict reveals that a threat of serious bodily *Page 940 injury induced complainant to have intercourse with appellant. The complainant testified that if appellant had not displayed a gun, she would not have had intercourse with him.
A threat of bodily injury can be communicated by actions as well as words. Rucker v. State, 599 S.W.2d 581, 586 (Tex.Cr.App. 1979) (en banc) (on State's motion for rehearing). Appellant's display of a gun was therefore sufficient to establish that complainant's intercourse with appellant was coerced by the threat of serious bodily injury.Orosco v. State, 590 S.W.2d 121, 124 (Tex.Cr.App. 1979); Rogers v. State, 575 S.W.2d 555, 559 (Tex.Cr.App. 1979);Miller v. State, 629 S.W.2d 843, 843-844 (Tex.App.-Houston [14th Dist.] 1982).
We turn next to appellant's contention that the evidence did not prove he had intercourse with complainant. In his brief, appellant acknowledges complainant's testimony that "he did go inside of her with his penis." Since the complainant's testimony is sufficient to show an act of intercourse, seeGarcia v. State, 563 S.W.2d 925, 928 (Tex.Cr.App. 1978) and cases cited therein, we conclude that appellant's complaint on this ground is without merit.
In appellant's third challenge to the sufficiency of the evidence, he asserts that numerous weaknesses, omissions, and inconsistencies in the evidence, particularly in the testimony of the twelve-year-old complainant, impair its cogency. According to appellant, such a large part of the evidence, including testimony of the complainant, contradicts the verdict that to disregard the opposing evidence would offend the conscience and deny him due process of law. We do not agree. Having reviewed the record by the standard of Griffin v.State, supra, we find it sufficient to support appellant's conviction.
STATE'S IDENTIFICATION TESTIMONY: IMPROPER BOLSTERING? After appellant offered evidence of an alibi, the State in rebuttal called a police witness who testified that the complainant had identified appellant in a photographic line-up. Appellant contends that the trial court erred in receiving this testimony, over his objection, because it constituted improper bolstering of the complainant.
Appellant's contention is not persuasive for two reasons. First, improper bolstering is not involved when a police witness testifies that the complainant identified the accused before trial, unless the complaining witness has already given such testimony. Compare Reynolds v. State, 401 S.W.2d 249,250 (1966), Balli v. State, 170 Tex.Crim. R.,341 S.W.2d 443, 444 (1960), and Lucas v. State, 160 Tex.Crim. 443,271 S.W.2d 821, 823-824 (1954) with Lyons v. State, 388 S.W.2d 950,950-951 (Tex.Cr.App. 1965). In the present case, the complainant never testified that she had identified appellant's photograph before trial. Consequently, the officer's testimony that she did so did not constitute improper bolstering.
Second, police testimony regarding pre-trial identification is not improper bolstering if the complainant's identification of the accused has been challenged on cross-examination. The cases are not altogether clear whether such police testimony, once impeachment of the complainant's identification has been attempted, no longer constitutes bolstering,1 or whether bolstering simply becomes proper at that time. See Smithv. State, 595 S.W.2d 120, 125 (Tex.Cr.App. 1980) ("the State may bolster an identification witness' testimony when that identification is challenged by cross-examination");Johnson v. State, 583 S.W.2d 399, 403-404 (Tex.Cr.App. 1979); Adams v. State, 514 S.W.2d 262, 264 (Tex.Cr.App. 1974) (bolstering of prosecutrix by officer's testimony justified by appellant's impeachment of prosecutrix's positive identification).Cf. Williams v. State, 607 S.W.2d 577, 580 (Tex.Cr.App. 1980) (bolstering invited). In either event, the cases are legion *Page 941 holding that police testimony to corroborate the complainant's identification of the accused is proper once that identification has been challenged on cross-examination.See, in addition to Smith, Johnson, and Adams cited above, Roney v.State, 632 S.W.2d 598, 601 (Tex.Cr.App. 1982) (en banc); Proctor v.State, 503 S.W.2d 566, 568 (Tex.Cr.App. 1974); Turnerv. State, 486 S.W.2d 797, 800-801 (Tex.Cr.App. 1972);Frison v. State, 473 S.W.2d 479, 481-482 (Tex.Cr.App. 1971).
Here, the appellant offered evidence of an alibi. In addition, counsel for appellant attempted to demonstrate that the assailant described in the complainant's testimony could not have been the appellant, because her description of the truck she was abducted in, the house she was taken to, and the cowboy boots worn by her attacker did not match the physical characteristics of any such property owned by appellant. Under these circumstances, the police officer's testimony did not improperly bolster the complainant.
JURY ARGUMENT Appellant also asserts reversible error was committed when the State argued: "It's a reasonable deduction he's probably done it before" and "Do you think that that man is a stranger to that crime, from the evidence that you heard? Did you hear what she said?"
In each instance, the trial court sustained appellant's objection to the argument and instructed the jury to disregard it. On the first occasion, however, appellant did not request a mistrial; on the second, he did not pursue his request for a mistrial to an adverse ruling. Therefore, nothing is preserved for review. Payne v. State, 596 S.W.2d 911, 916 (Tex.Cr.App. 1980) (en banc) (on State's Motion for Rehearing); Nastu v. State, 589 S.W.2d 434, 441 (Tex.Cr.App. 1979).
ENHANCEMENT FINDING Finally, appellant contends that the trial court erred in finding the enhancement allegation of the indictment to be true because of a variance between the indictment and the penitentiary packet as to the date of the prior conviction. The indictment alleged, in pertinent part, "that prior to the commission of the aforesaid offense by the said CurtisWilliam Watts to-wit: on the 1st day ofDecember, A.D. 1966 in the Criminal District Court No. of Dallas County, Texas, in Cause Number E-7926-KI on the docket of said Court, the said Curtis William Watts under the name of CurtisWilliam Watts, was duly and legally convicted in said last named Court of a felony, to-wit: Rape. . . ." The penitentiary packet contains a judgment, sentence, a mandate of affirmance from the Court of Criminal Appeals and resentence in cause number E-7926-KI. The judgment reflects that on May 6, 1965 a jury found appellant guilty of rape. On June 21, 1965, appellant was sentenced to not less than 5 years nor more than life imprisonment, from which he appealed. The Court of Criminal Appeals issued a mandate affirming appellant's conviction on November 9, 1966. The trial court resentenced appellant on December 1, 1966 for the purpose of allowing him credit for the time served in jail pending his appeal. The document entitled "Resentence" recites that appellant was present at the time of resentencing.
At the hearing on punishment, appellant testified and admitted the prior conviction. Specifically, he admitted that he was the same person previously convicted for the offense of rape after a jury trial and sentenced to life in cause number E-7926-KI in Judge Henry King's Criminal District Court No. 2. In light of this admission, as well as the documentary evidence in the penitentiary packet, the record supports the court's finding that the enhancement allegation is true.
Affirmed.