Arrisola v. State , 171 Tex. Crim. 369 ( 1961 )

350 S.W.2d 551 (1961)

Juan Cantu ARRISOLA, Appellant,
v.
STATE of Texas, Appellee.

No. 33772.

Court of Criminal Appeals of Texas.

November 1, 1961.

No attorney for appellant of record on appeal.

Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for the offense of indecent fondling a child's sexual parts; the punishment, ten years.

The prosecutrix, ten years of age, lived with her mother and two younger brothers in the City of San Angelo.

She testified that on the night in question, she was at her home alone, and after studying her lessons, she went to bed and went to sleep; that later she awakened and discovered that the appellant was in bed with her; that at such time appellant was in his underwear and was taking off her clothes; that appellant proceeded to get on top of her and when she tried to get away, appellant admonished her not to try and told her not to "holler" because he was going to tie her mouth. She stated that appellant then put his hand between her legs, rubbed her privates and then put his finger in her private parts; that he got on top of her and with his privates exposed, hugged her. She testified that appellant then went to sleep and later when her mother came home, from work, she told her what had happened and the police were called.

The prosecutrix's mother, upon being called as a witness, corroborated her testimony relative to her coming home, finding appellant asleep in the bed and upon being told by the prosecutrix what had happened, calling the police.

It was further shown that after the police came to the house and, finding appellant in the bed in his underwear, had placed him under arrest, the prosecutrix was taken to a hospital where she was examined by a physician. The examination of her private parts revealed a laceration at the anterior portion of the vulva or external orifice.

Appellant, testifying as a witness in his own behalf, admitted going to the home of the prosecutrix on the night in question, entering the house, going to bed and to sleep, but denied seeing the prosecutrix or in any manner touching her. Appellant explained his presence in the home by testifying that for some time he had been going to the house and sleeping with the prosecutrix's mother.

The jury chose to accept the testimony of the prosecuting witnesses and reject that of appellant and we find the evidence sufficient to sustain their verdict.

There are no formal bills of exception and no brief has been filed on behalf of appellant.

Appellant made certain objections to the court's charge and presented to the court a special requested charge. The court, in response to the objections and requested charge, modified the main charge and no further objections or exceptions are shown to have been made by appellant. If appellant was not satisfied with the charge after it was amended, it was incumbent upon him to file further objections thereto. Having failed to do so, any objections, to the amended charge, were waived. Jennings v. State, 121 Tex. Crim. 384, 51 S.W.2d 341; Tucker v. State, 141 Tex. Crim. 428, 148 S.W.2d 1111; McCutcheon v. State, 158 Tex. Crim. 419, 252 S.W.2d 175.

We have examined the charge as given and find no fundamental error therein.

The judgment is affirmed.

Opinion approved by the Court.