Vidaurri v. State, 24792

• Decision Date: 31 May 1950
• Docket Number: No. 24792,24792
• Citation: 155 Tex.Crim. 17,230 S.W.2d 536
• Parties: VIDAURRI v. STATE.
• Court: Texas Court of Criminal Appeals

Page 536

230 S.W.2d 536

155 Tex.Crim. 17

VIDAURRI v. STATE.

No. 24792.

Court of Criminal Appeals of Texas.

May 31, 1950.

None on appeal.

George, P. Blackburn, State's Atty., of Austin, for the State.

WOODLEY, Judge.

Appellant was found guilty by the jury of the offense of aggravated assault, her punishment being assessed at eighteen months in jail.

The complaint and information alleged an assault by appellant, an adult female, upon a child.

The injured party, Elmo Vidaurri, is the three year old adopted son of appellant, she and her soldier husband having adopted him while stationed in Germany.

Appellant resided in an upstairs apartment. Several of her neighbors testified to hearing sounds apparently coming from such apartment, variously described as--'Unusual noises, and the child crying.'--'Slapping sounds' 'thumping'--'banging on the floor.' 'The sounds were just as if you would take a fist and beat a piece of raw meat, or strike an object such as a punching bag. You could hear whimpers and gurgling sounds.'--'dull thuds like something being dropped or smacked or something.' 'I did hear the child cry out on that occasion.' 'I heard the child choking.'

The condition of the child was described by Dr. Ricardo Heath, who examined him several hours after the officers were called. The doctor testified in part as follows:

'There was a blue spot in the back, up both sides of the back, about the region of the fifth, sixth and seventh ribs, oblique, from out to in and from up to down. They were about a spot here on this side and three on this side (indicating on counsel). It seemed that this boy was hit this way and down, and this way (demonstrating). It was coming from the fifth, sixth and seventh ribs, four blue spots there on the left side, and over here on the right side.'

'He had a wound, too, on the nose.'

One of the witnesses described the wound on the nose in this manner--'His nose looked like it was bursted out here. Blood was all caked on it.'

An officer testified that he responded to a call, and saw appellant at her apartment about 9 to 9:30 on the night of the alleged assault, at which time the injured child was in bed. The officer testified:

'I asked the Sergeant to undress him so I could examine the boy, and I noticed some bruises on the boy's back and on his forehead and on the top of his head, and I asked the little boy how he got them and he said, 'Mamma whipped me,' and his mamma spoke up and said, 'I whipped you on the butt, tell him I whipped you on the butt.''

Appellant, as a witness in her own behalf, testified in part:

'I corrected him--not that day, four days before that happened, before the 4th of October. I used one of my belts to correct him with. It was a small leather belt. I tried to hit him on his little butt, but he sat down some way, and I just hit him like that. I tried to hit him on the buttocks. I say he sat down and I hit him on the side of his back, right there, two stripes. That is what I made on his back when I whipped him, that is all, that is all he had, because I was right there when they examined him.'

'Those are the marks I left on the child when I whipped him with the belt. I struck the child twice on that occasion with the belt. I did it because he moved his bowels in his pants.'

Appellant denied that she was responsible for any injuries found on the boy except two stripes he had on one side of his back.

The evidence appears to be sufficient to sustain the jury's verdict. Furthermore, the injuries admittedly inflicted by appellant with a belt on this three year old child alone are such as to show an offense, rather than a reasonable chastisement by a parent for correctional purposes.

We have not been favored with a brief by appellant, but will discuss what we consider to be her principal bills of exception.

The first bill complains of a statement by the district attorney on voir dire examination of the jury panel to the effect that appellant had been previously convicted of the same offense and that the victim in this case was the identical victim in the former case.

The...