Butler v. State (272 S.W.2d 125, 1954)

WOODLEY, Judge.

The conviction is for robbery; the punishment, 5 years in the penitentiary.

This is a companion case to that of Lebron R. Fields v. State, Tex.Cr.App., 272 S.W.2d 120.

The injured party, Julio Orozco Betancu, a 56 year old Mexican farm laborer whose wife and eight children resided in the State of Chihuahua, Mexico, was alone in the field of his employer Paul Ivey preparing an irrigation canal, when appellant and his two companion's drove up, called him to the car and asked if he had any gasoline. He replied that there was some at the ranch but he had none there and returned to his work. ' '

He was again called and when he returned to the car, the hood was raised and one of the three, other than appellant, was out of the car. Appellant and the third party were still in the car.

The opinion in the Fields case describes the assault made upon the victim.

Betancu testified that while he was down, with the knife at his throat, appellant and the other occupant of the car got out and appellant had his hand on Betancu, was holding him by the hand and went through his pockets, as did the other occupant of the car.

Betancu further testified that a package of cigarettes and a Mexican coin were taken from him by the assault and exhibition of the knife or dagger, but he was unable to say which of the parties took either item from his pockets.

Many of the same questions raised in the Fields case were raised on this trial. They were disposed of there and need not be further mentioned here.

Appellant did not testify, but his confession was offered by the state. The only serious question relates to the admission of parts of the confession relating to and tending to show that appellant and his companions committed other assaults and robberies on the day in question.

The state, having first offered only a portion of the confession, was thereafter permitted to offer the whole.

The confession, omitting the warning clause and signatures, follows, the portions which were objected to as showing collateral offenses being underlined.

“My name is Paul Wayne Butler and I am 18 years of age;’ I was born in Cedar Groves, Okla. and at present I consider the following address my home: Box 243, Munday, Texas.

“I came to Pecos Monday, October 12, 1953. I arrived Pecos about 8 P.M.

“I hitch-hiked to Pecos, and after Í got in I ate supper, called a taxi to take me up to my apt. where, I stay with Cleborn Fields. Cleborn and I left just as soon as I got to the apt. and went to Verhalen Gin —where we spent the night, Leborn was working last night and Cleborn went to work this morning at Seven A.M. Leborn, Eugene Embry, and I came back to Pecos. We left Verhalen about 7 A.M. We were in the wine colored Ford of Leborn Fields.

“When we got to Pecos, Embry suggested we go out and beat hell out of some Mexicans — Embry said that he had beat hell out of several and got some money from them. Said something about easy money if you don’t get caught. This morning was the first I have heard about any thing like that. P.W.B.

“I have worked at Verhalen a month — I have known the Fields boys about 8 or 10 years, and have known Embry for about a month.

“I don’t think Cleborn has been in on any of the robbing and beating, but Leborn and Embry and Gene Pace have been involved in several beating and robbing forays according to what conversation I have overheard in the last month.

“This morning between 7:30 A.M. and 8 A.M. Embry, Lebrón, and I drove west of Pecos on US 80 and picked up a Mexican about 25 years old, drove on west about 2 miles, turned left twice and stopped in a cotton field where we got out of the car and Lehorn hit the Mexican but did not knock him down, so I hit him one time and knocked him down. We searched the Mexican and one of the boys got 50‡. We turned the car around and drove back to highway 17 and about 3 miles south we found a Mexican working in the field on the west side of the highway. 'We drove out to where he was working — looked like he was picking up rocks — We killed the motor raised the hood, and as the Mexican was looking at the motor — Fields- and Embry told me to hit him. I hit him one time and he fell down. Eugene put a hunting knife at the Mex throat and Embry and Fields searched him, but we didn’t get any thing.

“Embry used the knife on all three men.

“We left the second man in the field 'and drove on out to the highway turned left and drove north a mile and" a half-turned around and drove back' south to where a Mex was trying to catch a ride about even with the 'Drivein Show.

“The Mex got in the car thinking we would take him where he was going — Em-bry told him something in Mex — I suppose to get him in — then we drove on south to a paved road west. We stopped on the paved road and the Mex started fighting — Embry had told