CARLOS DELUNA’S TRIAL BEGAN ON FRIDAY, July 15, 1983, just over five months after the slaying of Wanda Jean Lopez.
Karen Boudrie, a novice beat reporter in her early twenties, covered the case for KZTV, the CBS affiliate in Corpus Christi. DeLuna’s was the first trial of any kind that Boudrie had covered as a journalist. A bit overwhelmed—“like a deer in the headlights”—Boudrie sat in the courtroom, listening intently to the evidence against DeLuna and reporting her observations to the Corpus Christi community through frequent segments on Newswatch 10 (figure 13.1).
The young reporter was fascinated by the criminal trial process and spent the next six years investigating and reporting on police and courtroom events in Corpus Christi. Throughout those years, she made it her business to stay in touch with Carlos DeLuna. “I thought, maybe one day I’ll be the person he reveals some deep, dark secret to,” she admitted.
Becoming a specialist on police and prosecutors, Boudrie moved on to cover criminal and capital trials for larger-market television stations near Atlanta and New Orleans. But the DeLuna case stayed in her mind in a way that no other did. Part of it, she believed, was that “[e]very time I talked to Carlos, and in every letter, he talked about how his life had gone astray, but he always denied committing this crime.”
Twenty years later, discussing the case with investigators at a hotel near the Dallas–Fort Worth International Airport, Boudrie recalled one of the biggest “things the prosecution had going for it” at DeLuna’s trial: a sensational tape recording of “Wanda Lopez calling the 911 dispatcher. And you can hear her on the tape begging for her life, and screaming.”
FIGURE 13.1 Karen Boudrie in 1987 reporting outside the Sigmor gas station (remodeled since the 1983 stabbing incident), with Wolfy’s in the background.
When prosecutors played the tape, the apprentice reporter realized that they weren’t messing around. They were “out for blood.” “It was going to be a feather in someone’s cap to be able to get the death penalty in this case.”
. . .
DeLuna’s sister Rose spent those days shuttling back and forth between the courthouse and the hospital where her mother lay dying, hoping that the defense attorneys would prove what Carlos had told her and she believed—that he hadn’t killed Wanda Lopez.
Wanda’s parents and her brother Richard sought something different—an end to their ordeal, some sign that Wanda’s attacker realized that he shouldn’t have done this to her, that she didn’t deserve it.
. . .
Wanda’s cousin Becky Nesmith had been working at a different Diamond Shamrock convenience store on the night of Wanda’s murder. Although several years younger than her cousin, Becky later described Wanda to the private investigators as “like a sister” and sometimes a “savior,” as the two struggled to adjust to lives as single mothers deserted by the fathers of their children. Like others, Becky described Wanda as a “happy spirit . . . very loving, very friendly, very outgoing.” Becky had worried about her cousin working alone in a dangerous area across the street from a topless bar.
Becky recalled getting “a phone call from my mother at work letting me know that Wanda had died.” She rushed to the hospital and then to Wanda’s mother’s house, down the street from the hospital. Becky was wearing her blue Shamrock smock, and she recalled her aunt clutching Wanda’s smock. “She was just curled in the blue smock, crying and crying,” Becky remembered sadly. “And she had this picture [of Wanda] next to her, in color. It was just an awful ordeal.”
In summer school later that year, Becky’s history teacher announced that students would be required to watch a murder trial at the courthouse downtown and write reflections. “When he said what trial it was,” Becky realized “it was my cousin Wanda’s.” Becky wondered how she would react to the monster she expected this DeLuna to be and to evidence of how he brutalized her cousin.
Becky’s reaction to at least one piece of evidence was the same as Karen Boudrie’s.
“[T]he worst part of the trial,” Becky said, “was when they aired the 911 call, where we heard her speaking and the operator speaking, and the questions that they had asked her. And at the end of the phone call, she’s screaming, and then the phone hangs up.”
“It was terrifying hearing her voice,” she recalled tearfully—“the last time we were ever going to hear [Wanda].”
. . .
In his opening summary for the jury, Assistant District Attorney Steven Schiwetz laid out what seemed like an open-and-shut case. Just after Wanda screamed on the call, the police dispatched all available officers to a manhunt near the Shamrock. Forty minutes later and three blocks away, they found Carlos DeLuna cowering under a truck. Shortly after that, four witnesses identified him as the man they’d seen at or near the gas station.
Schiwetz said his “final witness” would be Wanda Lopez herself, on tape—“asking for help, telling about a man who was in the store with a knife.” Pointing to Carlos DeLuna, he drew his remarks to a close. “You will hear her final words to this Defendant telling him, ‘I’ll give you what you want,’ and then you will hear her screaming as he knifed her.”
The State’s first witness was Wanda’s father, Luis Vargas. He told the jury a little bit about his daughter and her job at the Sigmor Shamrock and displayed a picture of Wanda with her own daughter in her lap. Then police dispatcher Jesse Escochea testified about the 911 call he answered. Schiwetz directed Escochea’s attention to a call received at “8:09 P.M.,” leaving no room for mention of any other call.
The twenty-two-year-old Escochea said he took a call regarding a man with a knife from an unnamed female at 2602 SPID. She asked for assistance, he testified, and he quickly dispatched officers to the scene.
Officers Steven Fowler and Bruno Mejia described their arrival at the scene, where they found a man kneeling over Wanda Lopez. Fowler testified that her labored breathing and glassy eyes revealed a “Kussmaul” state from loss of blood through a wound on her left side.
Spread throughout the prosecution’s case was additional testimony—by an emergency medical technician, the nurse who was treating Wanda at the hospital when she died, and Medical Examiner Joseph Rupp—describing Wanda’s wound and her awful suffering. In the same vein, Lieutenant Eddie McConley, the commanding officer at the scene who secured the store until Detective Olivia Escobedo could get inside, described the “large amount of blood” he saw inside and outside the store, and on Wanda Lopez as she lay blocking the door while medics tried to revive her.
Mejia told of gathering the witnesses near the ice machine, getting descriptions, and broadcasting BOLOs. He described the weather that night as “clear, mild, warm.” He didn’t recall rain.
Fowler noted that bystanders at the scene said they’d seen someone running from the area. Introducing a directional theme the prosecutors came back to throughout the trial, Fowler only mentioned witnesses talking about a suspect running “eastbound” along the service road toward the Phase III nightclub (see figure 2.3, route A–E). At one point, Fowler said “westbound,” but Schiwetz encouraged him to correct himself and refer again to an easterly direction.
Defense lawyers James Lawrence and Hector De Peña didn’t have the manhunt tape. They didn’t know that Mejia’s nine BOLOs and numerous sightings by cops chasing a man gave a different direction of flight: eastward just a few feet along the Sigmor sidewalk to the end of the building where the ice machine was, and then north “behind” the store and west half a block to Dodd Street. Further sightings tracked a man sprinting north on Dodd toward McArdle and right on McArdle toward Domino’s and a Circle K at Kostoryz (see figure 2.3, route 1–6). Nor did they know about Fowler’s own encounter earlier that evening with a mustachioed man wearing a sweatshirt and suspiciously lurking around the same Circle K.
The jury heard none of this.
. . .
Only Deputy Constable Ruben Rivera described the manhunt at all, and he focused on DeLuna’s arrest. He and his partner, Carolyn Vargas, he said, had responded to Theresa Barrera’s call notifying police of a man hiding under her pickup truck on Easter Street. Rivera and Vargas set off on foot. Within minutes, they saw a group of bystanders on Franklin Street beside a different pickup truck, yelling that someone was underneath.
When Rivera reached the truck, he knelt down, shone his flashlight, and saw what he thought were a man’s feet. Drawing his gun, Rivera sternly ordered the man to come out from under the car with his hands up. The man didn’t move.
Corpus Christi police officer Mark Schauer then described his own arrival at Nemec and Franklin Streets, around the corner from Barrera’s house. He saw Constable Rivera and his partner standing next to a vehicle and calling for backup. Schauer noticed that there was a man under the truck and rushed over. Together, Schauer and Rivera pulled DeLuna out from underneath the truck—shoeless, shirtless, and smelling of beer. The only words that DeLuna could muster were “Don’t shoot. Don’t hurt me.”
Responding to Assistant District Attorney Kenneth Botary’s questions, the twenty-four-year-old Schauer described DeLuna as “real hyperactive, real tense, very—very talkative . . . he wouldn’t shut up.”
“He had a kind of a stare in his eyes,” Schauer dramatically elaborated, “like a—it’s hard to describe, but it was a stare like a glare in his eyes, like an animal might have.” Accompanying the stare, he said, was a “constant[] . . . smile on his face, kind of a smirk.” There were “long scratches” on the right side of DeLuna’s torso, Schauer said.
During his cross-examination of Schauer, defense lawyer Lawrence asked the officer why none of the details in his testimony—the stare, the smirk, the scratches—were in the report he filed on the night of the killing and showed up only in a second report written days later. Schauer responded that Detective Escobedo “caught me in the hallway of central records and asked me to—to add everything I could remember, as much as possible to my—to my [second report].”
. . .
Toward the end of the first day of trial, Officer Thomas Mylett linked DeLuna to the Casino Club where Mylett worked at night as the bouncer. Armando Garcia, whose backyard adjoined the house where DeLuna was arrested, testified that he found a white dress shirt and shoes in his yard. Prosecutors showed the jury a diagram indicating that Garcia’s yard was on a straight line connecting Theresa Barrera’s pickup truck on Easter Street to the truck on Franklin Street that DeLuna was under when he was arrested.
. . .
The prosecutors whipped quickly through the testimony of the witnesses who collected and examined the physical evidence. They began at the end of the first day of trial with Joel Infante, the I.D. technician, and finished up in the middle of the second day with lead detective Olivia Escobedo, fingerprint expert Ernest Wilson, and blood expert Donald Thain.
Much of this testimony was about things that didn’t happen.
Infante didn’t get any fingerprints from most of the surfaces and other pieces of evidence at the gas station, including the lock-blade buck knife that was the murder weapon and the Winston cigarette pack placed on the counter by the killer.
Wilson didn’t actually compare the few fingerprints Infante did retrieve with Carlos DeLuna’s prints because their quality was too “poor.”
Along with the knife found at the scene (dramatically described by Escobedo as laden with human flesh) and the cigarette pack, Escobedo and Officer Fowler showed the jury ten of the thirty-eight photographs that Infante had taken at the scene.
But Escobedo didn’t show the photos with bloody shoe prints headed out from behind the clerk’s counter, what appear to be partial bloody shoe prints on the storeroom floor and sidewalk outside the store, the cigarette fragment and wad of pink chewing gum someone had spat out on the floor, Escobedo herself trampling evidence, or the wide shots revealing the full extent of the blood coating the floor and spattered several inches high on the walls and cabinets behind the counter. The defense lawyers didn’t mention the missing photos either, probably because they never saw them until they reviewed Rene Rodriguez’s evidence in the Diamond Shamrock lawsuit four years later.
Finally, chemist Donald Thain testified that he didn’t find any trace of blood on DeLuna’s white dress shirt, black slacks, and shoes and on the cash bills found in his pocket. Schiwetz took Thain through the following explanation:
SCHIWETZ: I’m showing you now what’s marked as Exhibit 16, being these pants. Presume for a moment that the person got some blood, some blood dripped off a person who had been stabbed and dripped onto these pants somewhere and presume that that person laid down in one gutter and that in that gutter there was water and when this person got up, their pants were soaking wet. Would that have any influence on whether you found blood on them?
THAIN: Yeah. As I say, if it was fresh blood, it would—when water gets on fresh blood, it would wash away pretty easily.
SCHIWETZ: Same regarding the shirt . . . , if it was being worn by a person who was lying in a gutter with some water on them, could the blood, if there was any wash out that way?
THAIN: It could.
SCHIWETZ: Would it be difficult or easy?
THAIN: It would—as the water gets on the, you know, blood, and its fresh, it would go out pretty good.
Schiwetz asked a similar question, and got a similar answer, regarding DeLuna’s shoes.
Cross-examined by Lawrence, Thain testified that blood that had dried on the cloth shoes, shoe laces, shirt, and pants would not come out with water, and that small smears and spatters would likely dry quickly in those kinds of porous cloth.
He offered no explanation for the absence of blood on the bills found in DeLuna’s pocket.
Early Monday morning, Schiwetz called his star witnesses—the ones whom Mejia had corralled near the ice machine where they shared descriptions and discussed whether to do the show-up identification at the scene.
George Aguirre testified first. There was no “doubt in his mind,” he said, that the shirtless and handcuffed man police brought to the gas station in the back of a squad car was the same one he’d seen outside the Sigmor store carefully situating a large, open lock-blade knife in his pants pocket before asking Aguirre for a ride to the Casino Club.
Logically, the next step in the examination was to ask Aguirre to point to the man in the courtroom who he’d seen at the gas station with a knife. But at an earlier hearing where no jury was present, Aguirre had been unable to identify DeLuna, who was sitting at a table a few feet away with his lawyers. With a jury in the courtroom, Schiwetz didn’t even ask Aguirre to try.
On the manhunt tape, the description from Aguirre indicated that the man he saw wore a white, long-sleeved T-shirt or thermal shirt and blue jeans. But by the time of trial, Aguirre’s description tracked the one he’d discussed by the ice machine with the insistent Julie and John Arsuaga: white button-down shirt and “dark blue” or “black” pants. Lawrence didn’t have the manhunt tape. He didn’t cross-examine Aguirre on the point.
Lawrence did question Aguirre’s claim that, after he left the gas station and got on the SPID freeway, he was able to look across six other lanes of highway traffic and down off the elevated SPID roadway into the recesses of the Sigmor Shamrock store and see Wanda struggling with the man he’d encountered outside the store—all while driving at expressway speeds.
John Arsuaga testified next. He identified DeLuna in the courtroom as the man he’d seen jogging east past the Phase III nightclub. He explained that, on the night of Wanda’s attack, he went back to the police station and selected a photo of DeLuna from a group of six Hispanic males. John was “sure” the man in the photo was the same man he’d seen “running earlier that night.” A little later, Julie Arsuaga also identified DeLuna. As usual, Julie gave the most detailed description of the well-dressed jogger’s attire: white dress shirt, unbuttoned and “untucked,” flapping in the wind, with “black or dark blue” slacks. John’s description had been similar.
Again, however, Lawrence didn’t have the manhunt tape and didn’t hear Mejia’s remark that the Arsuagas seemed to be describing “another man,” different from the one whom Kevan Baker saw fleeing the store. The defense lawyer didn’t realize that the Arsuagas’ testimony helped his well-dressed client by placing him blocks away when Baker came face-to-face with the scruffy assailant in the Sigmor doorway. Instead, Lawrence spent much of the trial attacking John and Julie’s photo identification of DeLuna.
When Schiwetz called Baker to the stand, the prosecutor noted that the car salesman was “a little nervous” and urged the reluctant witness to “slow down” so the jury could follow him. Calming himself, Baker identified DeLuna—the “gentleman that’s sitting right here in front of me”—as the man he’d met at the gas station door after watching Wanda struggling to break free of his grasp. Baker said that when he identified the suspect in the gas station parking lot later that night, he was sure the man was Wanda’s attacker.
It came out during Baker’s testimony that he had originally told Mejia that the attacker wore a red flannel jacket, had the unkempt look of a “transient,” sported a mustache, was in his mid-twenties, and fled “east” only a few steps before turning and going north “behind” the Sigmor. Baker volunteered that DeLuna’s face had cuts and scratches on it at the show-up, unlike the face of the man he saw running out of the store.
Guided by Schiwetz’s follow-up questions, however, Baker said he no longer remembered the “kind” of shirt the attacker wore or where he went after exiting the door and turning “east.”
Without the manhunt tape, Lawrence couldn’t refresh Baker’s recollection with the descriptions Baker had given—and Mejia’s BOLOs had repeated nines times over forty minutes—of a man in a gray sweatshirt and red flannel jacket running north.
. . .
As one witness after another identified him, the “twenty-year-old Carlos DeLuna sat calmly, taking notes on a legal pad,” Boudrie reported to her Newswatch 10 viewers.
Later Boudrie told the private investigators that the I.D. witnesses hadn’t impressed her, either. Even though she “had a tendency” at the time “to be very much believing of the prosecution, not wanting to question it as much” as the defense, Boudrie remembered thinking that “all they had” was a bunch of witnesses saying “‘boy, he ran by,’ and whoever ran by ran by really quickly.”
Boudrie recalled being outside the Sigmor Shamrock store herself, filming a report and “visualizing where [the witnesses] supposedly were when they saw it.” “How good a look of [the man] would they have gotten at night?” she remembered thinking.
Boudrie had just come to Corpus Christi. She had “never met that many Hispanic people. And I’m thinking, if I was there in the gas station and I see a Spanish guy running by, would I be able to I.D. him? I don’t know.”
There was “another thing” about the DeLuna trial, Boudrie said, that “always stood out in my mind—no fingerprints. I think that would have made it a lot easier, if there were fingerprints. But there wasn’t that one bit of evidence that would have really said, okay, he was in there. . . . That always bothered me.”
Overall, Boudrie thought, “that’s some pretty flimsy evidence.” It “was amazing, that that’s all they had.” DeLuna, she thought, had a shot at beating this thing with the jury. Even the defendant, who was portrayed as “this heinous person, this woman-hater, this violent person,” in the end “seemed like an average, nice guy in some respects.”
. . .
Becky Nesmith had a similar reaction as she watched the prosecutors put on their case against the man they said had murdered her cousin Wanda.
She, too, thought the clean-cut young defendant swiveling his chair and chewing gum didn’t “look like the type of person that would kill or do something bad.”
Based on the evidence she heard, she, too, “couldn’t even figure out if this man was guilty.”
She recalled a male voice on the 911 tape buying cigarettes. “Why wasn’t his voice compared to Carlos DeLuna’s?” “There must have been blood on DeLuna’s clothes,” she remembered thinking. “Why wasn’t any found?”
. . .
For all her misgivings, news reporter Boudrie didn’t realize that the descriptions the witnesses had originally given to police were so different from one another. It didn’t register that Baker had told the police that the killer wore a gray sweatshirt and red flannel jacket, while the man the Arsuagas saw wore a white, button-down dress shirt.
Boudrie also didn’t recall that Aguirre first described a man in blue jeans and a T-shirt, while the Arsuagas saw a man in black well-pressed slacks; that the man Baker came face-to-face with wore a mustache, and the man who ran by the Arsuagas was clean shaven; that the unkempt “derelict” who Baker saw “sprint” away didn’t match the well-dressed man out for a leisurely “jog” who struck the Arsuagas as comical; or that the escape route Baker described was north “behind” the gas station toward Dodd Street, while the man the Arsuagas saw at the Phase III was headed east along the SPID service road.
“That never came out,” the reporter said. “None of us knew . . . that there were actually conflicting witness statements.”
As a flack for Republican candidates in Louisiana, Boudrie told the investigators in 2005, she didn’t think of herself as a pushover or a bleeding heart. She “was all for capital punishment.” By then, she had covered murder cases for years, including “more brutal and heinous cases than this one,” and often had thought, “That person needs to be put to death.” But Boudrie was always troubled by the DeLuna case. “It absolutely bothers me,” she said, “that the defense never had the opportunity to put a case on with that as the crux of it, to really be able to attack the witness identification.”
. . .
Along with presenting witness identifications of DeLuna, the prosecutors worked to tie the defendant to money from the Sigmor store. Officer Schauer testified that immediately after Carlos DeLuna’s arrest, he discovered $149 in the suspect’s pocket.
Schauer’s initial report had described “a wad of paper currency rolled up in [DeLuna’s] right pants pocket,” with the twenties together at the bottom. To the jury, he described it somewhat differently: “It was in like a wad. It wasn’t rolled up into a neat little roll with a rubber band around it or anything like that.” Schauer said he shuffled the bills before bringing them to the station, so he didn’t know what order they originally were in.
Botary’s questions emphasized that the $149 was in DeLuna’s front pocket, not in a brown or black wallet found in his back pocket, which contained only two $1 bills. This linked up with testimony that Aguirre had given that the man he saw at the gas station displayed a black wallet with only a small number of cash bills in it.
Pete Gonzalez, the Sigmor Shamrock area manager, testified that an inventory of the store at 11:00 P.M. the night Wanda was killed revealed a shortage of $166.86. He said it was “customary” for an inventory to be of by $25 or $50. Gonzalez never explained, and defense counsel never pointed out, that Diamond Shamrock’s accounting methods made it impossible to inventory cash alone, and that shortages were often due to shoplifting, gasoline drive-offs, and short deliveries, as well as pilfered or stolen cash.
Among the evidence that Rene Rodriguez dug up for the Shamrock lawsuit and showed to De Peña and Lawrence in 1987 was a display card with company rules forbidding employees to have more than $75 in currency in the cash drawer at any time. Lawrence himself had emphasized to the private investigators in 2005 that DeLuna had more money in his pocket than would have been in the gas station till at the time. But the defense lawyers apparently didn’t know this in 1983, and the jury never heard it.
. . .
Two of the State’s final witnesses had no connection to the attack on Wanda Lopez and the investigation that followed. Their testimony was brief but very much to the point.
Estella Gonzalez, the bookkeeper for the jail commissary, testified that she had reviewed the order slips from the commissary and that Carlos DeLuna had consistently ordered Winston cigarettes from among the five brands available at the jail. Ernesto Gonzalez, a corrections officer for the Nueces County Sheriff’s Department, confirmed that DeLuna smoked Winstons.
. . .
The final element of the State’s case-in-chief against Carlos DeLuna was the recording of Wanda Lopez’s 911 call to Jesse Escochea saying that a man had come into the store who she believed had a knife and was up to no good.
A police department communications supervisor, Lieutenant Robert Klemp, introduced the tape to the jury. Klemp explained that he maintained a “master tape” with various channels recording “all” Corpus Christi Police Department “dispatch[es], all the radio broadcasts, incoming and outgoing, and all the telephone conversations, both emergency lines and in-station extensions.”
Klemp described how, nineteen days earlier, on June 29, he had created the cassette of the tape he would play for the jury. He “separated” the portion of the tape he wanted from the master tape and used “a cassette recorder which reproduced it of the master.”
In his questions, especially those italicized in the quotation from the transcript, Schiwetz was careful not to invite Klemp to refer to the other portions of the master tape that related to the Wanda Lopez killing—the first 911 call and the radio traffic during the manhunt. Switching to “leading” questions that signal to the witness what he’s expected to say, Schiwetz mirrored the surgical precision that Klemp had used in extracting only a 90-second segment of the tape:
SCHIWETZ: Who prepared that tape?
KLEMP: I prepared this tape, this cassette tape.
SCHIWETZ: Is it exactly the same as the recording made on February 4th, 1983?
KLEMP: That’s correct.
SCHIWETZ: Have any changes been made in it?
KLEMP: No.
SCHIWETZ: Have there been any—well, let me qualify that. That tape is a recording, is it not, of the tape of the call made in reporting a man with a knife at 2602 SPID, is it not?
KLEMP: That’s correct.
SCHIWETZ: It ends at the point where that call ends, does it not?
KLEMP: Yes.
SCHIWETZ: Okay. Now, within that context, have any changes been made to that conversation?
KLEMP: No.
SCHIWETZ: Have any deletions been made?
KLEMP: No.
Klemp’s answers were accurate and truthful as far as they went, and Schiwetz’s leading questions made sure they never went far enough to divulge the existence of other parts of the tape.
. . .
Ending the State’s case with Wanda’s pleading voice sent a clear message to the jury. Someone had done something terribly, horribly wrong to Wanda Lopez, for no fathomable reason. Now someone needed to pay:
JESSE ESCOCHEA: Police Department.
WANDA LOPEZ: Yes, can you have a officer come to 2602 South Padre Island Drive? I have a suspect with a—a knife inside the store.
ESCOCHEA: What place is this?
LOPEZ: Sigmor.
ESCOCHEA: What’s he—
LOPEZ: Well, he—
ESCOCHEA: What’s he doing with the knife?
LOPEZ: I don’t know, he was outside bumming a ride off of this guy and he just told me right now—he just came inside the store.
ESCOCHEA: Has he threatened you or anything?
LOPEZ: Not yet.
Could I help somebody?
ESCOCHEA: What does he look like?
LOPEZ: Por que?
ESCOCHEA: What does he look like?
LOPEZ: He’s a Mexican. He’s standing right here at the counter.
ESCOCHEA: Huh?
LOPEZ: Can’t talk.
Thank you.
ESCOCHEA: Ma’am?
LOPEZ: What?
ESCOCHEA: Don’t hang up, okay?
LOPEZ: Okay.
This? Eighty-five.
ESCOCHEA: Where is he at right now?
LOPEZ: Right here.
ESCOCHEA: Is he a white male?
LOPEZ: No.
ESCOCHEA: Black?
LOPEZ: No.
ESCOCHEA: Hispanic?
LOPEZ: Ye s.
ESCOCHEA: Tall, short?
LOPEZ: Uh-huh.
ESCOCHEA: Tall?
Thank you.
ESCOCHEA: Does he have the knife pulled out?
LOPEZ: Not yet.
ESCOCHEA: Is it in his pocket?
LOPEZ: Uh-huh.
ESCOCHEA: All right. We’ll get you someone over there.
LOPEZ: You want it, I’ll give—I’ll give it to you. I’m not going to do nothing to you. Please.
ESCOCHEA: Hold it, get a unit on a 17 to the Shamrock, 2602 South Padre, you’ve got an armed robbery going down right now. God, she’s [sic] beating the shit out of him [sic]. Okay, hold on.
SECOND MALE VOICE: 165—
SECOND FEMALE VOICE: Are you through with your call?
THIRD MALE VOICE: 151, police department.
FOURTH MALE VOICE: Hello.
(Unintelligible.)
(At this time the playing of [State Exhibit]-2 was concluded.)
. . .
Karen Boudrie recalled watching as the recording “sent chills up and down the spines of everyone in the courtroom.” Years later, she set the scene when the tape ended.
“The courtroom is in absolute silence,” she said. “[W]e’re all in shock, in a state of unbelievability that—Why did someone have to kill this woman? She said, ‘I’ll give you everything, I’ll give you everything.’ She could see what was coming. It was just horrible.”
Hearing Wanda Lopez beg for her life and die was “one of the most compelling pieces of evidence” against a defendant that Boudrie had encountered in a career spanning many murder trials. And that was true “even though [Wanda] didn’t say who did this to me.”
“They did a good job of working everybody up,” Boudrie said, “playing the tape as many times as they could get away with. Saying somebody’s got to pay, here’s the guy, let’s put him away, let’s put him to death.”
“I think that’s the attitude everybody had,” she said. “Everybody was kind of on the bandwagon.”
Right after the tape ended, the State rested its case, and the judge sent the jurors home for the evening. They had the whole night to think about Wanda’s last sentient moments.
“I had nightmares about it for a long time,” Shirley Bradley, a juror in the case, told Chicago Tribune reporters in 2005. “That tape had a shock-value on us It was a clear-cut case.”
. . .
But even then, at the end of the State’s case, Boudrie herself wasn’t certain the prosecutors had sealed DeLuna’s fate. She remembered thinking that she “wouldn’t want to be on the jury to decide this. He was hiding nearby, and he was identified by one or two witnesses who saw him for a fraction, for one or two seconds. What they had was great, titillating, sensational evidence, but they didn’t have a lot on Carlos.”
. . .
Wayne Waychoff was the first witness for the defense. Waychoff owned a paving company that employed Carlos’s stepfather Blas Avalos. At Avalos’s request, Waychoff had hired Carlos as well when he made parole in mid-January 1983.
Waychoff’s testimony put enough money in DeLuna’s pocket during the week preceding the Shamrock killing to more than cover the $149 found there at the time of the young man’s arrest. Between January 28 and February 4, the day Wanda Lopez was stabbed, Waychoff paid Carlos just over $206 in wages, including $135 on the day Wanda was murdered. Waychoff noted that there was a lag between paychecks and work performed, so as of February 4, he owed Carlos an additional $77 for work done earlier that week.
Waychoff’s testimony kicked of a chronology of DeLuna’s day on February 4. The eighth of an inch of rain that fell that day in Corpus had started just before 11:00 A.M., so Waychoff sent Carlos’s concrete-laying crew home early. A co-worker, Daniel Fino, testified that he and Carlos had immediately cashed their paychecks and gone over to Avalos’s house to drink some beer that Carlos had bought.
Blas Avalos himself then testified that Carlos was living and eating at home and hitched a ride with his stepfather to and from work, so the young man had no big expenses in his first month back from prison. Although Avalos didn’t put it quite this way, he indirectly disclosed that he even kept the household well stocked with the one discretionary product in which DeLuna did indulge: beer.
Testifying through an interpreter, DeLuna’s alcoholic stepfather explained to the jury that between dropping Carlos off at the skating rink at about 7:00 P.M. on February 4 and receiving a call from his stepson at 8:00 P.M. or a little later asking for a ride home, he had gotten too drunk to drive. His wife didn’t like to drive at night, and they knew that Carlos had money in his pocket, so they told him to take a taxicab home.
Carlos had hoped to have his mother give this testimony and convey a mother’s belief that a son asking his parents for a ride home, with more money in his pocket than he could expect to get from a convenience store robbery, was not likely to commit one ten minutes later. But Margarita was in the hospital where she would shortly die, and the job of testifying fell to Carlos’s taciturn stepfather.
Apart from some discussion of Carlos’s shoes and clothes on the night of the incident—Avalos didn’t remember what Carlos wore—the State’s cross-examination zeroed in on only two questions. The first was about his and Margarita’s conversation with Carlos after the young man’s arrest:
SCHIWETZ: What did [Carlos] know had happened?
AVALOS: Just that he was being accused of a thing that he had not done.
To answer the second question, Avalos drew on all fifteen years he’d known his stepson:
SCHIWETZ: Do you know if Carlos De Luna owned a knife?
AVALOS: Carlos has never carried a knife, sir.
. . .
With his mother in the hospital, no investigation of Carlos Hernandez by law enforcement or his own lawyers, and little besides Mary Ann Perales’s contrary recollection to show for the meager investigation his lawyers did conduct, DeLuna had no defense apart from his own testimony.
James Lawrence guided his client with questions that were short and to the point. DeLuna answered most of Lawrence’s questions the same way, not always with the right word or grammar but understandably enough.
. . .
Lawrence picked up the story with Carlos’s return to Corpus Christi in January after leaving prison on parole. Right of, Lawrence had his client disclose his convictions in Dallas for attempted rape and car theft.
Carlos testified that Avalos helped him get a job laying concrete and that he rode to work every day in his stepfather’s car. He followed that routine on the morning of February 4 until he was paid and sent home early. He and co-workers cashed their checks, bought beer, and ended up back at his mother’s house that afternoon.
After a trip to the Whataburger with a neighbor, showering and changing into dress clothes, and accompanying Margarita and Blas to a Kroger’s for some payday marketing, DeLuna got his parents to take him to the Gulf Skating Rink between 7:00 and 7:15 P.M. “I went inside to see if this girl was there I was waiting for but she wasn’t there, so I stepped back outside.”
Here DeLuna’s story merged with the one he’d first told De Peña in March, about his passing encounter with Mary Ann and Linda Perales at the skating rink before moving on to Wolfy’s a mile away. Evidently, DeLuna didn’t get the message from his lawyers that Mary Ann Perales—who played only a peripheral role in his story in any event—had a good reason to think she was elsewhere that night, and that the prosecutors were sure to inform the jury of it.
. . .
Carlos testified that when he left the skating rink, he ran into the Perales sisters, who were sitting in a yellow Ford Pinto. He had known them years before when he was in junior high school.
Then, Carlos said, “another guy” approached him outside the rink. “His name was Carlos Hernandez.”
DeLuna said he didn’t recognize Hernandez at first but then realized that Hernandez “did knew [sic] me.” Carlos had “met him with my brother” at a dancing spot in 1978 and 1979, before DeLuna had gone to Dallas and then to prison, and after that “we started meeting each other a little better.”
“Do you recall what this Carlos Hernandez looks like?” Lawrence asked.
“I can give you a little bit what he looks like,” Carlos DeLuna answered. Black hair “somewhere to here (indicating),” about five-eight, five-nine and 150 pounds. “I remember the blue jeans, that’s all I remember,” the defendant said.
DeLuna testified that he and Hernandez decided to go look for a guy they both knew named Ronnie Gonzalez, who lived nearby. They asked the Perales sisters for a ride, but the sisters instead dropped them off at a store a couple of blocks from the skating rink. Carlos DeLuna bought a soda and called his stepfather to come and pick him up. Avalos was too drunk to get him and told him to take a taxi home.
“Since I got to catch a taxi home,” DeLuna said he told Hernandez, “I’ll go stick around there with you for a while.” The two set of on foot to Ronnie Gonzalez’s house but didn’t find him.
“Carlos,” DeLuna said, referring to Carlos Hernandez, “told me if I wanted to go to Wolfy’s” because “Ronnie would hang around there sometimes.” As they approached the entrance to Wolfy’s, Hernandez said that he was going to buy something across the street at the Sigmor Shamrock store. Hernandez said that he’d find DeLuna inside the club, and DeLuna went in by himself.
He “bought a beer and sat down for a while listening to the music.” When Carlos Hernandez never showed up, DeLuna said, he went over to the Shamrock to look for him.
“I noticed Hernandez inside the Shamrock Service Station,” DeLuna testified. Then he “noticed Hernandez going in somewhere in the counter and started wrestling with that woman.”
DeLuna “started walking away.” Asked why he left, DeLuna said, “I know I got a record and if Carlos Hernandez came back to where I was, I knew these people would say I was involved with this guy.”
When he heard sirens converging from all directions, DeLuna testified, he began to run. “I just kept running because I was scared, you know”—through backyards, over fences, whatever it took. He lost his shirt when it caught on a fence he jumped over.
Finally DeLuna heard people yelling. “I didn’t know what was going on and I got scared and I dove under the truck, a truck I think it was.” Police arrested him there.
. . .
Coming to his last two questions, Lawrence asked DeLuna, “Did you ever tell the police that you knew who did it?” DeLuna replied that he had. While riding over to the gas station in the squad car, “I . . . told Officer Schauer that I didn’t do it, but I knew who did it.”
“And then at one time,” he continued, seeming to lose his composure, “I also told you about it, my attorneys, about this guy and that you brought me some pictures to see if I noticed him, but—and he turned out to be the guy and the State right here wouldn’t do nothing to help me or nothing to look for this guy.”
Lawrence’s final question calmed DeLuna down. “Did you ever go into that Sigmor Shamrock on February the 4th, 1983?” “I never went in there,” Carlos responded.
. . .
Trying to recall the evidence presented by the defense twenty years earlier, Karen Boudrie and Becky Nesmith remembered only two words: “Carlos Hernandez.” Nesmith didn’t remember the Perales sisters at all. Boudrie vaguely remembered Mary Ann as a “very reluctant” witness who said she was somewhere else that night, but who had left room for doubt about whether she had the right day.
Neither Boudrie nor Becky remembered anything else. Just “Carlos Hernandez.” And that was the problem. They distinctly remember that there was only a name, nothing more. At that point, both said, the thinness of the prosecutors’ case was overwhelmed by the utter void at the core of the defense that Carlos DeLuna offered.
Before she heard DeLuna testify, Becky remembered, she had “questioned, did he do it? Because they did say that there was another man, that he was the one that did it.” But “[w]hen Carlos DeLuna said that he did not do it, that it was another Carlos, when I heard that at the trial I thought, that’s just a lie.”
“Where was that other guy?” she remembered thinking. “There was no other guy.”
“What a coincidence,” Becky went on. “It’s not me, it was him. It was another Carlos. It just sounds typical that he would blame that on someone else.”
Sitting with the other reporters and interviewing people around the courtroom, Boudrie had the same feeling. Who is this “mystery Carlos—does he really exist?” “Why can’t they produce this guy? How difficult would it be?”
The kicker for Boudrie, though, was what she was hearing from the State.
“We tried,” the prosecutors told her. “[W]e exhausted all avenues to find Carlos Hernandez.” “We couldn’t find him, he doesn’t exist.” And Boudrie remembered thinking, “I’m sure they did [try]. They want to find the right man.”
After that, she recalled, “there were . . . jokes” in the press section “about Carlos Hernandez, this fictional Carlos Hernandez. He could have thought of a better alibi than that.”
“[E]verybody got caught up in it,” she said.
. . .
Carlos’s testimony was no joke to his sisters. Convinced by what Carlos had told them from the start, that he hadn’t knifed Wanda Lopez to death, they believed his testimony and hoped the jurors would, too. They had no idea what others in the courtroom were thinking.
. . .
For Wanda Lopez’s brother, Richard Vargas, what amused some spectators only angered him. After hearing the voice of his sister played for everyone to hear in the courtroom and at home, all Richard knew was that justice had to be done.
DeLuna was the man whom the State had charged, and he was arrested in suspicious circumstances just blocks from the scene of his sister’s murder. How dare he try to blame some other Carlos? If he really hadn’t done it, why didn’t he turn in the other guy right away?
. . .
Looking back on it years later, Steven Schiwetz also pointed to things that Carlos DeLuna did and didn’t say in his own testimony—and not the evidence that Schiwetz and Botary themselves had presented—as the main reason to think they had the right guy.
By then a respected lawyer in private practice in Corpus Christi, Schiwetz no longer put much stock in the eyewitness identifications. Speaking to Chicago Tribune reporters, “Schiwetz acknowledged that the case relied heavily on eyewitness testimony,” but he was ambivalent about its strength. “‘Sometimes it’s reliable. Sometimes it isn’t reliable,’ he said in an interview. And sometimes, in cases like this, you’re not entirely sure how reliable it is.’”
Although Schiwetz argued to the jury that DeLuna might have stabbed and struggled with the profusely bleeding Lopez without getting blood on his shirt and pant legs, and that the blood on his shoes might have washed of as he ran through the yards, the former prosecutor certainly knew it was a problem for his case that the crime lab found no blood or other evidence on his clothes.*1
And in hindsight, Schiwetz realized that there was a Carlos Hernandez who claimed he had killed Wanda Lopez, and that his partner Botary knew the man and should have helped investigate him. “Anytime somebody’s going around saying they killed somebody, I think it’s worth looking at,” Schiwetz told the Tribune. “But,” he added, “I’ve heard a lot of people make claims for stuff they did or didn’t do that weren’t true.”
“As for Hernandez’s history of knife crimes,” the Tribune reported Schiwetz saying, “Every man in this town has carried a knife. And most of us still do. I carry a knife. I did not kill Wanda Lopez or anybody else.”
But what convinced the former prosecutor that DeLuna was the killer were what he believed to be DeLuna’s lies. DeLuna “lied when he claimed to have talked to two women at a skating rink on the night of the crime,” Schiwetz said. “In addition, while De Luna said he lost his shirt while scaling a fence, he gave no explanation for how he lost his shoes.”
Finally, Schiwetz told the Chicago Tribune reporters years after the trial, DeLuna “lied when he apparently said he first met Hernandez in jail.” Schiwetz based this last claim on two recollections. Contrary to defense lawyer De Peña’s own memory of what DeLuna had told him—confirmed by the independent observations of police detective Eddie Garza, private investigator Eddie Cruz, and Carlos Hernandez’s Carrizo Street neighbors—that the two Carloses hung out together on the streets of Corpus Christi near the Casino Club and Staples and Mary, Schiwetz remembered the defense lawyers telling him that DeLuna had said he met Hernandez in jail.
Schiwetz also recollected that, before trial, Olivia Escobedo had compared the jail records of DeLuna and Hernandez and found no overlap. But if this is true, it is inconsistent with Schiwetz’s claim at trial that the State had no idea which Carlos Hernandez, if any, was the “right” one to compare with DeLuna.
Regardless, any comparison made was incomplete because Hernandez and DeLuna appear to have been in police custody on the same dates twice, in January 1979 and May 1980—as well as in April 1983.
“De Luna had lost all credibility,” Schiwetz concluded. “He’s lying about the most important story he’s ever going to tell in his entire life.”
. . .
After Lawrence sat down, Schiwetz approached Carlos DeLuna on the witness stand.
Schiwetz was an imposing figure, tall and stout. He made an impression on Boudrie. Although she was new to Corpus Christi and to criminal trials, she remembers being immediately struck by how good he was with the jury. Years later, she could barely remember the other lawyers on the case. “Steve Schiwetz just really stands out,” she recalled. And “not just because of his stature.” “I remember feeling that this guy was good. He’s going to win his case, he’s got everybody believing this.” He was “captivating, he told a good story. He made you want to believe him.”
. . .
Schiwetz began by asking DeLuna whether he’d ever told anyone anything different from what he told the jury. He then showed that DeLuna had done just that by telling James Plaisted and Joel Kutnick that he couldn’t remember what had happened on the night of Wanda Lopez’s murder.
When Schiwetz asked Carlos whether he knew a man named Gilbert Garcia, Carlos said he did not. Moments later, DeLuna recalled telephoning his parole officer, Gilbert Garcia, soon after he was arrested.
Next Schiwetz asked permission to leave the courtroom, returning moments later with Mary Ann Perales. Answering Schiwetz’s questions, Carlos identified her as the Mary Ann he had spent fifteen or twenty minutes with on the night of the incident. Before that, Carlos said, he had last seen Mary Ann “[b]ack in ’78, ’79, I would say.”
The charismatic prosecutor then made a show of asking Carlos to compare his recollection of Mary Ann years earlier in 1979 with what she looked like in the courtroom that day. “Has she changed much?” he asked. No, Carlos answered, she was “[j]ust the same.” Schiwetz never asked Carlos about Mary Ann’s appearance on the night of the incident or asked him to compare her appearance that night either with how she looked in 1979 or with how she looked in the courtroom.
The prosecutor pressed DeLuna about where he met Carlos Hernandez (“with my brother at a dance and we started meeting each other a little better”), where Hernandez lived (“at one time . . . over by the city Bakery on 19th Street”—a location not far from Carlos Hernandez’s known residences), if he was aware of all the efforts “made by the State of Texas to locate Carlos Hernandez” (only what his lawyer had told him), whether he told his lawyers everything he knew about Carlos Hernandez so they could locate him (“I did”—perhaps his biggest fib), and whether Hernandez had ever been arrested in Corpus (“I thought he had but I’m not too sure”).
DeLuna told Schiwetz that he had no bank account and always kept cash in his front pocket, where officer Schauer had found the $149. Carlos said he had $35 left over from his prior paycheck when he cashed his $135 paycheck on February 4—minus what he spent on a twelve-pack of beer on his way home from work, a Whataburger later that day, and a beer at Wolfy’s.
DeLuna testified that he was a regular at the Casino Club in the late 1970s before going to prison, and he repeated his criminal record for the prosecutor and jury. Schiwetz concluded by asking DeLuna if he had killed Wanda Lopez. “I didn’t kill that girl,” DeLuna answered.
He said he “couldn’t kill nobody” or “hurt nobody” unless they tried to hurt him first.
. . .
Mary Ann Perales was the first person called by the State in its “rebuttal” (figure 13.2). The lawyers repeatedly had to tell her to speak up and give her answers over again, a result, perhaps, of the reluctance to testify that Karen Boudrie recalled.
Mary Ann said she’d known Carlos DeLuna through his brother in about 1978 but hadn’t seen him at the skating rink on February 4. “I was attending a baby shower,” she said, her voice so quiet that she had to repeat her answer twice.
The baby shower was for her. She produced a picture of herself at the event, visibly pregnant. When questioned on the point by Lawrence, Mary Ann admitted that the photo was not dated and gave the jury “no way of knowing” where she was on February 4. Mary Ann said her sister Linda Perales was not at the baby shower with her.
FIGURE 13.2 Courtroom sketches during the DeLuna trial of (counter-clockwise from top right) the jury, visiting Judge Wallace C. Moore, and Carlos DeLuna, and (bottom right) television news shot of Mary Ann Perales waiting to testify.
Then Schiwetz asked Mary Ann to make the comparison he had not asked DeLuna to make, between her appearance on February 4, 1983 (“fat . . . I was seven months pregnant”) and in ’78 and ’79 (thinner). The prosecutor never repeated the question he had asked DeLuna: how her appearance in court that day compared to her appearance in the late 1970s.
. . .
Next Ernest Wilson testified that he was not “able to make any kind of comparison” between the poor-quality fingerprints Infante had taken from the crime scene and the prints on file from seven Carlos Hernandezes with criminal records.
That concluded the evidence for both sides.
On the morning of the third day of trial, the lawyers got their chance to argue directly to the jury. The State of Texas went first.
In his powerful closing argument, Schiwetz pulled together all the pieces of his and Botary’s case into a coherent picture. “There shouldn’t be any doubt in this case whatsoever about who committed this murder or about why he did it,” he assured the jury.
The prosecutor began with the witnesses at the gas station and Phase III, arguing that each got a close look at the man whom he or she identified as DeLuna and that each fingered DeLuna shortly afterward.
In the absence of the manhunt tape—in which each of the BOLOs gave Baker’s and Aguirre’s original descriptions to the police (gray sweatshirt, red flannel jacket, blue jeans)—Schiwetz emphasized the details from the Arsuagas’ descriptions and the conforming parts of Aguirre’s testimony. He brushed aside Baker’s contrary descriptions, saying Baker now remembered only the face.
Everything else, Schiwetz said, pointed to DeLuna as well: the $166 inventory shortage at the Sigmor, mirroring the $149 in DeLuna’s pocket; DeLuna’s preference for Winston cigarettes; his criminal record; his fight from police and capture cowering under a pickup truck soon after the crime.
Then, expressing concern that “[y]’all got to hear it rather hurriedly [only] the other day,” Schiwetz played the 911 tape again.
This time, though, he stopped the recording several times to linger over details. Now the killer is inside the store; now other customers are gone, and she’s alone with him; now she’s terrified for her life, and he’s pulled the knife out. And then the climactic moment, again: “[T]he person didn’t give her a chance. He walked right up, you can hear . . . the sound of a struggle, and then she starts screaming. She lets out that one horrible scream, and I submit to you that’s when he pushed that knife into her.”
“Why would he do that,” Schiwetz continued, “just walk up there and kill a woman who’s willing to give him what he wants?” He answered his own question. “She’s talking on the telephone, giving the police a description of this guy, calling for help. . . . He knows she knows what’s up so he killed her.”
Turning philosophical, Schiwetz reflected that “[w]e use the term cold-blooded murder real loosely sometimes.” But the jurors, he said, “ought to take a long look at the face of Carlos DeLuna, the face that George Aguirre saw, the face that Kevan Baker saw, the face that Julie Arsuaga saw, the face that John Arsuaga saw, because that’s about the best look you’re ever going to get at a cold-blooded murderer.”
. . .
This time, however, Schiwetz didn’t end with the tape recording. Instead, he played what he thought was an even better trump card.
The best evidence that Carlos was guilty, he said, was that he was a liar. Exhibit A was Mary Ann Perales, whom DeLuna said he ran into that night, though she in fact was at her own baby shower.
Then, engaging in some sleight-of-hand himself, Schiwetz turned testimony by DeLuna that Mary Ann did not contradict—that she looked the same in court as four years earlier—into another lie, which DeLuna in fact never told. DeLuna had not been asked and had not said that Mary Ann looked the same on February 4, when she was pregnant, as she looked in court months after her baby was born, or had looked four years before. But Schiwetz attributed that lie to DeLuna.
“I ran [Mary Ann] out [into the courtroom],” Schiwetz said, and “I asked him a few questions about her.”
“‘She looks the same now as she did that night?’” the prosecutor said, claiming to repeat a question he never actually asked DeLuna.
“‘Yes,’” he then said, mimicking an answer DeLuna never gave.
“‘She looked the same that night as she did several years ago when you saw her?’”
“‘Yes.’”
But Mary Ann was only a sideshow for Schiwetz as he came to his dramatic conclusion. The lie for which Carlos DeLuna should truly be convicted, he said, his voice rising, was his pathetic fabrication of “this phantom Carlos Hernandez.” Based on that invention, Schiwetz argued, looking straight at DeLuna, “this man lied under oath.”
“Anyone who would go out and fabricate events like this man did can’t be believed in any fashion whatsoever. He’s a convicted car thief, he’s a convicted attempted rapist, and he murdered Wanda Lopez for no good reason whatsoever.”
“When you go back out there in that jury room and open up the jury forms,” he concluded, making a final suggestion to the jury, “it shouldn’t take you a whole long time to . . . say[] that, ‘We, the Jury, find the Defendant, Carlos De Luna, guilty of the offense of capital murder as alleged in the indictment.’”
. . .
Splitting the defense argument between them, Lawrence and De Peña did their best to defuse the drama generated by Schiwetz, whom Lawrence immediately likened to a “frustrated Hollywood would-be actor[].”
Lawrence’s own flourishes tended in the direction of personal attacks. He attacked Schiwetz for his theatrics, particularly for using the 911 tape solely for “dramatic effect.” He also attacked Mary Ann Perales, suggesting that she had some unexplained vendetta against Carlos DeLuna.
In the end, however, Lawrence conceded that he couldn’t “explain whether” what Carlos said about Mary Ann was “true or not true.” He didn’t acknowledge his own role in failing to dissuade his client from bringing up Mary Ann at all.
Lawrence was more effective when he attacked the reliability of witness identifications made in moments of “high stress,” especially when there’s “only one person” to look at.
But the defense lawyer didn’t have the manhunt tape showing that the Arsuagas placed DeLuna, whom they quite accurately described, two blocks east of the location where Baker saw a man wrestling with Wanda Lopez and fleeing north. So Lawrence was reduced to arguing that “we don’t know which way that person ran” and to personally attacking John Arsuaga, his client’s best alibi, as not credible, a man relying on intuitions suited only to the “female gender,” someone “out of a soap opera.”
As if to heighten the contrast between himself and the bellicose Schiwetz and sarcastic Lawrence, Hector De Peña rose and spoke in a barely audible voice with a bit of a stammer. “I’m sorry, Hector, I can’t hear you,” the court reporter admonished.
In almost apologetic tones, the inexperienced lawyer pointed out gaps in the State’s case, such as Aguirre’s failure to identify DeLuna in the courtroom, the absence of DeLuna’s fingerprints at the scene, and the lack of blood on DeLuna’s clothing.
“I’m—I’m pointing these out just as small points,” he said meekly, as the judge hounded him for taking too much time.
But no matter what the defense lawyers might have argued, the die was already cast. DeLuna had no defense without “Carlos Hernandez” in flesh and blood.
Any Carlos Hernandez would have made a difference, but especially a Winston-smoking, cheap-beer-drinking, Casino Club-frequenting 5-foot, 7-inch, 160-pound Carlos Hernandez who resembled his tocayo Carlos DeLuna and had an explosive temper, a history of armed robberies of convenience stores and deadly violence against Hispanic women, the sartorial style of a “hobo”—a “winter uniform” of blue jeans, sweatshirt, and red flannel shirt-jacket—and the constant companionship of a lock-blade buck knife.
The best Lawrence could come up with to meet Schiwetz’s climactic attack on DeLuna’s invention of “the phantom Carlos Hernandez” was to blame the prosecutors for the “fact that we can’t get ahold of Carlos Hernandez.”
“Evidently, from what you have heard,” Lawrence said, emphasizing the very worst point for his client, “you can deduce that they haven’t been able to find Carlos Hernandez.”
. . .
Judge Wallace C. Moore turned the case over to the jury around lunchtime on the third day of trial. After going out to a restaurant to eat, the members of the jury began discussing what they had heard. When the judge brought the jurors into the courtroom to explain arrangements for dinner that evening, the foreman told him not to bother. They would have a verdict shortly, which they did at around 5:30 P.M.
While the jury was discussing the case, Schiwetz went to DeLuna and his lawyers and offered the same deal he’d proposed earlier. If Carlos would plead guilty to murder, Schiwetz would withdraw his request for a death sentence. DeLuna refused. He was innocent, he said, so it made no sense for him to negotiate about a sentence.
The jury’s swift verdict was the one that Schiwetz had urged: “the Defendant, Carlos DeLuna, [is] guilty of the offense of capital murder as alleged in the indictment.”
. . .
Linda Carrico, a reporter for the Corpus Christi Caller-Times, described the scene in a front-page article the next morning.
“After deliberating 4-1/2 hours yesterday afternoon, a Nueces County jury found DeLuna guilty,” she wrote.
“Only after the seven-man, five-woman jury was dismissed for the night did DeLuna display any emotion over the jury’s decision. Tears welled in his eyes after several sobbing family members ran to him—embracing him and comforting him.”
Carrico then described the highlights of the day in court and the reason the State had given the jury to reject DeLuna’s defense: “The prosecutor attacked the existence of what he called ‘the phantom’ Carlos Hernandez, who DeLuna claimed killed Ms. Lopez.”
Note
*1. On the day of the murder, it rained only one-eighth of an inch in Corpus Christi, starting in the morning. At the time of the killing, the rain had passed and there was only minor moisture on the ground. The amount of moisture present was unlikely to have washed away all, even microscopic, traces of blood that the assailant likely had on the bottoms, sides, and laces of his shoes, his pants cuffs, and elsewhere on his pants, shirt, hands, and body and on any money he took from the store.
