HRLR
Los Tocayos Carlos
Chapter 11
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All Chapter 11 Footnotes

The defense lawyers and jury in DeLuna's trial never heard the repeated police bulletins describing a suspect in a grey sweatshirt, red flannel jacket, and blue jeans sprinting north away from the Sigmor at around 8:11 p.m.204 They never heard Sergeant Mejia worrying out loud on the radio that the clean-shaven man in a white dress shirt and black slacks who the Arsuagas saw jogging two blocks east of the gas station at around 8:05 p.m.205 was "another" person, different from the scruffy and mustachioed man Baker saw tangling with Wanda and fleeing north behind the station.206 And they never had a chance to compare any of the descriptions on the tape to DeLuna's white button-down shirt, black slacks, and recently shaved face at the time of his arrest.207

The defense lawyers and jury didn't know that police tracked a suspect matching Baker's original description for twenty-five minutes running north on Dodd Street—the direction Baker saw the killer flee—and then along McArdle Street to the nursing home, Domino's Pizza, and a Circle K at Kostoryz, until Esther Barrera spotted a man under her pick-up truck and diverted the entire search party.208

They also didn't know that Officer Fowler had questioned a man earlier that evening who was lurking around the Circle K and also matched the description Baker gave of the fleeing killer.209 On the contrary, the only information provided to DeLuna's lawyers and later to the jury about the possibility of another suspect was the following question (by prosecutor Steven Schiwetz) and answer (by arresting officer Mark Schauer) at the trial:

Q. Was there any other suspect seen at any other area, so far as you know?

A. Not to my knowledge.

Q. Did the dispatcher disseminate any information regarding other suspects in other areas other than the one on Franklin?

A. No.210

Before evaluating Baker's and Aguirre's identification of DeLuna as the man they'd seen, the defense lawyers and jury never heard the radio broadcasts reverberating around Baker and Aguirre at the Sigmor, broadcasts which made clear that police were sure the man they found under a truck was the killer, who they were bringing "back" to the Sigmor.211

Left in the dark, Lawrence asked the judge to keep the jury from hearing about the Arsuagas selection of DeLuna from a group of photos, and when the judge refused, Lawrence worked hard to discredit the Arsuagas in the eyes of the jury.212 Lawrence didn't ask the judge to keep the jury from hearing about Baker and Aguirre's "show-up" identification.213

Because he didn't hear the manhunt tape, Lawrence had no way of knowing that, far from hurting DeLuna, the Arsuagas actually gave their client an alibi. Describing the well-dressed DeLuna to a T, the Arsuagas placed him two blocks east of the Sigmor on the SPID Frontage Road just seconds after Baker watched the killer run west behind the gas station to Dodd Street and just as police officers were tracking a man matching Baker's description north on Dodd.214

* * * * *

When he spoke to the out-of-town investigators in 2004, De Peña was annoyed that he went to trial without ever hearing the manhunt part of the tape that came after the 911 call the jury heard. He was truly angry, however, that law enforcement had never told him about what was recorded before the call the prosecutors had played at trial.215 The first he heard about that recording was from newspaper coverage of the Vargas family's lawsuit against Diamond Shamrock a few years after DeLuna's capital murder trial.

Rene Rodriguez was the Vargas's lawyer when they sued Shamrock on behalf of Wanda's young daughter.216 When it came to getting the evidence needed to prove his clients' right to money damages for Shamrock's failure to protect Wanda, Rodriguez wasn't going to rely on the good will of the police the way DeLuna's lawyers had. Instead, he got a formal court order telling the police department to give Rodriguez everything it had about the killing of Wanda Lopez.217

See supra Chapter 2, notes 137–139, 155, 163–165, 174, 178–179, 195–201 & Figures 3, 4.

See supra Chapter 2, notes 92–101, 144–146 and accompanying text & Figures 3, 4; infra Chapter 13, notes 93–98 and accompanying text; see also Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 13:09:37–13:13:10:

Q. One of the things you or Mr. Lawrence brought out at trial——I remember it in the transcript——was some cross-examination of the police. There was an officer, I think it's Sergeant Mejia, who had been one of the earliest ones on the scene and took some of the early witness statements. And all of the information they had was that a man had been seen fleeing north, immediately behind the station, up Dodd, and towards, into that neighborhood.

A. The residential area, yeah.

Q. And there was a description given of a man who looked like he was a derelict or homeless. Gray sweatshirt, running in that northerly direction. And there were other sightings of somebody. And then the Arsuagas come in from that Phase [Three] nightclub that was a little bit further east from the station, a couple blocks east from the station. And they gave a definition of somebody in a white, button-down dress shirt and black slacks or dark slacks. At that point, attention switched from the person with a gray sweatshirt—

A. The homeless-looking guy to the guy with the white shirt. No, I'd have to say, even to this day, I do not recall any efforts on the part of the state to provide any assistance in that. . . . We only had, during the course of the—part of the evidence that we had was the one tape where she ultimately was stabbed in the process of still trying to talk to the dispatcher. But we were not aware of any other taped conversation. And I know we had a hard time, when we originally tried to get those tapes, or a tape, we were hard pressed to do it because they kept telling us, by the time we were trying to find evidence and subpoena evidence, they kept trying to say the police only keep this log tape for 30 days, then it's erased and they start all over again.

See supra Chapter 2, notes 142–154, 160–163 and accompanying text & supra Figure 3.

See supra Chapter 2, notes 253, 262–267 and accompanying text; supra Chapter 5, notes 133–140 and accompanying text & Figures 13, 14; infra Chapter 13, notes 69–70, 81–82 and accompanying text.

See supra Chapter 2, notes 185–239 and accompanying text.

See supra Chapter 2, notes 206–214 and accompanying text.

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 115−16:

A. Yes, she [dispatcher] said a suspect had been seen or a subject had been seen running from an area, say, west of Franklin towards Franklin, there had been a subject seen running between houses, different people had called and that someone had seen him lying under trucks.

Q. Somewhere on Franklin Street; is that correct?

A. Towards—in that area.In that area.

Q. Was there any other suspect seen at any other area, so far as you know?

A. Not to my knowledge.

Q. Did the dispatcher disseminate any information regarding other suspects in other areas other than the one on Franklin?

A. No.

See supra Chapter 2, notes 185, 158, 269–271 and accompanying text; Chapter 3, notes 46–57 and accompanying text.

See, e.g., John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 76–77 ("Q. [by James Lawrence conducting cross-examination] Okay. But nothing stands out in your mind as a unique feature about this person you saw for three seconds [jogging past the Phase III club]. A. No, sir. Q. And yet you were able to come in or so you have testified that the person sitting here on my left is the exact person that you saw for three seconds. A. Yes, sir.");

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 256–57:

Q. [by by James Lawrence conducting cross-examination] So that if we believe your statement, we find that the first time you see this person running is he's already running beside Phase III, he never did even start out from the Sigmor Service Station as you have just indicated by your testimony; isn't that correct, sir?

A. That's correct from what the statement says, yes.

Q. Okay. You never made any mention in your statement that all of a sudden in your mind say, '"My gosh, that's a funny time to be jogging," did you, sir?

A. No, sir, I didn't.

Q. You never said in your statement that he got right in front of you as you pulled in and that you turned on your bright lights, did you, sir?

A. Not that I can recall.

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 313–17:

Q. [by James Lawrence conducting cross-examination] Do you recall the description [of the assailant]?

A. . . . I believe they told me he was a Hispanic male; approximately five-eight, five nine; black hair. . . .

Q. When you put a photo lineup together, you try to get the photos to pretty well look alike in the sense that they are taken basically along the same lines, for example, you take a photo of a person, you want to make sure you're taking it, say, from the chest up, for all practical purposes, that possibly in the background there is a—a height chart in which that person is kind of up against that chart so that when you take his picture, you can see basically how tall he is; is that correct?

A. That's true. . . .

Q. Okay. And . . . do you recall putting in some pictures [in the array of photos shown to the Arsuagas] of people anywhere from a height of six foot four inches to a height of five foot three inches?

A. . . . [Y]es. . . .

Q. And looking at photograph number one [in the array], you have an individual there that the height would show somewhere maybe six foot three, six foot four inches; is that correct?

A. I would say six foot four, yes.

Q. Okay. And looking at picture number two, you have somebody in there that shows a height of about six foot one; is that correct.

A. That's true.

Q. And in photograph three, you have a person whose height is five foot three; is that correct?

A. That's true. . . .

Q. Okay. And in photograph number [five], you have a person, that because of the hair there, looks like five foot nine or so, five foot nine and a half or so.

A. I would say five foot ten.

Q. Okay. And whose photograph is number five?

A. Photograph number five is the Defendant, Mr. Carlos De Luna. . . .

Q. Okay. So basically in this photographic lineup, we have only two people, numbers five [DeLuna] and six, that are anywhere near the height that was given to you by the witnesses in order to determine the suspect. Is that correct?

A. That's true.

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 497, 502 ("What do you really have? You have in effect eyewitness testimony. If I were to ask you what was John Arsuaga wearing when he testified, how many of you could get that straight?"; "[T]he next testimony we had were the Arsuagas. And I think if that testimony is believable, everything that they said, I think there's something wrong. . . . He said that he was scared to view the suspect when they brought him back. He didn't seem scared in here, I don't understand that.").

For additional impeachment of Olivia Escobedo in regard to her conduct of the photo array that triggered John Arsuaga's identification of Carlos DeLuna, impeachment of John and Julie Arsuaga attacking their identifications of DeLuna, and closing argument attacking the Arsuagas' identifications, see John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 75–77, 82–85, 91–96;

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 252–62, 256–57;

Julie Arsuaga, Witness to Man Running Near Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18 , 1983) at 353–62;

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 312–20;

James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 497–98, 502–05, 525–26.

Mot. to Suppress Identification, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Jun 2, 1983) (asking the court to suppress John Arsuaga's photo-array identification of Carlos DeLuna but not asking the court to suppress the show-up identifications of DeLuna by Kevan Baker and George Aguirre);

Tr. of Pretrial Hr'g, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 121 ("The Court: You filed a motion to suppress [only John Arsuaga's] identification, in-court identification. Mr. Lawrence: All right. The Court: And that I ruled on against you.").

See supra Chapter 2, notes 20–41, 70–74, 92–105, 137–152, 163 and accompanying text.

James S. Liebman's Notes on Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna (Dec. 3, 2004) at 3 ("I was just appalled that there had been an earlier call and (at trial) we hadn't heard of it. We were appalled that dispatcher didn't send someone out [after Wanda Lopez's first 911 call].").

Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:36:44–05:38:16 ("It was kind of a novel thing back then, that type of premises liabilities case, especially one involving a crime . . . . There's some cases that you take and you just have a gut. Although everybody is telling you, 'You're crazy. You're wasting your time, you're wasting your money. You know, you're going to give these people false hope.' It was just one of those cases where you just had a gut.").

Pl.'s Second Request for Production, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. Mar. 25, 1987) at 1–3.

See also Transcribed Videotape Interview with Rene Rodriguez, Lawyer for Wanda Lopez Family in Suit Against Diamond-Shamrock, in Corpus Christi, Texas (December 8, 2004) at 05:45 ("Yeah, I obtained records from the police department, trying to get the criminal activity of the area.").

Chapter 11
Page: 12 of 19