HRLR
Los Tocayos Carlos
Chapter 13
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All Chapter 13 Footnotes

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.318

In almost apologetic tones,319 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.320

"I'm—I'm pointing these out just as small points," he said meekly,321 as the judge hounded him for taking too much time.322

* * * * *

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,323 cheap-beer-drinking,324 Casino-Club-frequenting325 5'7", 160-pound326 Carlos Hernandez who resembled his "tocayo" Carlos DeLuna327 and had an explosive temper,328 a history of convenience store armed robberies329 and deadly violence against Hispanic women,330 the sartorial style of a "hobo,"331 a "winter uniform" of blue jeans, sweat shirts and a red flannel shirt-jacket,332 and the constant companionship of a lock-blade buck knife.333

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."334

"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."335

* * * * *

Judge Moore turned the case over to the jury around lunchtime on the third day of trial.336 After going out to a restaurant to eat, the jury began discussing what they had heard.337 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 that afternoon.338

While the jury was discussing the case, prosecutor 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.339 DeLuna refused. He was innocent, he said, so it made no sense for him to negotiate about a sentence.340

The jury's swift verdict was the one prosecutor Schiwetz had urged: "the Defendant, Carlos DeLuna [is] guilty of the offense of capital murder as alleged in the indictment."341

* * * * *

Corpus Christi Caller-Times reporter Linda Carrico described the scene in a front-page article the next morning.342

"After deliberating 4½ hours yesterday afternoon, a Nueces County jury found DeLuna guilty," she wrote.343

"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."344

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."345

See, e.g., Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 517 ("The Court Reporter: I'm sorry, Hector, I can't hear you.").

See, e.g., Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 516) ("I don't want to duplicate anything that's already been said . . . . I don't want to do that in this case. There are a couple of things I would like to, however, point out just very briefly and before the state comes back. One of the things I wanted to point out, and I realize that it may sound duplicious (sic) in some respects . . . .").

Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 517 ("He didn't make that in-court identification.");

Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 522 ("We could—we could have fingerprinted anyone in here and tried to compare the prints and they wouldn't have matched up because there's nothing to match up.");

Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 523 ("You heard the chemist testify that there was no blood on anything.");

see also James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 505–06:

And I'm perplexed, to say the least, as to how we can have a situation in which a person is charged with a capital crime, a person that may have been seen by various people, and yet, we have nothing to connect him with the crime. . . . We go back inside the store, still looking for physical evidence. Everyone claims my client was in there, we find no fingerprints. Nothing. Nothing from my client. . . . [S]omeone must have hung up the phone, someone must have touched the cigarettes, someone must have touched the counter and, yet, we have a person come in here and say, "Well, sometimes we just can't get fingerprints."

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 513 ("They gave you all the reasons why they could not provide you with any physical evidence. . . . They should have said: 'Well, we goofed it all up. We just messed it up. We didn't get no prints, we forgot to have the knife analyzed.' The state has provided no proof beyond a reasonable doubt—no fingerprints, no knife analysis.").

Cf. Steven Schiwetz, Prosecutor, Rebuttal, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 532:

He talks about physical evidence. Oh, they don't have any physical evidence. Eyewitness testimony and all that stuff's not any good. Well, I've never seen a defense attorney get up and say in a trial that, "Yeah, you guys are right. You convinced me beyond a reasonable doubt, the Jury should go out and convict him." There's not going to be enough evidence to get them to do that. As far as the physical evidence, all I can say is, sorry, they tried. They tried to get fingerprints, you will get to see those cards, there's hundreds of people go out of those stores every week.

Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 523.

Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 524 ("The Court: You have three minutes."); see also Hector De Peña, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 521 ("Now, one other thing, and there's some pictures in there, and I'm trying to be brief because of the time . . . .").

See supra Chapter 6, note 190 and accompanying text.

See supra Chapter 6, note 94 and accompanying text.

See supra Chapter 6, notes 26, 188, 198 and accompanying text; Chapter 7, notes 57–59, 221–222 and accompanying text.

See supra Chapter 9, notes 93, 97 and accompanying text.

See supra Chapter 9, notes 124–138 and accompanying text.

See supra Chapter 6, notes 42–46, 93–98, 122 and accompanying text; supra Chapter 7 notes 132, 135, 193 and accompanying text.

See supra Chapter 6, notes 168–170 and accompanying text.

See supra Chapter 6, notes 45, 54, 111, 118–121 and accompanying text; supra Chapter 7, notes 148–157, 188–190, 225 and accompanying text; supra Chapter 8, notes 89–90, 99–101 and accompanying text; infra Chapter 17, notes 27, 29, 31, 41–42, 93 and accompanying text.

See supra Chapter 6, notes 139–140 and accompanying text.

See supra Chapter 6, notes 139–142 and accompanying text.

See supra Chapter 6, notes 50–52, 123–138 and accompanying text; supra Chapter 7, notes 23–24 and accompanying text; infra Chapter 17, note 53 & Figure 24.

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 505 ("Was it really Carlos Hernandez and not my client that was running out there? But for the fact that we can't get ahold of Carlos Hernandez, well, by golly, we got somebody, let's get him [DeLuna]. What difference does it make[]? My gosh, here is a convicted attempted rapist, that was thrown in there for the benefit of you ladies, the dramatic effect again, that's part of his jury argument, sure. I'm going to shock your conscience.").

James Lawrence, Trial Lawyer for Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 511–12:

And my client did one other thing. He said that he had given this information [about Carlos Hernandez], and I believe he said to his attorney, and I believe the State tried to say: Well, you know, we helped as such, he's trying to say we didn't help, you know, who do you think provided you those pictures? You know, stuff like this to say that they also knew about it. But did you notice one thing about that? That he didn't come in here at the last moment and say: It wasn't me, it was somebody else, like some of these other witnesses said. I said this one time, but now I'm coming in here and I'm also saying this and adding on. He didn't do that. He told this from the very beginning. You heard him. Evidently, from what you have heard, you can deduce that they haven't been able to find Carlos Hernandez. It would certainly help to say the least [if the state had found him]. But we haven't been able to do it.

Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 536 ("The Court: All right. You're excused now to go into your jury room and, of course, your first act will be to select a foreperson and we're making arrangements to take you to lunch now in the custody of the sheriff, protective custody of the sheriff.").

Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 536.

Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 536–37 ("The Court: Fine. Mr. Morales, I just want to know what you want to do about supper. Do you want to go out for dinner tonight or do you want it brought to you? It will take about an hour out of your deliberations if you go. Juror Morales: Your Honor, If we could have approximately 45 minutes more. The Court: Oh, Sure.");

see Linda Carrico, DeLuna Guilty, Could Be Given Death Sentence, Corpus Christi Caller-Times, July 21, 1983, at 1.

See supra Chapter 11, notes 77–78 and accompanying text.

See supra Chapter 11, notes 78–80 and accompanying text.

Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 539.

Linda Carrico, DeLuna Guilty, Could Be Given Death Sentence, Corpus Christi Caller-Times, July 21, 1983, at 1.

Linda Carrico, DeLuna Guilty, Could Be Given Death Sentence, Corpus Christi Caller-Times, July 21, 1983, at 1.

Linda Carrico, DeLuna Guilty, Could Be Given Death Sentence, Corpus Christi Caller-Times, July 21, 1983, at 1.

Linda Carrico, DeLuna Guilty, Could Be Given Death Sentence, Corpus Christi Caller-Times, July 21, 1983, at 1.

Chapter 13
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