HRLR
Los Tocayos Carlos
Chapter 13
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When Rivera reached the truck, he knelt down, shone his flashlight, and saw what he thought were a person's feet.55 Drawing his gun, Rivera sternly ordered the man to come out from under the car with his hands up. The man didn't move.56

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 calling out for back-up.57 Schauer noticed that there was a man under the truck and rushed over.58 Together, Schauer and Rivera pulled DeLuna out from underneath the truck59—shoeless, shirtless, and smelling of beer.60 The only words DeLuna could muster were "Don't shoot. Don't hurt me."61

Responding to prosecutor Botary's questions, the twenty-four-year-old Schauer described DeLuna as "real hyperactive, real tense, very— very talkative . . . he wouldn't shut up."62

"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."63 Accompanying the stare, he said, was a "constant[ ] . . . smile on his face, kind of a smirk."64 There were "long scratches" on the right side of DeLuna's torso, Schauer said.65

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 only showed up in a second report written days later.66 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]."67

* * * * *

Toward the end of the first day of trial, Officer Mylett linked DeLuna to the Casino Club where Mylett worked nights as the bouncer.68 Armando Garcia, whose backyard adjoined the house where DeLuna was arrested, testified that he found a white dress shirt and shoes in his yard.69 Prosecutors showed the jury a diagram indicating that Garcia's yard was on a straight line connecting Esther Barrera's pickup truck on Easter Street to the truck on Franklin Street that DeLuna was under when he was arrested.70

* * * * *

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 I.D. tech Joel Infante and finished up in the middle of the second day with lead detective 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.71

Wilson didn't actually compare the few fingerprints Infante did retrieve to Carlos DeLuna's prints because their quality was too "poor."72

Along with the knife (dramatically described by Escobedo as laden with human flesh when she found it) and the Winston cigarette pack,73 Escobedo and Officer Fowler showed the jury ten of the thirty-eight photographs Infante had taken at the scene.74

But Escobedo didn't show the photos with bloody shoe prints headed out from behind the clerk's counter,75 what appear to be partial bloody shoe prints on the storeroom floor and sidewalk outside the store,76 the cigarette fragment and wad of chewed gum someone spit out on the floor,77 Escobedo herself trampling evidence,78 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.79 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.80

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 103 ( "I knelt down and I shined my light up under the truck and I saw someone's feet up under there. I saw the movement of two human feet.").

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 87 ("Q. What did you do when you saw the movement under the truck? A. I instructed in a high voice to this person underneath the truck to come out of the truck with his hands up. Q. Did the person come out? A. He was hesitant, but he eventually was brought out.");

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 115–17 ("I saw a suspect lying under the truck on his belly and his head was pointed toward McArdle [north] and his feet were pointed toward Nemec and he was lying there and the deputy constable [Ruben Rivera] had his gun drawn and he was attempting to get the suspect out from under the truck.").

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 115–17:

Q. Now, when you got to—how is it that you came upon Sergeant—Deputy Constable Rivera?

A. I parked my unit down here by Nemec and I got out and I started walking between houses toward Franklin Street . . . . I climbed over a fence here, and as I landed on the ground I heard Constable—I heard the constable yell out for help, he was yelling at somebody under a truck and his partner was also there on the other side of the truck. . . . I saw a suspect lying under the truck on his belly and his head was pointed toward McArdle [north] and his feet were pointed toward Nemec and he was lying there and the deputy constable had his gun drawn and he was attempting to get the suspect out from under the truck. . . . [Schauer and Rivera then] pulled the suspect out . . . by the arms.

See also Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 105–07 (describing Schauer's actions leading up to and during the arrest).

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 116 ("I saw a suspect lying under the truck on his belly and his head was pointed toward McArdle [north] and his feet were pointed toward Nemec and he was lying there and the deputy constable had his gun drawn and he was attempting to get the suspect out from under the truck");

see also Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 106 ("I came to Officer or Constable Rivera's side there, and I saw a suspect laying under the truck.").

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 87, 105 ("Q. When you say 'brought out' [from under the truck], did he [the suspect] come out voluntarily or did you have to help him? A. No, sir, myself and another police officer with the city helped him out."; "[I grabbed] [o]ne part of his body, I can't remember which, the other officer grabbed the other and we pulled him out.");

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 117 (describing how he and Constable Rivera "pulled the suspect out . . . by the arms");

see also Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 105–07 ("I grabbed one arm and Constable Rivera grabbed the other arm and pulled him out.").

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 88–89 ("He [the suspect] was wearing a blue jeans [sic—black slacks were confiscated from DeLuna], no shirt, he was soaking wet, and he wore—for footwear, he wore socks and that was it. . . . [H]e smelled of alcoholic beverages of some kind . . . possibly beer.");

see also Steve Schiwetz, Prosecutor, Opening Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 15 (previewing Rivera's testimony that the suspect "smelled of beer").

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 104 ("He didn't come out the first time or the second time that I shouted at him. I approached the truck after I heard him say, 'Don't shoot' or 'don't hurt me,' or something of that nature. I saw he was not armed and I holstered my weapon . . . .").

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 128–29:

Q. Well, how was he [DeLuna]—what was the actions, without telling us what he said, if anything, what were his—the demeanor and characteristics when you pulled him out when you had him there on the grass before you took him back to the station?

A. He was real hyperactive, real tense, very—very talkative, he kept talking. I mean, he wouldn't shut up, he kept talking and his—he had kind of a stare in his eyes like a—it's hard to describe, but it was a stare like a glare in his eyes, like an animal might have, it was that kind of look in his eyes, that kind of stare. And he also had—he constantly wore kind of a smile on his face, like a smirk.;

See also Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 134 (describing DeLuna in the hours after his arrest as "hyperactive and . . . very talkative . . . he kept sitting near the edge of his bench and he still had that look in his eyes and he kept talking, he kept asking me repetitive questions, he kept asking me for cigarettes or he kept asking me different questions about this or that").

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 129 ("[H]e had kind of a stare in his eyes like a—it's hard to describe, but it was a stare like a glare in his eyes, like an animal might have . . . . And he also had—he constantly wore kind of a smile on his face, kind of a smirk.").

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 129 ("He [DeLuna] was real hyperactive, real tense, very—very talkative, he kept talking. I mean, he wouldn't shut up, he kept talking and . . . he also had—he constantly wore kind of a smile on his face, like a smirk.").

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 118–19 (describing "several long scratches under his—the right part of his body . . . (indicating)" which "appeared to me to be like fingernail scratches or something sharp that was even, that was parallel to one another").

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 138–40:

Q. The original supplemental report that you wrote, you have had time to refresh your memory with it, didn't have anything about fingernail scratches or anything of that nature, did it?

A. I would have to—have to look it over again, sir.

Q. Do you recall if that first supplemental report had anything about an animal stare that my client was alleged to have had?

A. No, sir, I could remember that.

Q. That wasn't in your first report?

A. I didn't write that down.

Q. That's right, that's just something you have added here today; is that right?

A. That's right. . . .

Q. At that point in time, you didn't add anything about alcohol on the breath, did you?

A. No, sir, because still—at that time I still couldn't recall smelling anything on his breath.

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 138–40.

Thomas Mylett, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 159–60 (describing his part-time work at the Casino Club on South Port as a bouncer, where he wore his Corpus Christi Police Department uniform, and noting that he came in contact there with Carlos DeLuna);

see Thomas Mylett, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 464–65 (testifying that he remembered DeLuna from the Casino Club in 1983).

Armando Garcia, Resident of Neighborhood Where Manhunt Occurred, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 180–82.

State's Ex. 11, Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 83–84 (introducing map of streets and houses between the points where Esther Barrera saw a man underneath her pick-up truck on Easter Street near Nemec and where Constable Ruben Rivera encountered Carlos DeLuna under a pick-up truck on Franklin Street near Nemec).

Joel Infante, Corpus Christi Police Identification Technician, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 189–205;

see supra Chapter 10, notes 139–176 and accompanying text.

Ernest Dave Wilson, Corpus Christi Police Fingerprint Examiner, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 333–45 (testifying that the fingerprints that Officer Infante had lifted were "very, very bad quality");

see supra Chapter 10, note 169 and accompanying text; see supra Chapter 12, notes 7–9 and accompanying text.

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 305–08;

State's Ex. 30, Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 306;

State's Ex. 35, Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 306;

see also Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 299 ("I saw that there was a package of cigarettes, Winston cigarettes on top of the counter.").

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 300–09 (discussing State's Exhibit 18, which is Crime Scene Photograph 25500010, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing portion of the clerk's area inside the store with some of the blood visible on the floor);

State's Ex. 25, Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 303, which is Crime Scene Photograph 25500006, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing blood on the console behind the clerk's counter that controls the gas pumps and some money left inside the cash drawer);

State's Ex. 26, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 303, which is Crime Scene Photograph 25500013, Corpus Christi Police Dep't (Feb. 4, 1983)

(similar; also showing blood on the outside of the cash drawer and cash bills on the floor);

State's Ex. 31, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 300–01, which is Crime Scene Photograph 25500004, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing a small area of blood drops on the floor inside the store just inside the front door, but not showing any of the bloody footprints);

State's Ex. 32, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 300–01, which is Crime Scene Photograph 25500021, Corpus Christi Police Dep't (Feb. 4, 1983)

(similar but showing wider area of blood drops on the floor inside the front door);

State's Ex. 33, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 300–01, which is Crime Scene Photograph 25500031, Corpus Christi Police Dep't (Feb. 4, 1983)

(similar to State's Exhibit 26 but taken earlier when the knife was still on the floor underneath the cash drawer));

Steven Fowler, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 47–49, 60–61 (discussing State's Ex. 4, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 47–49, which is Crime Scene Photograph 25500033, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing front of gas station store from outside);

State's Ex. 5, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 47–49, which is Crime Scene Photograph 25500034, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing same and medical technicians working on Wanda Lopez);

State's Ex. 9, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 60–61, which is Crime Scene Photograph 25500022, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing Kevan Baker's Mercury Cougar parked near gas pumps in front of the gas station store);

State's Ex. 10, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 72, which is Crime Scene Photograph 25500026, Corpus Christi Police Dep't (Feb. 4, 1983)

(showing grassy area behind the ice machine and gas station with three beer cans on the ground)).

See Crime Scene Photograph 25500028, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500030, Corpus Christi Police Dep't (Feb. 4, 1983);

see supra Chapter 10, notes 116, 125–134 and accompanying text & Figure 29.

See Crime Scene Photograph 25500033, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500037, Corpus Christi Police Dep't (Feb. 4, 1983);

supra Chapter 10, notes 116–124 and accompanying text & Figures 27, 28. A version of Crime Scene Photograph 25500032 was made an exhibit at the DeLuna trial, see State's Ex. 4, Trial Transcript, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 47–49,

but in the photocopy of the exhibit in the available trial record, the photograph appears to have been cropped slightly on the left and right sides in a way that excised the possible bloody shoe prints on the sidewalk outside the store that appear on the bottom right corner of the original photograph. In any event, no mention of those prints was made in any police report or in any testimony at Carlos DeLuna's trial.

See Crime Scene Photograph 25500008, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500015, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500019, Corpus Christi Police Dep't (Feb. 4, 1983);

supra Chapter 10, notes 105–109 and accompanying text & Figure 25.

See Crime Scene Photograph 25500019, Corpus Christi Police Dep't (Feb. 4, 1983);

supra Chapter 10, notes 98–99, 105 and accompanying text & Figure 25; see also Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) 03:12:39–3:13:38 (describing Rene Rodriguez's discussion with Boudrie, while she was covering Rodriguez's lawsuit on behalf of the Vargas family against Diamond-Shamrock for a local TV station, about the "shoddy police work" he had uncovered while preparing the civil case for trial, including "Olivia Escobedo . . . stepping around in the evidence" and "that something had been contaminated").

See Crime Scene Photograph 25500007, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500008, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500031, Corpus Christi Police Dep't (Feb. 4, 1983);

supra Chapter 10, notes 32–64 and accompanying text & Figure 23.

See supra Chapter 11, notes 215–224 and accompanying text.

Chapter 13
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