Botary's questions emphasized that the $149 were in DeLuna's front pocket, not in a brown or black wallet found in his back pocket, which contained only two one-dollar bills.141 This linked up with testimony 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.142
Pete Gonzalez, the Sigmor Shamrock Area Manager, testified that an inventory of the store at 11 p.m. the night Wanda was killed revealed a shortage of $166.86.143 He said it was "customary" for an inventory to be off by $25 or $50.144 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.145
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.146 Lawrence himself had emphasized to the out-of-town investigators in 2005 that DeLuna had more money in his pocket than would have been in the gas station till at the time.147 But the defense lawyers apparently didn't know this in 1983, and the jury never heard it.
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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.148 Ernesto Gonzalez, a Corrections Officer for the Nueces County Sherriff Department, confirmed that DeLuna smoked Winstons.149
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The final element of the State's case-in-chief against Carlos DeLuna was the recording of Wanda Lopez's 911 call to Escochea saying a man had come into her store who she believed had a knife and was up to no good.
Police Department Communications Supervisor Lt. 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."150
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 off the master."151
In his questions, prosecutor 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 Klemp had used in extracting only a 90-second segment off the tape:
Q. Who prepared that tape?
A. I prepared this tape, this cassette tape.
Q. Is it exactly the same as the recording made on February 4th, 1983?
A. That's correct.
Q. Have any changes been made in it?
Q. 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?
A. That's correct.
Q. It ends at the point where that call ends, does it not?
Q. Okay. Now, within that context, have any changes been made to that conversation.
A. No . . . .
Q. Have any deletions been made?
Klemp's answers were accurate and truthful as far as they went, and Schiwetz made sure they never went far enough to divulge the existence of other parts of the tape.153
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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 122–23:
Q. (by Botary) Did you take anything out of his [DeLuna's]—from his possession?
A. Yeah, I took a wallet out of one of his pockets.
Q. Out of one of his pockets?
A. Out of his back pocket.
Q. What color was the wallet?
A. I believe it was a dark color, I don't remember if it was brown or black, but a dark color. . . . .
Q. Did you look for the billfold to see what was in there?
A. For the identification? I found—when I looked through there, I found a couple of dollar bills.
Q. A couple of dollars?
A. Two dollar—two one-dollar bills.
See 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 106 ("I was there, but I don't remember whether his billfold was removed from his pants or whether it was picked up from underneath the truck, but I was there whenever the billfold was recovered.");
Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 19, 1983) at 485–86 ("He's got $2.00 in his wallet . . . and a pay stub in here (indicating) and a hundred forty-nine dollars wadded up in his front pocket.").
George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 225:
Q. Can you tell the Jury approximately what he [the man Aguirre saw with the knife at the Shamrock station] did say?
A. He asked me like if I could give him a ride to the Casino Club on Port and told me he would give me money or drugs or, you know, whatever I needed, beer, anything.
Q. Did he show you any drugs?
Q. Did he show you any beer?
Q. Did he show you any money?
A. He had his wallet out, he had a black wallet, he had it out in his hand.
Q. Was there any money in it that you could see?
A. In between one and four bills, you know, dollar bills.
Q. Can you say for sure how many there were there?
Q. Just a few?
A. Just a few.
Pete Gonzales, Shamrock Gas Station Area Supervisor, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 168–69 ("Q. Did you perform an inventory after this rob—murder? A. Yes, sir. Q. When did you perform that? A. Immediately that—we started the physical count about 11:00 o'clock in the evening. Q. And did you arrive at a figure of shortage for that particular store four days after that first inventory? A. Yes, sir. Q. And what was the shortage that night after Mrs. Lopez had been murdered? A. A hundred sixty-six dollars and eighty-six cents.").
Pete Gonzales, Shamrock Gas Station Area Supervisor, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 168:
Q. When was the last inventory that had been done before this particular date, February 4th, 1983?
A. It was on Tuesday.
Q. Would that be the Tuesday immediately preceding the—
A. Tuesday immediately preceding the 4th.
Q. And do y'all ordinarily come out with your figures exactly balanced?
A. No, sir.
Q. Is it customary that you have either a shortage or a surplus?
A. Yes, sir.
Q. On the average, what do your shortages or surplusses come out to?
A. Between 25 and $50.
See supra Chapter 4, notes 95–103 and accompanying text.
See supra Chapter 11, note 109 and accompanying text.
Estella Gonzales, Nueces County Sheriff Dep't Jail Commissary Bookkeeper, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 327–28, 329 ("Q. Okay. What kind of cigarettes has the person who's doing the ordering? A. Winston. A. What's the name of the inmate who's ordering them? A. Carlos De Luna. . . . Q. How many people do you have at the jail that order Winston cigarettes? A. A lot of them. Q. A lot of them. A. Yes sir."; "Q. How many brands do y'all carry? A. Let's see. Five.").
Ernesto Gonzales, Nueces County Jail Correction Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 364 ("Q. Are you familiar with the Defendant in this case, Carlos De Luna? A. Yes, I am. Q. Can you tell the Jury what kind of cigarettes he smokes? A. Winstons.").
Robert Klemp, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 377.
Robert Klemp, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 380 ("The original tape was placed in file in the file cabinet and I separated it from our normal file tapes for evidence purposes and I made this cassette, this cassette tape off a cassette recorder which reproduced it off the master tape.").
Robert Klemp, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 379–80 (emphasis added).
See supra Chapter 11, notes 196–214 and accompanying text.