HRLR
Los Tocayos Carlos
Chapter 14
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All Chapter 14 Footnotes

The second stage of a capital trial starts with the state presenting evidence of "aggravating factors," or reasons why the jury should impose a death sentence.6 Schiwetz began this process with three so-called "character" witnesses. Following a formula courts have used for centuries to enable juries to decide whether a criminal defendant is a good or bad person by relying on what amounts to gossip, Schiwetz asked each witness a single question about DeLuna's reputation. Each witness could answer the question with only one of two words: "good" or "bad."7

Schiwetz first called a Corpus Christi police officer to the stand, then a retired Sheriff's Department deputy constable, and finally Detective Eddie Garza, and asked each describe Carlos DeLuna's "reputation in the community." Each witness answered that it was "bad."8 Garza's network of informants made him a particularly reliable expert on the reputations of young Hispanic men in the city.9 Defense counsel let the testimony pass without cross-examination.10

* * * * *

With these formalities behind them, the prosecutors got down to business.

They called several witnesses to testify about a family party on May 14, 1982, to welcome home Marcos Garcia from the state penitentiary.11 Frail, sick, and looking much older than her fifty-four years,12 Marcos's mother Juanita Garcia testified that Marcos had invited Carlos DeLuna, a friend from the penitentiary, to join them.13 Only days before, DeLuna himself had made parole—for the first time—from his Dallas conviction.14 He arrived at the party dressed in black slacks and a button-down dress shirt with the sleeves rolled up.15

Garcia testified that, after everyone had left and she went to sleep, she awoke to find Carlos DeLuna lying on top of her.16 Threatening to kill her if she screamed, Carlos pulled his pants down, removed Garcia's underwear, and kissed her.17 When she protested, he hit her, breaking three ribs.18 Although DeLuna never attempted to have intercourse, he stayed on top of Garcia for twenty minutes.19

Juanita Garcia's description of DeLuna's acts did not speak to whether he was guilty of killing Wanda Lopez, but that was no longer the issue. The issue was whether DeLuna deserved to live or die, and the effect of the invalid's account was devastating.

It was Juanita Garcia's unexpected testimony that led Hector De Peña, seated next to DeLuna at the defense table, to whisper "Oh shit" loudly enough for the court reporter to hear it.20 "In my opinion," news reporter Karen Boudrie explained later, "when they put on, in the death penalty phase, the 5[4]-year-old woman that Carlos supposedly tried to rape . . . that sealed his fate. That one person's testimony sealed his fate as far as whether he would get life or death. She was the most pathetic-looking woman you would ever want to see."21

* * * * *

Before trial, the prosecutors had disclosed to the defense that they intended to call Juanita Garcia and other members of the family to testify in favor of a death sentence for Carlos DeLuna.22 When the prosecutors did so, they also gave Lawrence and De Peña a court record indicating that DeLuna was convicted of misdemeanor assault in the incident, a minor offense.23

Although the incident caused DeLuna's parole to be revoked and sent him back to prison for several months,24 and although their client's life was at stake, Lawrence and De Peña decided it wasn't worth interviewing Ms. Garcia and her daughters before trial.25 Unlike the prosecutors, who sent detectives to talk to Mary Ann Perales the minute they got her name from De Peña and Lawrence, the defense lawyers decided to fly blind when it came to Juanita Garcia. They had no idea what was coming when she took the stand.

Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 8 ("[by defense counsel] No questions.");

Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3 ("[by defense counsel] No questions.");

Eddie Garcia, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 5 ("[by defense counsel] No questions.").

Lucinda Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 11–15;

Connie Campos, Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 16–21.

See Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 21 ("[by prosecutor Schiwetz] She's feeling a little dizzy.");

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 27 ("Q. [by trial judge Wallace C. Moore] Do you want to excuse the witness? A. [by prosecutor Botary] Let me help you outside, Mrs. Garcia.").

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 41:

Q. Now, I want to direct your attention back to May the 14th—

A. Yes, sir.

Q. —of 1982, the day that Marcos came home from the penitentiary. Do you remember the get-together that your family had that day?

A. Yes, sir.

Q. Did you get to meet any of Marcos' friends that day?

A. No, sir, just one.

Q. Who was that?

A. Carlos De Luna.

Q. And have you ever known him before?

A. No, sir.

Q. And how did you come to meet him that day?

A. Because Marcos said that he was coming home, to treat him like his brother.

Q. Did he actually introduce him to you?

A. Yes, sir.

See supra Chapter 5, notes 214–215 and accompanying text.

See, e.g., Connie Campos, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 18 ("He was wearing black pants and a long blue sleeve shirt, but he had it folded up so much (indicating).");

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 36 ("He was wearing some black slacks, and a long sleeve blue shirt, light blue.");

.

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 42–44:

Q. Now, I want to direct your attention—

A. Yes.

Q. —to later on that night, past midnight, into the next day, May 15th. When you laid down to go to sleep, who else was in the house that you know of?

A. Just my grandson.

Q. And what's his name?

A. Roel Garcia.

Q. And how old is Roy [sic]?

A. Two years.

Q. And is it Roy or Raul, I'm sorry?

A. Roel, R-o-e-l.

Q. And he was two years old?

A. Yes.

Q. Now, when you laid down to go to sleep yourself, where did you lay down?

A. In the bed, the front room.

Q. Is that where your grandson was?

A. Yes.

Q. Did your grandson go to sleep?

A. Yes. And I took him to his bed.

Q. Then what did you do?

A. I went to sleep.

Q. And where did you go to sleep?

A. In the front room, the bed where I was.

Q. Now, were you wearing a nightgown then?

A. No, sir.

Q. You were wearing your regular street clothes?

A. Yes.

Q. And when you laid down, did you go to sleep immediately?

A. No, sir.

* * * * *

Q. Did there ever come a point in time when you thought there was somebody else in the house?

A. About twenty minutes later.

Q. And what made you think there was somebody else in the house?

A. Because I saw a shadow.

Q. And who did you think that was?

A. Marcos.

Q. Marcos?

A. Yes.

Q. Your son?

A. My son.

Q. Did you do anything or say anything?

A. Yes, I—I asked him, 'Is that you, Marcos? . . . It was [t]hen this boy or whatever he is jump [sic] on top of the bed.

Q. And what did he do to you?

A. He put my—the pillow in my mouth, in my face.

Q. And how long did he put the pillow in your face?

A. Oh, I—I wouldn't remember.

Q. Okay, did you try and struggle?

A. Yes, sir.

Q. Okay. What else did he do?

A. He said if I would start screaming or yelling, he would kill me.

Q. Did he hurt any other part of your face?

A. Well, I was all bruise [sic] up from my face.

Q. Did the man hit you at all?

A. My ribs.

Q. Did he do any damage to your ribs?

A. Three.

Q. What did he do to those three ribs?

A. They told me in the Memorial Hospital that there were three broken ribs.

Q. Did that hurt a lot?

A. It did.

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 45 ("Q. Did you recognize the man's voice? A. Yes, sir. Q. Whose voice was it? A. Carlos De Luna.").

See supra note 16.

See supra note 16.

Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 44–45 ("Q. Now, did the man do anything with his clothes to rearrange his clothes? A. Well, no, not exactly because he just pull[ed] down his pants and that was it. He didn't took [sic] it— Q. Okay. A. —took them off. Q. Now, the man didn't rape you, did he? A. No, sir. Q. Did he remove any of your clothing? A. Yes. Q. What clothing of yours— A. My underwear and my half slip. Q. Did he kiss you or anything like that? A. Yes, sir."; "Q. How long did Carlos De Luna stay there in your bedroom with you that night? A. About twenty minutes.").

See supra Chapter 11, notes 97–100 and accompanying text.

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:41:50–01:46:00:

When they put on, in the death penalty phase, the 57-year-old woman [sic—54] that Carlos supposedly tried to rape, in my opinion, that sealed his fate. That one person's testimony sealed his fate as far as whether he would get life or death. She was the most pathetic-looking woman you would ever want to see. I can't even remember her name, I'm sorry. But she was the friend's mother that he supposedly tried to rape after being out for only six weeks. . . . And you just thought, anybody who would want to touch this woman and harm this little . . . . She seemed elderly; she was only 57 [sic]. She was just very frail and pathetic-looking. And you thought anybody that could harm a hair on this woman's head had to be a monster. So they were very effective in portraying him as someone that just had to be removed from society, not just locked up but put to death. Someone like this was unredeemable and deserved to die, we need to be finished with him. Many of us sat there watching this thinking, yeah, yeah, he needs to be put to death.").

Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 02:08:35–02:09:24 ("[A]nd they [the prosecutors] have their star witness of the 57[sic—54]-year-old woman who claimed that Carlos tried to rape her. It was very sensational all around, from the beginning to the punishment, all around.");

see also Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:53:11 ("This old lady couldn't have been more than 60 years old, but, I mean, she had eyeglasses that were this thick. She came into the courtroom with an oxygen machine. And I think that they just looked at this man, if the accusation was correct, as somebody that was capable of trying to rape this old . . . she wasn't really an old woman, she was just in very, very poor health. I think that kind of lent to whether or not he had the propensity to commit other heinous crimes.")

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:50:42 – 12:52:39:

As we understood it, the police were eventually called out because he was banging on the door—this was in the middle of the night—and apparently some lady recognized him who was a next-door neighbor of the inmate and she called the police. And apparently, we understood he was arrested for a simple assault. . . . Ultimately, in the course of the trial, this lady [Juanita Garcia] was called as a witness, and she ultimately testified that he apparently had not only come into the house, presumably trying to find her or trying to find her son. I'm not sure if it was a grandson or it was a son. But to make a long story short, her testimony was—and this is what surprised us—he apparently, in this same effort to locate where his car was or where his friend was or whatever, she apparently accused him of attempting to try and rape her that same evening when he broke into the house. She screamed or whatever, and as he ran out, it was then that the lady next door saw him run out and recognized him as being the kid that had been at the party earlier that day or something. . . . But from the records that we got from the state, there was never any indication that—there had been nothing more than a possible criminal trespass.

State's Ex. 42, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3:

Upon investigating this complaint it was determined that there was no rape or attempted rape that was prosecutable in this case, however, there was a class A assault that could be prosecuted. Upon discussing this with the victim a copy of the report was furnished for victim to file a restraint order on the individual being Carlos De Luna and also I took the complaint to the Municipal Court [which handles misdemeanor charges] where charges of assault were filed on this same individual in connection with this complaint. Case Closed: Filed Municipal Court.

See supra Chapter 5, notes 221–223 and accompanying text.

In his 2005 interview, De Peña acknowledged that he and Lawrence were "surprised" by the testimony of Ms. Garcia and her daughters because the two lawyers had relied upon a single document provided to them by the prosecutors before trial instead of conducting their own investigation. See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:11:28–12:52:39:

Ultimately, in the course of the trial, this lady [Juanita Garcia] was called as a witness, and she ultimately testified that he apparently had not only come into the house, presumably trying to find her or trying to find her son. I'm not sure if it was a grandson or it was a son. But to make a long story short, her testimony was—and this is what surprised us—he apparently, in this same effort to locate where his car was or where his friend was or whatever, she apparently accused him of attempting to try and rape her that same evening when he broke into the house. She screamed or whatever, and as he ran out, it was then that the lady next door saw him run out and recognized him as being the kid that had been at the party earlier that day or something. . . . But from the records that we got from the state, there was never any indication that—there had been nothing more than a possible criminal trespass.

See also Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:48:51, 13:01:19 ("I believe part of the problem just stemmed, part of it stemmed from facts that we didn't discover prior to the punishment phase."; "[M]ost of the investigation that I did is that I got a vein and I went at it the best way I knew, and that was to go through people I knew at the I.D. department [i.e., the Corpus Christi Police Department Identification division] and the Sheriff's Department.").

See supra Chapter 11, notes 12–13, 173 and accompanying text.

Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3;

Eddie Garza, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 4–5;

Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 8;

see Richard O. Lempert et al., A Modern Approach to Evidence: Text, Problems, Transcripts, and Cases 365–75 (4th ed. 2011) (discussing the use of evidence of a reputation for good or bad character).

Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 8;

Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3;

Eddie Garza, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 4–5.

See supra Chapter 9, notes 2–9, 50–58 and accompanying text.

Chapter 14
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