HRLR
Los Tocayos Carlos
Chapter 15
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Part IV: The Passion of Carlos DeLuna

Chapter 15

Appeals

The next day, Friday, July 22, 1983, prosecutor Ken Botary acted like he'd seen a ghost.

That day, Botary asked a judge for permission to take all of the physical evidence out of the court file and bring it to the District Attorney's office—the lock-blade buck knife used to stab Wanda Lopez,1 the Winston pack the killer left on the counter,2 the beer cans Aguirre saw him drinking from,3 the partly smoked cigarette fragment that probably broke off during the struggle.4 The court granted the request.5

Botary's written motion listed all the items he took from the court, including Carlos DeLuna's pay stub and pay check from the day Wanda Lopez was killed. But Carlos DeLuna was not the name Botary wrote on his list. Instead, Botary twice identified the man the jury had convicted and sentenced to die as "Carlos Hernandez"—who, just days before, his fellow prosecutor Steven Schiwetz had dismissed as a "phantom."6

* * * * *

Botary's request, with the judge's signature granting it, is the last remaining trace of the physical evidence in the Wanda Lopez murder case. In 2004, the private investigators asked the court for the material, hoping to perform DNA tests, which had not yet been invented in 1983.7 Court officials produced the order authorizing Botary to take the evidence to the D.A.'s office.8 When the investigators went looking for it there, they found boxes of evidence from cases older than DeLuna's in the storage area, but no one in the office could account for the missing DeLuna evidence.9

This was not the first time that evidence in Botary's charge had disappeared. Twenty years earlier, Carlos Hernandez escaped prosecution for killing Dahlia Sauceda because Botary had misplaced a tape recording and transcript of the prosecutor's conversation with Hernandez earlier in the case.10

Crime Scene Photograph 25500001, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500002, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500016, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500017, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500018, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500027, Corpus Christi Police Dep't (Feb. 4, 1983);

Joel Infante, Corpus Christi Police Identification Technician, Field Investigation Report (Feb. 4, 1983) ("The items mentioned, a knife and pack of Winstons cigarettes were first photographed where they were found.").

See supra Chapter 7, notes 199–203 and accompanying text.

See supra Chapter 10, notes 144, 173 and accompanying text.

Crime Scene Photograph 25500025, Corpus Christi Police Dep't (Feb. 4, 1983);

Crime Scene Photograph 25500026, Corpus Christi Police Dep't (Feb. 4, 1983);

Joel Infante, Corpus Christi Police Identification Technician, Field Investigation Report (Feb. 4, 1983) ("Sgt. Fowler asked me to process two Miller Lite beer cans that he found out the back of the gas station on the grass. He believed that maybe in some way this were [sic] handled by the person who committed the robbery. These were processed and some partial prints were obtained from one of the cans, and this turned in to latent print examiner.");

Steve Fowler, Corpus Christi Police Sergeant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 46 ("The only item that I can recall was some beer cans that were found back behind the station . . . . He [Infante] photographed the beer cans at the scene where they were at and after he did that, well, then, I stuck my fingers in the drinking holes [of the beer cans] and picked them up, took them to the front and laid them by the [front] door [of the gas station].");

see supra Chapter 10, note 140 and accompanying text.

See Crime Scene Photograph 25500005, Corpus Christi Police Dep't (Feb. 4, 1983);

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);

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

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

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) (describing discovery of possible physical evidence at the crime scene: "A cigarette butt, no distinguishing brand on it, found on the floor also behind the counter—laying close to a calendar near a pool of blood. . . . Retrieved at 9:55 p.m. Evidence tag # 40149.");

supra Chapter 10, notes 105–108, 152 and accompanying text and accompanying text & Figure 25.

Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983);

Order Granting Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983);

For the version of this Order that is signed by the judge, see Nueces County District Court Clerk’s File from Indictment to Sentence at 9–10.

List of State's Exs., Attached to Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983) ("SX 39 Pay stub for Carlos Hernandez . . . SX 38 Payroll check for Carlos Hernandez");

see infra Figure 34.

See supra Chapter 11, note 255 and accompanying text; see also James Liebman's Notes on Interview with Bill May, Corpus Christi Criminal Defense Attorney and Former Assistant District Attorney (July 13, 2004) at 1 ("When [evidence] comes back [from the D.A.'s office to the court], put [by court] it in closed file in clerk's office. If didn't go [back] up to court, it is [still] in the DA's office.").

Order Granting Mot. to Withdraw Exs., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 22, 1983);

For the version of this Order that is signed by the judge, see Nueces County District Court Clerk’s File from Indictment to Sentence at 9–10.

See supra Chapter 11, notes 258–264 and accompanying text.

Chapter 15
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