In the meantime, Carlos Hernandez, now free of the Sauceda murder charges, was arrested several times for public intoxication. Each time he was carrying a knife, or "several" of them.181 He was also arrested—for a second time since Wanda Lopez was stabbed to death at the Sigmor-Shamrock—on an outstanding traffic warrant after being found behind a store at night with a knife.182
At some point in 1988, Hernandez ended up in the hospital for several months after falling out of the back of Freddie Schilling's pick-up truck, sustaining head injuries.183
* * * * *
On death row, anxiously awaiting Judge Head's decision, Carlos DeLuna wrote Vicky a letter on May 27, 1988, his first letter to her in four years:
Hello my sister. I hope every one is well and fine do give every body my love and Regards. I don't know why you don't write anymore I hope you haven't forgotten about me or your mad at me in any way But what ever the case is I would like to get a letter at least one the last time you wrote to me was 1984 I think just one letter Vicky. I know you ain't got nothing to say but at-least, right in say hi I would be very happy with that.
I got a degree in college. I graduated from a Business course 2 ½ years of college. I hope I get to use all my knowledge I pick up her one day soon. . . .
well you take care and I hope to at least get a hi letter from you . . . . Hey If not I will understand and that's ok. I well always love all of you'll no matter what ever happens to me. I still haven't heard any thing from the federal court in corpus Christi . . . . I heard Blas is sick. I hope he gets well soon. I feel sorry my heart goes out to him. I rember he did a whole lot for Manuel, me and Rose. I just never'ed pay much attention when I was around cause I was very stupid . . . .
Bye now. Love Brother Carlos.184
* * * * *
On June 13, 1988, Judge Head rejected both arguments made by Anderson on Carlos DeLuna's behalf, and lifted his earlier order that had temporarily delayed the execution.185
DeLuna lost, the judge said, because he had no evidence to support his arguments. He had come up with no proof that Wanda Lopez was Anglo, not Hispanic.186 Or that Corpus prosecutors discriminated against defendants charged with murdering Anglo whites (even assuming Wanda was Anglo). Or that better lawyering by Lawrence and De Peña would have improved DeLuna's chances at the trial.187
As for the claim about an assailant other than DeLuna, Judge Head repeated Anderson's mistake. He identified the July 1986 Caller-Times article as instead having appeared in July 1983, just after DeLuna's trial while his attorneys were working on a request for a new trial.
Assuming, then, that Lawrence and De Peña knew this Carlos Hernandez existed, Judge Head put the burden on Anderson to prove both that the two lawyers "made no investigation of the arrested suspect to determine if there could be grounds for a new trial"188 and that a proper investigation would have revealed persuasive evidence of a connection between this Hernandez and the murder of Wanda Lopez.189
Arrest Sheet No. 38884 for Carlos Hernandez, Corpus Christi Police Dep't (Jan. 21, 1987) at 2 ("The subject had several knives in his possession and stated that he carried them because he was protecting himself.");
Arrest Sheet No. 46352 for Carlos Hernandez, Corpus Christi Police Dep't (July 16, 1987) at 1;
Arrest Sheet No. 10920 for Carlos Hernandez, Corpus Christi Police Dep't (July 29, 1987) at 1.
Arrest Sheet No. 43426 for Carlos Hernandez, Corpus Christi Police Dep't (May 5, 1987) at 1 ("The above subject was observed standing next to a vehicle, behind a business in a dark alleyway, while talking to the subject he said his name was Javier Hernandez . . . The subject then said his name was Carlos Hernandez.");
see also supra Chapter 9, notes 73–75 and accompanying text (describing an earlier, similar arrest in April 1983).
See Memorial Medical Center Records, Multidisciplinary Assessment (July 28, 1995) (stating that Carlos Hernandez "fell off pickup truck—sustained head injury in 1988");
see Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:46:13 ("[H]e [Carlos Hernandez] was in a car accident, and he had surgery on his brain right here. [indicates hair line of forehead].");
James S. Liebman's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (July 13, 2004) at 1 ("He [Carlos Hernandez] was in a car accident; missing part of brain.");
Peso Chavez's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004) at 4 ("He [Carlos Hernandez] was in a previous car accident and suffered a head injury.");
Peso Chavez's Notes on Interview with Johnny Ybañez, Neighbor of Carlos Hernandez (Aug. 4, 2004) at 2 ("Mr. Ybanez was aware that Mr. Hernandez had fallen out of a truck and hit his head when he was younger and had to have surgery—he had a hole in his head.").
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 9 ("[N]o hearing is merited. Petitioner's writ of habeas corpus is denied and the agreed stay of execution is lifted.").
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 1–2.
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 2 ("Petitioner has not alleged facts specific to his own case that would support an inference that racial considerations played a part in his sentence. . . . Nor may this Court infer purposeful discrimination in Petitioner's case from statistical data [about Texas as a whole].");
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 2–9:
Petitioner must show that his defense was prejudiced by his counsel's deficient performance. . . . Petitioner cannot argue that the decision not to use his mother's testimony was unreasonable and he can show no prejudice from the lack of her testimony. . . . Petitioner's attorneys' decision to rely solely on jury argument in the punishment phase of the trial was not unreasonable, given the facts of the case, viewed as of the time of the trial. . . . The record reflects that Petitioner's attorneys made an effort to locate Carlos Hernandez. . . . In view of the cumulative eyewitness testimony and other circumstantial evidence, it is not reasonable to believe that the location of "Carlos Hernandez" would have affected the outcome of the trial. Given the fact that Petitioner lied about his other alibi witness, Mary Ann Perales, there is substantial doubt that Carlos Hernandez even existed . . . . Petitioner has not developed beyond conclusion his allegations of ineffective counsel on appeal. Under the foregoing circumstances, no hearing is merited.
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 6–8 (noting that DeLuna claimed that his trial lawyers "made no investigation of the arrested suspect to determine if there could be grounds for a new trial" but finding that Anderson's papers failed to allege any specific acts DeLuna's trial attorneys failed to commit in order to find and investigate Carlos Hernandez).
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7–8.