Anderson, however, had come up with nothing that "undermine[d]" Judge Head's "confidence in the outcome of the trial."190
"Significant time has been allowed for Petitioner to substantiate his claims, and no substantiation has been forthcoming," the judge wrote.191 After reading everything Anderson had provided him, Judge Head said, he had "substantial doubt that Carlos Hernandez even existed."192
Hernandez was officially a phantom once again.
* * * * *
After hearing about Judge Head's decision, Carlos again wrote Vicky. Although she rarely wrote back to Carlos, Vicky saved every letter he wrote and dug them out for the investigators in 2004.193 She had Carlos's GED, correspondence course certificates, and a jewelry box and a model church he had made for her while on death row. She also had a sketch of Carlos drawn by another young Hispanic inmate, Jesse de la Rosa, who was executed soon after finishing the portrait.194
Vicky cried when she read some of her brother's letters to investigators,195 including his June 1988 letter about Judge Head's ruling.196 In it, Carlos was nostalgic, even reflective—another sign of how much death row had changed the cocky young man.197 Carlos fondly recalled the pork chops Vicky had made for him as a kid and his trips fishing with her husband, "big Fred."198 Fred "would always give me some advice," Vicky read. "If only I would have taken it. How stupid I was . . . ."199
Carlos remembered his mother telling him, "'Son, one day you're going to find yourself in a hole and you won't be able to get out. . . .' And I used to tell her, 'Who, me? A hole? No way.' But how right she was." 200 For the first time since his arrest, Carlos seemed to realize just how big a hole he was in.
"I am sure you heard the federal court in Corpus Christi ruled against me on my appeal," Carlos wrote.201 Soon he would go back to Corpus "so they can set another date of execution."
"I have a good chance of being put to death this time around. [I]t's getting to a point where the courts just don't want to hear our appeals any more on Death Row. . . .202
"I sometimes sit here at night," he continued, "and I cry to myself, and I wonder, how could I have ever let some stupid thing like this happen because of a friend who did it, and I kept my mouth shut about it all.203
"But I don't blame anyone but myself and I accept that. That is why I will accept it if the state of Texas decides to execute me."204
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7.
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 9.
DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 8;
see DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7 (concluding that DeLuna failed to show "what exculpatory evidence the additional investigation would have uncovered"; "consequently, [i]t is not reasonable to believe that the location of Petitioner's 'Carlos Hernandez' would undermine the confidence in the outcome of the trial.");
see also DeLuna v. McCotter, No. 86-cv–234 (S.D. Tex. June 13, 1988) at 7–8:
Petitioner's testimony would obviously carry little weight. Two eyewitnesses identified Petitioner as the murderer, one of which had a face-to-face encounter with Petitioner only moments after the crime. Two more witnesses saw Petitioner fleeing from the scene moments after the murder, and Police found Petitioner a short time later hiding under a car in the neighborhood behind the gas station. 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.
See, e.g., Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 00:45:30, 00:46:23, 00:47:33, 01:12:27, 01:14:45–01:14:53:
A. This is an award to Carlos DeLuna for completing his corresponding course of Bible. Offered by extension of the Church of Christ, and director of studies Clifford Emerson gave it to him . . . Yeah, he made me a little church, he made me a little jewelry box . . . . This is a little church that my brother, Carlos DeLuna, mailed to me. He made it himself . . . This is a picture, a friend of his drew it in Huntsville. He sent it to me because he knew I would be the one that would keep it forever.
Q. When you look at that picture—hold it up and tell me what you think of when you look at it.
A I think of my brother, and how I loved him. We all loved him, and he's gone now. This is something like a souvenir for me, to keep all my life.
See also Texas Clerk Killer Executed, as Father, Stepmother Watch, Palm Beach Sun Sentinel, May 15, 1985, available at http://articles.sun-sentinel.com/1985-05-15/news/8501190637_1_rosa-store-clerk-la ("Jesse De La Rosa . . . died by injection early Wednesday, the first Hispanic and youngest person executed since the Supreme Court reinstated the death penalty in 1976.").
Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna in Garland, Texas (Feb. 27, 2005) at 00:26:50 ("A. (reads [from letter from Carlos DeLuna]) 'Mary, tell all the others if it is possible to come to my trial, so I can see all of them, in case I should get the death penalty. That way I can see them all (breaks into tears) one last time.' I don't like to read things like that. (reads) 'What I mean by all of them, I mean my family, Daniel, Manuel, Rosemary, Big, Tony, Becky, Vincent and, of course, you.' That's all . . . [I] don't know why I'm so sensitive, I can't [read any further].").
Transcribed Videotape Interview with Vicky Gutierrez, Half-Sister of Carlos DeLuna, in Garland, Texas (Feb. 27, 2005) at 01:01:18–01:10:10:
This [letter] was written in June, 1988, from Carlos DeLuna to Vicky Gutierrez. It says, (reads) "Dear Vicky, I want to send you my love and regards to all of your family, big Fred, little Lisa, little Noel, and, of course, you. I hope all of you are all well and fine. . . . I'm sure you heard the federal court in Corpus Christi ruled against me on my appeal. That means . . . [t]hey can set another date of execution. . . . I have a good chance of being put to death this time around because it's getting to a point where the courts quit, don't want to hear our appeals any more on Death Row. Vicky, I wrote you about a month ago and I asked you to please send me some money where I can send a few things home, just in case something does happen, I don't want to leave their things. I want to know, I want to make sure you'll get them while I am still alive. I would say about 15 or 20 dollars (turns page) would cover most of the postage and I will be able to buy me something to eat and drink, because the food here is very, very bad. I wish there was a way you could send me a tray from home. Do you remember how you would always make pork chops for me? I can still remember that. I can remember when me and big Fred would sometimes go fishing. He would always give me some advice. If only I would have taken it. How stupid I was when I was young. I thought I knew it all. But that goes to show me how much I know about anything. I remember mother used to tell me, 'Son, one day you're going to find yourself in a hole and you won't be able to get out. Or you won't be able to get out for a long time, if you don't behave.' And I used to tell her, 'Who, me? A hole? No way.' But how right she was. The older you get the wiser you get. I'm 26 years old now. I was 20 years old when I got locked up. I do feel older and I do look a little older. Here I send you a few pictures of me. I have a big one, about five-by-seven. When I get the money for the stamps, I will send it to you if you want it. . . . I sometimes sit here at night, and I cry to myself, and I wonder, how could I have ever let some stupid thing like this happen because of a friend who did it, and I kept my mouth shut about it all. But I don't blame anyone but myself and I accept that. That is why I will accept it if the state of Texas decides to execute me. I want you to remember that no matter what happens I will never forget all of you all. And I (turns page) will always love all of you. They may be able to kill me, but they can't kill the love or memories, always keep that in mind. . . . I will write to you again as soon as I hear something from the court, when they will set my date of execution. Well, I hope you can help me out on the postage due. I close my letter now, my sister, and write whenever you can. God bless you and your family, Mary. He always protects you and your family. Until I hear from you. I will send that big picture of me as soon as I can. When I get the stamps to do it. By now. Love, brother Carlos DeLuna."
See supra notes 22–27.