HRLR
Los Tocayos Carlos
Chapter 15
Page: 20 of 29
Text: A | A | A
All Chapter 15 Footnotes

Weaver answered the first argument by giving Lawrence and De Peña more benefit of the doubt than they perhaps deserved. The trial lawyers didn't put on any mitigating evidence, Weaver supposed, because they figured the jury wouldn't consider it anyway. Texas's two sentencing questions would keep the jurors from seeing the mitigating value.271 To show that mitigating information about DeLuna did exist, Weaver attached the sworn statements from Carlos's family and friends, the police reports on his paint sniffing, and Dr. Kutnick's and Dr. Plaisted's reports showing DeLuna's low I.Q. scores.272

Weaver answered the second argument by begging the courts not to hold against DeLuna that De Peña, Lawrence and Anderson hadn't had as much foresight as Penry's lawyers, and hadn't realized that the argument existed until Justice O'Connor accepted it in her recent opinion in Penry's case.273

* * * * *

Weaver made his argument in the county court in Corpus Christi, the Texas Court of Criminal Appeals in Austin, the federal district court in Corpus Christi, and the federal Court of Appeals in New Orleans. At each level, the state lawyers responded with the two arguments Weaver had predicted. The "Penry" claim didn't apply to DeLuna because De Peña and Lawrence presented no mitigating evidence on his behalf.274 In any event, it was too late to raise the claim now, because De Peña, Lawrence and Anderson had failed to make it at all or on time before.275

Each court agreed with the state: DeLuna's prior lawyers had presented too little mitigating information276 and had objected too late.277

* * * * *

Each step of Weaver's way was steeply uphill, and he had to take it at breakneck speed.

Weaver knew that the least likely source of any good news for Carlos DeLuna was Judge Brown in the local court in Corpus Christi.

Brown knew that whatever he did would immediately be appealed by the losing side to the Texas Court of Criminal Appeals.278 Because that court was notoriously hostile to requests from capital prisoners, especially successive requests, Brown had little reason to take a risk and grant the request.

Despite this foregone conclusion, wrangling in Brown's court ate up over three of the five weeks Weaver had before his client was due to be strapped to a gurney and executed. Most of that time was gobbled up by the state's lawyers. Eleven days after Weaver filed his papers, District Attorney Grant Jones finally filed a short response. To emphasize how important the matter was to him, Jones took the unusual step of signing the papers himself.279

Two days later, Jones adopted a maneuver commonly used by state's attorneys in capital cases. Taking advantage of judges' natural human desire to avoid work when they can, and removing any risk that Judge Brown might stray from the exact decision Jones wanted, the D.A. submitted something called "Proposed Findings of Fact, Conclusions of Law and Order."280

The document was written as if it was the opinion of Judge Brown. All Brown had to do was sign and date it, and Jones would have his preferred decision.

Two days after the District Attorney submitted the Proposed Findings, Weaver filed objections to it.281

Five days after that, on November 22, 1989, Judge Brown issued his "Findings of Fact and Order."282 He did more work than the D.A. had hoped, but only a little more—scissoring out nine and a half of Jones's twenty-three numbered "Findings of Fact" and issuing an order with thirteen and a half "findings" taken verbatim from the D.A.

* * * * *

See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 2 (acknowledging that DeLuna's attorneys put on no mitigating evidence at trial and suggesting that, "in light of the inherent problems of presenting such [mitigation] testimony without proper instructions to guide the jury's deliberations, trial counsel made a tactical decision not to present such testimony").

See, e.g., Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at Apps. B–W.

See, e.g., Mem. of Law on Appl. for Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 2, 1989) at 25:

It is accordingly abundantly clear that because Penry amounts to such a substantial development in the law, one that overturns Texas Courts' precedent . . . , "a [capital] defendant has not waived his right to assert a [Penry] violation by failing to object at trial [or raise the issue in later proceedings]."

Permitting capital defendants to raise Penry claims, irrespective of any failure to raise a claim previously, would be fully consistent with the practice adopted in other states in the wake of a major Eighth Amendment decision having substantial impact on the operation of the capital statute.

Mem. of Law on Appl. for Writ of Habeas Corpus, DeLuna v. Lynaugh, No. 83-CR–194-A (S.D. Tex. Nov. 30, 1989) at 25:

It is accordingly abundantly clear that because Penry amounts to such a substantial development in the law, one that overturns Texas Courts' precedent . . . , "a [capital] defendant has not waived his right to assert a [Penry] violation by failing to object at trial [or raise the issue in later proceedings]."

Permitting capital defendants to raise Penry claims, irrespective of any failure to raise a claim previously, would be fully consistent with the practice adopted in other states in the wake of a major Eighth Amendment decision having substantial impact on the operation of the capital statute.

Appl. for Stay of Execution and Appl. for Stay of Mandate of the U.S. Ct. of Appeals for the Fifth Circuit Pending Cert., DeLuna v. Lynaugh (Dec. 4, 1989) at 10 (arguing that the prior lawyers could be excused for not raising the claim before the Supreme Court's opinion in Penry because that case was such "an abrupt shift from bedrock principles announced by Texas Courts. . . [and] declares that a wide variety of evidence typically offered by Texas capital defendants . . . cannot be afforded mitigating effect in the absence of instructions in addition to those on the special issues.").

See supra note 270; infra note 276.

See supra note 270; infra note 276.

See, e.g., Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 3–4:

  1. No evidence was presented at trial concerning Applicant's alleged history of drug and alcohol abuse, troubled youth, or limited mental capacity.

  2. Nothing in the record supports Applicant's assertions that counsel felt precluded by the Texas capital sentencing statute from introducing the kind of evidence referred to in No. 11; rather, the record affirmatively demonstrates that such evidence did not exist.

  3. Applicant has presented nothing in his habeas corpus application to support his contentions that there was at the time of trial mitigating evidence of the kind listed in No. 11 . . . .

  4. Further, the affidavits from friends and family members attached to the application for writ of habeas corpus reveal that Applicant's childhood and teenage years were generally happy, and that he was surrounded by loving relatives and friends. They do not depict the "troubled youth" he now asserts he experienced.

Findings of Fact and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 22, 1989) at 2 ("No evidence was presented at trial concerning Applicant's alleged history of drug and alcohol abuse, troubled youth, or limited mental capacity. In a previous collateral attack on his conviction, Applicant alleged that counsel were ineffective for failing . . . to investigate and introduce [this] mitigating evidence . . . .");

Order Denying Pets. for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 8, 9 ("In this case, petitioner presented no mitigating evidence and, indeed, withdrew his request for an instruction on mitigation."; "Penry submitted mitigating evidence to the jury, but DeLuna did not. Because there is no evidence upon which the jury could be confused as to meaning of 'deliberately,' it is not error to fail to define it to the jury.");

DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir. 1989) ("It is significant, however, that appellant makes no claim that he was abused as a child or that his alcohol and drug use significantly reduced his mental capacities. In addition, appellant has not shown any evidence of mental retardation. Instead, the psychological reports prepared for trial indicate that appellant registered at worst borderline mental capacity.").

See, e.g., Proposed Findings of Fact, Conclusions of Law, And Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989) at 2 ("Applicant expressly waived his objection that charge did not contain an instruction on consideration of mitigating evidence. Thus, Applicant's objections to the charge at trial are not the same as those he makes in this application." (citation omitted));

Order Denying Pets. for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 6 (explaining that DeLuna's prior attorneys should have anticipated the claim because, as "[t]he Fifth Circuit held . . . [,]. the Penry claims are not recently found legal theor[ies] not knowable by competent trial counsel.").

See supra notes 110–114 and accompanying text.

Resp't's Original Answer to Appl. for Writ of Habeas Corpus, Appl. For Writ of Habeas Corpus, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 13, 1989) at 11.

Proposed Findings of Fact, Conclusions of Law, and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 15, 1989).

Pet'r's Objections to State's Proposed Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 17, 1989).

Findings of Fact and Order, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 22, 1989).

Chapter 15
Page: 20 of 29