On November 24, 1989, with less than two weeks left before the date set for Carlos's execution, Weaver filed objections with Judge Brown283 and also immediately asked the Texas Court of Criminal Appeals to overturn Brown's order.284 Although he knew both courts would reject his petitions, Weaver still had to "exhaust" the remaining state court avenues before he could take his arguments to a federal court.285
The Texas Court of Criminal Appeals ate up five more days before rejecting DeLuna's petition.286 Carlos could now go to federal court, where his chances were slightly better—"vanishingly slim," rather than "none."
Weaver had lost four of DeLuna's five weeks in two state courts he knew would never help his client. He had only a week left to convince one of three federal courts—in Corpus Christi, New Orleans, and Washington, D.C.—that Carlos should not be executed. In case all that failed, Weaver had to save enough time to try to convince Texas Governor William Clements, Jr. to commute DeLuna's death sentence to life imprisonment.
* * * * *
The next day, November 30, reporter Kathy Fair published an article in the Houston Chronicle under the headline "Each Tick of Clock Increases Terror of Condemned Killer."287
* * * * *
That same day, Weaver filed papers in Federal District Judge Head's court in Corpus Christi. Judge Head did not want to give Weaver a chance to argue the case to him, but he relented near the end of the day on Saturday, December 2.290
Weaver had undergone jaw surgery the day before in Dallas and asked Judge Head to postpone the hearing—and the execution—for a few days while he recuperated.291 Judge Head refused, accommodating Weaver only by holding the Saturday evening hearing by telephone so the lawyer didn't have to fly from Dallas to the Gulf Coast.292
Later that night, Judge Head denied Carlos's habeas corpus petition and request to postpone the execution.293 It took the judge two days, however, to issue an order allowing Weaver to take the case up the ladder another rung.294
Only two days remained for a plea to the federal Court of Appeals, a long-shot request to the Supreme Court, and clemency discussions with the Governor.
* * * * *
The moment Judge Head finalized the appeal on December 4, Weaver had his papers asking for a delay in the execution in front of the Court of Appeals in New Orleans295 and the United States Supreme Court in Washington.296
The Court of Appeals denied DeLuna's appeal the next day, December 5, 1989.297
Adopting Judge Head's conclusions and adding some of its own, the court left DeLuna in the same place he had been at the end of his trial six years before.
As for what happened on the night of February 4, 1983, the court said simply "that during a robbery of a Shamrock gas station on South Padre Island Drive in Corpus Christi, DeLuna fatally stabbed the clerk, Wanda Lopez."298
Pet'r's Objections to Trial Ct.'s Findings of Fact and Conclusions of Law, Ex parte DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Nov. 24, 1989).
Appellant's Objections to Trial Ct.'s Findings of Fact and Conclusions of Law, Ex parte DeLuna No. 16,436–02 (Tex. Ct. Crim. App., Nov. 24, 1989).
See supra note 116 and accompanying text.
Order on Habeas Corpus Appl. from Nueces Cty., Ex parte DeLuna, No. 16,436–02 (Tex. Ct. Crim. App., Nov. 29, 1989) at 1.
Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989, at 34A ('"I'll be honest,' said DeLuna, who came within 12 hours of being executed in October 1986. 'I'm really scared that I'm going to have to go through this and I hope don't, but if it does happen I have peace within myself. I'm not going to fight these people or anything. I'll walk into the chamber and lie down on my own will and let them execute me.'").
Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989, at 34A;
see also Texan Is Put to Death by Injection For Killing Woman in a Robbery, N.Y. Times, Dec. 8, 1989, available at http://www.nytimes.com/1989/12/08/us/texan-is-put-to-death-by-injection-for-killing-woman-in-a-robbery.html?pagewanted=print&src=pm ("In an interview last week, the condemned man said he was afraid of being executed. 'I don't think anybody can prepare yourself for dying,' he said. 'I can't imagine myself lying down on that gurney. I try to but I can't.'"); Kathy Fair, DeLuna Waits for Execution in '83 Murder, Hous. Chron., Dec. 7, 1989, at 36A ("A week ago DeLuna said he feared facing his executioner. 'I'm human; of course I'm afraid to die,' he said.");
Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 03:21:15–03:32:00:
Q. You have a letter that Carlos wrote to you on December 4th, 1989. I wonder if I could get you to read that letter for us. Give us the date and when it was in relation to when he was executed.
A. (picks up letter) This is December 4th, 1989. This would have been three days before his execution. And he writes, (reads) ". . . I'll be honest with you, I am scared to die. I haven't been up to even trying to prepare myself for this." . . . The December 4th letter, and the December 5th letter, I received from Carlos DeLuna after his death. . . . On December 5th, 1989, he writes, Carlos DeLuna writes, ". . . I was just thinking last night, I had set my alarm clock to get up early. That way I could try and talk to some people I needed to talk to. The alarm clock went off, and you know, for the first time since I've been here I never have ever slept right through the alarm. I woke everybody else up in the same tank with me, and my neighbor kept banging on my bars 'till I woke up. I can't believe I am sleeping too good with all this happening. But you know what, Karen? I am not scared like I was yesterday. I feel like this fear." I'm sorry. He says, "But you know what, Karen? I am not scared like I was yesterday. I feel like this peace came from somewhere and entered my body, and I feel very peacefully about everything."
Transcribed Videotape Interview with Rosie Esquivel, Girlfriend of Carlos DeLuna While He Was on Death Row, in Garland, Texas (Feb. 27, 2005) at 23:36:35–23:37:45:
I knew that his [Carlos DeLuna's] last appeal, he had told me it didn't work out for him. I got the call from [Carlos's sister] Rose [Rhoton]. I didn't know the actual date that he was going to get executed. But when I got a phone call from Rose, she told me that Carlos was up for execution that night. They were hoping for a stay of his execution. He said he didn't want to call me, he didn't want to talk to me or anything like that, because he was afraid. When I talked to Rose that night, I think I prayed. I prayed for him, up until I guess I heard that he had been executed. I was sad. I didn't think it would happen.
Kathy Fair, Each Tick of Clock Increases Terror of Condemned Killer, Hous. Chron., Nov. 30, 1989, at 34A.
Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:24:12 ("The judge did not want to have a hearing on the issue at all. We ended up doing a telephone hearing, conference. It was very late in the day, there was already a death sentence [i.e., an execution date set]. . . that starts the clock. So by the time I got in to this, there was already a death sentence set.").
Transcribed Videotape Interview with Kristen Weaver, Post-Trial Lawyer for Carlos DeLuna, in Dallas, Texas (Feb. 28, 2005) at 02:32:54, noting that Kristen Weaver had jaw surgery the day before the hearing and asked the judge to postpone it, and stating:
I had just had oral surgery. I was trying not only to get a hearing but a continuance. Anything to get it past this day, to get it past the death date, would mean they'd have to re-set it and we'd have some more time to think of something or do something. The answer was, quite simply, no. The fact that I'd had oral surgery the day before the judge had decided to have this hearing was completely irrelevant, as far as he was concerned. So I didn't get to take the drugs. I had to proceed accordingly, in pain. They didn't particularly care..
See also Order Denying Pets. for Habeas Corpus and Stay of Execution, DeLuna v. Lynaugh, No. 89-c–336 (S.D. Tex. Dec. 2, 1989) at 4 ("The Court . . . held a hearing by telephone conference call on December 2, 1989, in which to allow petitioner's attorney an opportunity to respond to respondent's motion to dismiss for abuse of the writ process.").
See supra note 291.
See Mot. for Relief from Order, Mot. for Certificate of Probable Cause and Notice of Appeal, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 1, 5;
Order, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 4, 1989) at 1 (page 6 of motion and proposed order).
Mem. of Law on Appl. for Stay of Execution, DeLuna v. Lynaugh, No. 89–6262 (5th Cir., Dec. 4, 1989) at 2;
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, No. 89–6262 (Dec. 4, 1989) at 8.
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, No. 89–6262 (Dec. 4, 1989) at 1.
DeLuna v. Lynaugh, 890 F.2d 720, 723 (5th Cir. 1989).
Order Denying Petitions for Habeas Corpus and for Stay of Execution, DeLuna v. Lynaugh, No. C–89–336 (S.D. Tex. Dec. 2, 1989) at 4, incorporated by reference in DeLuna v. Lynaugh, 890 F.2d 720, 724 (5th Cir. 1989).