HRLR
Los Tocayos Carlos
Chapter 15
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The photo illustrated two stories in the newspaper on Hernandez's arrest, which was front-page news.39 The date was July 25, 1986, three years almost to the day after DeLuna's trial ended.

By then, De Peña had fought through his financial woes40 and was about to be elected judge, like his father.41 He had long since stopped representing Carlos DeLuna. Right after the trial, DeLuna had again asked Judge Moore to kick De Peña off the case. James Lawrence handled the first round of appeals himself.42 After that, other lawyers took over.

Schiwetz had left the D.A.'s office by then and joined a private law firm.43

The two grabbed a cup of coffee at the courthouse.44

Schiwetz "recollected" the "name Carlos Hernandez," De Peña told investigators in late 2004. It was in connection with the killing of a woman in a van with her baby close by.45

De Peña recalled the former prosecutor suggesting that Carlos Hernandez "might have been involved in the killing of [that] young mother that happened some years prior to the Shamrock killing . . . and the fact that it might have been the same Carlos Hernandez who had been involved in the Shamrock incident."46

Schiwetz's comment stuck in De Peña's mind. Evidently, even for Schiwetz, Carlos Hernandez wasn't a ghost any more.

* * * * *

It wouldn't be surprising if Carlos DeLuna was also on the lawyers' minds that day in July 1986 when Carlos Hernandez's picture appeared in the Caller-Times. Just the day before, Linda Carrico had reported in the same paper that a Texas appeals court had approved DeLuna's conviction and death sentence. Retired Judge Moore, still being paid by the local court to manage the case, had set a date for DeLuna's execution in October of that year.47

"DeLuna, now 24, still maintains his innocence," Carrico wrote, "despite a jury finding him guilty of Ms. Lopez's death and two appeals courts upholding that conviction and death sentence."48

DeLuna, she reminded her readers, claimed that "a man named Carlos Hernandez killed Ms. Lopez. However, repeated attempts by both prosecutors and defense attorneys to locate Mr. Hernandez were unsuccessful."49

Reading a day later about the arrest of Carlos Hernandez for beating a young Hispanic woman and carving an 'X' on her back, De Peña and Schiwetz might not have been the only ones in Corpus Christi to see a possible connection between the Caller-Times reports about the Carlos Hernandez who DeLuna had named and the recently arrested Carlos Hernandez—and wonder whether there was about to be a break in DeLuna's case.

One thing is certain, however. Neither De Peña nor Schiwetz went to District Attorney Grant Jones, Schiwetz's old boss, or to Judge Moore or any other judge to ask that the case be reopened. Neither requested that the climactic "phantom" argument that Schiwetz used to send the jury off to deliberate on DeLuna's fate be reconsidered or stricken. Neither asked that another jury be assembled to rethink the case with the new facts in front of it.

* * * * *

In 1986, Carlos's sister Rose Rhoton paid for a new attorney to take over her brother's case. Up to that point, she had stood by helplessly as her brother's defense failed at trial and in his first appeal.50 She felt that even his own lawyers, paid for by the court, had taken it for granted that he was guilty.51

Rose no longer trusted attorneys assigned by judges. Attorneys like that seemed to work for the state, not her brother. The motion for a new trial that James Lawrence had filed with Judge Moore in September 1983 was typical. It claimed that Carlos wasn't able to put up a proper defense to the death penalty because his mother—his main character witness—was too ill to testify.52 That was true enough, Rose thought, but the lawyers hadn't called any character witnesses, even ones like herself who were right there in the courtroom.53 Judge Moore had quickly denied Lawrence's request for a new trial.54

Libby Averyt, City Man Is Jailed in 7-Year-Old Murder Case,Corpus Christi Caller-Times, July 25, 1986 at 1A, 18A (reporting that Carlos Hernandez was "yesterday arrested . . . in connection with the brutal slaying seven years ago of a 27-year-old woman who was found with an 'X' carved in her back.").

See supra Chapter 11, notes 33–40 and accompanying text.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 11:59:06 ("I took the bench in January of '87. Remained on the bench for 16 years as Presiding Judge of County Court Two. And currently serving as an assigned judge for the state of Texas.");

Transcribed Videotape Interview with Jon Kelly, Lawyer for Carlos Hernandez in Corpus Christi, Texas (Dec. 9, 2004) at 07:15:21, 07:17:24 ("[Hector De Peña, Jr.] was the son of a judge. He was having some difficulty making ends meet. . . . Hector needed some help and they appointed him to the [DeLuna] case; "His [De Peña's] dad was a judge, a sitting judge at that point [1983].").

See infra notes 55–58, 63–67 and accompanying text.

See http://www.mediation.com/memberprofile/steve--schiwetz-78401-8c.aspx (providing biographical information about Steven Schiwetz: "Assistant City Attorney, City of Amarillo, 1977–1978. Assistant District Attorney: Potter County, 1978–1980; Nueces County, 1981–1984. Shareholder, Meredith, Donnell & Abernethy, 1984–1999," after which Schiwetz opened up his own office).

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:27:40 ("[L]ater on, while having coffee at the courthouse, I'd had a conversation with Mr. Schiwetz relating to this matter [the Wanda Lopez killing].").

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:26:49–12:29:00:

Q. I'll read you my notes: "In the aftermath of the case, Mr. de Peña was discussing the case with Steve Schiwetz. Schiwetz recollected a woman found in a van with the child still alive under her. Some indication that Carlos Hernandez committed that crime; they were never able to tie him to it. Mr. De Peña remembers this [conversation with Schiwetz] occurring within the first year following the trial. It never really came up until afterwards in [that] coffee shop conversation. The killing of the woman was several years prior to the Shamrock killing." Is this consistent with your—

A. Correct.

Q. Would you describe that conversation that you had with him [Steve Schiwetz]?

A. It seemed, and the time frame is not clear because so much time has passed since then. But in my earlier conversation, it seemed to me that, later on, while having coffee at the courthouse, I'd had a conversation with Mr. Schiwetz relating to this matter. Apparently, at some point in time, the name Carlos Hernandez came up, that might have been involved in the killing of a young mother that happened some years prior to the Shamrock killing. But they were never able to tie Carlos Hernandez to that killing, and the fact that it might have been the same Carlos Hernandez who had been involved in the Shamrock incident.

Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:26:49–12:29:00;

see also James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Jan. 21, 2005) at 1 (recalling a recent conversation with Steven Schiwetz ("SS") in late 2004 or early 2005):

SS asked JK [Jon Kelly] why he was involved [in talking to the out-of-town investigators] and JK brought up Carlos Hernandez. He said SS immediately remembered that JK had represented a CH [Carlos Hernandez] in the case against Bill May (the 1986 prosecution [of Hernandez for the Dahlia Sauceda murder]) and also the later (Dina Ybanez) assault [see infra Chapter 17, notes 41–42, 51–79 and accompanying text], but SS [said] that there were many Carlos Hernandez's in CC [Corpus Christi] ("How many Carlos Hernandez are there in CC") and did not concede to JK that he knew that this was (possibly? likely?) the same CH as had come up in the [Wanda Lopez] case.

Linda Carrico, City Man Gets Execution Date for '83 Slaying, Corpus Christi Caller-Times, July 24, 1986, at 1A:

DeLuna lost [a second chance at life] yesterday when he was sentenced to die by lethal injection before sunrise on Oct. 15. . . . Visiting District Judge Wallace "Pete" Moore of Houston set DeLuna's execution date at a hearing in the 94th District Court in Corpus Christi. DeLuna's sentencing came a month after the Texas Court of Criminal Appeals in Austin overruled all points of appeal raised by DeLuna and his attorney, James Lawrence. DeLuna is the second of three death row inmates from Corpus Christi to be scheduled for execution this year.

Linda Carrico, City Man Gets Execution Date for '83 Slaying, Corpus Christi Caller-Times, July 24, 1986 at 1A, 16A.

Linda Carrico, City Man Gets Execution Date for '83 Slaying, Corpus Christi Caller-Times, July 24, 1986 at 1A, 16A.

See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58:

I know my brother couldn't commit such a crime that they say that he did. I know that dead in my heart that he couldn't commit such a crime. And I feel horrible that I could not help him in any way. I did not understand any of the laws. I did not understand anything they were saying in the trial. And every person that I spoke to said he committed this crime, would not give him a chance. And I know he didn't commit this crime, I know he didn't. And even though we hired an attorney to help him. They even said he did this crime. They never gave him a chance.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 20:30:42–20:32:34:

My mom passed away in August of '83. I saw her three days before she died. And she did ask me one thing—she didn't ask any of the other siblings. But she did ask me, because she knew Carlos and I were very close. She did ask me. She said, "I want you to do something for me." I asked her, "What's that?" "Promise me you'll always look out for Carlos, promise me that." I told her, "Ok, I'll look after him." And I couldn't help him. I did not know how to help him. And I know he didn't commit this crime. And I blame myself because I wasn't educated enough to learn about all these words they were saying in the trial, and the paperwork. I didn't understand it. And I believed the attorneys, what they said as far as, he was underneath the truck, and this and this and that. But I knew in my heart that Carlos did not commit this crime. I knew it.

See also infra note 81.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna in Houston, Tex. (Feb. 26, 2005) at 19:59:44–20:02:58 ("And I know he didn't commit this crime, I know he didn't. And even though we hired an attorney to help him. They even said he did this crime. They never gave him a chance.").

Def.'s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983) at 1 ("In support of said motion the Defendant would show and allege: . . . That said witness,[DeLuna's mother] was a material character witness and that the Defendant was not able to safely go to trial without this witness' testimony.").

See supra Chapter 14, notes 30–37 and accompanying text.

Judgment, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983);

Def.'s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983) (motion filed Aug. 9, 1983, amended Sept. 12, 1983, and "overruled in its entirety" Sept 12, 1983).

Chapter 15
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