Carlos, too, thought his lawyers were not helping him.55 For a second time, in September 1983, he hand-wrote a motion—incomprehensibly stringing together quotations from published court decisions—asking the court to dismiss his lawyer and let him represent himself.56 Two months later, however, De Luna wrote another letter to the judge asking to keep James Lawrence and add a second attorney to replace De Peña.57
The court assigned Lawrence to handle DeLuna's first appeal by himself.58
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In January 1984, while waiting for his appeal to be filed, Carlos wrote Vicky a letter with some good news:
Oh, vicky I almost forgot to tell you. I bet you can't guess what. well I got put into population. That's Right I am no longer in Death ROW. Well what I mean I am still sentence to Die. But I am no longer Lock up All the time. I now have a Job in I can Also have visits on Saturdays In Sunday. So now There's no Excuse you'll can't Come. But I have to be good to say out here. I hope that I don't get in trouble. Because I Don't want to go back to Death Row. I hope you'll come soon to visit me . . . . Telll [their sister] Mary I said that I am no longer in DEAth Row. I am very happy I got moved Away From There.59
Carlos was still on death row. For his good behavior and lack of infractions or gang ties, the prison assigned him to a "death row work program" and to a cell block in the Ellis Unit with a slightly lower security classification.60 Even after being caught sniffing glue and paint thinner in a pipe chase with another inmate and going to "solitary" for two weeks, Carlos retained his eligibility to work.61
In a letter after the glue incident, Carlos fessed up to Vicky and her husband Fred:
as for me I am ok I guess got into a little trouble I try to Stay out of trouble But am only human. Well how is fred doing tell him I Sent my Regards. in Tell him not to get mad am trying to Stay out of Trouble. . . . well why haven't you written to me I wrote once But you never answer. So what happen?62
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In James Lawrence's brief to the Texas Court of Criminal Appeals in March 1984,63 his main complaint was that Judge Moore had allowed the trial to go forward after one of the jurors had herself been the victim of a convenience store robbery while the case was going on. Lawrence also argued that Moore should have imposed a life sentence when the jury twice told him it was deadlocked on the "future dangerousness" question.64
Two years later, in June 1986, the Court of Criminal Appeals rejected all of Lawrence's complaints.65 The juror who'd been robbed, the court noted, later told Judge Moore that the incident didn't prejudice her against DeLuna.66 Moore had likewise made a reasonable decision to push the jurors to agree after all but one of them had said they thought they might be able to reach consensus after more discussion.67
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Because the highest court in Texas had approved DeLuna's sentence, Judge Moore wrote out an order on July 23, 1986 directing the State of Texas to execute him in the early morning hours of October 15, 1986.
In the stilted language judges use to say such things, Moore wrote:
CARLOS DE LUNA . . . shall before the hour of sunrise on Wednesday, the 15th day of October A.D., 1986 at the state penitentiary at Huntsville, Texas, be caused to die by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death into the body of the said CARLOS DE LUNA. . . .68
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 2;
Mot. for New Counsel, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 17, 1983) at 1 ("To the Honorable Judge of Above said court: Now Comes Carlos DeLuna, Defendant in the Above Styled And Numbered cause, who makes and Files this his motion and will show The court the Following: I. Records will Reflect that the Attorney of Record For the Defendant is Mr. Hector Depena Jr. II. Conflict of interest and the Relationship of Client And Attorney Can Not be Reached, therefore, the Defendant can not go safely to trial and have this said Attorney prepare his defense.");
see supra Chapter 11, notes 146–148 and accompanying text.
Mot. to Disqualify Counsels and for Appellant to Proceed by Himself as Counsel, Texas v. DeLuna, 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983):
[T]his court in the interest of justice should disqualify counsel and permit the appellant to represent himself. . . . [I]t has been irrevocably made clear that the appellant does not want the court appointed lawyer [Hector DePena, Jr.] to represent him, that there is friction between the counsel and appellant, due to the counsel misconduct that the appellant would rather now represent himself . . . the courts have not only the supervisory power but also the duty and responsibility to disqualify counsel for unethical conduct prejudicial to his client. . . . The Disqualification of [the] attorney . . . is required . . . because said counsel is not representing his client competently, nor zealously within the bounds of the law.
Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Judge Dunham (Nov 17, 1983), Nueces County Court records at 10 of 73:
I would like to request If possible that you could appoint another attorney in my defense. At this moment my attorney is Mr. James Lawrence. I had two attorneys but the other attorney, Mr. De Pena Jr. was not doing nothing to help me so I filed a motion to have Mr. De Pena remove from handling my appeal. I would like to keep Mr. Lawrence but also I would like for you to appoint another attorney on my behalf. I wouldn't be asking you for this if my case wasn't this bad. At the moment I am at Ellis unit on death row and I feel I should have at least two attorneys handling my appeal. I also filed a motion to have the transcripts + statements of facts to me. I would like to know if they are ready.
Order Appointing Att'y James Lawrence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 12, 1983) at 1;
Letter from Oscar Soliz, District Clerk, to James Lawrence, Trial Lawyer for Carlos DeLuna (Jan. 6, 1984) at 1 (stating to Mr. Lawrence that "the Court has approved the [transcription of the trial] record" and "advis[ing] that [James Lawrence] ha[s] thirty (30) days from this date to prepare and file [the] brief for the Court of Appeals").
Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Vicky Gutierrez, Half-Sister of Carlos DeLuna (Jan. 21, 1984).
Unit Classification Review Form for Carlos DeLuna, Texas Dep't of Corrections (Apr. 3, 1984) at 1 (classifying DeLuna under the "death row work program").
Disciplinary Report, Texas Dep't of Corrections, (May 14, 1984) (noting officers observed "inmates DeLuna, Carlos [and another] sniffing glue");
Disciplinary Hr'g Record, Texas Dep't of Corrections (May 16, 1984) (imposing penalty of "solitary confinement" but "no forfeiture" of job status).
Letter from Carlos DeLuna, Defendant in Killing of Wanda Lopez, to Vicky Gutierrez, Half-Sister of Carlos DeLuna (May 24, 1984).
Br. of Appellant, Carlos DeLuna, DeLuna v. Texas, No. 69,245 (Tex. Crim. App. Mar. 2, 1984) at 25.
Br. of Appellant, Carlos DeLuna, DeLuna v. Texas, No. 69,245 (Tex. Crim. App. Mar. 2, 1984) at 1–2, 4, 6.
DeLuna v. State, 711 S.W.2d 44, 45 (Tex. Crim. App. June 4, 1986) ("Appellant [DeLuna] raises seven grounds of error. We will affirm.").
DeLuna v. State, 711 S.W.2d 44, 49 (Tex. Crim. App. June 4, 1986) ("Appellant [DeLuna] raises seven grounds of error. We will affirm.").
DeLuna v. State, 711 S.W.2d 44, 48 (Tex. Crim. App. June 4, 1986) ("Appellant [DeLuna] raises seven grounds of error. We will affirm.").
Sentence After Mandate, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 23, 1986) at 1.