Figure 42. (Top left) The knife used to kill Wanda Lopez on February 4, 1983. (Top right) The knife used to assault Dina Ybañez in April 1989, with a notation that it was seven inches long. (Bottom left) Mug shot of Carlos Hernandez following his arrest for the Ybañez assault. (Bottom center and right) Police photographs (available only in photocopies) showing bandages on the stomach and hand wounds Ybañez (face obscured) suffered in the attack.
Well aware of the fate of Dahlia Sauceda and the clerk at the Shamrock, and of the plan Carlos Hernandez had for her, Dina knew she was fortunate to survive. If her sons hadn't been there, she would certainly have joined the other two.81 Even with her sons' aid, she was left with a scar ripped from navel to sternum.82 For months following emergency surgery, Dina had trouble eating and using the bathroom, and effects still remain.83 "Everything makes me sick," she told the investigators, "and I get a lot of cramps and pains to my stomach. To this day. So, I'll never forget it." "[E]very time I see my stomach, I see his face," she said.84
* * * * *
Six days after Dina Ybañez was stabbed, District Attorney Grant Jones indicted Carlos Hernandez for aggravated assault.85 At the time, Carlos DeLuna was just five days away from a decision by the federal court of appeals in New Orleans denying his first habeas corpus petition and all but sealing his fate in the courts.86 No one in Jones's office informed the court or DeLuna's Dallas lawyer that this Carlos Hernandez had struck again with a lock-blade buck knife and was again in police custody.
Instead, a day after the indictment—and before Dina Ybañez had even been released from the hospital—Jon Kelly got Carlos Hernandez out on bail.87 In the months that followed, Hernandez repeatedly appeared at Dina's house, threatening her for turning him in.88 He said "he was going to make sure I died," Dina recalled with a shudder, so "I wasn't going to be alive to testify against him."89 She and Johnny both told the private investigators about a time Hernandez came around with a knife and tried to break down the front door. Johnny again attacked him with a kitchen knife, stabbing him repeatedly in the back.90 Carlos only left after Dina made a show of calling the police.91
Abandoning any claim that Dina's stabbing was accidental, Carlos pled guilty once Kelly reached a deal for a reduced sentence. Signing off on the deal for District Attorney Grant Jones was a young prosecutor named Mark Skurka, who was elected District Attorney himself in 2010.92 If anyone had asked her, Dina Ybañez would have opposed the deal with Hernandez, both for her own sake and for the sake of the other young Hispanic women Carlos had attacked.93 On the day set for Carlos's hearing, she recounted, "I went upstairs and I asked, where do they have Carlos Hernandez up here, because he stabbed me, and . . . I wanted to be there . . . to see what they do to him, because I was the one that got hurt."94 A clerk told her the case had settled without a trial. Why?, she asked. "[Hernandez] hurt me, he hurt other people, you're still [not] going to bother with him?"95 They told her it was over.96
Although Dina didn't understand what she was doing at the time, a statement she had previously signed may have helped Hernandez get the deal. She remembers Jon Kelly handing her a paper saying the attack was "heat of passion"—lawyer talk for the claim that a man's rage in the midst of a lover's spat should partly excuse him from attacking her.97 Dina said she signed the paper because Kelly promised to keep Hernandez from coming around her house and to make sure her son Johnny wasn't prosecuted for stabbing Carlos with a kitchen knife.98 On October 9, 1989, Judge Vernon D. Harville sentenced Carlos Hernandez to ten years in prison, with the understanding that he would be eligible for parole in a year if he stayed out of trouble.99
The day after Judge Harville sentenced Hernandez, the United States Supreme Court refused to review Carlos DeLuna's first federal habeas corpus petition.100 That triggered a request by District Attorney Jones, whose office had just accommodated Carlos Hernandez with a favorable plea bargain, to have the local court set December 7, 1989 as the day when the State of Texas would execute Carlos DeLuna.101
See supra Chapter 15, notes 240–241 and accompanying text.
See supra Chapter 15, note 250 and accompanying text.
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:42:10 ("If it wasn't for my little boys I would have been dead too. He already had me on my back.").
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:21:59 ("I was like emergency surgery because I lost a lot of blood because Cindy didn't want to call the cops, because she didn't want Carlos in trouble. So she let me stay there until I was [passed] out. And it's big, do you want to see? [lifts up shirt, revealing a scar that runs from belly button to sternum] That's what he did to me.");
Peso Chavez's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004) at 3 ("According to Ms. Ybanez, she still suffers physically and mentally from this incident. She stated, 'I don't recall how long I was in a coma but he did a lot of damage to my insides which I still suffer to this day from.'").
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:21:59 ("I was like emergency surgery because I lost a lot of blood because Cindy didn't want to call the cops, because she didn't want Carlos in trouble. So she let me stay there until I was [passed] out. And it's big, do you want to see? [lifts up shirt, revealing a scar that runs from belly button to sternum] That's what he did to me.");
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 04:11:55 ("I had emergency surgery because I bled a lot, and part of my [indicates stomach] was sticking out. . . . I couldn't use the restroom. I still have trouble eating. . . . Everything makes me sick, and I get a lot of cramps and pains to my stomach. To this day. So, I'll never forget it. I ain't got no feelings in my fingers. And every time I see my stomach I see his face. But it was very painful.").
See supra note 83.
Indictment, Texas v. Carlos Hernandez, No. 89-CR–957-H (Nueces Cty., 105th Dist. Tex. Apr. 21, 1989) at 1 ("Carlos Hernandez, defendant, on or about April 15, 1989, in Nueces County, Texas, did then and there intentionally and knowingly cause bodily injury to another, Bernardina Ybanez, by stabbing her in the stomach with a knife, which in the manner of its use and intended use was capable of causing serious bodily injury and death against the peace and dignity of the State.").
Jail Release Form With Fingerprints, Corpus Christi Police Dep't (Apr. 17, 1989) at 1;
Felony Bail Bond Before Indictment, Texas v. Carlos Hernandez, No. 89-CR–957-H (Nueces Cty., 105th Dist. Tex. Apr. 21, 1989) at 1;
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:59:53–04:00:34 ("He [Carlos Hernandez] was arrested that night. And he was out before I even got out of the hospital. And he never went back to jail [before he was sentenced to prison in October 1989]. And then Cindy said they were going to have a hearing, so I showed up that day for that hearing and they said, 'that's it.' That it was over. So, I don't know, but I know they didn't do nothing to him. He had a good lawyer. And I didn't. I didn't have no money.").
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004), at 04:06:19–04:07:04 ("He [Carlos Hernandez] did tell me he was going to make sure I died, because I wasn't going to be alive to testify against him. He did try again, but then his lawyer made an agreement with me, I signed a paper that Carlos would leave me alone, but he didn't. Still he didn't leave me alone. He kept on bothering me.");
James S. Liebman's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (July 13, 2004) at 2 ("Later CH came back and said, I'm going to make sure you die.").
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 04:06:19–04:07:04;
Peso Chavez's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004) at 3:
According to Ms. Ybanez, Carlos did not go to prison immediately and was out on the streets shortly after stabbing her. She stated, "I had to move numerous times and each time Carlos would find me. He was obsessed and told me 'I am going to make sure your [sic] going to die.' I thought he would kill me for sure so I had to move from place to place and each time he found me." Between the times Mr. Hernandez stabbed Ms. Ybanez and the time he went to prison she encountered him on a number of occasions. According to her she never called the police because they never did anything to protect her. On one occasion Mr. Hernandez was trying to break through the front door and one of her boys got a knife and started to stab his arm. Mr. Hernandez pulled out a knife and was going to stab him [her son] but Ms. Ybanez had the phone in her hand and told him the police were on there [sic] way. Another time, Mr. Hernandez grabbed her by the neck and started choking her. A person by the name of Valentino stopped him . . . . Ms. Ybanez stated, "Things were so bad with this man that I finally had to move to San Antonio to get away from him. What he has done had an impact on my two oldest boys—they grew up with a lot of anger and they never received any professional help as they desperately needed."
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:29:38–03:31:21 ("And then another time he came over to the house, because I didn't move right away. I wasn't working, nobody wanted to help me. My little boy chased him [Carlos Hernandez], he [my son] was thirteen years old, and stabbed him in the back, because he didn't want to leave me alone until I moved to San Antonio. It was like three times that he came bothering me after that, after he stabbed me. He was very violent.");
Peso Chavez's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004) at 3;
Peso Chavez's Notes on Interview with Johnny Ybañez, Neighbor of Carlos Hernandez (Aug. 4, 2004) at 2 ("[Hernandez] continued coming around the neighborhood—I think he lived in the area. One day he was down the street waving a knife around trying to scare us. I got a knife from the house and I went over to him and stabbed him with it 10 times. He was bleeding and everything but he never stabbed me back.").
Peso Chavez's Notes on Interview with Dina Ybañez, Neighbor of Carlos Hernandez (June 14–15, 2004) at 3 (quoted supra note 89).
Acknowledgement of Guilty Plea, Texas v. Carlos Hernandez, No. 89-CR–957-H (Nueces Cty., 105th Dist. Tex. Oct. 9, 1989);
see Biography of Mark Skurka, Texas A&M University at Corpus Christi, http://rattler.tamucc.edu/Syllabi_Courses/CV/Skurka_Mark.pdf (last visited May 11, 2012) (indicating that Skurka graduated from law school in 1986 and immediately went to work for the District Attorney's office where he remained employed until being elected District Attorney in 2010); Website for Attorney Grant Jones, http://www.grantjones.net (last visited Mar. 4, 2012) (indicating that Grant Jones's tenure as Nueces County District Attorney extended from 1983 to 1991).
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:59:53–04:00:34 ("He [Hernandez] was arrested that night. And he was out before I even got out of the hospital. And he never went back to jail [before he was sentenced to prison in October 1989]. And then Cindy said they were going to have a hearing, so I showed up that day for that hearing and they said, 'that's it.' That it was over. So, I don't know, but I know they didn't do nothing to him. He had a good lawyer. And I didn't. I didn't have no money.");
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 04:07:15–04:08:01:
It was a court date, so I showed up that morning for court. And when I went upstairs and I asked, where do they have Carlos Hernandez up here, because he stabbed me, and things like that, and they said that it was already settled. And I told them, "Why?" I wanted to be there. I wanted to be there when they, you know, to see what they do to him, because I was the one that got hurt. They said it's been settled already. I said, he hurt me, he hurt other people, you're still going to bother with him? And they said, "It's been settled ma'am. There's nothing we can do." And that's it. He didn't even have to show up. It was just the lawyer and the judge and that's it.
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 04:07:15–04:08:01 (quoted supra note 93).
See supra note 93.
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 03:59:53–04:00:34.
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 04:06:19–04:07:04 ("He [Carlos Hernandez] did tell me he was going to make sure I died, because I wasn't going to be alive to testify against him. He did try again, but then his lawyer made an agreement with me, I signed a paper that Carlos would leave me alone, but he didn't. Still he didn't leave me alone. He kept on bothering me.");
James S. Liebman's Notes of Interview with Dina Ybañez, Neighbor of Carlos Hernandez (July 13, 2004) at 2–3 ("DY [Dina Ybañez] signed paper for John Kelley [sic—Jon Kelly]. . . . DY signed paper for Mr. Kelley. He promised me that if I signed it, CH [Carlos Hernandez] would stop coming after me and it would get my son out of trouble for stabbing CH, son is age 13. Signed something saying 'passionate love,' 'heat of passion.'").
For case law revealing that the "heat of passion" partial defense continued to be applied in the manner described in text in the late 1980s, see, e.g., Victoria Nourse, Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1331–34, 1337–38, 1384 (1987) (defining the "heat of passion" partial defense and finding that courts and juries often allowed the defense in cases involving homicides committed by a man against a woman with whom he had been, or wanted to be, romantically involved who then tried to end, or declined to enter into, that relationship).
Transcribed Videotape Interview with Dina Ybañez, Neighbor of Carlos Hernandez (Dec. 7, 2004) at 04:06:19–04:07:04;
James S. Liebman's Notes of Interview with Dina Ybañez, Neighbor of Carlos Hernandez (July 13, 2004) at 2–3;
see also Victoria Nourse, Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1339–40, 1344 (discussed supra note 96).
Judgment on Plea of Guilty, Texas v. Carlos Hernandez, No. 89-CR–957-H (Nueces Cty., 105th Dist. Tex. Apr. 21, 1989).
