HRLR
Los Tocayos Carlos
Chapter 2
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All Chapter 2 Footnotes

Barrera couldn’t give the dispatcher any kind of description of the man under her pickup truck.242 A month later, however, she described a white shirt, pants of unknown color and white tennis shoes.243

After ending the call with Barrera, Escochea put out a new emergency call for all units, which were then swarming the eastern edge of the search area near McArdle and Kostoryz, to go to back toward the western edge of the area behind Phase III and Lebowitz Furniture (Points B and C on Figure 4):244 The “suspect was laying underneath a truck” on Easter (Point D), then was seen “heading eastbound on Nemec” (parallel to Points D to E, on Nemec).245

Almost as one, the fifteen or twenty patrol cars that had rushed to McArdle and Kostoryz (Points 6 and 7)246 headed about a mile back west to Easter and Nemec Streets (Point D).247 In a flurry of broadcasts, units reported new positions, including at a staging area on Nemec just behind Lebowitz.248

Nine minutes later, just before 8:50 p.m. and about forty minutes after Wanda screamed, the first report of an arrest came in.249 Constables Ruben Rivera and Carolyn Vargas initially spotted the suspect.250 He was lying in a puddle under a second pickup truck on Franklin Street off Nemec (Point E).251 He had no shirt, shoes or socks on, just black “slacks,”252 and no moustache, just a day or two’s worth of stubble on his face.253

The man begged the constables not to hurt him. “Don’t shoot me! You’ve already got me!”254 Rivera noticed that he reeked of alcohol.255

Corpus police officers Schauer and Mylett showed up at the end and helped Rivera pull the suspect sideways from under the truck and over a cement curb onto a grassy area next to the street where they handcuffed him.256 Although Constables Rivera and Vargas first sighted and caught the man, Police Department officers Schauer and Mylett took credit for the arrest.257

Twenty seconds later, Schauer confirmed their prize over the radio frequency. “Okay, we got one suspect in custody.”258 Mylett, who moonlighted weekends as a bouncer at the Casino Club, immediately recognized the suspect as someone who frequented the Casino.259 He was twenty-year-old Carlos DeLuna. Mylett remembered DeLuna well. Two weeks before, he arrested DeLuna for being drunk and disorderly in the Casino Club parking lot.260 The dispatcher confirmed that DeLuna had a “28”—a criminal record.261

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:41:17–8:41:34 (tape at 00:32:36–00:32:53) (Q. “Can you give me any kind of description of him at all? Any kind of clothing description?” A. “I don’t know.”).

Theresa Barrera, Resident of Neighborhood Where Manhunt Occurred, Statement to Corpus Christi Police Dep’t (March 14, 1983) (suspect had on “light colored tennis shoes, light colored pants and possibly a white shirt.”);

see Theresa Barrera, Resident of Neighborhood Where Manhunt Occurred, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 441–45 (describing man as having on light or white tennis shoes, a white or light-colored shirt and pants the color of which she is “not certain”).

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:43:10 (tape at 00:34:29), 8:43:29 (tape at 00:34:48), 8:43:35 (tape at 00:34:54) (“49–49 Easter. 4–9–4–9 Easter. Suspect’s running.”; “All units, standby on this 10–33 [emergency call]. We have suspect [inaudible].”; “Ok, suspect’s 49–49 Easter, running towards Franklin.”).

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:43:89 (tape at 00:35:08), 8:43:01 (tape at 00:35:20) (“Ok, suspect was laying underneath a truck.”; “Ok, suspect was possibly heading east on Nemec from Easter. Eastbound on Nemec from Easter.”).

See supra note 221.

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:48:14 (tape at 39:33) (supervisor reporting from field: “I’ve got them all on foot on Nemec and everything there. Suspect was just seen at 3 minutes ago, eastbound Nemec from Easter.”);

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 6, 1983) at 1 (“[I]nformation [from Barrera] was broadcast that a subject was hiding under a truck on Easter near Nemec and was last seen running east on Nemec toward Franklin. All units in the area converged on Nemec and Franklin.”).

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:40:51–8:49:25 (tape at 00:32:10–00:40:44); 8:44:32 (tape at 00:36:01) (“We have units setting up at the dead end [of Nemec].”). Squad cars in the area included, in order of arrival there: 146, 140 (Mylett), 279 (Rivera/Vargas), 153, 149, 126, 155, 151, 131, 135 (Schauer), 120, 123, 139, 116, 158, 185, 140, 154.

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:49:31 (tape at 00:40:50), 8:49:33 (tape at 00:40:52) (“Would that be the male subject?”; “10–4. Want him brought to you?”).

Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983) at 1 (“With reference to above offense, upon initial contact with suspect I yelled at suspect to come out from underneath the parked pick-up truck from a distance of about 20 feet.”; “Subject . . . wore no shirt.”);

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 87–88:

Q. What drew your attention to the person underneath it?

A. Well, he was barefooted for one and he was—looked like he was hiding and I did hear some people over here shout that the person was underneath the truck and that diverted my attention to it and when I flashed my flashlight up underneath there, I saw some movement.

Q. What did you do when you saw the movement under the truck?

A. I instructed in a high voice to this person underneath the truck to come out of the truck with his hands up.

Q. Did the person come out?

A. He was hesitant, but he eventually was brought out. . . . He [De Luna] was wearing . . . no shirt, he was soaking wet, and he wore—for footwear, he wore socks and that was it.

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 105 ( “He was in that part of the curb that accumulates with water, he was laying in the water face down.”);

Transcribed Videotape Interview with Ruben Rivera, Nueces County Deputy Constable, in Robstown, Texas (Dec. 7, 2004) at 2:06:43–2:08:49:

And we were combing the neighborhood, and we came up on . . . it was Carolyn Vargas and I, came up on a group of men, one of them hollered, “there’s a man up under that truck over there.” And we looked, and it was a pick-up parked down the street. It was over a puddle of water because it had rained that night. And I looked over in the direction of the truck, and there was two feet of somebody that was laying up underneath the truck. And I told Carolyn to cover for me, and she used her gun, or my gun I believe, I don’t remember, but she covered with me, she covered for me with a gun while I grabbed the guy by the shoes and pulled him out of the pickup, out from under the pickup.

See Mark Schauer, Corpus Christi Police Officer Supplementary Report (Undated) at 1 (“The subject wore no shirt, had black pants on, and was very wet.”);

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 1 (“he had no footwear except for white socks. Subject had no shirt either.”);

Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 1 (“The subject wore only black loose fitting pants and had no sh[i]rt or shoes on.”);

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 117 (“He had on no shirt—no shirt and he had on black-colored pants, no shoes.”).

Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 7, 1983) at 2 (“As we [Constable Ruben Rivera and Constable Carolyn Vargas] approached a pick up truck parked on Franklin St. about 40–50 ft. north of Nemec, we saw some movement underneath it. I directed my [f]lashlight towards the underneath of said truck and saw a male subject. Subject was laying in a pool of water and wore no shirt.”);

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 86–87 (“Q. The person that you arrested, where did you find this person? A. Right here on Franklin Street about the second resident or about the—about in front of the second or third residence on Franklin Street, beneath a truck . . . . a pickup truck.”);

Transcribed Videotape Interview with Ruben Rivera, Nueces County Deputy Constable, in Robstown, Texas (Dec. 7, 2004) at 2:06:43–2:08:49 (“It was over a puddle of water because it had rained that night.”).

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 10, 1983) at 10 (“#40138: Removed at 10:30am a pair of men’s black slacks, removed from the suspect at time of arrest, to be examined for blood.”);

Donald Thain, Texas Dep’t of Public Safety Blood Analyst, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 369 (agreeing to Prosecutor Schiwetz’s characterization of the pants seized from Carlos DeLuna and analyzed by him for blood staining as black “slacks”);

see Mark Schauer, Corpus Christi Police Officer Supplementary Report (Undated) at 10 (“The subject wore no shirt, had black pants on, and was very wet.”);

Mark Schauer, Corpus Christi Police Officer, Supplementary Report at 1 (Feb. 8, 1983) (“The subject wore only black loose fitting pants and had no sh[i]rt or shoes on.”);

Stipulation, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 331 (stipulating that Exhibit 16 is a “black pair of pants which have been identified as being taken off the Defendant”);

Pl.’s Ex. 16, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) (“State’s Exhibit Number 16 being the pair of black pants”).

See infra Chapter 3, Figure 6 (reproducing a police photograph of DeLuna’s upper body and face shortly after his arrest, revealing that he had no moustache and only a day or two’s worth of stubble).

Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983) at 1 (“I heard suspect yell, ‘Don’t shoot me, I give up.’ . . . he again repeated, ‘Don’t shoot me, you’ve already got me.’”);

Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 1 (“The subject yelled, ‘you got me now, don’t hurt me’ and I handcuffed him as he was saying this. . . . The suspect was breathing very hard when Constable Rivera and I stood him up.”);

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 104, 105 (“I heard him say, ‘Don’t shoot,’ or ‘don’t hurt me,’ or something of that nature.”; “‘I give up,’ or ‘don’t shoot,’ or something of that nature, ‘I’ll come out,’ or—.”).

Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983) at 1 (“Subject mumbled something not understandable; he smelled strongly of some type of Alcoholic Beverage; and seemed unsteady while walking.”);

Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Opening Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 15 (stating that DeLuna “smelled of beer” when he was arrested);

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 88–89 (“[H]e smelled of alcoholic beverages of some kind . . . possibly beer . . . .”).

Cf. Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 3 (“During transport I had asked him if he had been drinking, and the suspect replied that he had ‘[2] beers’. I did not smell alcoholic beverages on his breath or person, however.”);

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 2 (“[B]y the way the suspect was talking, standing, and walking, I saw no evidence of any intoxication of any type.”).

Mark Schauer, Corpus Christi Police Officer Supplementary Report (Undated) at 1 (“Constable Rivera yelled something out and I ran to him. I observed . . . Carlos De Luna . . . lying on his stomach under the truck on wet asphalt. His head was towards McArdle and his feet were pointed towards Nemec. The constable and I pulled the suspect from under the truck and I immediately handcuffed him for my safety and the constables [sic] safety.”);

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 6, 1983) at 1 (“After approximately 5 minutes in the area, I heard someone yelling, ‘He’s over here!,’ repeatedly. Myself and M. Schauer #684 triangulated the suspect. The suspect was lying on his stomach in some muddy water. . . . I told the suspect to roll out from under the truck towards M. Schauer. He complied and was taken into custody by Patrolman Schauer.”);

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 1 (“Suspect #1 was first observed by me after I heard another officer yell that a subject was hiding under a pick up truck at 4900 Franklin. After I heard this, I assumed a prone position on the street at which time I observed suspect #1 laying in a stream of water in the gutter under a pick up truck.”);

Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983) at 1 (“I then approached the truck cautiously on the curb side of the street and with the assistance of Officer Schauer from the City Police Dept., I proceeded to pull suspect from underneath said vehicle.”; “A police dept Officer M.D. Schauer #684 immediately came to assist as I asked Officer Vargas to call for additional assistance. Officer Schauer and myself pulled subject out from underneath the truck and was handcuffed for everyone’s safety. . . . Subject was left in custody of the city police department.”);

Mark Schauer, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 2:

Deputy Constable R. Rivera was kneeling on the pavement on the pickup truck’s west side and was ordering the suspect to get out from under the truck. Deputy Constable C. Vargas was on the truck’s east side and was doing like wise [sic]. I knelt next to Constable Rivera and we pulled the suspect by the arms from under the truck and put him stomach down onto the grassy area immediately adjacent to the truck. The subject yelled, “you got me now, don’t hurt me” and I handcuffed him as he was saying this.

Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 105–07 (testifying that he (Schauer) parked his car on Nemec near Franklin and went on foot, after which: “There were two constables out there, and they were kneeling next to a pickup truck parked on Franklin. . . . I was coming from this direction from a yard from a house, and there was a constable, Constable Rivera kneeling next to a pickup truck and his partner, she was on the other side, and they were yelling at someone under the truck, and that’s how I first came in contact with the guy. . . . I grabbed one arm and Constable Rivera grabbed the other arm and pulled him out.”);

Ruben Rivera, Nueces County Deputy Constable, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 87–88 (“Q. When you say ‘brought out,’ did he come out voluntarily or did you have to help him? A. No, sir, myself and another police officer with the city helped him out. . . . There was two officers that were involved in the actual— Q. Well, first of all, were there any other officers involved while you were arresting him? A. Yes, there was. Q. Who were they? A. There was Officer Mylett and Officer Schauer.”);

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 115–17:

A. I parked my unit down here by Nemec and I got out and I started walking between houses toward Franklin Street (indicating). I climbed over a fence here, and as I landed on the ground I heard Constable—I heard the constable yell out for help, he was yelling at somebody under a truck and his partner was also there on the other side of the truck (indicating). . . .

Q. So there was nothing specifically to alert you to Deputy Rivera, at the time you got out of your car you were on foot patrol?

A. Right. I just parked my car and started walking.

Q. And you saw him doing what?

A. Okay. When I approached him, I saw him kneeling, it would be on the west side of the pickup truck. He was looking under it and he was yelling at somebody.

Q. Did you then approach Constable Rivera?

A. Yes, I approached on his side.

Q. What did you see underneath the truck, if you looked?

A. I saw a suspect lying under the truck on his belly and his head was pointed towards McArdle and his feet were pointed towards Nemec and he was lying there and the deputy constable had his gun drawn and he was attempting to get the suspect out from under the truck.

Q. Did you draw your weapon?

A. No, sir, I didn’t.

Q. Did you eventually get the subject out from underneath the truck?

A. Yes, sir. We—Constable Rivera holstered his weapon and we did pull the suspect out, we pulled him out by the arms.

Q. Did you have to pull him out of there?

A. Yes.

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 120 (“When we handcuffed him, I laid him down onto the grass and we looked under the truck to make sure there was no one else under there.”);

Mark Schauer, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 141:

A. The first thing I did was handcuff him.

Q. Right there next to the truck?

A. Yeah, we took him out and there was a small grassy area, sidewalk and grassy area.

Q. Where was this grassy area if you could point it out for me, please?

A. It’s about two houses—these two houses down. This would be the curb line, there’s a little grass area and then a sidewalk and grass area (indicating).

Q. Okay. Between the grass and the sidewalk you’re talking about that grass area?

A. Yeah, we laid him down there, immediately handcuffed him.

Ruben Rivera, Nueces County Deputy Constable, Supplementary Report (Feb. 8, 1983) at 1 (“Subject was left in custody of the city police department.”);

Transcribed Videotape Interview with Ruben Rivera, Nueces County Deputy Constable, in Robstown, Texas (Dec. 7, 2004) at 2:19:14–2:20:00:

Well, I gave him—Officer Schauer walked up, he was involved in the search, and he asked me—we knew each other—he said, “What you got, Ruben?” And I said, “I think I have a suspect here, guy, that this may be the man.” So he looked at him with his flashlight, shining his lights at him. And then he said, “Here, let me have him.” And I took off my cuffs and he put his on. And then from then on, I didn’t see him no more. And Schauer took care of it. So I’m thinking that maybe the city police got credit for it.

James S. Liebman’s Notes on R. Bruce Whitman’s Interview with Carolyn Vasquez, Nueces County Deputy Constable (Nov. 23, 2004) at 1 (“[I]t was she who saw . . . movement under vehicle . . . and told Rivera and he made the arrest; then CCPD [Officers Schauer and Mylett] arrived and essentially took over and without so much as thank you, sent [her] and RR [Ruben Rivera] on their way.”).

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:49:50 (tape at 00:41:09) (“Ok, we got one suspect in custody.”).

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:49:41, 8:50:45 (tape at 00:41:00, 00:42:04) (“140 frequented [Casino Club?] suspect [inaudible] S.P.I.D.”; “[inaudible] at the Casino.”);

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 2–3 (“Subject and I recognized each other. . . . When the suspect saw me he greeted me calling me Mr. Mylett. . . . The suspect, as noted before, was known to me by his recklessness at the Club Casino 1001 S. Port.”);

Thomas Mylett, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 158-59:

Q. I’m going to ask you if you are familiar with the Defendant in this case, Mr. Carlos De Luna?

A. Yes, sir. . . .

Q. Were you familiar with this Defendant prior to February 4th, 1983?

A. Yes, sir, I was. . . .

Q. Did you have any part-time jobs at the time that you participated in the arrest of Mr. De Luna?

A. Yes, sir.

Q. Where did you work?

A. Club Casino, 1001 South Port.

Q. And what did you do there?

A. Security work. It’s like an off-duty policeman to maintain order in the club. . . .

Q. Through your work at the Club Casino, did you come in contact with the Defendant in this case, Mr. De Luna?

A. Yes, sir. . . .

Q. Mr. Mylett, was the Defendant in this case, Mr. Carlos De Luna, a regular patron at the Casino Club? Could I have a yes or no answer?

A. Yes, sir.

Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 2:

I had arrested this subject in the recent past for disorderly conduct at the Club Casino. . . . Approximately 3–4 weeks ago, the suspect entered the Casino and was very open about letting people know he had recently been released from the state penitentiary. At one point, suspect told my partner that he, the suspect, was in the pen when Sgt. Enrique Garcia got shot, but that he, the suspect, thought Garcia should have died. He used some obscene language in the course of saying this (I.E. mother fucker or son of a bitch to take the place of people’s names).

Carlos De Luna’s criminal records show that Officer Mylett arrested him on January 21, 1983. See Arrest Sheet No. 80508 for Carlos De Luna, Corpus Christi Police Dep’t (Jan. 21, 1983) (describing DeLuna approaching a police officer outside of the night club, informing the officer that he knew Officer Garcia who was shot the prior year, and that he thought Garcia should have died, and asking the officer if he wanted to fight);

Steve Mills & Maurice Possley, ‘I Didn’t Do It But I Know Who Did,’ New Evidence Suggests a 1989 Execution in Texas Was a Case of Mistaken Identity, First of Three Parts, Chi. Trib., June 25, 2006, available at http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=5 (“Almost immediately [after being paroled], he [DeLuna] was arrested for public intoxication. During the arrest, De Luna allegedly laughed about the wounding of a police officer months earlier and said the officer should have been killed.”).

Police Dispatch Tape, Corpus Christi Police Dep’t (Feb. 4, 1983) at 8:51:15 (tape at 42:34) (“I don’t have a 29 on a Carlos DeLuna, I have a 28, though. [29 = Active Warrant, 28 = Criminal History Record]”).

Chapter 2
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