HRLR
Los Tocayos Carlos
Chapter 2
Page: 3 of 16
Text: A | A | A
All Chapter 2 Footnotes

Baker’s Navy training kicked in, and he looked for a wound.64 He pulled up Wanda’s sweater and found a slit in the left side of her bra.65 “A woman has an artery that goes to the breast,” he explained. “[T]hat’s what [the attacker] sliced.”66 Baker knew the clerk would bleed to death unless he could stanch the flow, and he went inside the store for something to use.67

As he took a few steps inside, he was stunned by the mess. There was “blood and money and stuff all over the place.”68 He grabbed a handful of windshield towels and ran out, ready to pack them on the wound.69

As Baker knelt down, he heard sirens, and “the cops just started flying in.”70 He told the officers where the man he’d seen had run off.71 Then he stood back and let the officers do their job.72 A sergeant told Baker to wait by the ice machine on the east wall outside the store.73 Soon he was joined by other people who told police they had information.74

* * * * *

George Aguirre came first. Aguirre had purchased gas at the Sigmor several minutes before Baker, around 8:00 p.m.75 While filling his tank, he had noticed a Hispanic man by the ice machine drinking beer.76 Police later found three empty beer cans in the area Aguirre indicated.77 As Aguirre watched, the man slowly took a lock-blade knife out of his front pants pocket, opened it, and put it back in his pocket.78

Aguirre later described the Hispanic man as in his mid-twenties, maybe 5’10” and 175 pounds, with dark hair,79 “blue pants,” and a “white, long-sleeved t-shirt.”80 A police account of Aguirre’s initial description reported “tennis shoes, a T-shirt, and blue jeans.”81

Aguirre tensed as the man approached him and asked for a ride to the Casino Club, a Latino nightclub a couple of miles away. The man offered Aguirre “money, beer, dope, whatever.”82 Aguirre refused, then went inside to pay.83

He told the young woman behind the counter that there was a man outside with an open knife in his pocket.84 Aguirre offered to call the police, but the clerk said she’d call herself.85 He waited until she was on the phone with the 911 operator, then returned to his van and drove off.86

Ten minutes later, standing outside a nearby bowling alley, Aguirre heard sirens and saw police cars heading towards the Sigmor.87 He followed the squad cars and, when he reached the station, approached an officer to explain what he’d seen earlier.88 Police corralled him with Baker near the ice machine.89

* * * * *

Julie and John Arsuaga were the final additions to the group of witnesses by the ice machine. They had run over from Phase III, a nightclub 115 yards east of the Sigmor, along the SPID frontage road. Between the club and the gas station, along the same strip, stood two other businesses: Ziebart’s car-detailing garage and a Harley-Davidson repair shop.90 Like the Sigmor and Phase III, these businesses were surrounded on three sides by parking areas, with an alleyway behind and the frontage road in front.91

Minutes earlier, as the Arsuagas were pulling into a parking spot in front of Phase III, they noticed a man running east along the walkway between them and the club.92 John put the time at “about five minutes after 8:00 p.m.”93 The jogger passed through their headlight beams and, once past the club, cut diagonally across a field between the club and Lebowitz Furniture, the next building further east.94 He disappeared into the backyard of a home across the alleyway behind Lebowitz.95

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 01:05–02:00 (“I was in the Navy, had [medic] training. I said, got to get them down and get them not be moving around and stuff. And I got her to the concrete in front of the store, so I could get something to stop the blood.”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 01:05–02:00 (“I pull up her sweater and I was gonna help her and she was stabbed right through the bra or whatever.”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 16:02–17:17 (“[A] women has an artery that goes to the breast; and that’s what he sliced and then all the blood went into her lungs at that point, the way I understand it now. Of course she had the initial blood.”).

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“I went on into the building . . . to get some paper towels.”);

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 275 (“I proceeded to go into the store. Q. What did you go in the store for? A. To get some paper towels or something to stop the bleeding.”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 1:05–2:14 (“I was in the Navy, had [medic] training. I said, got to get them down and get them not be moving around and stuff. And I got her to the concrete in front of the store, so I could get something to stop the blood. I opened the door up, walked inside 3 or 4 steps.”).

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“I noticed there was money all over the floor.”);

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 284 (“Q. Okay. When you walked inside there, did you notice anything? A. I noticed blood and money and stuff all over the place is the best way to put it. Q. Did you notice money all over the place? A. Yes, sir, that’s the best way to put it. Q. Was it on the floor or counter or— A. Well, I guess my impression of all over the place was on the floor and blood. Q. So, when you’re talking about money, you’re talking about bills rather than change? A. Yes, sir, bills and paper towels and blood.”).

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 283-84 (“I opened the door and walked to the counter and picked up some paper towels that happened to be right there and turned around and walked back to the door.”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 01:05–02:00, 06:55, 14:56–16:02, 17:17–18:25 (“I opened the door up, walked inside 3 or 4 steps. It was a mess; stuff all over the place. Grabbed a few car white window towels, and I come back out.”; “I grab a handful of windshield towels from the windshield-cleaner rack” by the door; “I went in. I took 2 steps in and there was towels there; I grabbed them and come back out.”; “[S]he was at the door; coming out; . . . I saw the blood. She went back against the window outside the door. I was insistent on ‘stop moving, lay down, you are gonna be ok;’ and like that. And I went in the store, got the paper towels, come back out, which was just 2 seconds. I pull up her sweater and I was gonna try and pack it on there cause that’s what I was taught in the service . . . .”).

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 275 (“Q. Did you get some paper towels? A. Yes, sir. Q. Okay. What did you do then? A. Turned around and come back to the door and just as I started to open the door, police cars started pulling in.”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 02:00–02:14, 14:56–16:02, 17:17–18:25 (“About that time, the cops just started flying in. So I just stopped what I was doing.”; “At that point there was no help, that I could do for her. At the same time the cops come flying in.”; “Then I’m down here like this; helping her or trying to help her. Then the cops—that’s when the sirens are going there, and here comes 5 or 6 cops’ cars. I don’t remember the number of cars that flew in; but they were just right there instantly at that point.”).

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 18:25–20:00 (“I said ‘he went that way,’ and I just sat back and let them do their job.”);

see Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 275.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 18:25–20:00 (“I said ‘he went that way,’ and I just sat back and let them do their job.”).

Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 47–48, 53 (describing the witnesses as having been gathered into a group together on the east side of the gas station);

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 277 (“We [Baker, Aguirre, and the Arsuagas] were standing over on the east side of the building.”);

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 284−85:

Q. Now, when they—after the police arrived and everything and they talked to you, did they put all—I believe you said all the witnesses, your statement, that they talked to you all, they got you over there in a group. Is that correct?

A. Yes, sir.

Q. By the side of the station and y’all were discussing more or less to the officer what you saw, what he saw and the officer was trying to put it together?

A. Yes, sir.

Q. Okay. Were you all together when y’all were discussing this with the officer?

A. I suppose we were kind of in the same general area, yes.”

Steven Fowler, Corpus Christi Police Sergeant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 42, 43 (“I advised him to grab every witness he could and take them over beside the side of the station and isolate them and try to get some information and put out a BOLO as quick as he could.”; “Q. Now, where did he take those witnesses to, Officer Mejia? A. He stood them—he grabbed them and they all just kind of lingered in this area right here (indicating the area near the ice machine outside the southeast corner of the store), so that we were sure none of them would get away or get tired and walk off.”);

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty, 28th Dist. Tex. July 15th, 1983) at 291 (referring to “the east end of the parking lot where we had the witnesses kind of isolated in that particular area”);

Bruno Mejia, Corpus Christi Police Officer, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 67 (“I moved them [the four witnesses] over to the rear or the east corner of the station there.”);

see infra notes 134–135, 153–154 and accompanying text; infra Figure 2; infra Chapter 3, note 16 and accompanying text & Figure 5.

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 43, 45 (noting that the witnesses stood together in a group from the time the emergency personnel worked on Wanda Lopez until the time the identification procedures occurred and describing witnesses’ conversation with each other about whether to take part in the identification);

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 276–78, 283–85 (noting that witnesses were all together in a “group” before Baker gave his initial description to Mejia; agreeing that Mejia “got you over there in a group” when he “talked to you all” about a description, that “y’all were discussing more or less to the officer what you saw, what he saw and the officer was trying to put it together,” and that “you all [were] together when y’all were discussing this with that officer”; within five minutes of the police arriving, officers “segregated” the four witnesses together “kind of in a group”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 20:00–21:37, 23:00–24:54, 33:32–34:30 (describing witnesses’ “collaborating” and summarizing Aguirre’s story of what happened that night, as Aguirre told it to Baker at the gas station);

Eddie McConley, Corpus Christi Police Lieutenant, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 47–48 (describing Baker and the other witnesses as having been gathered into a group together along the east wall of the store);

infra Chapter 3, Figure 5 (presenting police diagram showing the ice machine situated along the east side of the store); see KZTV Channel 10, Feb. 4, 1983 Archive Tape on Wanda Lopez Homicide, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988) screen shot 2 (showing that, as EMT personnel worked on Wanda Lopez, Aguirre and the Arsuagas were standing together talking on the southeast corner of the store);

infra Figure 2 (reproducing image from Channel 10 Archive Tape, supra, showing Aguirre and the Arsuagas together on the side of the gas station near the ice machine).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“It was a little after 8:00 PM when I arrived at the Shamrock.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 10 (“Q. Now, can you tell the Court about what time it was that you went there to the Sigmor station? A. Maybe two, three minutes after 8:00 o’clock.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 221 (“Q. Do you recall what time you got to that Sigmor Station? A. It was a little after 8:00 o’clock.”).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“While I was pumping gas in my van I seen this guy standing by the ice machine.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 14 (“Q. And where did you see this person coming from? A. Coming from back here towards the ice machine. Q. Okay. And what did this person do? A. . . . He was drinking a beer.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 222–23 (“Q. Did you notice anything unusual when you started putting gas into your van? A. There was a person standing by the—I guess this is the ice machine, right by the ice machine drinking a beer (indicating).”).

Crime Scene Photograph 25500025, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500026, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500032, Corpus Christi Police Dep’t (Feb. 4, 1983) (all showing three beer cans in a grassy area east of, and behind, the Sigmor store, near the ice machine).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“I seen him put a knife in his left front pocket. It could have been a locking blade, because I seen the blade when he put it in his pocket. As he put the knife away he started to walk towards me . . . . He had a beer in his hand.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 14 (“Q. And where did you see this person coming from? A. Coming from back here towards the ice machine. Q. Okay. And what did this person do? A. I saw a knife—I saw him putting a knife open in his left pocket and, you know, I saw him walking that way, and I was curious and when I saw him put the knife in his pocket, I kept an eye on him while I was putting the gas . . . . [H]e was just drinking a beer.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 223 (“[H]e was drinking a beer . . . . [W]hen I was looking at him, you know, through the corner of my eye, I saw him putting a knife in his left pocket open, the blade was—I saw him holding it by the blade and putting it in his left pocket.”).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“Hispanic male, five feet ten inches tall, one hundred and seventy-five pounds, dark hair, about twenty three or twenty four years old.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 236 (describing the man with the knife as “[a]bout five-ten. Q. Okay. How tall are you, sir? A. [Five foot] [s]ix. Q. So he was just a little bit taller than you? A. Yeah. Q. And could you tell how much he weighed? A. He was, you know, about a hundred and sixty, hundred and seventy.”).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“He had on blue pants and I think a white long sleeve shirt”);

Police Dispatch, Corpus Christi Police Dep’t (Feb. 4, 1983) at 00:07:55, 00:13:51, 00:23:28 (reporting additional information that the shirt the suspect was wearing was or may have been a “white long-sleeve T-shirt,” information that is similar to Mejia’s description of what Aguirre told him and that could not have come from Baker, who described a flannel jacket with red and a grey sweatshirt, or from the Arsuagas, who were certain the man they saw wore a white, button-down dress shirt).

But see George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 20 (“A. Black pants like—what is it, double knit like black double knit pants . . . . Q. What kind of shirt was he wearing? A. A white one. The sleeves, I don’t know if they were short sleeves or what, but they were—it was like rolled up past the elbow . . . . [I]t was a button-up.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 224, 235–36 (“A. Like a dark blue pants or black, it was a dark color, and a white shirt rolled up to the elbows.”; “A. The shirt was a white one, long sleeves that was rolled up to the elbows. Q. Okay. Could you tell more or less what type of a shirt? By that I mean was it a dress shirt, a sport shirt? A. Like a button-up. Q. It would be just a regular white shirt that a person would wear and maybe put a tie on? A. Yeah. Q. A white dress shirt. Did it have any colors in it? A. No, it was white.”).

As these references reveal, Aguirre changed his description of the shirt and pants. When he initially spoke to Sergeant Mejia at the scene at approximately 8:16 p.m. on February 4, 1983, minutes after the stabbing, and in his initial statement to the police at approximately 10:00 p.m. that evening, Aguirre described “blue pants” and a “white long-sleeve” “T-shirt.” In his pretrial testimony on June 20, 1983, however, Aguirre described “black” pants and a white button-down dress shirt, descriptions he then repeated at the trial in July 1983. On the pants, see George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 20 (“black pants”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 224 (“dark blue pants or black, it was a dark color”);

Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983) at 475–76 (claiming that Aguirre described dark pants).

On the shirt, see the citations above in this note. In each case, Aguirre’s original description, nearly contemporaneous with the events in question, was different from—while his in-court testimony months later conformed to—the description given by John and Julie Arsuaga.

Transcribed Videotape Interview with Ruben Rivera, Nueces County Deputy Constable, in Robstown, Texas (Dec. 7, 2004) at 2:06:43 (describing the description of the suspect he received over the radio: “a Hispanic male wearing tennis shoes, a T-shirt, and blue jeans”).

Rivera may have heard this account over “Channel 2,” the “county frequency” that the different law enforcement agencies in the county used to communicate with each other, or as part of the walkie-talkie traffic between individual police officers on Channel 3. See 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 90–91 (describing the different frequencies that he, a Sheriff’s Department Constable, was monitoring).

The Escochea tape records the radio traffic on Channel 1, the Corpus Christi Police Department channel. No tapes survive of the radio traffic during the manhunt on Channels 2 and 3.

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“As he put the knife away he started to walk towards me as he approached me he asked me to give him a ride to the Casino Club on Port. He said he would give me money, beer, dope, or whatever I wanted, just to get him over there.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 15–16 (“He asked me for a ride to the Casino Club on Port . . . . He told me he would give me money or, you know, weed or beer, whatever I needed to get him over there.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 225 (“He asked me like if I could give him a ride to the Casino Club on Port and told me he would give me money or drugs or, you know, whatever I needed, beer, anything.”).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“I said no, I did not want to. He said, ‘Well if that is the way you want to be,’ so he just walked back to the ice machine . . . . I finished putting gas in my van and went inside to pay the clerk.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 16–17 (“I still told him no. . . . Well, he told me, ‘Well, if that’s the way you’re going to be, that’s all right,’ you know, and he walked back to the ice machine. So I finished putting the gas and I went to pay the attendant . . . .”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 225–26 (“I told him my father was waiting for me and I had to get back home . . . . He said ‘Well, if that’s the way you’re going to be, you know, be that way,’ and he walked back to the ice machine . . . . I went and paid for my gas.”).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“While paying the lady I told her about that man with the knife outside. She asked if he was with me, I said no.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 16–17 (“So I finished putting the gas and I went to pay the attendant and I told the attendant that the guy out there had a knife in his pocket so she—I told her that the guy outside had a knife, and she asked me if he was with me, and I said no, he wasn’t . . . .”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 225–26 (“I told her that the guy outside had a knife in his pocket and it was open and she asked me if he was with me and I told her no . . . .”).

See supra Chapter 1, note 62 and accompanying text (quoting passage in 911 tape where Wanda Lopez informs the police of a “Mexican” man with a knife at the store about whom she had been warned earlier by a customer).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“I told her I was going to go down the street and call the police. She said for real and I said yes. She then said she would call them.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 16–17 (“I said that I was going to go down the street and phone the police and she said really, and I said yeah, and she goes, ‘Well, let me just go ahead and do it.’ So that’s when she got on the phone and phoned the police while she was writing out my ticket.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 225–26 (“I told her I was going to go down the street and call the police. And she said ‘For real?’ and I said, ‘Yes.’ And she says, ‘Well, I’ll call them anyway.’ So she got on the phone and she called the police station.”).

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“So I heard her call the police and when she did I started to walk out toward my van and I seen the man I just spoke of in this statement as having a knife walk into the building. I went on and got in my van and left.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 17–18 (“So that’s when she got on the phone and phoned the police while she was writing out my ticket. . . . so I signed my ticket and I got it and I started walking out and when I was about halfway to my van, I saw him walking in.”);

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 226–27 (“So she got on the phone and she called the police station. . . . I started going back to my van and when I was walking towards my van, when I was halfway there, he was walking in.”);

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=2 (“Aguirre went inside to warn Lopez, 24, the clerk. She said she would call the police, and Aguirre, the only customer in the station, left.”).

For reasons explained infra Chapter 11, notes 226–243 and accompanying text, it is unlikely that George Aguirre saw the man with the knife enter the store just as Wanda Lopez called 911 in response to Aguirre’s warning, and as Aguirre was leaving. Rather, it is almost certain that several minutes passed before the man with the knife entered the store. Ironically, if Aguirre was right that the man entered at the moment he first warned Wanda, police probably would have saved her. Aguirre never explained why he took the trouble to warn Wanda and to offer to call the police himself, but then was content to leave her alone even after seeing the man enter the store.

George Aguirre, Witness to Events Outside Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983):

I went west on South Padre Island Drive to Ayers and under the freeway and then back east [on the SPID freeway] towards Kostoryz as I passed the Shamrock I looked over and I seen the lady clerk and this guy with the knife struggling inside the building. So I went right off the freeway on Kostoryz to the Gulf Bowl where I contacted the security guard. . . . I asked him if there was anyway he could get in touch with the police. Right away, he said no. He said all he could do is call them on the telephone. I told him the lady at the Shamrock needed help bad, that she was struggling with a man, but he did not do anything so left [sic] and went back to the station to see if I could help. And when I got there the police was there . . . .

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 18–19:

Well, I got on my van and I went on this access road next to the Freeway, and I saw him—he was standing by the beer, so I went under the underpass on Ayers and I got back on the Freeway, got on this side and when I was passing the Shamrock again, I saw him struggling with her. . . . When I saw that, I got off at the Kostoryz exit, and I went to the bowling lanes, the Gulf Bowl, and I saw a security guard, so I asked the security guard, “Is there any way you can get in touch with the police,” I said, “because the attendant at the Shamrock needs help.” And he said, “The only thing I can do is make a phone call,” he goes, “but you could do the same thing.” So I said, I know, forget it, and I took off back to the Shamrock and when I got there, the police were already there and, you know, I went down—I was waiting there, they took my name and everything, address.

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 227–28:

I got in my van and I got on SPID—well, I got on SPID on the access road and came underneath down by Ayers and went under the underpass and got back on the freeway going towards the mall and when I was passing by, I saw that—the person I was talking about earlier struggling with the lady that was working at the Shamrock. . . . So I got off and I went to the bowling alley . . . it’s on Kostoryz. And I saw the security guard so I asked the security guard if there was any way he could get with the police quick, if he had a radio or anything and he told me the only thing—he could just do what I could do, you know, go to a pay phone, so I just said, “Forget it.” And so I went back to the Shamrock and the police were already there.

George Aguirre, Witness to Events Outside Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 233 (“Q. Okay. And I’m sure [while you were driving on the SPID freeway], you were looking over there [at the gas station] and you were looking at traffic and you were looking where you were going to, at the same time; would that be fair to say? A. Well, I was looking at the Shamrock because, you know— Q. Okay. I realize that, but you were also—you had your attention on getting on the freeway and not having a wreck and driving in the right lane, weren’t you? A. Yeah.”).

In the text, we have omitted Aguirre’s references to having seen the store clerk struggling with an assailant as he drove eastward on the SPID highway in the right lane (the lane furthest from the gas station). Our review of the aerial photographs introduced at trial revealing the spatial relationship between the lanes on the SPID Freeway moving east and the gas station, Def’s Ex. 1, Vargas v. Diamond Shamrock, No. 84–4951-D, 85–5900-D (Nueces Cty., 105th Dist. Tex. June 3, 1988) (showing aerial view of Sigmor gas station and the elevated SPID highway running past it, with four lanes running east and a concrete barrier separating those lanes from the three lanes running west, closer to the gas station, and with a two-lane access road between the freeway and the gas station), and our visual observation of the same reveal that it would be impossible for someone in the right lane on that side of the freeway (even someone standing still, not to mention someone driving at freeway speeds) to look past the three other eastbound lanes, then the three westbound lanes, over the edge of the freeway and down to—and inside—the Sigmor store.

Additionally, Aguirre gave inconsistent accounts of what he did after he left Wanda and drove away from the Sigmor. While conversing with Kevan Baker when the two were corralled together near the ice machine, Aguirre claimed that, when he left the gas station, he drove to a pay phone and succeeded in reaching the police by telephone. He evidently made no mention of having viewed the struggle between the store clerk and her assailant while he was driving on the freeway. See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 20:00–21:37, 33:32–34:30 (describing Aguirre’s story of what happened that night, as told to him at the gas station by Aguirre: “The one guy that actually called the police, because he was getting gas supposedly, he saw the guy put a knife in his pocket, paid for his gas, and he told the girl, that there is a guy out in front of your store that just put a knife in his pocket and he went up the street to another pay phone and called. He come back. I remember him coming back and was there. I don’t remember how many of us went down to the police station after all that went down. I know there was at least 2 of us, maybe a third one.”; “Right at the gas station, the one guy had come back [who] made the phone call. He said, I made the phone call, cause he saw a guy put a knife in his pocket, opened it up and put it in his pocket.”);

See supra note 87.

See supra notes 73–74.

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 58–59 (“Q. Now, can you indicate where South Padre Island Drive would be? A. Right here, these two (indicating). This would be the curb on the access [road] (indicating). Q. All right. And where would the Sigmor station be? A. Right here (indicating). Q. And what’s the building next to it? A. Ziebart. Q. And next to that? A. That’s Browne’s Harley Davidson. Q. And next to that? A. Phase III . . . . Q. And next to that you’ve got Lebowitz? A. Right. Q. And that’s a furniture store, isn’t it. A. Correct.”);

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 243 (“Q. [J]ust for clarification, the Sigmor Station being right here, what is it that’s next door to that on that next lot? A. Ziebart Rustproof. Q. And next to that? A. It would be Brownes Harley Davidson. Q. And then the Phase III Club? A. Or the building it’s in. Q. Correct. And what’s this next to it? A. Lebowitz Furniture. A. Okay. In between Lebowitz and Phase III, what is it? A. Just an empty lot.”).

According to Google Maps, the distance between the gas station (2602 SPID) and the building (still standing as of this writing) that used to house to Phase III (2632 SPID) is 344 feet, or about 115 yards. See http://maps.google.com/maps?saddr=2602+S+Padre+Island+Dr+Corpus+Christi,+TX+78415&daddr=2632+S+Padre+Island+Dr,+Corpus+Christi,+TX+78415&hl=en&sll=27,734198,–97,422482&sspn=0.002488,0.004801&geocode=FTExpwEdHnAx-ikHsD4L8V9ohjGL_Q-K_71Cag%3BFWwvpwEdwXMx-ik3tNZk8V9ohjHKuFFHMDYZ7g&mra=ls&dirflg=w&t=h&z=19 (last visited Feb. 13, 2012).

Def’s Ex. 1, Vargas v. Diamond Shamrock, No. 84–4951-D, 85–5900-D (Nueces Cty., 105th Dist. Tex. June 3, 1988) (showing aerial view of Sigmor gas station, with the SPID highway running in front (south) of it and with other businesses east of it along the SPID frontage road).

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“[M]y wife Julie and I were going to Phase III, a club. . . . We were arriving there about five minutes after 8:00 p.m. As I was pulling into the parking lot I noticed a Hispanic Male . . . . running across a field beside Phase III and then he cut across at about a 45 degree angle behind Lebowitz Furniture.”);

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 60 (“I found a place [to park] right in front of Phase III. When I got to about right here (indicating), I noticed that, you know, it just kind of clicked to me that he might be running from the scene of the crime. He was then right here (indicating).”);

Julie Arsuaga, Witness to Man Running Near Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 87–88:

Okay. We were pulling in [to the Phase III parking lot] and just, you know, for no apparent reason my husband said, “Look at that guy,” and he was just about to go into the field. And he was, you know, not really running fast, but kind of like, you know, just self-set pace, you know, jogging, kind of. And I said, “Well, he probably has somewhere to go.” . . . [H]e, you know, was entering into the field and my husband pulled the car around and we hit him with the headlights just, you know, for an instant, and he kind of, you know how you stop in motion, not really stopping but it seems like you’re stopping and, you know, he turned and looked at us and then he just resumed running.

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A at 243 (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 241–47:

Q. On that particular night, I want to direct your attention to a period of about 8:00 o’clock, shortly thereafter, and ask you if you were with your wife at that time.

A. Yes, I was.

Q. Okay, where were y’all going?

A. To the Phase III Club, it’s—

Q. What’s Phase III?

A. It’s like a nightclub. . . .

Q. Now, when you pulled in there or were in the process of pulling in, did you notice anything unusual?

A. Yes, I did.

Q. Okay. . . . What was it that you noticed? . . .

A. Well I noticed a man running. . . . eastbound . . . . away from the Sigmor. . . .

Q. Did you have your lights on?

A. Yes, sir.

Q. All right. Was the man—well, describe how the man was running? Was it a fast run, a lope, a jog, a trot, what?

A. It was a very slow run, almost a jog, about like a jog. . . .

Q. Now, after he passed in front of you, where did he go, if you know?

A. He went at a 45-degree angle toward the back of Lebowitz Furniture through the empty lot.

Q. Did you see when he got toward the end of the lot?

A. No, I didn’t.

Julie Arsuaga, Witness to Man Running Near Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 347 (“John said, ‘Hey, look at that man, you know, running,’ And, you know, he usually gives me a smart answer when I say something like that and I said, ‘Well, he probably has somewhere to go.’ Q. Now, did you look up to see the man running? A. Yeah.”).

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“[M]y wife Julie and I were going to Phase III, a club. . . . We were arriving there about five minutes after 8:00 p.m. As I was pulling into the parking lot I noticed a Hispanic Male . . . . running across a field beside Phase III and then he cut across at about a 45 degree angle behind Lebowitz Furniture.”).

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1.

John Arsuaga, Witness to Man Running Near Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1.

Chapter 2
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