Although Baker didn't know it, Julie Arsuaga had noticed something similar. At a pretrial hearing, she examined a black and white photo of Carlos DeLuna, who she then said that was the jogger who'd passed in front of her car that night near the Phase III. She noted, however, that DeLuna in the photo had a fatter face in the photo than the jogger she'd seen and speculated that DeLuna must have lost weight since the picture was taken. After being told that police took the photo at the police station on the night of the crime, Julie admitted that DeLuna's puffy face in the picture was "different to a degree" from the face of the man she saw jogging by.106
Years later, when Wanda's family sued the Sigmor Shamrock for damages, another—color—set of photos of DeLuna came to light, also taken at the police station on the night of the murder. The new photos confirmed Baker's and Julie Arsuaga's observations, especially when compared with other photos of DeLuna from around the same time. After his arrest, DeLuna had a cut on the bridge of his swollen nose. There were bruises on his right cheek and under both eyes. He had a fat lower lip.107
Shown the color photos twenty years later, DeLuna's sister Rose wept at the sight of her brother's banged-up face.108 She recalled the first time she visited him in jail while he was waiting to go on trial for killing Wanda Lopez. He told her the cops beat him after they pulled him out from under the truck.109 One of them said he recognized DeLuna as a smart-ass drunk he'd arrested at the Casino Club a couple weeks earlier.110
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 94–95:
Q. But you said something a minute ago, you said that the picture in the photo lineup was different from what you had seen.
A. There were things about him like the—the picture, his hair was longer and he looked like he might have lost weight since the picture was taken and, you know, that can change a bit of your facial features.
Q. Would you be surprised if the picture had been taken within 30 minutes from the time you saw him?
A. Yes, I would.
Q. Would that change your recollection and say, “Well, then, picture No. 5, if that picture was taken 30 minutes from the time it was shown to me, cannot be the same person that I saw earlier in the evening on February 4th”?
A. Well without the picture in front of me, I would most probably say that you’re correct in assuming that.
See also 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 91 (stating that man in the picture “looks different” from DeLuna “to a certain degree”, although it “might . . . be . . . the same person.”).
See Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:05:12–21:06:41:
Q. I’m going to show you a picture that I’ve marked here “R.R. number five.” Take a look at that. First of all, just hold it up and tell us who that is.
A. That’s my brother, Carlos.
Q. Now, I want you to take a close look at his face in that picture, and tell me if there’s anything about his face there that’s—
A. It looks swollen. It looks like he was roughed up.
Q. Have you ever seen that picture before?
Q. I just showed it to you now, but I’ve never showed that picture to you before?
Q. And nobody else has shown it to you?
A. No. And Carlos did tell me he was roughed up.
Q. Tell me about that.
A. He told me that they pushed him around, slapped him around, that the police officers did this to him. I never saw the picture, but he told me he was roughed up.”
Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:08:55–21:11:45 (“Q. How well does that picture reflect what Carlos really looks like or looked like, given what’s happened to his face? (camera zooms in on photo) A. He doesn’t look like this. He didn’t look like this. This doesn’t look like the way Carlos would look. He was obviously being pushed around by somebody, because he wouldn’t look like this. Even if he was underneath a truck, like they claim he was—he said he was underneath a truck—he wouldn’t get like this.”).
See Thomas Mylett, Corpus Christi Police Officer, Supplementary Report (Feb. 8, 1983) at 2 (“I contacted the suspect on the front lawn of the house adjacent to the pick up [truck]. Subject and I recognized each other. I had arrested this subject in the recent past for disorderly [sic] conduct at the Club Casino.”).
See also Arrest Sheet No. 80508 for Carlos De Luna, Corpus Christi Police Dep’t (Jan. 21, 1983) at 1 (describing arrest of Carlos DeLuna: DeLuna, who approached police working off-duty in the Casino Club nightclub and informed them that he knew Officer Rick Garcia, who was shot the prior year, and thought Garcia should have died; then DeLuna asked if the officer wanted to fight);
infra Chapter 5, notes 227–231 and accompanying text.