HRLR
Los Tocayos Carlos
Text: A | A | A
« Back to Chapter 3

All Chapter 3 Footnotes

1.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) (in introductory note).

2.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 30:00–30:58 (“Of course, it’s been twenty years, but basically it’s still vivid.”).

Baker left Corpus Christi around 1985. Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 37:01–38:33.

3.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 0:02–1:05, 4:00–5:07, 28:00–29:08, 40:00–41:05, 45:37–end.

4.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 45:36–end.

5.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 45:36–end:

Q. Ok. Well, I thank you. . . . [I]f I needed to get back in touch with you, is that ok with you?

A. No problem, I have no problem with that. It’s just, I wish this never happened, you know what I’m saying. It’s just something that I don’t want to be there. And you know, if you’ve ever been a police officer to get to your point as a detective.

Q. I’ve worked for the state, done prosecuting attorney investigations, yes.

A. So it’s just like, you don’t want to be here either.

Q. Right [laughs]. Right.

A. Stuff you wish your kids don’t have to see, either.

Q. Sure.

A. At thirty-three or so, I’d been in the oat fields a long time, then traveled in the Navy and been around enough. And I’m going, “God, this sucks, it really does.” But I tried to do the right thing. I walked towards the store, and I tried to help her out. That’s basically what it was about.

Q. Ok. All right, well, thanks a lot. As I said, if I have any more questions, I’ll certainly give you a call. I’ll turn this off now.

6.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 23:00–24:59 (“Back in ‘83 I was thirty-three. So I wanted to go party you know. But that didn’t happen.”).

7.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 28:00–29:08 (“‘Oh fuck I don’t want to be here. Get in my car and leave.’ But I couldn’t. It’s not in me.”).

8.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 40:00–41:45 (“Like I said, my first thought is, ‘I don’t wanna be here.’ But I felt as an American, I should do the right thing.”).

For other instances when Baker repeats the phrase “I didn’t want to be there,” see Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 28:00–29:08, 45:37–end.

9.

See supra Chapter 2, notes 10–17 and accompanying text.

10.

See supra Chapter 2, note 10, 13–17 and accompanying text.

11.

See supra Chapter 2, note 17–19, 22–25 and accompanying text.

12.

See supra Chapter 2, note 20–21 and accompanying text.

13.

See supra Chapter 2, note 21–29 and accompanying text.

14.

See supra Chapter 2, note 29–38 and accompanying text.

15.

See supra Chapter 2, note 55–69 and accompanying text.

16.

See supra Chapter 2, notes 42–48, 79–81, 96–99, 142–154 and accompanying text; see also 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 274, 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.

See supra Chapter 2, notes 73–74, 134–135, 153–154 and accompanying text.

17.

See supra Chapter 2, note 153–154, 167–172 and accompanying text.

18.

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 277−78:

Q. Tell the Jury how it was you came to see him the second time.

A. We were standing over on the east side of the building, the few people that did see what went on, and a police officer came up and asked us if we would like to make—if we would like to look at this gentleman they had in the back of the car and see if we could—you know, if we recognized him from before or not and I myself said I would go over and look and we proceeded over to the car . . . .

19.

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 277−78.

20.

See infra notes 74–80.

21.

See infra notes 74–80.

22.

See infra notes 81–85.

23.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14–3:00:

They brought a gentleman back in the back seat of a car without a shirt on.“Is this the guy you seen?” And it was really tough, you know. I said this in court. It was really tough saying yes and no, but it seemed like the right guy. And in court of course, he was in a nice suit and tie, and “is that the gentleman?” It was still tough as an eyewitness, ‘cause I didn’t catch his height. But he was Hispanic. Whether I was right or wrong—[He pauses for a couple seconds.] But it just seemed right. That’s kind of the way I went as my instincts told me, I guess.

24.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14–3:00.

25.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14–3:00.

26.

Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 2 (“I read the suspect the Miranda Warning at 8:49 p.m. as I was transporting him back to the crime scene.”);

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 110 (giving Schauer’s age in July 1983 as twenty-four).

27.

See 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 115−16:

A. Yes, she [the witness who telephone the dispatcher] said a suspect had been seen or a subject had been seen running from an area, say, west of Franklin towards Franklin, there had been a subject seen running between houses, different people had called and that someone has seen him lying under trucks.

Q. Somewhere on Franklin Street; is that correct?

A. Towards—in that area. In that area.

Q. Was there any other suspect seen at any other area, so far as you know?

A. Not to my knowledge.

Q. Did the dispatcher disseminate any information regarding other suspects in other areas other than the one on Franklin?

A. No.

Q. Now, when you to—how is it that you came upon Sergeant—Deputy Constable Rivera?

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 hear Constable—I heard the constable yell out for help . . . .

28.

See Police Dispatch Tape, Corpus Christi Police Dep’t (Undated) at 8:51:28 (tape at 00:42:47) (responding to a question from the commanding officer about whether the officers have DeLuna in “custody on Nemec”: “Yes, sir, as of now we do.”);

see also Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 1–2 (“I read the suspect the Miranda Warning at 8:49 p.m. as I was transporting him back to the crime scene. . . . As I was transporting him [DeLuna] back to the crime, scene, I then again read him his rights at 9:05 p.m., at his request. Both times he said he understood what I read to him.”);

Mark Schauer, Corpus Christi Police Officer, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) (testifying that he (Schauer) parked his squad car at Franklin and Nemec, helped Rivera pull DeLuna out from under the car, brought DeLuna back to his squad car, then moved the car on Nemec “a little bit past Franklin to get away from all the activity that was still going on there, stopped the car and I read him his rights there”);

cf. 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 117–20 (estimating that it took him 10 minutes to drive DeLuna back to the gas station).

In regard to the distance from Nemec and Franklin to the gas station, see http://maps.google.com/maps?saddr=nemec+st+and+franklin+st&daddr=27.7347,-.97.42222+to:Nemec+St+to:Nemec+St+to:Dodd+St&hl=en&sll=27.735143,-97.423153&sspn=0.001994,0.002521&geocode=FRcxpwEdv3cx-imDmobR819ohjElq1QC_Xbdsg%3BFawypwEddHQx-inH0A7V819ohjHd_W6KCJAwZQ%3BFcoypwEdNXQx-g%3BFW40pwEdvnAx-g%3BFXcypwEdbW8x-g&mra=dme&mrsp=4&sz=18&via=1&dirflg=w&t=h&z=18 (last visited Feb. 13, 2012).

29.

Mark Schauer, Corpus Christi Police Dep’t, Officer Supplementary Report (Undated) at 2 (“The subject . . . kept talking and constantly asked me questions, and often asked me the same questions again and again even though I answered him each time.”);

Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Feb. 8, 1983) at 2–3:

He continually asked me these same questions over and over during the short drive to the crime scene and he was not silent for even a moment. . . . He talked continually during transport also at the booking desk. . . . Before I transported him back to the crime scene, I read him the Miranda Warning (at 8:49 p.m.) and he interrupted me several times and said, “Yeah, I know, I know” and even recited several lines of the warning with me. He talked very fast and asked, “Hey, can I ask what I’m being arrested for, man?” “Hey, what am I charged with, man?” “Hey, man what’s the charge?” He asked me these questions before I read him his rights and also after, even when I told him what the charges were (at this time I told him aggravated robbery and murder) [sic: WL wasn’t pronounced dead until an hour later]. . . . .When we arrived at the scene I parked the car behind some other vehicles so the scene could not be observed from the car. The suspect said “Hey, man, you take care of me and I’ll take care of you.” He said this over and over and also kept asking to speak with a sergeant. . . . Before I transported him to the city jail, the suspect also said, “I didn’t do it, but I know who did,” and again and again he said, “I’ll help you if you help me.” He talked continually during transport and also at the booking desk. I asked him a number of times to calm down and wait a minute so I could finish my reports while waiting for I.D. to come to the booking desk, and he would reply “all right, all right” and then say something and ask another repetive [sic] question. I answered his questions as best I could but he would ask the same one over again. He also asked me to get cigarettes no less than ten times in five minutes and then again and again after that.

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 109–15 (testifying that, from the time he was apprehended through the booking procedure, DeLuna “was very talkative”; DeLuna “repeatedly asked to talk to a sergeant. He kept saying, ‘Hey, man, you take care of me and I’ll take care of you.’ He kept saying that quite often. And at least one time he said, ‘I didn’t do it, but I know who did do it. I know who did do it.’ And also he kept saying, ‘I’ll help you if you’ll help me.’ . . . Kept saying those things over and over.”; at the police station, DeLuna “was very talkative again, he kept trying to make — kept trying to make deals. . . . He was very talkative. He wouldn’t shut up. Q. Did you try and get him to shut up? A. Yeah, he wanted some cigarettes and I promised him some cigarettes if he would just be quiet enough long enough to let me just get my report done because I had to wait for ID to come up and photograph him and everything.”; later, Schauer brought DeLuna cigarettes, and he “calm[ed] down” but after that, “he was very hyperactive, moving around very hyper, very hyper, very talkative.”);

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 128–29, 134–35 (after being apprehended, DeLuna was “hyperactive and . . . very talkative . . . he kept asking me repetitive questions, he kept asking me for cigarettes or he kept asking me different questions about this or that. . . . [A]fter I got all through with my paperwork and I booked him and I was ready to go home, on my way home I stopped at the Seven Eleven Store at Staples and Leopard and bought him a pack of cigarettes and took them back to him.”).

30.

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

see Handwritten Note on Manila File Folder in District Attorney’s File (“[Officer Robert H.] Varagara heard Δ [defendant DeLuna] say you help me etc.”);

see James S. Liebman’s Notes on Interview with Robert Veregara, Corpus Christi Police Officer (Nov. 2, 2005) at 1 (“I showed him the spelling that was on the note in the DA’s folder we saw—“Veregara”—and he said it was him.”).

31.

See 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 (describing that witnesses were located near ice machine outside store);

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 48, 53 (“Q. And where did you go to get the witnesses? A. The witnesses were in this area out here in the parking lot. (indicating) Q. Okay. That would be the east side of the parking lot? A. It would.”);

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 277−78, 283−85 (“We were standing over on the east side of the building, the few people that did see what went on.”);

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 told to Baker by Aguirre while they were standing together);

see also supra note 16; supra Chapter 2, notes 73–74, 134–135, 153–154.

32.

Crime Scene Photograph 25500026, Corpus Christi Police Dep’t (Feb. 4, 1983) (showing George Aguirre near the ice machine).

33.

Crime Scene Photograph 25500029, Corpus Christi Police Dep’t (Feb. 4, 1983) (photo of witnesses watching medics work on Wanda Lopez, on the ground, with Olivia Escobedo facing the witnesses, with her back to the victim);

see also Def’s Ex. 1, Vargas v. Diamond Shamrock, No. 84–4951-D, 85–5900-D (Nueces Cty., 105th Dist. Tex. June 3, 1988);

Crime Scene Diagram, Corpus Christi Police Dep’t (Feb. 4, 1983) (reproduced infra Figure 5). According to a police diagram of the scene, the distance from the front of the store to the pumps is 17.6 feet. Based on this measurement and the aerial photograph, the ice machine is 25 feet or less from the doorway.

34.

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

35.

The Old Farmer’s Almanac, http://www.almanac.com (last visited Feb. 13, 2012) (showing weather for Corpus Christi on February 4, 1983 as 54.9–68.0 degrees Fahrenheit; 0.12” precipitation; 50.4 dew point).

36.

The Old Farmer’s Almanac, http://www.almanac.com (last visited May 2, 2012); see infra Chapter 10, notes 77–79 and accompanying text & Figure 24; infra Chapter 13, notes 45, 82, 169 and accompanying text.

37.

See Crime Scene Photograph 25500023, Corpus Christi Police Dep’t (Feb. 4, 1983);

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

Crime Scene Photograph 25500029, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500032, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500034, Corpus Christi Police Dep’t (Feb. 4, 1983).

38.

Crime Scene Photograph 25500023, Corpus Christi Police Dep’t (Feb. 4, 1983) (showing police, fire department, and towing vehicles at crime scene);

Pete Gonzales, Shamrock Gas Station Area Supervisor, Trial Test., No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 165−66 (testifying that he arrived at the station and “found the place completely engulfed with police cars”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:51:30–15:53:00 (recalling that there were a number of police cars at the gas station);

see Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 289 (“Q. Now, when you arrived there, were there other police officers already on the scene? A. Yes, sir. . . . When I arrived on the crime scene, Sergeant Fowler, who worked for me, was already on the crime scene, he had a reserve partner with him . . . . Officer Mejia, Unit 127, was also on the scene . . . . I posted Reserve Officer McCoy . . . directly in front of the front doors.”);

see also Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:30:00–15:31:27:

I got the call [from police to go to the gas station], I wasn’t sure what happened, but I flew out the door and got there as quick as I could. My supervisor, Pete Gonzales, was already there, I believe he had just gotten there. I believe there was an ambulance on site, I believe they were pulled in on the other side of the store. There was police in and around and there was other people lingering around. And the police were talking to certain people. I went over to Pete and asked him what was going on, and he told me Wanda had gotten hurt, or she’d gotten stabbed, and they didn’t know her condition at that point.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:36:36–15:38:06 (“Q. How many people were around? A. It’s really hard for me to say. I know there was three or four police cars. There were people driving along real slow on the frontage road, and in the cross street, trying to figure out what was going on. There was three or four police cars at that point. There were crime scene people that were doing fingerprinting that were coming in and out of the building.”);

Bruce Whitman’s Notes on Interview with Pete Gonzalez, Shamrock Gas Station Area Supervisor (Sep. 23, 2004) at 1:

He [Gonzales] arrived at the DS [Diamond Shamrock Sigmor] just as the ambulance was leaving. There were people everywhere, must have been 20–50 people standing behind where the police had sealed off an area which included from corner to corner of the station and the gas pumps. People had gathered from Wolfy’s and another bar that was a block or two to the east of the station [the bar that the Arsuagas were going to]. There were police and private cars everywhere when Pedro [aka Pete] arrived. . . . The store manager Robert Stange was at the scene when Pedro arrived.

39.

See Corpus Christi Police Dep’t, Ambulance Service Dispatch Report No. 00980 (Feb. 4, 1983) at 1 (stating that time of arrival at the gas station was 20:16, and departure time was 20:40);

Corpus Christi Police Dep’t, Supplementary Call Card #4 (Feb. 4, 1983) at 1 (D.A. records set B-1 at 7) (revealing that Officer “239”, Joel Infante, was dispatched at 8:16, arrived at the gas station at 8:31, and finished his work at the crime scene in time to return to police headquarters by 9:44);

Joel Infante, Corpus Christi Police Identification Technician, Field Investigation Report (Feb. 4, 1983) at 1 (noting that Sergeant Infante was dispatched at 8:16 and arrived at 8:31);

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) (noting that Detective Escobedo arrived after Infante but before the ambulance left, placing her arrival between 8:31 and 8:40 p.m.);

Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 2:

Although I specialized in investigating sex crimes, I became the lead investigator on the Wanda Lopez case because I just happened to be working as the lead investigator on the night shift when her 911 call came in. I remember that I had only been at work for a few minutes when her call came in. I recall that it was a “robbery in progress” which justified sending an investigator and a lot of police to look for the suspect. I remember that Sigmor gas station. When I got out to the gas station, there were police cars everywhere. The neighborhood was literally saturated with police, fanning out looking for Mr. DeLuna. Mr. DeLuna had been reported by witnesses to have run out behind the gas station in a northern direction, right into the residential neighborhood behind the gas station. As the lead investigator, my first responsibility was to secure the crime scene.

40.

See Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report at 1 (Feb. 5, 1983):

[O]n 02–04–83 reporting officer reported to the scene of an aggravated robbery at Sigmor Service Station at 2602 SPID, time of arrival was approximately 8:15 p.m. at the time of the arrival I observed that AID ambulance attendants were administering first aid to a Hispanic female, who I observed to be barefooted. . . . At the time she left the scene I learned she was in critical condition. . . . Sgt. Infante of the ID section was on the scene which has been secured and sealed by Patrol, and after the victim had been removed, Sgt. Infante did then process the door for prints.

See also 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, http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=4 (“After Lopez was taken to the hospital, evidence technician Joel Infante and Detective Olivia Escobedo began processing the crime scene, a task that was completed in about an hour.”). For Escobedo’s appearance, see Crime Scene Photograph 25500019, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500022, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500029, Corpus Christi Police Dep’t (Feb. 4, 1983).

41.

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 (reproducing scene by scene footage from KIII-TV Channel 3, KRIS-TV Channel 6, and KZTV Channel 10).

42.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:37:15–15:38:06 (“There were people driving along real slow on the frontage road, and in the cross street, trying to figure out what was going on.”).

43.

George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 234 (testifying that there were a lot of “other people that were trying to see what had happened” and “a lot of [cars]”).

44.

Bruce Whitman’s Notes on Interview with Pete Gonzalez, Shamrock Gas Station Area Supervisor (Sep. 23, 2004) at 1 (estimating crowd of onlookers at between 20 and 50);

see also George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 234 (testifying that at the gas station there were “a lot of [cars]” parked there, including “police” and “other people that were trying to see what had happened”);

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 66, 67–68 (“Okay, at that point, there were several people starting to crowd around. I asked each and every one of them if they had seen anything and if they didn’t, to please leave, that this was a crime scene and we could not disturb it in any way . . . .”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:30:00–15:31:20, 15:49:30–15:50:18 (when Stange arrived at the Sigmor that night, “there was police in and around and there was other people lingering around”; “people . . . were milling around the [gas station] parking lot.”).

45.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27 (“[W]e were trying to figure out what could have happened, what did happen. We were trying to understand how she could be stabbed. . . . It was the first death in a convenience store for Corpus Christi. And so there was a whole lot of ‘What just happened here?’”).

46.

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 55−56:

Q. When you received this communication that they had a suspect, did you receive it from your auto or the car you were driving, or did you have a walkie-talkie, or how did you receive it?

A. I had a walkie-talkie. I was standing out on the parking lot itself.

Q. Okay. So if a message comes over the walkie-talkie and there’s people within the general area there, maybe from here to where I am from you, maybe ten, fifteen, twenty feet or even closer, could I standing this or sitting this far from you right here in the courtroom, being about ten or twenty feet, could I hear that message coming over a walkie-talkie?

A. I suppose it’s possible. I really wasn’t paying attention to that particular aspect of it because we had so much traffic on the parking lot.

Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 2:

Because my responsibility was to process the crime scene, I remained in the store working while the rest of the police were outside looking for DeLuna. I remember that there were police cars everywhere, at the station and all around the neighborhood around the station, looking for DeLuna. I could hear their progress on my radio. The police were responding to calls saying that people had spotted someone hiding under a truck that was parked on the street a couple blocks behind the gas station. Then I heard on the radio when DeLuna was pulled out from under the truck. I think that the police brought DeLuna back to the gas station right away so the witnesses could look at him.

47.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:51:30–15:53:00, 16:05:55–16:06:10 (“There was certainly police cars in the parking lot at the time. Doors were open, windows were down, and the radio transmissions were coming back . . . .”; “While all this is going on, there’s police traffic reports coming through on the radio that [he listened to] . . . .”);

see 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 53, 56 (testifying that he stationed himself near the front door to the gas station and used a walkie-talkie to communicate back and forth to Officer Schauer about driving DeLuna to the gas station for identification; agreeing that, “if a message comes over the walkie-talkie and there’s people within the general area there . . . maybe ten, fifteen or twenty feet or even closer,” “it’s possible” that those witnesses could have heard the fact of that transmission that there was a suspect and that they were going to bring him “back” to the scene).

48.

Pete Gonzales, Shamrock Gas Station Area Supervisor, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex., July 15, 1983) at 165−66 (testifying that he arrived at the station and “found the place completely engulfed with police cars, and my employee, Wanda Lopez, was laying—the medics ambulance service was working on her”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27–15:33:12 (“I remember [Shamrock Area Supervisor] Pete [Gonzales] describing that she had stumbled towards the door, and she had fallen against the door frame, and that’s where they found her when they got there. I believe she was revived before she left the store, and once in the ambulance, and they tried to revive her again at the hospital, but she had passed away. They were able to pull her back several times.”).

49.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27–15:33:12 (“I remember [Shamrock Area Supervisor] Pete [Gonzales] describing that she had stumbled towards the door, and she had fallen against the door frame, and that’s where they found her when they got there. I believe she was revived before she left the store, and once in the ambulance, and they tried to revive her again at the hospital, but she had passed away. They were able to pull her back several times.”).

50.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27–15:33:12.

51.

See Crime Scene Photograph 25500010, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500022, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500023, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500024, Corpus Christi Police Dep’t (Feb. 4, 1983);

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 25500029, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500032, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500033, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500034, Corpus Christi Police Dep’t (Feb. 4, 1983);

Crime Scene Photograph 25500035, Corpus Christi Police Dep’t (Feb. 4, 1983)

(all showing views of the Sigmor Station parking lot and other areas immediately surrounding and outside the store while emergency personnel worked on Wanda Lopez and while police vehicles and officers and onlookers are visible—in none of which is any crime tape visible); 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 (same);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 17:16:12–17:16:35 (“I don’t recall crime scene tape at all”).

Cf. Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) (“Sgt. Infante of the ID section was on the scene which had been secured and sealed by Patrol”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:00–2:14 (“[T]he cops just started flying in. So I just stopped what I was doing. Basically, that’s about what went down. Of course, everything was taped up.”).

52.

Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 2 (“We didn’t have any police tape to secure the scenes. We just had to yell at people to stay back and not step on our crime scenes.”);

see 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 66, 67–68 (“Okay, at that point, there were several people starting to crowd around. I asked each and every one of them if they had seen anything and if they didn’t, to please leave, that this was a crime scene and we could not disturb it in any way . . . .”).

53.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:37:15–15:38:06, 15:35:45–15:36:36, 15:49:30–15:50:18, 15:53:00–15:57:20 (describing areas of the gas station parking lot where Stange and Gonzales were able to “wander”; after the ambulance left, “the police allow[ed] us to get closer” and Stange and Gonzales “began to meander around the area of the store” on the west side near Dodd Street; “Pete [Gonzales] tried to stay close to one police officer or another virtually all the time. He would come back and bring a little more information each time.”).

54.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:49:30–15:50:18 (“Pete [Gonzales] tried to stay close to one police officer or another virtually all the time. He would come back and bring a little more information each time.”).

55.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 16:29:08–16:29:55 (“[E]verybody—I say everybody, the police— . . . said it was a robbery. We were discussing it outside as a robbery and something going wrong”).

56.

See supra notes 39, 40.

57.

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 52–53, 56 (“I heard Mr. Schauer come on the radio with his location and that he had a suspect that they had pulled from underneath a truck. He gave me a brief description of him and based on what had been put out over the radio and BOLO and whatever, I instructed him to bring him back to the Sigmor Shamrock Station”; noting that McConley received this information over a walkie-talkie while he was outside the store in the parking lot);

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 127–28 (“I put out a broadcast that … we had picked up a suspect in the area”; “he told me to bring the suspect over to the scene of the crime”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:51:30–15:53:00, 16:05:55–16:06:10 (“It started as a rumor, or—There was certainly police cars in the parking lot at the time. Doors were open, windows were down, and the radio transmissions were coming back that they had somebody under a car and they were going to bring back to the location for identification.”; “While all this is going on, there’s police traffic reports coming through on the radio that they believe they found a suspect . . . under a car . . . .”);

see Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Feb. 8, 1983) at 2 (“Lt. McConley contacted me on walkie and advised me to bring the suspect back to the scene so that the witnesses could observe him. I transported the suspect back to the Shamrock on 2806 [sic] South Padre Island Drive . . . .”);

Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27, 2005) at 2:

Because my responsibility was to process the crime scene, I remained in the store working while the rest of the police were outside looking for DeLuna. I remember that there were police cars everywhere, at the station and all around the neighborhood around the station, looking for DeLuna. I could hear their progress on my radio. The police were responding to calls saying that people had spotted someone hiding under a truck that was parked on the street a couple blocks behind the gas station. Then I heard on the radio when DeLuna was pulled out from under the truck. I think that the police brought DeLuna back to the gas station right away so the witnesses could look at him.

58.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:49:16–15:50:18, 15:31:27–15:33:12:

Q. How did you hear that the individual that they had in the car, the suspect, had been found nearby? . . .

A. [by Stange]. That was going around the parking lot. The people that were milling around the parking lot. And that was other police officers, some of the other investigators. . . . We do know the suspect was found under a car. We don’t know if a chase was involved. I believe they had his bloody shirt. . . . [T]hey did say they found him hiding under a car . . . only a few blocks [away].

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:51:30–15:53:00 (“I believe they [police officers] stated they had a suspect and he was under a car, but I don’t recall at the time whether it was stated that he was under a car or found under a car. But if nothing else, we did hear that later. Before the police officers all left, and before the suspect left, we had learned that he had been located under a car. They did find a bloody shirt, I couldn’t tell you if that was at the scene or not.”).

59.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:49:16–15:50:18, 15:51:30–15:53:00 (“Q. How did you hear that the individual that they had in the car, the suspect, had been found nearby?” “A [by Stange]. That was going around the parking lot. The people that were milling around the parking lot. And that was other police officers, some of the other investigators. . . . We do know the suspect was found under a car. We don’t know if a chase was involved. I believe they had his bloody shirt.”; “I believe they [police officers] stated they had a suspect and he was under a car, but I don’t recall at the time whether it was stated that he was under a car or found under a car. But if nothing else, we did hear that later. Before the police officers all left, and before the suspect left, we had learned that he had been located under a car. They did find a bloody shirt, I couldn’t tell you if that was at the scene or not.”).

60.

See Letter from James F. Waller, Jr., Supervisor, Tex. Dep’t of Public Safety, to Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 17, 1983) (“On February 9, 1983, you personally submitted the following: 1. U.S. currency, five dollar bill, serial #B12101408B, 2. A pair of men’s black pants, 3. One pair white tennis shoes, 4. One long sleeve men’s shirt. It was requested that examinations be made to determine the presence of blood on the submitted items, and, if present, the origin and type.”);

see also M. Shedd, Corpus Christi Police Sergeant, Supplementary Report (Feb. 6, 1983) at 1 (“I contacted Mr. Armardo Garcia, 4946 Easter. . . . He told me that the night of the above offense, police were searching his neighborhood for the suspect. He was told by the officers to call the police if he found a knife or shirt. This morning at approximately 11 a.m., while cleaning his yard, he found a white shirt, and a pair of track shoes in his yard. He found the shirt near his back fence, and the shoes between his residence and 4950 Easter. I retained the items and tagged them as evidence at the city booking desk, tag #40188.”);

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 10, 1983) at 10:

On 02–09–83 the following items were removed from the Property room by this officer, to be submitted to Department of Public Safety Lab. The following notation was made on the back of each label: Removed from property room-to DPS, followed by the time and date 2/9/83. . . . #40138: Removed at 10:30 A.M. a pair of men’s black slacks, removed from suspect at time of arrest, to be examined for blood. #40188: Removed at 10:25 A.M. a pair of men’s white tennis shoes and a man’s long sleeve white shirt, both items are to be examined for blood substance.

For photos of Carlos DeLuna, shirtless, after he was arrested see Pl.’s Ex. 6 (photo 2), 7 (photo 1), 8 (photo 1), Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1988);

infra Figure 6.

61.

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 278 (“I’m not sure of the police officer’s name. . . . It was a—a black gentleman.”);

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 112–13 (“The supervisor was Lieutenant McConley. Q. Lieutenant McConley. And he’s a black officer; is that correct? A. That’s correct.”).

62.

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 289 (“I posted [an officer] directly in front of the front doors because I could see the large amount of blood and whatever was inside. I could see that the place was in disarray and whatever, you could tell that there had been a struggle there.”);

Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 2 (“I remember that there was blood everywhere inside the gas station.”).

63.

See supra note 62.

64.

See Aerial Photograph of Shamrock Gas Station, Vargas v. Diamond Shamrock, No. 84–4951-D, 86–5900-D (Nueces Cty., 105th Dist. Tex. 1983) (Chapter 2, Figure 1);

Crime Scene Diagram, Corpus Christi Police Dep’t (Feb. 4, 1983) (reproduced infra 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 (“Q. [Y]ou were asked to either come and—and try to identify someone or—or whenever they brought supposedly a suspect back? A. Uh-huh. We [Baker and the other witnesses] was standing on—standing at the front door looking towards the highway. We were on the left near the ice machine at the left-hand corner of the building.”);

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 53 (“Q. Where were you when they brought Mr. De Luna back? A. Almost directly in front of the front door where the victim was lying.”);

see supra note 33 and accompanying text (estimating the distance between the door and the ice machine as 25 feet or less).

65.

See 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 52−53, 55 (“I heard Mr. Schauer come on the radio with his location and that he had a suspect that they had pulled from underneath a truck. He gave me a brief description of him and based on what had been put out over the radio and BOLO and whatever, I instructed him to bring him back to the Sigmor Shamrock Station”; testifying that he (McConley) received this information over a walkie-talkie while he was outside the store in the parking lot);

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 127–28 (“I put out a broadcast that . . . we had picked up a suspect in the area”; “he told me to bring the suspect over to the scene of the crime”).

66.

See Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 2 (“Lt. McConley contacted me on walkie and advised me to bring the suspect back to the scene so that the witnesses could observe him. I transported the suspect back to the Shamrock on 2806 [sic] South Padre Island Drive and had the suspect sitting alone in the back seat of my unit.”);

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 20−22 (testifying that the identification took place in the gas station parking lot just “off of Dodd” Street);

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 location of show-up);

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 109−10 (testifying that he (Schauer) pulled into the gas station parallel to Dodd and “witnessed” the show-up from the “driver’s side” of the squad car);

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 48 (affirming that he did assist in a suspect identification that occurred “on the west side of the [gas station] building.”);

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 127−28 (recalling that DeLuna, was alone, “seated in the back seat,” and “handcuffed behind his back”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27, 15:37:15–15:38:09, 15:56:00–15:56:35 (describing location of show-up identification; “[W]hen the police car did come back, he pulled around the back and swung in to the wing wall so that he could parallel the side street [Dodd Street]. So he drove through the mud holes, because there was potholes in that area.”);

supra Figure 5 (indicating location of show-up identification on police diagram of crime scene).

67.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:31:27–15:33:12, 15:37:15–15:38:09, 15:56:45–15:57:20 (“Sometime after [Wanda] left [in the ambulance], police did bring back [a] car, and in the back sat a gentleman, and he didn’t have his shirt on, and I believe that was the individual”; “Pete [Gonzalez] and myself, we found ourselves over by what we call the [west] wing wall. . . . I remember they brought the [squad] car back, and we kind of wandered over to the car, and there was this gentleman sitting in the back. That was the person they believed did it.”; “I can remember looking at him from, say, about mid-driver’s door. I was about mid-driver’s door and I was about four feet away from him. So that put me about two feet, a foot and a half, from the [car] door. . . . I know that at different times Pete [Gonzalez] and I would trade positions because we wanted to see the individual.”).

68.

See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:47:30–15:48:00, 16:09:47–16:11:48 (stating that he believed the police used flashlights “to help illuminate the face of this individual” because “the lighting at our location at that time was certainly not what it is today, so they would have needed more [light]”; “the light wasn’t sufficient enough to really see him”).

69.

See 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 52−53, 56 (“I heard Mr. Schauer come on the radio with his location and that he had a suspect that they had pulled from underneath a truck. He gave me a brief description of him and based on what had been put out over the radio BOLO and whatever, I instructed him to bring him back to the Sigmor Shamrock Station.”; testifying that he (McConley) received this information over a walkie-talkie while he was outside the store in the parking lot).

70.

See 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 45 (“Q. You knew they had a suspect. A. Yes, we were told they apprehended a gentleman, and would any of us like to possibly make identification or whatever.”);

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 were standing over on the east side of the building, the few people that did see what went on, and a police officer came up and asked if we would like to make—if we would like to look at this gentleman they had in the back of the car and see if we could—you know, if we recognized him from before or not. . . .”).

71.

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 24:54–26:08, 26:57–28:00 (“One of the police officers did mention to me that we found this guy hiding underneath a car without a shirt on, two blocks north of us or three blocks north of us . . . . The girl [Wanda Lopez] had already been transported away and we were still trying to sort it out, here comes a cop: ‘We found him. Is this the gentleman? He was hiding underneath the car.’”);

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, http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=4 (reporting that before any identification, “police told [Baker] they had arrested De Luna hiding under a truck near the scene of the attack . . . .”; quoting Baker saying, “‘The cops told me they found him hiding under a truck.’”).

72.

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 24:54–26:08, 26:57–28:00 (“One of the police officers did mention to me that we found this guy hiding underneath a car without a shirt on, two blocks north of us or three blocks north of us. . . . The girl [Wanda Lopez] had already been transported away and we were still trying to sort it out, here comes a cop: ‘we found him. Is this the gentleman? He was hiding underneath the car.’”).

73.

Julie Arsuaga, Aff. (Feb. 13, 2005) at 2 (“A policeman came up . . . and said they had a man they found under a car and that they wanted us to see whether it was the same guy we saw running.”).

74.

See Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) (“While I was still there [at the Shamrock station], a police car drove up . . . . They asked me if I could identify him.”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 20−21 (testifying that police asked the witnesses, “‘Can you identify,’ you know, ‘somebody?’”);

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 45 (“[W]e were told they apprehended a gentleman, and would any of us like to possibly make identification or whatever”);

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 were standing over on the east side of the building, the few people that did see what went on, and a police officer came up and asked if we would like to make—if we would like to look at this gentleman they had in the back of the car and see if we could—you know, if we recognized him from before or not.”);

Julie Arsuaga, Aff. (Feb. 13, 2005), at 2 (“A policeman came up . . . and said they had a man they found under a car and that they wanted us to see whether it was the same guy we saw running.”).

75.

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 63−64 (“Q. Did you do that [attempt to identify the person in the vehicle]? A. No, sir. Q. Why not? A. I didn’t want to—I didn’t know if he would get out or if it was—you know. In other words, I was—The Court: All right. . . . A. Well, I was, you know, not really afraid, but I had my doubts about the whole situation.”).

See also 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 247−48 (“Q. Would you do that [go over to the man in the car to see if he could identify him]? A. No, sir. Q. Why wouldn’t you do that? A. Well, I was scared, I guess. I didn’t want him to be able to recognize me later or . . .”);

see also Statements of Kevan Baker, Julie Arusaga, Robert Stange, and Lt. McConley, quoted infra notes 75–80, 85 (describing other witnesses’ fear and reluctance to go near the suspect).

76.

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 45 (responding to question about what went through his mind when McConley came up and asked him to view the suspect: “what went through my mind was what the one lady witness said, she said—first thing she said, ‘No, I don’t want to see him.’”).

77.

See 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 63−64 (Arsuaga refused to go over and look at the person in the vehicle, because “I didn’t know if he would get out of it” later and come after them; “I had my doubts about the whole situation”);

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 95−96 (“I was very upset and nervous.”);

Steven Schiwetz, Prosecutor in DeLuna Trial, Opening Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 12−13 (John Arsuaga “will testify that he refused to go look at the man in the car and he was scared”);

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 247−48 (testifying that he refused the officer’s request that he view the suspect in the squad car because “I was scared, I guess. I didn’t want him to be able to recognize me later.”);

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 356 (testifying that she and her husband John declined to take part in the show-up identification because they “thought it might be dangerous”);

Steven Schiwetz, Prosecutor in DeLuna Trial, Closing Statement, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 531 (“When they bring the man back 30 minutes later, he’s [John Arsuaga’s] scared, he doesn’t want to go look at him, ‘I’m not going to do it.’”);

Julie Arsuaga, Aff. (Feb. 13, 2005) at 2 (“A policeman came up . . . and said they had a man they found under a car and that they wanted us to see whether it was the same guy we saw running. We said we preferred not to do that. We felt uncomfortable about it.”).

78.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:38:09–15:40:00, 15:48:40–15:49:16 (“Pete [Gonzales] made the comment that he [the witness who saw Wanda being attacked] was in the lines of one scared individual. . . . And one of his points was he just wanted to get his 10 dollars [of gas] and get on his way. For some reason now, that struck me, that he wanted to get his gas so he could get away. He didn’t really want to be involved in this whole thing.”; describing information Stange heard in the parking lot about witness Kevan Baker: “[he felt] like he was lucky that he wasn’t killed just for being there.”).

79.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 34:30–36:05 (“[T]here was a write-up in the paper, you know, lady was stabbed and died later on that night. And I remember cutting the clippings out and sending them to my family up here. Cause this is like, ‘thank god I didn’t die.’);

see also Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:44:55–15:45:56, 15:48:40–15:49:16, 16:11:48–16:12:00, 16:12:10–16:12:55 (“[W]hen [Baker] was summoned over to the car to identify the person that, he was extremely scared and he did not want—the witness did not want to go to the car to identify him . . . and be that close to that individual, and I believe the police had to do some coaxing to get him over to the car. . . .”; recalling that Baker “was terrified to go identify this person”; “But I remember [Baker] as being the witness. He was standing at the front of the car, and he didn’t want to get any closer. He was terrified, he just did not want to be involved. . . .”; “I believe they had to coax him [Baker] to do that because they needed that identification to be able to move him away from the scene.”).

80.

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 51 (recalling that Aguirre “was kind of hesitant” because “he didn’t want the suspect to see him”).

81.

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 50−51 (recalling that Aguirre “was kind of hesitant so Capt. Glorfieid and I were there, we kind of shielded him and let him take a look at the suspect”).

See also Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:44:55−15:45:56, 15:48:40−15:49:16, 16:11:48−16:12:00, 16:12:10−16:12:55 (“[W]hen [Baker] was summoned over to the car to identify the person that, he was extremely scared and he did not want—the witness did not want to go to the car to identify him . . . and be that close to that individual, and I believe the police had to do some coaxing to get him over to the car . . . .”; Baker “was terrified to go identify this person”; “But I remember [Baker] as being the witness. He was standing at the front of the car, and he didn’t want to get any closer. He was terrified. He just did not want to be involved. . . . I believe they had to coax him to do that because they needed that identification to be able to move him away from the scene.”).

82.

See supra note 81.

83.

For accounts of Baker’s identification, see 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 44;

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 49−51;

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 285−86;

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 291−93;

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14−4:00, 24:54−32:02, 41:45−45:37;

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:48:40–15:49:16,; 16:11:48–16:12:00.

84.

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 131−32 (testifying that Lieutenant McConley and Captain Glorfield said they are “going to bring people over to . . . look at him [the suspect] and see if he was the person they had seen”; “what they did is they brought over one person and they surround[ed] him by police officers, when they brought him to the car, they took the flashlights and they shine them in the suspect’s eyes so he couldn’t see the witness, just in case, so there would be no revenge kind of thing, then they took that witness back and then they came back with another witness and they showed the suspect again.”; stating that the whole process took “less than five minutes”);

see Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 2 (“I read the suspect the Miranda Warning at 8:49 p.m. as I was transporting him back to the crime scene . . . Captain Glorfield and Lt. McConley then escorted a witness to the unit [i.e., the police car] and the witness observed the suspect. They then left and returned with another witness. They again left and Lt. McConley returned and advised me to arrest the subject and book him at the city jail.”);

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 44 (“[T]he officer I do remember did say, ‘Well, keep the light in his eyes so there won’t be any encounter,’ seeing or whatever.”);

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, 56 (recalling that Aguirre “was kind of hesitant so Capt. Glorfield and I were there, we kind of shielded him and let him take a look at the suspect also”);

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 109−10 (testifying that he “witnessed” the identifications from next to “the front seat of my patrol car” and “the witnesses were surrounded by the police officers” who “were shining—other officers were shining flashlights in his face so that he couldn’t see the witnesses”);

George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 230, 234 (“They had flashlights on him and they told me if I had seen him before and I identified him as the guy I had seen earlier”);

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 15:47:30−15:48:00 (“Seems to me that there was three or four flashlights held to help illuminate the face of this individual.”);

see also Crime Scene Photograph 25500010, Corpus Christi Police Dep’t (Feb. 4, 1983) (showing officers at gas station with flashlights);

Crime Scene Photograph 25500022, Corpus Christi Police Dep’t (Feb. 4, 1983) (same).

85.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:48:40–15:49:16; 16:11:48–16:12:00 (“[Baker] was not a willing—He was terrified to go identify this person.”; “He was standing at the front of the car, and he didn’t want to get any closer. He was terrified, he just did not want to be involved.”).

86.

See George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 229 (“[T]hey had him standing up and they had flashlights to him . . . .”);

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 29−30, 44 (police had suspect “stand outside the patrol car”);

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 49−50 (“[W]e got him out of the car and stood him up . . . .”);

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 285 (“Q. They stood him up? A. Yes, sir.”);

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 291−93 (stating that police “took him [the suspect] out of the car”);

see also 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, 146−47 (describing DeLuna as not wearing any socks or shoes).

87.

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 131−32 (assenting to lawyer’s characterization that, during the identifications, the suspect “was in the back seat of the car and somebody was flashing the light in his eyes”; and testifying that he doesn’t remember anyone taking DeLuna out of the car and that the “witnesses looked at the man . . . in the back seat”).

88.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:46:55–15:47:22, 15:48:00–15:48:30; 15:48:40–15:49:16;

see also Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 16:12:10–16:12:55.

After struggling himself to get a good look at the suspect in the backseat, Stange remembers thinking that, without the flashlights, the poor parking lot lighting would not have allowed a sufficient view of the man’s face inside the car to allow an identification. See Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005) at 15:47:30–15:48:00, 16:09:47–16:11:48 (reporting Stange’s belief that police used flashlights “to help illuminate the face of this individual” because “the lighting at our location at that time was certainly not what it is today, so they would have needed more [light]”; “the light wasn’t sufficient enough to really see him”).

89.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 2:14–3:00, 3:00–4:00, 30:00–30:58 (recalling that when he (Baker) observed the suspect, he (the suspect) was “in the back seat of a car without a shirt on”; “[in the] back of the police car”; “in the back of the car”);

see Julie Arsuaga, Aff. (Feb. 13, 2005) at 2 (“The police shined a light into the car with the suspect” so Aguirre and Baker could “attempt an identification”).

90.

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 44 (“I looked over a police officer’s shoulder instead of full view or whatever.”);

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 286 (“I was standing behind the officer that led me over there, I was looking over his shoulder at the gentleman. I suppose four feet, five feet” away.);

See also 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 50−51 (noting that when one of the witnesses “was kind of hesitant . . . Capt. Glorfield and I were there, [and] we kind of shielded him and let him take a look at the suspect . . . .”);

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 109 (testifying that he “witnessed” the identifications from next to “the front seat of my patrol car” and that “the witnesses were surrounded by the police officers”);

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 131−32 (recalling that McConley and Glorfield said they were “going to bring people over to [Schauer’s squad car] to . . . look at [the suspect] and see if he was the person they had seen”; “what they did is they brought over one person and they surrounded them by police officers, when they brought him to the car . . . .”).

91.

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 44 (testifying that he “walked over” and an officer with him said, “‘Well, keep the light in his eyes so there won’t be any encounter,’ seeing or whatever . . . .”).

92.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 3:00–4:00, 30:00–30:58 (“[The suspect] looked ‘distraught,’ like ‘I’m in the back of the police car, I’m fucked’—one of those situations.”; “He looked dejected like, whether they are innocent or guilty, you know, ‘I’m fucked.’”).

93.

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 8:59–10:07, 43:58–45:10 (“[W]hen he [the suspect] came back in the police car he had no shirt on, so it had to be all facial recognition.”; “‘This is a human being’s life’—that’s kinda the way I thought [at the time of the identification]. . . .”);

see also Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 40:00–41:45 (“Because, you know, no shirt. So that lost something recognizable at that point. So I had to focus on [his face].”).

94.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 0:02–1:05:

I looked up [after he realized no gas was coming out of the nozzle] and I seen this Hispanic gentleman pulling on the girl’s hair. Basically, I saw it and I thought, “oh fuck.” I don’t know, to me it seemed that the right thing to do was go walk towards the door. I walked to the door and he met me face to face. [He] came out the door. Threw her down. Come out. We met face to face. The man said, “I got a gun.” We were basically about four feet apart. He said, “I got a gun.”

See also 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 28 (“Q. Okay and how long did you actually converse with him [the suspect]? A. I didn’t say anything, it was just a matter of that one comment and—Q. What did he say? A. ‘Don’t mess with me. I’ve got a gun.’ And I just stood there looking him in the eye and we kind of stood there for another two seconds and he took off.”);

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 271–72 (“Q. How long were y’all actually standing there face to face like that? A. Then he made the comment, ‘Don’t mess with me,’ and I just kind of looked him in the eye and he looked me in the eye and a couple seconds went by and he took off.”).

95.

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 283 (answering question about the details of his encounter with the attacker at the doorway, Baker said he couldn’t say for sure because “there was other more important things to worry about. . . .”);

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 11:09–12:00, 28:00–29:08, 41:45–43:10 (stating that when he stood eye to eye with the man outside the store, “I was on 110 hype; I was watching the gentleman’s eyes to see what was going to happen: he had already told me ‘gun’. . . .; [M]y main thing was eye to eye contact to make sure he didn’t use the gun on me. . . .”; all Baker had to go on was “facial features, basically eye-to-eye contact” because when he saw the man, “I was waiting for a gun to come out, or knife to come out. . . . I didn’t really—I’m not trained that way. I didn’t really focus on, ‘he’s got long sideburns,’ you know—you know what I am trying to say?”).

96.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 3:00–4:00 (“[H]e had his shirt off. Of course, Hispanic, dark hair, dark complexion”).

97.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 28:00–29:08 (“Basically, in the back of my head, I was like, ‘ok,’ I was like ‘it, ok, might be him; it might be not.’ That’s why I’m still thinking I’m like 70 percent sure, you know.”).

98.

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 45 (answering question about how long he looked at the suspect: “Not very long. It didn’t take very long, probably five, ten seconds, you know, fifteen at most.”).

99.

See Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (“I positively identified him as the same man I seen fighting with the lady inside the Shamrock . . ., however, now he did not have on a shirt.”);

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 29−31;

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 278−79;

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 49 (“I took [Baker] over there and the suspect was sitting in the back of the police car. One of the officers shined a light kind of on his face . . . and [Baker] said, ‘That’s the guy that robbed the place.’”).

100.

Transcribed Videotape Interview with Robert Stange, Shamrock Gas Station Manager, in Fredericksburg, Tex. (Feb. 24, 2005), at 16:12:10–16:12:55 (“And I believe they had to coax [Baker] to do that [look at DeLuna] because they needed that identification to be able to move him away from the scene.”).

101.

See George Aguirre, Witness to Events Outside Shamrock Gas Station, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (stating that, after police took him over to the squad car, “I did positively identify that man as the same one I seen just a short while before . . . having a knife; however now he did not have a shirt on.”);

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 20−22;

George Aguirre, Witness to Events Outside Shamrock Gas Station, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 229−30, 234, 239 (“They had flashlights on him and they told me if I had seen him before and I identified him as the guy I had seen earlier”; Aguirre is “sure the man you saw there that the police showed to you was the same man you had seen earlier”);

see also 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 50−51 (testifying that he took Baker “back to the approximately area that I had first taken him from to show the man to him” and then brought Aguirre over to Schauer’s police car; Aguirre “was kind of hesitant so Capt. Glorfield and I were there, we kind of shielded him and let him take a look at the suspect also”; Aguirre “didn’t want the suspect to see him”);

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 109−10;

Eddie McConley, Corpus Christi Police Lieutenant, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 18, 1983) at 291−93;

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 131−32;

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, http://www.chicagotribune.com/news/chi-tx-1-story,0,653915.story?page=4 (“They handcuffed [DeLuna], put him in the rear of a squad car and drove him to the Sigmor. Aguirre and Baker separately were led to the car, where an officer shone a flashlight into De Luna’s face. Both men identified him as the person they had seen at the station.”).

102.

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Pretrial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. June 20, 1983) at 79 (“Q. And did you, pursuant to your work out there, have occasion, to show a photo lineup to a couple of different witnesses? A. Yes I did sir. Q. Did you show a photo lineup to John Arsuaga? A. Yes, I did sir.”);

see 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 65–67 (“Q. Okay. And were you able to identify a person [in the six-photograph lineup] as being the person you saw running along there? A. Yes, I was. . . . Q. Do you see in the courtroom today the man you saw trotting across the parking lot that night? A. Yes, I do. Q. Could you point him out to the Court? A. (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 83–84, 89–90:

Q. Okay. The photos you saw on that photo line-up was he one of the ones you saw?

A. . . . I did not want to say which one I thought it was, but after, you know, I got—after we were done with everything that evening, I asked my husband, I said, ‘Was it picture number 5?’ And he said yes, that was the one he said it was. And, you know, that was, you know, just how I knew that I had—had really seen what I had, you know, the person. . . .

Q. You weren’t able to positively identify anybody were you?

A. Well, I—there was one that I thought looked like the person that I had seen, but I didn’t—you know, I didn’t want to say something about, you know, somebody where it might not be true. I was not absolutely 100 percent positive.

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 250 (“Q. Were you able to pick out one of the [six] photographs [as the man you saw running the night of Wanda’s murder]? A. Yes, I was. Q. And whose photograph was it? A. Carlos De Luna’s. . . . Q. Do you see that man in the courtroom today? A. Yes, I do. Q. Could you point him out for the Jury? A. Third over from the left. Mr. Schiwetz. Could the record reflect the Defendant is sitting third over from the left, Your Honor? The Court [affirms].”);

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 352–53 (“Q. Have you seen that person [the jogger] since then? A. Yes. Q. Where? A. Here. Q. Do you see him in the courtroom today? A. Yes, I do. Q. Would you point him out for the Jury? A. He’s sitting right there (indicating). Q. Okay. You need to speak up. A. He’s sitting right there (indicating). A. What’s he wearing? A. A jacket and a striped tie. . . . Mr. Schiwetz: Your Honor, can the record reflect that she identified the Defendant? The Court: All right.”).

103.

Kevan Baker, Eyewitness to Attack on Wanda Lopez, Statement to Corpus Christi Police Dep’t (Feb. 4, 1983) at 1 (testifying that the man who assaulted the store clerk and ran out of the store “had on what looked like a flannel shirt with some red in it”; later, when they brought someone to the gas station in the backseat of a squad car, “I positively identified him as the same man I seen fighting with the lady inside the Shamrock . . . however, now he did not have on a shirt.”).

See also 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 28−30, 39−42 (testifying that, when asked by Officer Mejia to say what the man who ran out of the store looked like, “I described a shirt that had some red in it”; “I felt that it was something with red in it, and I assume something long-sleeved that possibly could be a flannel shirt”; the man police brought to the gas station in the back of the patrol car was different because of his “lack of clothing”; he was not wearing a shirt);

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 265−78, 281, 286 (shirt was “something red with flannel or something flannel with red in it”; the man in the police car had no shirt);

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 68−69 (noting that, when he arrived at scene, Baker told him the suspect was male, Hispanic, 24–25 years old, 5’ 7” to 5’9, wearing a “gray type of shirt, possibly a sweatshirt type of shirt”, after which Baker added “flannel type of shirt, that also being light-colored”).

104.

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 278−79:

Q. Was there anything different about this person when you saw him the second time [when he identified a suspect that police had brought to the gas station] from the time you saw him the first time [as the attacker exited the store]?

A. Yes, sir, he had . . . scratches on him . . . .

Q. Does the man, Mr. De Luna, look any different today than the way you saw him that night?

A. Same facial features, basically; less scars, scratches on his face. [When Baker] initially identified him, he had a few scratches on his face.”

See also Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 29:08–30:00, 41:45–43:10 (“I’m thinking he’s scarred up, maybe, or maybe a few bloods . . . . I kinda remember that.”; “I noticed there was a little blood . . . .”).

105.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 29:08–30:00.

106.

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.”).

107.

See Comparison of Carlos DeLuna Photos Documenting Bruised Face at Time of Booking;

infra Figure 6 (comparing photographs of DeLuna shortly after his arrest and a few months later).

108.

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?

A. No.

Q. I just showed it to you now, but I’ve never showed that picture to you before?

A. No.

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.”).

109.

Transcribed Videotape Interview with Rose Rhoton, Sister of Carlos DeLuna, in Houston, Tex. (Feb. 26, 2005) at 21:07:52.

110.

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.

111.

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 22.

112.

For the first discrepancy Baker mentioned, 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 279 (“Q. (By Mr. Schiwetz) Does the man, Mr. De Luna, look any different today than the way you saw him that night? A. Same facial features, basically; less scars, scratches on his face, after I initially identified him, he had a few scratches on his face; and, of course, he’s clean shaven.”);

supra notes 104, 108.

113.

See 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 41−42 (“I would say the gentleman on your left looks very much like a lawyer or a doctor looks at the moment. That night I saw him I would say he had been someone who had been on the street and was very hungry. Q. Okay. Would you describe in these words the man that you saw on the 4th of February as maybe a transient? A. Yes.”);

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 286 (“Q. That person that you had seen earlier at the station, would you describe him as a—looking like a transient? A. Yes, sir, I would. Q. . . . Well, what is a transient to you? A. To me a transient is somebody unshaven, I mentioned looking hungry, clothes weren’t all, you know, really pressed or super neat and clean.”).

114.

See 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 41–42;

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 286.

115.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 03:00–4:00, 24:54–26:08, 26:08–26:57, 43:10–43:58 (“Q. [H]ow certain were you on a scale of 100%? A. Probably 70%. It wasn’t 50–50. It was more. We looked at each other about that long—[indicating by pausing about a second] or a little longer. Q. So, the night of the incident, February in ’83, you were 70% sure that was the guy that came out of the store. A. Yes.”; “A. [O]ne of the officers came up to me and asked me is this the gentleman in the back seat of the car, and like I said, I was about 70 percent positive. . . . Q. So on a scale of 100%, you were 70% positive that the person that they brought back to you in the car was the same person who ran out the door? A. Right, right, yes . . . .”; “Q. Ok, 70 percent is not a hundred percent, right? A. Right. It’s not.”; “I’m 70% sure.”).

116.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 43:58–45:10 (“I couldn’t say, ‘no that’s not him,’ but at the same time I’m going, ‘god that looks like him, you know, it really does.’ But then again it goes back to, I’m a white guy. Is this white guy, to you, which one of these 5 blond short guys is it?”).

We characterize Baker as “short” here in view of his trial testimony that his height is 5’6”. 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 273.

117.

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 34:30–36:05, 38:33–39:08, 39:08–39:46 (“Q. What about someone named Hernandez? Carlos Hernandez, does that name ring a bell? A. Oh no. ‘Julio’ (laughs). I hate to say that, I’m not prejudiced by any means.”; “Q. I asked if you knew Carlos DeLuna or anything about him? A. I don’t remember any Hispanic names.”; “Trying to think of an older Hispanic guy, [who] worked at the car dealership [with me]. His name was Frank, and he was in his seventies at that point. . . . I’m not prejudice[d] but it’s like ‘Julio’ again. I just don’t remember Hispanic names real well.”).

118.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 43:58–45:37 (“A. But then again it goes back to, I’m a white guy. Is this white guy, to you, which one of these 5 blond short guys is it? Q. You’re talking about identifying someone cross cultures, too, makes it difficult? A. Right, right. It really does. I’ve been—I’ve traveled enough—it’s tough you know to identify cross cultures.”).

119.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 13:55–14:56 (“Q. Do you remember about how old this gentleman was, the fellow who ran out of the store? A. Hispanic again. It’s like, how old are you? I’m gonna guess 35. Q. Thank you. I’m 41. A. I’m 54 personally; it’s something with other nationalities; I would guess young 30’s probably maybe late 20’s.”).

120.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004).

121.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 41:45–43:10; 45:10–45:37 (“I was trying to be positive, not burn somebody, you know, because I wouldn’t want that to happen to me either. So I tried to make an adult judgment”; it’s tough you know to identify cross cultures. I didn’t wanna be, I didn’t wanna screw anybody. But at the same time I tried to make an effort to recognize the things I did see, and try to connect the two together.”).

122.

Steve Mills & Maurice Possley, The Secret that Wasn’t: Violent Felon Bragged that He Was Real Killer, Chi. Trib., June 27, 2006, available at http://articles.chicagotribune.com/2006-06-27/news/0606270137_1_gas-station-stabbed-killing/2.

123.

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004), at 26:57–28:00, 43:10–45:10 (“The only thing that I can actually say that—that the police did, that might have tinged my—not tinged, but maybe tried to direct me that this is the guy or something—was right there, was ‘we found him a couple blocks north.’”; “the girl had already been transported away [in the ambulance] and we were still trying to sort it out, [and] here comes a cop: ‘we found him. Is this the gentleman? He was hiding underneath the car.’”; “they said, ‘we found this guy a couple blocks north, up here underneath a car.’ And that’s probably the only prompting . . . .”).

124.

See Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004), at 26:57–28:00, 43:10–45:10 (“The only thing that I can actually say that—that the police did, that might have tinged my—not tinged, but maybe tried to direct me that this is the guy or something—was right there, was ‘we found him a couple blocks north.’”; “the girl had already been transported away [in the ambulance] and we were still trying to sort it out, [and] here comes a cop: ‘we found him. Is this the gentleman? He was hiding underneath the car.’”; “they said, ‘we found this guy a couple blocks north, up here underneath a car.’ And that’s probably the only prompting . . . .”).

125.

Steve Mills & Maurice Possley, The Secret that Wasn’t: Violent Felon Bragged that He Was Real Killer, Chi. Trib., June 27, 2006, available at http://articles.chicagotribune.com/2006-06-27/news/0606270137_1_gas-station-stabbed-killing/2.

126.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 43:10–45:10.

127.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 43:10–45:10 (“A. [T]hey said, ‘we found this guy a couple blocks north, up here underneath a car,’— and that’s probably the only prompting, whether—Q. Did that comment help you in your identification? A. . . . That’s probably why I’m 70% sure. It might have had an influence. Q. If they had not said that, would you be less than 70% sure? A. Yes [emphatic, here]. Q. About where would you say you’d be if they hadn’t said that? A. It would be a 50–50 I think.”);

see also Steve Mills & Maurice Possley, The Secret that Wasn’t: Violent Felon Bragged that He Was Real Killer, Chi. Trib., June 27, 2006, available at http://articles.chicagotribune.com/2006-06-27/news/0606270137_1_gas-station-stabbed-killing/2 (“Among the [Tribune’s] findings: The only witness who came face to face with the killer at the station after Lopez was stabbed now says he was not positive of his identification of [DeLuna]. He identified [DeLuna], he said, after police told him they had arrested [DeLuna] hiding under a truck near the scene of the attack—information that eased his uncertainty.”).

128.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 41:45–43:10.

129.

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 131−32 (testifying that the whole process took “less than five minutes.”).

130.

Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Feb. 8, 1983) at 2 (“The suspect said ‘Hey, man, you take care of me and I’ll take care of you.’ He said this over and over and also kept asking to speak with a sergeant. . . . Before I transported him to the city jail, the suspect also said, ‘I didn’t do it, but I know who did,’ and again and again he said ‘I’ll help you if you help me.’”);

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 109–115 (“[DeLuna] repeatedly asked to talk to a sergeant. He kept saying, ‘Hey, man, you take care of me and I’ll take care of you.’ He kept saying that quite often. And at least one time he said, ‘I didn’t do it, but I know who did do it. I know who did do it.’ And also he kept saying, ‘I’ll help you if you’ll help me.’ . . . Kept saying those things over and over.”);

see also Handwritten Note on Manila File Folder in District Attorney’s File (“[Officer Robert H.] Varagara heard [defendant DeLuna] say you help me etc.”);

James S. Liebman’s Notes on Interview with Robert Veregara, Corpus Christi Police Officer (Nov. 2, 2005) at 1 (“I showed him the spelling that was on the note in the DA’s folder we saw—“Veregara”—and he said it was him.”).

131.

Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Feb. 8, 1983) at 2 (“The suspect said ‘Hey, man, you take care of me and I’ll take care of you.’ He said this over and over and also kept asking to speak with a sergeant. . . . Before I transported him to the city jail, the suspect also said, “I didn’t do it, but I know who did,’ and again and again he said ‘I’ll help you if you help me.’”);

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 110–115 (“[DeLuna] repeatedly asked to talk to a sergeant. He kept saying, ‘Hey, man, you take care of me and I’ll take care of you.’ He kept saying that quite often. And at least one time he said, ‘I didn’t do it, but I know who did do it. I know who did do it.’ And also he kept saying, ‘I’ll help you if you’ll help me.’ . . . Kept saying those things over and over.”; at the police station, DeLuna “was very talkative again, he kept trying to make—kept trying to make deals.”).

132.

Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Feb. 8, 1983), at 3:

The suspect originally refused to answer arrest sheet questions during transport . . . however, I did answer his questions and he finally cooperated and andwered [sic] all arrest sheet questions. I had the wad of [cash] bills [found in DeLuna’s pocket] rolled up and lying on the table hwere [sic] the suspect could see them. I pointed to them and asked, “How much money did you have there?” . . . . He then replied, “About 110, 115.” . . . I also asked him what he was doing in that area when I arrested him. He replied that he was buying beer at a location near . . . Ayers [Ayers St. is located just west of Wolfy’s, which was just west of the Sigmor gas station] and that the police had chased him for no reason. During transport I had asked him if he had been drinking, and the suspect replied that he had “[2] beers.”

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 113–15 (testifying that he [Schauer] “ask[ed] him [Carlos DeLuna] what he was doing in that area,” to which CDL responded that “he had been out there with some friends at a—at a—he had bought some beer or something somewhere near K-Mart.”);

see also Tamara Theiss’s Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 2–3 (reporting lead detective’s recollection that “I didn’t really have contact with DeLuna [after he was arrested]. First I was too busy working on the crime scene, then later at the Sheriff’s Department, DeLuna was mirandized and wouldn’t talk to anyone. That’s why I didn’t interrogate him.”).

133.

Transcribed Audiotape Interview with Kevan Baker, Eyewitness to Attack on Wanda Lopez, in Jackson, Mich. (Nov. 22, 2004) at 6:55–8:02 (“[L]ater that night, before I even got out of the Corpus Christi Police Department, we had already got the report that she died”);

see also Wanda Lopez Medical Chart, Memorial Medical Center (Feb. 4, 1983) (reporting that Wanda Lopez was pronounced dead at 9:55 p.m.);

Steven Fowler, Corpus Christi Police Sergeant, Supplementary Report (Feb. 4, 1983) at 3 (stating that he arrived at the hospital at 9:52 p.m. and was informed that the victim had expired);

Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases, Supplementary Report (Feb. 5, 1983) (“[A]t the time she [Wanda Lopez] left the scene [in an ambulance, she] was in critical condition. I learned later, sometime around 10:00 p.m. that the woman had died at MMC sometime around 9:30 [the typed ‘9:30’ is edited in ink to say ‘9:50 p.m.’].”).

Compare Corpus Christi Police Dep’t, Ambulance Service Dispatch Report No. 00980 (Feb. 4, 1983) at 2 (stating that Wanda Lopez was “DOA” as of “20:44:30”)

with Dorothy Gomez, Attending Nurse at Hospital Where Wanda Lopez Died, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 15, 1983) at 187 (stating that physicians at the hospital worked on Lopez for a time before declaring her dead at 9:55).

134.

Mark Schauer, Corpus Christi Police Officer, Supplementary Police Report (Undated) at 2 (noting that, after escorting Aguirre back to the ice machine area, “Lt. McConley returned and advised me to arrest the subject and book him at the city jail.”).