HRLR
Los Tocayos Carlos
Chapter 9
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All Chapter 9 Footnotes

Reached years later in Florida where she was working as a real estate agent, Olivia Escobedo said she didn't run a field investigation of Carlos Hernandez or question him about the stabbing of Wanda Lopez because his name never came up in the case.106 She didn't know that the investigators had found Hernandez's rap sheet in her old files on the matter.107

Escobedo acknowledged that she knew Carlos Hernandez from the Dahlia Sauceda affair.108 If he was under suspicion for killing Lopez, she said she definitely would have followed up. "Wanda Lopez reminded me of myself," the former detective explained: "a single mother, on her own, working a night shift to make ends meet."109 That's why, Escobedo claimed, she investigated the Lopez killing as thoroughly as possible and ran down every piece of information she had.

She also said flatly that if Hernandez's name had come up in the Lopez investigation, prosecutor "Ken [Botary] would have made sure that I followed that lead."110

Eddie Garza's former partner Paul Rivera also had no recollection, years later, of Hernandez's name coming up in connection with the Lopez killing.111 Rivera, who by then had switched over to the county sheriff's office, took an interest in the private investigators' reexamination of the case. He checked in with them when he saw them at the County building looking for records and talked to witnesses they interviewed.112

One day he summoned two members of the investigating team to his office to meet another sheriff's department employee named Elmer Cox. Cox said he'd once been detailed to transport Carlos DeLuna from one facility to another in the early 1980s. He said DeLuna blurted out that "'I've been stabbed 100 times and I only stabbed that bitch one time and she died.'"113

Cox recalled turning to his transport partner, David Petrusaitis, and asking, "'Did we just hear a confession?'"114

During the period Cox described, DeLuna was deep in court proceedings and adamant that he was innocent. Any hint of a confession would have been a momentous event, as well as a coup for the cop who got it.115 Yet no word of any such confession was ever mentioned in court or in the press. Additionally, a close physical examination by corrections personnel at the time revealed no knife-wound scars on DeLuna,116 and other details Cox gave were inconsistent with the known facts.117

Investigators tracked down David Petrusaitis, then a deputy sheriff in Cleburne, south of Fort Worth. Petrusaitis made a notarized statement denying Cox's claim. He was sure he'd never been involved in transporting a capital prisoner like DeLuna.118

"If I had been and I had overheard a res gestae admission from an inmate to a murder during the course of the transport," he added, "I would have written down exactly what was said and documented it with a date and time and filed a follow up report with the Sheriff's Office."119 He also would have made sure the report was sent to the prosecuting attorneys in Corpus. "This was then and still is standard police procedure."120

Inquiry and open-records act requests with the Nueces County sheriff's department and prosecutor's office turned up no sign of any such report.

Rivera's effort fizzled at that point. When news reporters spoke to him afterwards about the case, he took issue with things his former partner Eddie Garza had told them, but he evidently didn't mention Elmer Cox.121

* * * * *

At the time of DeLuna's January 21, 1983 arrest for drunk and disorderly conduct at the Casino Club, when he had made a coarse remark about the shooting of Sergeant Rick Garcia,122 and after Carlos Hernandez's April 2, 1983 arrest behind the 7-Eleven on Brownlee and Mary,123 the police took mug shots of both men in the same three-way mirror at the police department.

Tamara Theiss's Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27, 2005) at 1 (noting Escobedo's place of residence at the time of the interview as Lakeland, Florida and the address and location of the interview as "REMAX Paramount Properties real estate office");

Tamara Theiss's Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27. 2005) at 3:

I don't remember Carlos Hernandez being involved in the Lopez case at all. I would have remembered if he was at all under suspicion, because we were extremely thorough investigating the case and preparing our prosecution of Carlos DeLuna. I remember feeling very emotional and personally invested in that case because the victim, Wanda Lopez reminded me of myself, a single mother, on her own, working a night shift to make ends meet. Because of my attachment to the case, I recall making sure that we ran down every piece of information we had, to make sure DeLuna would be convicted. [Assistant District Attorney] Ken Botary was just as meticulous, and I know for a fact that if Ken knew of Carlos Hernandez being involved, or if Hernandez's name had come up in the investigation, Ken would have made sure that I followed that lead.

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://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory:

[Eddie] Garza says he passed along the information [he heard from his informants about Hernandez's admissions that he, not DeLuna, killed Wanda Lopez] to the detective leading the investigation, Olivia Escobedo. Escobedo, now a real estate agent and police consultant in Florida, said she remembers no such tips.

"I don't recall anything about a Carlos Hernandez," she said in a recent interview.

"I always followed every lead," added Escobedo, who primarily had investigated sex crimes and handled the De Luna case alone. "I went down rabbit trails when I didn't have to. I followed everything I could think of."

For a discussion of the law enforcement files containing Carlos Hernandez's rap sheet, showing that Escobedo passed them on to the prosecutors on May 2, 1983, see supra notes 93–103 and accompanying text. On the timing of the private investigators' discovery of those files, see infra Chapter 11, notes 260–263 and accompanying text.

Tamara Theiss's Notes on Interview with Olivia Escobedo, Corpus Christi Police Detective in Wanda Lopez and Dahlia Sauceda Cases (Feb. 27, 2005) at 1 ("I remember that Carlos Hernandez was also questioned [in the Dahlia Sauceda case], along with [Pedro] Olivarez and [Jesse] Garza, and that all three men were given polygraph exams. Mr. Garza was the one who was prosecuted because Mr. Olivarez was an eyewitness and said that he had seen Garza kill Ms. Sauceda. I left [Corpus Christi] in 1984 or 1985, before Mr. Carlos Hernandez was charged with Ms. Sauceda's murder.").

Tamara Theiss's Notes on Interview with Olivia Escobedo, Lead Detective on the Dahlia Sauceda and Wanda Lopez Murders (Feb. 27. 2005) at 3:

I don't remember Carlos Hernandez being involved in the Lopez case at all. I would have remembered if he was at all under suspicion, because we were extremely thorough investigating the case and preparing our prosecution of Carlos DeLuna. I remember feeling very emotional and personally invested in that case because the victim, Wanda Lopez reminded me of myself, a single mother, on her own, working a night shift to make ends meet. Because of my attachment to the case, I recall making sure that we ran down every piece of information we had, to make sure DeLuna would be convicted. Ken Botary was just as meticulous, and I know for a fact that if Ken knew of Carlos Hernandez being involved, or if Hernandez's name had come up in the investigation, Ken would have made sure that I followed that lead.

Tamara Theiss's Notes on Interview with Olivia Escobedo, Lead Detective on the Dahlia Sauceda and Wanda Lopez Murders (Feb. 27, 2005) at 3:

I don't remember Carlos Hernandez being involved in the Lopez case at all. I would have remembered if he was at all under suspicion, because we were extremely thorough investigating the case and preparing our prosecution of Carlos DeLuna. I remember feeling very emotional and personally invested in that case because the victim, Wanda Lopez reminded me of myself, a single mother, on her own, working a night shift to make ends meet. Because of my attachment to the case, I recall making sure that we ran down every piece of information we had, to make sure DeLuna would be convicted. Ken Botary was just as meticulous, and I know for a fact that if Ken knew of Carlos Hernandez being involved, or if Hernandez's name had come up in the investigation, Ken would have made sure that I followed that lead.

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://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory ("'I always followed every lead,' added Escobedo, who primarily had investigated sex crimes and handled the De Luna case alone. 'I went down rabbit trails when I didn't have to. I followed everything I could think of.'").

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://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory ("Garza's partner at the time, Paul Rivera, now a captain in the county sheriff's department, also said he doesn't remember the tips.").

See, e.g., James S. Liebman's Notes on Interview with Jon Kelly, Lawyer for Carlos Hernandez (Jan. 21, 2005) at 2 (discussing conversation with DeLuna prosecutor Steven Schiwetz in which Schiwetz described efforts by Paul Rivera to keep track of actions taken during the 2004 private reinvestigation of the DeLuna case and talk to witnesses who spoke to the investigators);

James S. Liebman's Notes on Peso Chavez's Interview with Gloria Sanchez, Girlfriend of Carlos Hernandez (July 22 and 26, 2004) at 1 ("According to Gloria, Paul Rivera recently called Gloria Sanchez [to tell her that the out-of-town investigators looking into the Carlos DeLuna case are] going to be making a movie."; also noting efforts by Rivera to find out what information the investigators had sought from Sanchez, including their interest in information Sanchez had brought to Rivera in 1979 linking Carlos Hernandez to the killing of Dahlia Sauceda");

James S. Liebman's Notes on Interview with Robert Veregara, Corpus Christi Police Officer (Nov. 2, 2005) at 1 (noting that Officer Veregara, who overheard statements by Carlos DeLuna on the night of his arrest for stabbing Wanda Lopez contending that he did not commit the crime and could help police identify the man who did, was reluctant to talk to the out-of-town investigators and repeatedly urged them to talk instead to Paul Rivera, though Rivera had no role in the case and was no longer employed by Veregara's employer, the Corpus Christi Police Department).

See Bruce Whitman & James S. Liebman's Notes on Interview with Paul Rivera, Corpus Christi Police Detective, and Elmer Cox, Nueces County Sheriff's Deputy (Aug. 25, 2004) at 1:

Years ago. David Petrusaidis (sic) and I. (DP [David Petrusaitis] became the sheriff in Rockport later). Early 1980s. Drive over. Not investigation; I was just curious. CDL [Carlos DeLuna]: "I been stabbed 100 times and I only stabbed that bitch 1 time and she died." [Occurred when enforcing] Bench warrant [to bring DeLuna] from Huntsville death row to Corpus; maybe for sentencing; early 1980s. . . . Then, he [DeLuna] let's slip the thing about "that bitch." I said to David (Petrusaitis), "Did we just hear a confession?"

See Bruce Whitman & James S. Liebman's Notes on Interview with Paul Rivera, Corpus Christi Police Detective, and Elmer Cox, Nueces County Sheriff's Deputy (Aug. 25, 2004) at 1.

See infra Chapters 15, notes 52–54 (describing the court proceedings in which DeLuna was involved during the "early 1980s" time frame provided by Cox).

Texas Dep't of Criminal Justice Prison Admission Record, Texas Dep't of Corrections Bureau of Records & Identification (July 26, 1983) (recording anatomical anomalies as part of routine admissions procedure for admitting prisoners to state prison, based on close examination for tattoos, scars, etc., and finding only "a tattoo CARLOS outsd upr rt f/arm . . . . Operscar rt sd abdm, [and] Burn scar outsd lft f/arm," but no other, e.g., knife, scars or wounds).

According to Cox, DeLuna confessed that he knew Carlos Hernandez from prison. Bruce Whitman & James S. Liebman's Notes on Interview with Paul Rivera, Corpus Christi Police Detective, and Elmer Cox, Nueces County Sheriff's Deputy (Aug. 25, 2004) at 1 ("We asked him [DeLuna] how he knew Hernandez. He knew Hernandez from prison").

As a law enforcement officer who claimed he was then transporting DeLuna from the state prison in Huntsville to the County jail in Corpus Christi, ("[b]ench warrant from Huntsville death row to Corpus"), Cox knows the difference between prison and jail, as did DeLuna from his stays in both. DeLuna and Hernandez never overlapped in prison at the same time, much less in the same one of the dozens of prison facilities in Texas. Bruce Whitman & James S. Liebman's Notes on Interview with Paul Rivera, Corpus Christi Police Detective, and Elmer Cox, Nueces County Sheriff's Deputy (Aug. 25, 2004) at 1;

see Carlos Hernandez and Carlos DeLuna Timeline 1951–1999 (listing no period during which DeLuna and Hernandez were simultaneously incarcerated at the same Texas prison, as opposed to the local jail in Corpus Christi); see also supra note 92. Cox claimed he asked DeLuna "how he had $ in his pocket [at the time of his arrest]. He didn't have an answer to that. [When he had] [n]o answer [to that question,] [t]hat's when I [k]new he was guilty." Bruce Whitman & James S. Liebman's Notes on Interview with Paul Rivera, Corpus Christi Police Detective, and Elmer Cox, Nueces County Sheriff's Deputy (Aug. 25, 2004) at 1.

One of the main points of DeLuna's own testimony and evidence at trial was that the money found on his person at the time of his arrest was pay he had received from his job on the Friday before the day of the Lopez killing as well as the Friday of the killing. See infra Chapter 13, notes 166–168 and accompanying text (discussing amount of wages received by Carlos DeLuna in the eight days leading up to his arrest on February 4, 1983, and the location where and time when he and coworkers cashed their checks). At his trial, DeLuna also submitted pay stubs to back up his testimony, which showed that his take-home pay over the preceding seven days was greater than the amount of cash in his pocket.Def's Ex. 38, 39. Trial Tr. Texas v. DeLuna, No. 83-CR0194-A (Nueces Cty., 28th Dist. Tex. July 20, 1983);

DeLuna thus consistently provided the explanation for the money in his pocket that Cox claimed DeLuna could not provide, the alleged absence of which was central to the conclusions Cox claimed he drew from the conversation. See also Wayne Waychoff, Employer of Carlos DeLuna, Trial Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 17, 1983) at 391–92:

Q. So approximately I—you don't have a copy of his paycheck there, but you— roughly he [Carlos DeLuna] would have been paid, what, a hundred thirty-five dollars [on Feb. 4, 1983]?

A. Yes, sir, I believe that's correct. . . .

Q. [W]ould your records reflect how many hours he had gotten paid for the previous pay period?

A. Yes, sir, they do.

Q. Okay. And approximately how much—what does that reflect?

A. On January the 28th, 1983, he received a check for seventy-one dollars and three cents, net pay.

Carlos DeLuna Feb. 4, 1983 Paycheck, Issued by Triarch Corporation (noting that DeLuna was paid $135.49 on Feb. 4, 1983 and that the check was cashed that day at the Mercantile National Bank in Corpus Christi, Texas).

Cox did not explain how he, a deputy sheriff, became immersed in the details of a murder case handled by the city police, not the county sheriff's office, and how he could conduct the point-by-point interrogation he describes. He claimed his questions were not intended as an "investigation" but that he was "just curious." Bruce Whitman & James S. Liebman's Notes on Interview with Paul Rivera, Corpus Christi Police Detective, and Elmer Cox, Nueces County Sheriff's Deputy (Aug. 25, 2004) at 1.

Cox did not explain his failure to report the sensational information he claims he heard to superiors, as sheriff's department procedures required. Cf. infra note 119–120 and accompanying text (documenting standard operating procedures requiring Cox to report the information he said he had received from DeLuna).

David Petrusaitis, Former Corpus Christi Sheriff's Deputy, Signed Notarized Statement (Mar. 3, 2005) at 1:

My name is David Petrusaitis and I am a Deputy Sheriff at the Johnson County Sheriff's Office where I have been employed for 3-yrs. I'm presently working in the Detective Crimes Against Property Division. In 1981 I was employed by the Nueces County Sheriffs Office and was assigned primarily to the patrol division and to the Nueces County Jail in 1982–1983 [strikethrough in original].

While working as a patrolman at the Nueces County Sheriffs Office I sometimes transported prisoners. This was not a common task but sometimes patrolmen were required to transport prisoners for various reasons. While at the Nueces County Sheriff's Office, I performed transports to and from different places with different officers. I never made a transport to or from TDC Hunstville Death Row with any officer at any time.

I knew of the Wanda Lopez killing in 1983 but I was never aware of the circumstances of the case other than Ms. Lopez was killed at the Diamond Shamrock gas station/quick mart store located at SPID. I did not know the details of the case, as it happened in the city of Corpus Christi and was handled by CCPD officers [not by the Sheriffs Office].

It is my understanding Deputy Elmer Cox, who was a Deputy and still is a Deputy with the Nueces County Sheriffs Office, has mentioned that I was present with him during a transport of inmate Carlos DeLuna from TDC Huntsville Death Row to Nueces County for a court hearing and that during the transport Carlos DeLuna admitted to stabbing the girl (Wanda Lopez) in the robbery. As I said before, I was never involved in a transport with a death row inmate from or to Hunstville while working at the Nueces County Sheriff's Office. If I had been and I had overheard a res gestae admission from an inmate to a murder during the course of the transport I would have written down exactly what was said and documented it with a date and time and filed a follow up report with the Sheriff's Office. I would also have made sure the follow up report was forwarded to the Nueces County Prosecuting Attorney. This was then and still is standard police procedure.

I swear and affirm under the laws of perjury of the State of Texas that the following declaration is true and accurate.

David Petrusaitis, Former Corpus Christi Sheriff's Deputy, Signed Notarized Statement (Mar. 3, 2005).

David Petrusaitis, Former Corpus Christi Sheriff's Deputy, Signed Notarized Statement (Mar. 3, 2005).

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://www.chicagotribune.com/services/newspaper/eedition/chi-tx-3-story,0,761635.htmlstory (discussing Paul Rivera's disagreement with aspects of Eddie Garza's recollections but making no mention of Rivera's or to Sgt. Elmer Cox or to Cox's claim that DeLuna had made admissions him and Petrusaitis).

See Carlos DeLuna Mirror Mugshot, Corpus Christi Police Dep't, (Jan. 21, 1983). The placard hung around DeLuna's neck gives his Corpus Christi Police Department identification number (98714), and the date of the photograph (1–21–83). See infra Figure 22.

See Carlos Hernandez Mirror Mug Shot 74204, Corpus Christi Police Dep't, (Apr. 4, 1983).

The placard hung around Hernandez's neck gives his number, 74204, and the date of the photograph: 4–04–83; infra Figure 22.

Chapter 9
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