1. p. 232 “It began…in front of the same jury.”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 2 (“On the 21st day of July, 1983, the above entitled and numbered cause came on for hearing before said Honorable Court, Wallace C. Moore, Judge presiding . . .”).

  2. p. 232 “Even if…spare the defendant’s life.”

    See Gary Goodpaster, Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299, 329–33 (1983) (describing guilt phase defenses and their effect on the penalty phase).

  3. p. 232 “‘Whimsical doubt,’ they call it.”

    See, e.g., Lockhart v. McCree, 476 U.S. 162, 181 (1986) (“[A]s several courts have observed, jurors who decide both guilt and penalty are likely to form residual doubts or ‘whimsical’ doubts . . . about the evidence so as to bend them to decide against the death penalty.”) (citation omitted); Elizabeth R. Jungman, Beyond All Doubt, 91 Geo. L.J. 1065, 1083 (2003) (claiming that “even when jurors are convinced of a defendant’s guilt ‘beyond a reasonable doubt,’ they may have some doubt remaining”); Jennifer R. Treadway, ‘Residual Doubt’ In Capital Sentencing: No Doubt It Is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215, 216 (1992) (arguing that residual doubt—the absent of certainty as to guilt—should be treated as a mitigating factor in capital sentencing proceedings).

  4. p. 233 “By emphasizing…sentencing trial began.”

    See supra Chapter 13, notes 253–284, 303–309 and accompanying text.

  5. p. 233 “Far worse…’the phantom Carlos Hernandez.’”

    See supra Chapter 11, notes 182–187, 275–281 and accompanying text; supra Chapter 12, notes 1–19 and accompanying text; supra Chapter 13, notes 190–231, 263–271, 277–284, 304–309 and accompanying text.

  6. p. 233 “The second stage…impose a death sentence.”

    See supra Chapter 11, notes 12–13, 173 and accompanying text.

  7. p. 234 “The witness…’good’ or ‘bad.’”

    Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3;

    Eddie Garza, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 4–5;

    Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 8;

    see Richard O. Lempert et al., A Modern Approach to Evidence: Text, Problems, Transcripts, and Cases 365–75 (4th ed. 2011) (discussing the use of evidence of a reputation for good or bad character).

  8. p. 234 “Each witness answered that it was ‘bad.’”

    Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 8;

    Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3;

    Eddie Garza, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 4–5.

  9. p. 234 “Garza’s network…Hispanic men in the city.”

    See supra Chapter 9, notes 2–9, 50–58 and accompanying text.

  10. p. 234 “Defense counsel…question on cross-examination.”

    Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 8 (“[by defense counsel] No questions.”);

    Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3 (“[by defense counsel] No questions.”);

    Eddie Garcia, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 5 (“[by defense counsel] No questions.”).

  11. p. 234 “They  called…Garcia from the state penitentiary.”

    Lucinda Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 11–15;

    Connie Campos, Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 16–21.

  12. p. 234 “…older than her fifty-four years…”

    See Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 21 (“[by prosecutor Schiwetz] She’s feeling a little dizzy.”);

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 27 (“Q. [by trial judge Wallace C. Moore] Do you want to excuse the witness? A. [by prosecutor Botary] Let me help you outside, Mrs. Garcia.”).

  13. p. 234 “…friend from the penitentiary, to join them.”

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 41:

    Q. Now, I want to direct your attention back to May the 14th—

    A. Yes, sir.

    Q. —of 1982, the day that Marcos came home from the penitentiary. Do you remember the get-together that your family had that day?

    A. Yes, sir.

    Q. Did you get to meet any of Marcos’ friends that day?

    A. No, sir, just one.

    Q. Who was that?

    A. Carlos De Luna.

    Q. And have you ever known him before?

    A. No, sir.

    Q. And how did you come to meet him that day?

    A. Because Marcos said that he was coming home, to treat him like his brother.

    Q. Did he actually introduce him to you?

    A. Yes, sir.

  14. p. 234 “Only days before…his convictions in Dallas.”

    See supra Chapter 5, notes 214–215 and accompanying text.

  15. p. 234 “He arrived…with the sleeves rolled up.”

    See, e.g., Connie Campos, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 18 (“He was wearing black pants and a long blue sleeve shirt, but he had it folded up so much (indicating).”);

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 36 (“He was wearing some black slacks, and a long sleeve blue shirt, light blue.”);

    .

  16. p. 234 “Garcia testified…DeLuna lying on top of her.”

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 42–44:

    Q. Now, I want to direct your attention—

    A. Yes.

    Q. —to later on that night, past midnight, into the next day, May 15th. When you laid down to go to sleep, who else was in the house that you know of?

    A. Just my grandson.

    Q. And what’s his name?

    A. Roel Garcia.

    Q. And how old is Roy [sic]?

    A. Two years.

    Q. And is it Roy or Raul, I’m sorry?

    A. Roel, R-o-e-l.

    Q. And he was two years old?

    A. Yes.

    Q. Now, when you laid down to go to sleep yourself, where did you lay down?

    A. In the bed, the front room.

    Q. Is that where your grandson was?

    A. Yes.

    Q. Did your grandson go to sleep?

    A. Yes. And I took him to his bed.

    Q. Then what did you do?

    A. I went to sleep.

    Q. And where did you go to sleep?

    A. In the front room, the bed where I was.

    Q. Now, were you wearing a nightgown then?

    A. No, sir.

    Q. You were wearing your regular street clothes?

    A. Yes.

    Q. And when you laid down, did you go to sleep immediately?

    A. No, sir.

    * * * * *

    Q. Did there ever come a point in time when you thought there was somebody else in the house?

    A. About twenty minutes later.

    Q. And what made you think there was somebody else in the house?

    A. Because I saw a shadow.

    Q. And who did you think that was?

    A. Marcos.

    Q. Marcos?

    A. Yes.

    Q. Your son?

    A. My son.

    Q. Did you do anything or say anything?

    A. Yes, I—I asked him, ‘Is that you, Marcos? . . . It was [t]hen this boy or whatever he is jump [sic] on top of the bed.

    Q. And what did he do to you?

    A. He put my—the pillow in my mouth, in my face.

    Q. And how long did he put the pillow in your face?

    A. Oh, I—I wouldn’t remember.

    Q. Okay, did you try and struggle?

    A. Yes, sir.

    Q. Okay. What else did he do?

    A. He said if I would start screaming or yelling, he would kill me.

    Q. Did he hurt any other part of your face?

    A. Well, I was all bruise [sic] up from my face.

    Q. Did the man hit you at all?

    A. My ribs.

    Q. Did he do any damage to your ribs?

    A. Three.

    Q. What did he do to those three ribs?

    A. They told me in the Memorial Hospital that there were three broken ribs.

    Q. Did that hurt a lot?

    A. It did.

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 45 (“Q. Did you recognize the man’s voice? A. Yes, sir. Q. Whose voice was it? A. Carlos De Luna.”).

  17. p. 234 “Threatening to kill her…kissed her.”

    See supra note 16.

  18. p. 234 “When she protested…breaking three ribs.”

    See supra note 16.

  19. p. 234 “Although DeLuna…Garcia for twenty minutes.”

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 44–45 (“Q. Now, did the man do anything with his clothes to rearrange his clothes? A. Well, no, not exactly because he just pull[ed] down his pants and that was it. He didn’t took [sic] it— Q. Okay. A. —took them off. Q. Now, the man didn’t rape you, did he? A. No, sir. Q. Did he remove any of your clothing? A. Yes. Q. What clothing of yours— A. My underwear and my half slip. Q. Did he kiss you or anything like that? A. Yes, sir.”; “Q. How long did Carlos De Luna stay there in your bedroom with you that night? A. About twenty minutes.”).

  20. p. 234 “It was Juanita Garcia’s…to hear it.”

    See supra Chapter 11, notes 97–100 and accompanying text.

  21. p. 235 “She was…ever want to see.”

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 01:41:50–01:46:00:

    When they put on, in the death penalty phase, the 57-year-old woman [sic—54] that Carlos supposedly tried to rape, in my opinion, that sealed his fate. That one person’s testimony sealed his fate as far as whether he would get life or death. She was the most pathetic-looking woman you would ever want to see. I can’t even remember her name, I’m sorry. But she was the friend’s mother that he supposedly tried to rape after being out for only six weeks. . . . And you just thought, anybody who would want to touch this woman and harm this little . . . . She seemed elderly; she was only 57 [sic]. She was just very frail and pathetic-looking. And you thought anybody that could harm a hair on this woman’s head had to be a monster. So they were very effective in portraying him as someone that just had to be removed from society, not just locked up but put to death. Someone like this was unredeemable and deserved to die, we need to be finished with him. Many of us sat there watching this thinking, yeah, yeah, he needs to be put to death.”).

    Transcribed Videotape Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter, in Dallas, Texas (Feb. 28, 2005) at 02:08:35–02:09:24 (“[A]nd they [the prosecutors] have their star witness of the 57[sic—54]-year-old woman who claimed that Carlos tried to rape her. It was very sensational all around, from the beginning to the punishment, all around.”);

    see also Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:53:11 (“This old lady couldn’t have been more than 60 years old, but, I mean, she had eyeglasses that were this thick. She came into the courtroom with an oxygen machine. And I think that they just looked at this man, if the accusation was correct, as somebody that was capable of trying to rape this old . . . she wasn’t really an old woman, she was just in very, very poor health. I think that kind of lent to whether or not he had the propensity to commit other heinous crimes.”)

  22. p. 235 “Before trial…sentence for Carlos DeLuna.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:50:42 – 12:52:39:

    As we understood it, the police were eventually called out because he was banging on the door—this was in the middle of the night—and apparently some lady recognized him who was a next-door neighbor of the inmate and she called the police. And apparently, we understood he was arrested for a simple assault. . . . Ultimately, in the course of the trial, this lady [Juanita Garcia] was called as a witness, and she ultimately testified that he apparently had not only come into the house, presumably trying to find her or trying to find her son. I’m not sure if it was a grandson or it was a son. But to make a long story short, her testimony was—and this is what surprised us—he apparently, in this same effort to locate where his car was or where his friend was or whatever, she apparently accused him of attempting to try and rape her that same evening when he broke into the house. She screamed or whatever, and as he ran out, it was then that the lady next door saw him run out and recognized him as being the kid that had been at the party earlier that day or something. . . . But from the records that we got from the state, there was never any indication that—there had been nothing more than a possible criminal trespass.

  23. p. 235 “When the prosecutors…a minor offense.”

    State’s Ex. 42, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3:

    Upon investigating this complaint it was determined that there was no rape or attempted rape that was prosecutable in this case, however, there was a class A assault that could be prosecuted. Upon discussing this with the victim a copy of the report was furnished for victim to file a restraint order on the individual being Carlos De Luna and also I took the complaint to the Municipal Court [which handles misdemeanor charges] where charges of assault were filed on this same individual in connection with this complaint. Case Closed: Filed Municipal Court.

  24. p. 235 “…back to prison for several months…”See supra Chapter 5, notes 221–223 and accompanying text.

  25. p. 235 “…interviewing Garcia and her daughters  before trial.”

    In his 2005 interview, De Peña acknowledged that he and Lawrence were “surprised” by the testimony of Ms. Garcia and her daughters because the two lawyers had relied upon a single document provided to them by the prosecutors before trial instead of conducting their own investigation. See Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:11:28–12:52:39:

    Ultimately, in the course of the trial, this lady [Juanita Garcia] was called as a witness, and she ultimately testified that he apparently had not only come into the house, presumably trying to find her or trying to find her son. I’m not sure if it was a grandson or it was a son. But to make a long story short, her testimony was—and this is what surprised us—he apparently, in this same effort to locate where his car was or where his friend was or whatever, she apparently accused him of attempting to try and rape her that same evening when he broke into the house. She screamed or whatever, and as he ran out, it was then that the lady next door saw him run out and recognized him as being the kid that had been at the party earlier that day or something. . . . But from the records that we got from the state, there was never any indication that—there had been nothing more than a possible criminal trespass.

    See also Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:48:51, 13:01:19 (“I believe part of the problem just stemmed, part of it stemmed from facts that we didn’t discover prior to the punishment phase.”; “[M]ost of the investigation that I did is that I got a vein and I went at it the best way I knew, and that was to go through people I knew at the I.D. department [i.e., the Corpus Christi Police Department Identification division] and the Sheriff’s Department.”).

  26. p. 235 “One of Botary’s…’prosecutable in this case.’”

    State’s Ex. 42, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 3:

    Upon investigating this complaint it was determined that there was no rape or attempted rape that was prosecutable in this case, however, there was a class A assault that could be prosecuted. Upon discussing this with the victim a copy of the report was furnished for victim to file a restraint order on the individual being Carlos De Luna and also I took the complaint to the Municipal Court [which handles misdemeanor charges] where charges of assault were filed on this same individual in connection with this complaint. Case Closed: Filed Municipal Court.

  27. p. 235 “At that point…which the jury never saw.”

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Trial Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 27 – 28, 48 (“Your Honor, we’re going to object to the whole series of testimony from Lucinda Garcia, Connie Campos, and Juanita Garcia based upon the fact that there is no final conviction; in fact, no charges have ever been filed in this particular offense . . . and we think it should be inadmissible and would only go to prejudice and bias the jury against my client.”; objecting to admission of State’s Exhibit 42, an offense report about Juanita Garcia);

    see also DeLuna v. State, 711 S.W.2d 44, 46 – 47 (Tex. Crim. App. 1986) (upholding the trial court’s decision to prohibit the jury at Carlos DeLuna’s trial from seeing the offense report, which stated that no rape or attempted rape of Juanita Garcia occurred, because the officer who made the report did not testify and the report was therefore inadmissible hearsay, and because defense counsel had objected to the admission of the report).

  28. p. 236 “Instead, the prosecutors…incident was minor.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005), at 12:52:39 (“But from the records that we got from the state, there was never any indication that . . . there had been nothing more than a possible criminal trespass.”).

  29. p. 236 “After showing the jury…case for the death penalty.”

    Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 46 (“Mr. Schiwetz: I will pass the witness; Mr. Lawrence: No questions.”);

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 49 – 51 (reporting that both sides rest).

  30. p. 236 “Because death verdicts…spare DeLuna’s life.”

    Penry v. Johnson, 532 U.S. 782, 784 (2001) (“[T]he key . . . is that the jury be able to ‘consider and give effect to [a defendant's mitigating] evidence in imposing sentence.’”) (citations omitted); Eddings v. Oklahoma, 455 U.S 104, 117 (1982) (“[T]he state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances.”); Lockett v. Ohio, 438 U.S 586, 604 (1978) (“[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”).

  31. p. 236 “…appeals court to throw out a death sentence…”

    See Rompilla v. Beard, 545 U.S. 374, 377 (2005) (holding that “even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial”; absent those steps a death sentence violates the Sixth Amendment to the Constitution if there is a probability that the evidence the lawyers could have presented but did not present would have affected the jury’s verdict); Wiggins v. Smith, 539 U.S. 510, 523 (2003) (similar); Williams v. Taylor, 529 U.S. 362, 392 (2000) (reversing death sentence because the defendant’s attorneys failed to investigate and present substantial mitigating evidence at the sentencing phase of trial that might have influenced the jury’s appraisal of the defendant’s moral culpability).

  32. p. 236 “They didn’t call…any mitigating evidence.”

    See Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 49 – 51.

  33. p. 236 “They didn’t even offer…juvenile court record.”

    See supra Chapter 5, notes 68–75, 108–126, 141–142 and accompanying text.

  34. p. 236 “Although Carlos’s sisters were in the courtroom…”

    See Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 1A (“At first undisturbed by the jury’s decision, DeLuna became agitated when Nueces County sheriff’s deputies attempted to escort him back to jail before he could say good-bye to his sister. ‘Let me hold my sister, man!’ a sobbing DeLuna screamed.”);

    see supra Chapter 5, note 5 and accompanying text; supra Chapter 13, note 17 and accompanying text.

  35. p. 236 “His younger sister…line in the school cafeteria.”

    See supra Chapter 5, notes 35–36, 58–60, 63–64, 104–108, 132, 199–202 and accompanying text; see also infra Chapter 15, notes 206–207 and accompanying text (discussing papers filed by appellate lawyers for Carlos DeLuna listing 17 witnesses who could have testified in Carlos’ favor and laying out what each would have said in DeLuna’s behalf).

  36. p. 236 “His lawyers didn’t…inmates for killing a fifth.”

    Unit Classification Review Form for Carlos DeLuna, Tex. Dep’t of Corrections (Apr. 3, 1983);

    Additional Information, Tex. Dep’t of Corrections (Mar. 13, 1986) (“The subject claims while confined with Joe Dominques and Robert Lopez on the Ferguson Unit in 1980, they murdered a fellow inmate. He claims he appeared in court as a State witness against these inmates in Sept. of 1981.”).

  37. p. 237 “Summarizing DeLuna’s defense…’punishment phase of a trial.’”

    Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A.

  38. p. 237 “He began by reminding…willing to impose death.”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 54 (“But you promised us, everyone of us, and you took an oath that you would answer these questions based upon what you thought the answers should truly be, not on whether or not you wanted to see Carlos DeLuna die; not on whether you are for or against the death penalty or what-have-you; simply on the basis of what the evidence showed. You swore an oath, and you promised us all that, and now you’re going to be asked to answer two pretty simple questions.”).

  39. p. 237 “People with a problem…capital murder cases.”

    Until 1991, Texas excluded prospective jurors unwilling to apply the death penalty from sitting on capital cases as a matter of law. See Tex. Penal Code Ann. § 12.31(b) (1974), amended by Tex. Penal Code Ann. § 12.31(b) (1991) (“A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”). Current law permits prosecutors to remove such jurors “for cause.” See Tex. Code Crim. Proc. Ann. Art. 35.16(b)(1) (2005) (allowing the State to use for-cause challenges if “the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty”);” see also Adams v. Texas, 448 U.S. 38, 50 (1980) (“We repeat that the State may bar from jury service those whose beliefs about capital punishment would lead them to ignore the law or violate their oaths.”).

  40. p. 237 “Schiwetz then explained…if he wasn’t executed.”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 55, 56 (“Deliberately basically means the same thing as intentional. You were charged yesterday, you had to find this Defendant intentionally caused the death of Wanda Lopez.”; “The second question, as we told you, is the gist of the whole matter . . . . Is there a possibility that the Defendant, Carlos DeLuna, [would] commit criminal acts of violence that would constitute a continued threat to society.”).

  41. p. 237 “To help the jurors decide…’was all done deliberately.’”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 56 (“You can hear the scream when he stabbed her, or you can take that knife and look at it, open it up and try and imagine what effect that would have sticking it in the lungs or the heart and trying to decide whether that was all done deliberately.”).

  42. p. 237 “‘Listen to that scream.’”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 56 (“And you can listen to that tape again, if you want to. You can listen to her begging for mercy.”);

    Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A (describing Schiwetz’s argument in favor of a death sentence: “‘Listen to the tape again,’ he said. ‘Listen to her begging for mercy. Listen to that scream.’”).

  43. p. 237 “On ‘future dangerousness’…DeLuna’s criminal record.”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 57 (“You have State’s Exhibit 41 which is the Pen[itentiary] Pack [DeLuna's prior record], and if you will take a look at it and look at the dates on here, you will see that on June 19th, 1980, the Defendant attempted to rape a woman in Dallas County. Then on July 26th, 1980, convicted—he was stealing a car, unauthorized use of a motor vehicle, that’s also in Dallas. He got three years for that, and he went to the penitentiary.”).

  44. p. 237 “Carlos had ‘become mentally a convict’…”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 57 – 58 (“Or you can become mentally a convict. You can mentally adopt the convict attitude, the convict psychology. . . . Carlos DeLuna had that opportunity, just like everybody else. . . . And . . . two days later [after he got parole] DeLuna let the world know what to expect from him [when] he tried to rape his best friend’s mother. That says about everything you need to say about Carlos DeLuna.”).

  45. p. 237 “…phrase the newspapers quoted the next day.”

    See Associated Press, Parolee Given Death Penalty For Murder, July 22, 1983 (“The attempted rape occurred in May 1982, two days after DeLuna’s parole, said prosecutors, who told jurors that DeLuna has “the mind of a convict.”).

  46. p. 237 “‘That says about everything…about Carlos DeLuna.’”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 58 (“He let the world know about the probability of future acts of violence which would constitute him a continuing threat to the civilized people of the world, because Carlos DeLuna went over and tried, I submit to you, tried to rape his best friend’s mother.”).

  47. p. 237 “‘He kind of likes it…kill to get back in there.’”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 80 (“And I submit to you Carlos DeLuna right now wants nothing more—he would be absolutely delighted with life in the penitentiary. He doesn’t mind the penitentiary. He kind of likes it, he does absolutely nothing to stay out of it, he’s been in there twice already and would just as soon kill to get back in there.”).

  48. p. 237 “The prosecutor ended…first day of the trial.”

    Steven Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 85 (“We didn’t drag in these bloody clothes; we didn’t have [Wanda Lopez's daughter] up here running around on the front row through the whole trial; we’re trying to keep it just tied to the evidence, to decide these questions just on the evidence, like you promised to and like we believed you would.”);

    see supra Chapter 13, note 35 and accompanying text (discussing the first exhibit put into the record by the prosecution at trial: a picture of Wanda Lopez with her daughter in her lap).

  49. p. 237 “De Peña had no idea…along with the jury.”

    See supra Chapter 11, notes 94–96 and accompanying text.

  50. p. 238 “De Peña, for his part…killing was not deliberate…”

    Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 75 (“I don’t think that there’s a conflict there. I think that basically if you consider that particular issue, and you can determine whether or not this was done deliberately, or was it done knowingly. And if so, then was it deliberate or was it something that occurred just as a result of the total circumstances surrounding the death of Wanda Lopez. Please consider that.”).

  51. p. 238 “…imprisoned instead of executed.”

    Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 76 (“But I think there’s a question, and I—I think you should seriously consider whether or not Carlos is going to constitute a continuing threat to society.”).

  52. p. 238 “He said that…’deliberate’ killing.”

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 63, 65, 66, 69–70 (“I find the first one [first sentencing question the jury must decide] ridiculous because it says did he do it deliberately. Well, pray tell, if you find with specific intent, how can you not find deliberate; right?”).

  53. p. 238 “He then argued…danger in the future.”

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 65, 69–70 (“[I]t would seem that the only way you could answer the second question [favorably to the defendant] is you [i.e., the defendant] would have to be a perfect citizen. Nothing, no record, Boy Scout, the whole bit. That seems like the only avenue for a person that’s found guilty of capital murder to receive a life sentence”; “Look at these two issues again. I told you I called the first one ridiculous, the second one impossible. . . . It’s unconceivable because of the ridiculous first question, and the impossible second question.”).

  54. p. 238 “Lawrence criticized…second was ‘impossible.’”

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 69–70 (“Look at these two issues again. I told you I called the first one ridiculous, the second one impossible. . . . It’s unconceivable because of the ridiculous first question, and the impossible second question.”).

  55. p. 238 “As Schiewetz had already reminded them…”

    See supra note 38 and accompanying text.

  56. p. 238 “Lawrence now argued…imposed the penalty.”

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 64, 66, 67 (“Not only that, our society has put us into a situation where we’re only concerned with ourselves. We have become a selfish, individualistic society. . . . Look how above God we’re getting. I have the right to create life, I have the right to destroy life. Who are we? Mere human beings trying to act like supreme beings.”; “When we get into this particular area of determining whether one person should live or die, we’re treading in an area that, we, as human beings, have no right to be.”).

  57. p. 238 “Even in arguing…about DeLuna’s guilt.”

    James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 61, 63, 68, 70 (“We respect your decision for capital murder, but I can also disagree with it.”; “I have the right to disagree, just as you do with any law.”; “You found him guilty; he says he’s not.”; “That’s the law. And we have a right to disagree.”).

  58. p. 238 “A lawyer friend…nail in DeLuna’s coffin.”

    Transcribed Videotape Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005) at 12:45:32–12:46:50 (“There was another attorney there watching the trial, and he happened to be a friend of mine and was, took time to sit next to my wife. As we got into the final arguments of this case, in the penalty phase, Mr. Lawrence apparently started harrying the jury about the fact that they shouldn’t play God in this situation and give the defendant the death penalty, and my wife says at that point that Mr. Peña sort of chuckled and looked at her and sort of made the notation like he hammering down the top of a coffin.”);

    see supra Chapter 11, notes 94–96 and accompanying text.

  59. p. 238 “He closed…’against Carlos DeLuna.’”

    Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 78–79.

  60. p. 239 “After hours…was not executed.”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 87–88 (“The Court: The jury has answered Special Issue No. 1: Yes. And the jury has not answered and left blank Special Issue No. 2.”);

    see Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A:

    At about 5:45 p.m. yesterday after five hours of deliberations, the jury announced it had reached a partial decision. It answered affirmatively the issue that DeLuna deliberately killed Ms. Lopez, but left unanswered the question of whether it was probably the DeLuna would commit future acts of violence. When Judge Moore asked if a decision could be reached with further deliberations, jury foreman Alfred Morales said, ‘We certainly could give it a try. But we’ve exhausted both avenues [i.e., 'yes' and 'no'], sir. It would be rather difficult to go back in there and make a decision.” Moore polled the jurors individually, and the consensus was that the jurors were willing to continue deliberating. After a dinner break and another hour of deliberating, the jury reached a decision.

    Def.’s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983) at 1–2 (“That the jury was unable to answer one of the issues [constituting an element of capital sentencing] . . . Whereupon the Court misdirect[ed] the jury as to the law sending them back to answer said issue.”).

  61. p. 239 “Judge Moore asked…after more discussion.”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 88 (“The Court: Let me ask you, Mr. Morales, as Foreperson, do you think that with further deliberations you could resolve what difficulty you were having with that issue?”);

    see Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A:

    When Judge Moore asked if a decision could be reached with further deliberations, jury foreman Alfred Morales said, “We certainly could give it a try. But we’ve exhausted both avenues [i.e., 'yes' and 'no'], sir. It would be rather difficult to go back in there and make a decision.” Moore polled the jurors individually, and the consensus was that the jurors were willing to continue deliberating. After a dinner break and another hour of deliberating, the jury reached a decision.

  62. p. 239 “Morales said…’try and make a decision.’”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 88 (“Juror Morales: I would—Your Honor, I would have to say that we certainly could give it a try. The Court: What is your thought in the matter? Could you resolve what difficulties you’re having and arrive at a verdict, either yes or no on it? Juror Morales: We have exhausted both avenues, sir, and I think that it would be rather difficult to go back in there and try and make a decisions, sir.”);

    see Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A (“When Judge Moore asked if a decision could be reached with further deliberations, jury foreman Alfred Morales said, ‘We certainly could give it a try. But we’ve exhausted both avenues [i.e., "yes" and "no"], sir. It would be rather difficult to go back in there and make a decision.’”).

  63. p. 239 “All but one…might be ‘possible.’”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 88–89:

    The Court: All right. Mr. Gonzales, what is your thought in the matter?

    Juror Gonzalez: We might.

    The Court: Mr. Rasmusson?

    Juror Rasmusson: Possible.

    The Court: Mrs. Dahlman?

    Juror Dahlman: We might.

    The court: Mr. Vickers?

    Juror Vickers: It’s possible, sir.

    The Court: Mr. Perez?

    Juror Perez: I think we could.

    The Court: Mr. Botelho?

    Juror Botelho: Possibility.

    The Court: Mrs. Gavlik?

    Juror Gavlik: Possible.

    The Court: Mrs. Jimenez?

    Juror Jimenez: I think we could.

    The Court: Ms. Kurtz?

    Juror Kurtz: I don’t think so, Your Honor.

    The Court: Mrs. Bradley?

    Juror Bradley: It’s possible, Your Honor.

    The Court: Mr. Abernathy?

    Juror Abernathy: It’s possible.

    See Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A (“Moore polled the jurors individually and the consensus was that the jurors were willing to continue deliberating. After a dinner break and another hour of deliberating, the jury reached a decision.”).

  64. p. 239 “Judge Moore directed…work that night.”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 89:

    The Court: All right. In view of that answer, then, let me ask you to continue your deliberations. What would you like to do at this time? Would you like to be taken to dinner, or would you like dinner brought to you? [The jury indicates its desire to go out to dinner.] All right. Those arrangements will be made, and just as quickly as we can, and I will stay here with you as long as you want to work tonight. [At which time the jury retired to the jury room to continue deliberating their verdict, during which deliberations a recess was taken for the evening meal, after which time deliberations continued until they were concluded, and the following proceedings were had . . . .]

    See Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A (‘”The time it took to deliberate dramatizes the seriousness of this punishment which should be imposed in the most serious of cases,’ District Attorney Grant Jones said last night.”).

  65. p. 239 “Later that evening…verdict of death.”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 90:

    The Court: Mr. Morales, had the jury arrived at a verdict of this phase of the case?

    Juror Morales: Yes, Your Honor.

    The Court: Would you give it to the Bailiff, please. [Reading from the verdict] The jury has answered both special issues in the affirmative. Each special issue is signed by the Foreman, Mr. Morales, and the answers to the special issues submitted is also signed as their verdict by Mr. Morales.

    Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983, at 16A (“After deliberating for about six hours yesterday, the seven-man, five-woman jury decided that DeLuna killed Ms. Lopez deliberately and that it was probably DeLuna would commit future acts of violence. . . . ).

  66. p. 239 “‘I know what…excused with my thanks.’”

    Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983) at 92 (“The Court: Thank you very much. No speeches. I know you’re tired and I realize how you have agonized over this terrible responsibility, and I just want to say that I do appreciate your service. I know what you’ve been through, and I’m glad you have the courage of your convictions and you may be excused with my thanks.”).

  67. p. 239 “In the Corpus Christi Caller-Times…’good-bye to his sister.’”

    Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983 at 1A.

  68. p. 239 “‘Let me hold…sobbing DeLuna screamed.’”

    Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller-Times, July 22, 1983 at 1A.

Court Decisions

  1. Adams v. Texas, 448 U.S. 38 (1980);
  2. DeLuna v. State, 711 S.W.2d 44 (Tex. Crim. App. 1986) ;
  3. Eddings v. Oklahoma, 455 U.S 104 (1982);
  4. Lockett v. Ohio, 438 U.S 586 (1978) ;
  5. Penry v. Johnson, 532 U.S. 782 (2001);
  6. Penry v. Lynaugh, 492 U.S 302 (1989);
  7. Rompilla v. Beard, 545 U.S. 374 (2005);
  8. Wiggins v. Smith, 539 U.S. 510 (2003);
  9. Williams v. Taylor, 529 U.S. 362 (2000);

Testimony in Court and Depositions

  1. Floyd Bieniek, Retired Police Officer and Character Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  2. Connie Campos, Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  3. Hector De Peña Jr., Trial Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  4. Juanita Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  5. Lucinda Garcia, Sentencing Witness Against Carlos DeLuna, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  6. Gary Garrett, Corpus Christi Police Officer, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  7. Eddie Garza, Corpus Christi Police Detective, Sentencing Test., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  8. James Lawrence, Trial and Appellate Lawyer for Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  9. Steve Schiwetz, Prosecutor at Trial of Carlos DeLuna, Closing Statement on Sentence, Texas v. DeLuna, No. 84-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);

Other Primary Records

  1. Additional Information, Tex. Dep’t of Corrections (Mar. 13, 1986);
  2. Def.’s First Am. Mot. for New Trial, Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. Sept. 7, 1983);
  3. Sentencing Tr., Texas v. DeLuna, No. 83-CR–194-A (Nueces Cty., 28th Dist. Tex. July 21, 1983);
  4. Unit Classification Review Form for Carlos DeLuna, Tex. Dep’t of Corrections (Apr. 3, 1983);

Transcribed Videotape Interviews

  1. Transcribed Videotaped Interview with Karen Boudrie-Evers, Corpus Christi Television Reporter in Dallas, Texas (Feb. 28, 2005);
  2. Transcribed Videotaped Interview with Hector De Peña, Jr., Trial Lawyer for Carlos DeLuna, in Corpus Christi, Texas (Feb. 23, 2005);

News Reports

  1. Associated Press, Parolee Given Death Penalty For Murder, July 22, 1983;
  2. Linda Carrico, Judge Sentences DeLuna to Die, Corpus Christi Caller Times, July 22, 1983;

Other Secondary Sources

  1. Gary Goodpaster, Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299 (1983);
  2. Elizabeth R. Jungman, Beyond All Doubt, 91 Geo. L.J. 1065 (2003);
  3. Richard O. Lempert et al., A Modern Approach to Evidence: Text, Problems, Transcripts, and Cases (4th ed. 2011);
  4. Jennifer R. Treadway, ‘Residual Doubt’ In Capital Sentencing: No Doubt It Is an Appropriate Mitigating Factor, 43 Case W. Res. L. Rev. 215 (1992);