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NO. S3--CR-B4A
STATE OF TEXAS * 28TH DISTRICT COURT
VS. * NUECES COUNTY
CARLOS DE LUNA * TEXAS
APPLICATION FOR BENCH WARRNT J.This is an Application to this Court by the State of
Texas requesting the Court to issuea Bench Warrant to the
Sheriff of Nueces County, Texas requiring him to obtain
custody of
CARLOS DELUNA
now in custody of the Texas Department of Corrections and
bring him before this Court by 9 A.M. JULY 23, 1986 for
proceedings in connection with the above numbered
Indictment.
4J/b ::~STATE'S ATTORNEÝBar Card No. 07197000
BENCH WARRNT
TO: SHERIFF OF NUECES COUNTY, TEXAS
The foregoing Application is granted..It is, therefore, the Order of this Court that the
Sheriff of Nueces County, Texas obtain custody of
CARLOS DELUNA
now in custody of the Texas Department of Corrections and
bring him before this Court by 9 A.M. JULY 23, 1986 for
proceedings in connection with the above numbered
Indictment.
Signed: JULY 21, 1986
Ô)4)~ d!N"&,,,, ~~JUDGE PRESIDING ) ~.. .
ATTEST:Oscar SolizDistrict Clerk
~1Jl&b :M. .)~D CDuty tA\CROF1LMEll
NO. 83-CR-194A
THE STATE OF TEXAS
VS.
CARLOS DE LUNA
* IN THE DISTRICT COURT
28TH JUDICIAL DISTRICT
NUECES COUNTY, TEXAS
*
*
SENTENCE AFTER MANDATE
This day this cause being again called, the State
appeared by her District Attorney, and the Defendant, CARLOS
DE LUNA, was brought into open Court in person in charge of
the Sheriff, for the purpose of having the sentence of the
law pronounced in accordance with the verdict and judgment
herein rendered and entered against him on a former day and
term, his counsel also being present. And thereupon, the
Defendant, CARLOS DE LUNA, was asked by the Court whether he
had anything to say why said sentence should not be
pronounced against him, and he answered nothing in bar
thereof, whereupon the Court proceeded, in the presence of
the said Defendant, CARLOS DE LUNA, to pronounce sentence
against him as follows: It is the Order of the Court that
the Defendant, CARLOS DE LUNA, who has been adjudged to be
guilty of Capital Murder, and whose punishment has been
adjudged to be guilty of Capital Murder, and whose
punishment has been assessed by the verdict of the jury at
death, shall before the hour of sunrise on Wednesday, the
15th day of October A.D., 1986 at the state penitentiary at
Huntsville, Texas, be caused to die by intravenous injection
of a substance or substances in a lethal quantity sufficient
to cause death into the body of the said CARLOS DE LUNA
"" . Ciil nOEl L M f :u
until he is dead¡ and that the Clerk of the Court issue a
death warrant in accordance with this sentence directed to
the Warden of the state penitentiary at Huntsville, Texas,
and deliver such warrant to the Sheriff of this County of
Nueces, Texas to be by him delivered to said Warden,
together with the said CARLOS DE LUNA. And the said CARLOS
DE LUNA is remanded to jail to await transportation to
Huntsville and execution of this sentence.
Signed this 2 ~ day of ~ , 1986.
~L4JUDGE PRESIDING .
M1CROFILMEO
THE S TAT E o F T E X A S
TO THE DIRECTOR OF THE TEXAS DEPARTMENT OF CORRECTIONSAND TO THE SHERIFF OF NUECES COUNTY, TEXAS:
The Sheriff of Nueces County, Texas, is hereby
commanded to transport the Defendant, CARLOS DE LUNA, to the
Texas Department of Corrections at Huntsville, Texas, and
deliver the Defendant, CARLOS DE LUNA, and this Warrant to
the Director of the Texas Department of Corrections for the
purpose of executing this Warrant, and to take from the
Director the proper receipt for the Defendant, CARLOS DE
LUNA, and he will return the receipt to the office of the
District Clerk of Nueces County, Texas.
The Director of the Texas Department of Corrections at
Huntsville, Texas, is hereby commanded to receive from the
Sheriff of Nueces County, Texas, the Defendant, CARLOS DE
LUNA, and this Warrant, and to give his receipt to the
Sheriff, and to safely keep the Defendant, CAROS DE LUNA,
and to execute the sentence of Death at any time before the
hour of sunrise on the 15th day of October, 1986, by causing
a substance or substances in a lethal quantity to be
intravenously injected into the body of the Defendant,
CARLOS DE LUNA, sufficient to cause death, and the injection
of the substance or substances into the body of the
Defendant, CARLOS DE LUNA, until the Defendant, CARLOS DE
LUNA, is dead, obeying all laws of the State of Texas with
reference to such execution.
~ J~L~3!-~OSCAR Sùi.1Z, CLERKDl~. J 1!RT~:~If~Jà~
CROFILMED~
The Director of the Department of Corr,ctioni tihallmake due return of this Warrant to the Clerk of the Court in
which this sentence was passed as provided by law.
WITNESS MY HAND AND SEAL of the 28th Judicial District
Court of Nueces County, Texas, at my office in the City of
Corpus Christi, Texas, this the~ay of~ ~r1986.
~&ì-O ~DISTRICT CLERK ~NUECES COUNTY, TEXAS
BY: ll__'i- :J '4 ~DEPUTY
MAlE; .M. WA fR
~ i. Uc. \ \.
C ß 0."~ ~
No. 83-CR-194-A
THE STATE OF TEXAS X IN THE 28TH DISTRICT COURT
VS. X IN AND FOR
CAROS DE LUNA X NUECES COUNTY, TEXS
RECEIPT
I, hereby, acknowledge that I have received in hand from the
Nueces County District Clerk a certified copy of the Sentence and Death
Warrant entered and issued July 23rd., 1986. and recorded in the Criminal
Minutes" Volume eM 7, Pages 362 to 363 of the 28th District Court of
Nueces County, Texas.
Signed tiis 24th day of July, 1986.
James T. Hickey. Sheriff
Nueces County, Texas
Byc;~_t~ Deputy
~ J~L~4!JID
, .
OSCJ-H. S",,-IL. CLERK~.R...rtUlCämiJl.N mA~.~it
. .
ML,l,t\Ut.ll.MEO
~æ~~~&(lmrlJC~à7é~'~t~t\~,,-~(Q:
......;. ..~. .:~..,i
....ii.....FA ;¡
DISTRICT COU~TS. Hi:OSCAR SOLIZ / DISRICT CLERK
P. O. BOX 1799 I CORPUS CHRISTI, TEXAS 78403AREA CODE 512 888-0450
July 24, 1986
Texas Department of CorrectionsBureau of Vital StatisticsP. O. Bx. 99Huntsville, Tx.77340
Re: Cause No. 83-CR-194-A, The State of Texas Vs. Carlos De Luna
Dear Sir:
Pleas~~RRclosed a certified copy of the Sentence and Death Warrantin the above cause for Carlos De ; Luna which was entered and issued July23rd.. and recorded in the Criminal Minutes, Volume em 7, Pages 362 to 363of the 28th District Court of Nueces County, Texas
If I can be of any further assistance to you, pleas let me know.
Sincerely yours,
Oscar Soli~, District Clerk
By ~ .,,..~ Deputy
Enc: 2.
MtCRUflLMED-..
BOARD MEMBERS:
NEAL PFEIFFER, CHAIRMN
WENDELL A. ODOM, VICE.CHAIRMNCONNIE L. JACKSON, MEMBER
WINONA W. MILES, MEMBER
. ANTONIO G. MORALES, MEMBER
RUBEN M. TORRES, MEMBER
JOHN W. BYRD
EXECUTIVE DIRECTOR
GLENN T. HECKMANN
DEPUTY EXECUTIVE DIRECTOR
PAROLE COMMISSIONERS:
KEN COlEMAN
JOHN ESCOBEDO
RONALD W. JACKSON
DONN D. WOOLERY
2503 LAKE ROAD
HUNTSVILLE, TX 77340
(409) 291.2161
BOARD OF PARDONS AND PAROlES
8610 SHOAL CREEK BLVD.
P.O. BOX 13401, CAPITOL STATIONAUSTIN, TEXAS 78711
(512) 459.2700
GEORGE EVANS
GERALD GARRETT
P.O. BOX 1207ANGlETON, TX 77515
(409) B49.3031
August 1, 1986
KEN CASNER
JUAN PEREZ
207-A E. REAGAN ST.
PALESTINE,.TX 75801
(214) 723.1068
Honorable Wal ter DunhamDistrict Judge
...~Nueces County CourthouseCorpus Christi, Texas 78401
STENNETT D. POSEY
RT. 5, 80X 258.AGATESVILLE, TX 76528
(817) B65.8870
/pé"ar Sir:
RE: DE LUNA, CarlosExecution No. 744Cause No. 83-CR-194A
The Board has been advised that the above named subject hasbeen received in the Texas Department of Corrections fromNueces County under sentence of Death for the crime ofCapital Murder. The date of execution has been set at somehour before sunrise on Wednesday, October 15, 1986.
WE HAVE NO INFORMATION OTHER THAN THE ABOVE.
I will appreciate your furnishing anyyou might have regarding this case.provide is privileged by law.
information or statementAll the information you
Thanking you in advance for your cooperation.
Ii / CR 0
.f
Sincerely, _ .. ~ '2£~~~Connie L. Jackson
J L MemberA1 l 0CLJ/jb
cc: file ", : . ."'
ê. c: ~~ +-"~tL~~~~~,~;". ~;: .
\. " ."," ::. ¡
1836.1986;~~jit~
~DD~~~(§CVDDûíJ(ÇàY.f~~1:i:'~\
\~~~~j"::..~.":~i.:...., DISTRICT COURTS.. Il
OSCAR SOLIZ / DISRICT CLERK
fl, 0, IJ"~ f1H I CO"flL CI'RI§TI, riXA§ 7§4(3ARËA CÖÖË 512 ãáa-óSÓ
Septemr 8, 1986
Cone L. Jackon,Board of Pardon and Paroles8610 Shol Creek Blvd.P. o. Ex 13401, Capitol StationAustin, IX. 787ll
De Sir:Pleae find enclosed cerified copy of the Sentence and Death Warant in Cause
No. 83-Cr-l94, styled, Th State of Texas Vs. Carlos De lia. A copy of th Madate
filed in th District Clerk's Office is, also, enclosed.
If we ca be any fuer assistance, pleae let us know.
Sincerely yos,
Oscar Soliz District Clerk
By: Deputy
-4
MrCROFllMfD
;~.: '.
RICHARD ALAN ANDERSONATRNY AT LAW
BA OF DALLA BUlDING
3333 LEE PARAY SUI 930 LB.3
DAL. TB 1~2i9
LICENSED IN TE AN COLORA
BOARD CBRTIFIBD: CRIMINAL LAWTEXA !lOARD OLL LEGAL Sl'2ClAilZATION
(214) 559-4384 October 7, 1986
Honorable Walter Dunham, Judge28th Judicial District CourtNueces County Courthouse901 Leopard StreetCorpus Christi, Texas 78401
RE: Ex Parte Carlos DeLuna
Dear Judge Dunham:
Enclosed f6r filing you will please find the origi-n s and four (4) copies of the Application for Writ ofabeas Corpus and Brief Application for a Stay of Executionand Application for Stay of Execution. Please file same andreturn a file-marked copies to me in the enclosed, selfaddressed, stamped envelope.
If you have any questions, please do not hesi tatein contacting me. Your ass istance. is matter is greatlyappreciated.
RA/cv /Encls.
cc: Mr. John Grant Jones - wI Encls.District Attorney of Nueces County, Texas901 LeopardCorpus Christi, Texas 78401
Ms. Paula Offenhauser - wI Encls.Assistant Attorney General200 W. 14th, Supreme Court Building, 6th FloorAustin, Texas 78711
Mr. Richard Windhorst, Chief Deputy - wI Encls.Fifth Circuit Court of Appeals600 Camp StreetNew Orleans, LA 70130
MrCROFILMfO
IN THB 28TH JUDICIAL DISTRICT COURT
FOR NUECBS COUNTY, TEXAS
BX PARTB §l§§§
NO.
CARLOS DBLUNA
~EEl.!~.Yl!STATB OF TBXAS l
lCOUNTY OF DALLAS l
CAROS DBLUNA is
SUBSCRIBBD AN SWORN TO BBFORB ME, the undersignedauthority~ the said Richard A. Anderson on this the ~day of ,~ , 1986, to certify which witness myhand and seal of author i ty.
/~ (lIi -N'~B~~iMR THSTATB OF TBXAS
Commission Bxpires: .ç C?O- a~
AFFIDAVIT - Page 1
MICROFiLM E 0
-,./'41lj ¡qgl
Cau.e~o. 83-CR-194-A
,t ~.,()~ Js.\¡ L-' -I \\J..C~"'./.ii r- t\ 'n~~-
'ITIONER Carlos DeLuna
ADDRESS Ellis I UnitTexas Departnient of CorrectionsH~ritsvi1le, ~exas
FROH
JUDGE
Oscar Soliz, District Clerk901 LeopardP. O. Box 2987Corpus ChristI, Texas 78403
Walter Dunham, Jr.
ATTORNEY FOR PETITIONER ATTORNEY FOR STATE
Richard A. AndersonBank of Dallas Bldg, LB#33333 Lee Parkway, Suite 930Dal1aå, Texas 75219
Grant Jones, District Attorney901 LeopardNueces County CourthouseCorpus Christi, Texas 78403
INDEX
.Vo1ume I pages
?~P~ri;~;6~~~~::d¡t:N~1~~::b~~~o~~iPg:~;~6 Bdef Application for 1
'..::.~::.., . "'," -.. ," .:).~~;:;
.¡ktll~lt~lilllitl~~jïi;!:~i~~¡~~~;i~:i::i;;;;;~: .~ltj:;~;~~~:a" 1:
",Indictiieiit/:fi1èd,'bri.XFebrua.rv17..1983 15" '. ,..' ..:-~~.--;:; :.- - - '; "j;- '::'::'''\::\:,;':r' :'.~:'~~-'", " ,
Judgmerttancl S~ntêrÍêes;igned on July 23, 1983 and recor:ded. oncm5l2U-21S . 16
Judgment Nunc Pro Tunc.ignéd on July .~7,1983 and ree6rded oneinS pages 231-i"34 . .
flIed ~ri~jun~ 24, i986
19
.; 23
Mandate slgned on. June 20 , 1986 and filed on June 24,1986 35
.Doeket She.et 37
C1~rk' s ~ertifiêate 46
'v;-'" -,~_..-
IN THE 28TH JUDICIAL DISTRICT COURT
FOR NUECES COUNTY, TEXAS
§§§§§
NO. /3- Cl'.. I c¡ tJ -' If
APPLICATION FOR WRIT OF HAEAS CORPUS AN. ---BRIEF APPLICATION FOR A STAY OF MAATE.- -_._-
Comes now CARLOS DELUNA, Petitioner in the above
styled and numbered cause, by and through his Attorney,Richard A. Anderson, and files this his Application for Writ
of Habeas Corpus and Brief Application for Stay of Mandate,
and in support hereof would respectfully show the Court as
follows:
I. CUSTODY
Peti tioner is confined on Death Row in the Ellis I
the Texas Department of Correction in Huntsville,to a judgment of conviction and sentence of
No. 83-CR-l94-A pursuant to a jury verdict
The Court of Criminal Appeals of
sentence of the Petitioner
Decision delivèredJune 4,s court-appointed ättorney on åppeal did
Motion for Rehearing in the Court of Criminal
and did not seek ian Application for Writ
of . Certiorari to the Supreme Court of the United States.
Petitioner's cause was abandoned by his court-appointed
attorneys after affirmance by the Court of Criminal Appeals
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 1 t.~
u
niiL u~
¡ r;
:u" (' ...' ; ~ ....."";:.v . ;i..~'
Ci.:::C:..i\r.\, s:c:i...r:. '-~~. .D!Si!~;. : CG!J~~ ,: ' _ . i:
'~_J(lkJ-t/~ 7;' /)1',:1'.:- r,.,;_1-
of Texas and Petitioner's first execution date has been set
On October 7, 1986, Petitioner has
a Motion for Stay of Execution addressed to Justice
Byron White, Associate Justice, United States Supreme Court.
As of the date of the filing of this Application for Writ of
Habeas Corpus and Request for Stay of Mandate, no decision
has been rendered on that Motion for Stay of Execution.
II. JURISDICTION
Petitioner invokes this Court's jurisdiction pur-
suant to Article 11.07, Texas Code of Criminal Procedure.
answers
On
to
Julythe
III. PROCEDURA HISTORY
15, 1983, a jury returned
issues submitted to them at
affirmati ve
Peti tioner i s
capital murder trial, and the Judge sentenced Petitioner to
death. Petitioner was represented by two court-appointed
counsel.
The conviction and sentence were affirmed by theAppeals of Texas on June 4, 1986. No Application
of Certiorari has been made at this time.
Peti tioner is scheduled to be executed on October
1986. No previous applications under Article lL. 07,Code of Criminal Procedure have been made by
or advariced on Petitioner's behalf prior to
filing of this petition.
Present counsel has agreed to represent Petitioner
as volunteer counsel and Mr. DeLuna has agieed to present
counsel's representation in this cause,
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 2
.....,.
..;..,;..
iv. EXHAUSTION OF STATE REMEDIES--Petitioner has presented none of the claims pre-
sented here on direct appeal and no court in Petitioner'scase has passed upon Petitioner's contentions in thisApplication for Writ of Habeas Corpus.
V. STATEMENT OF THE CASE---Peti tioner was convicted. on an indictment that
alleged that on the 4th day of February, 1983, while in the
course of attempting to commit a robbery of Wanda Lopez, he
intentionally caused the death of Wanda Lopez by stabbing
her with a knife.
VI. STATEMENT OF CLAIMS
Peti tioner was denied rights of constitutionaldimension, as guaranteed under both Uni ted StatesConsti tution and the Constitution of the State of Texas, in
the following particulars:
(A) Prosecutorial discretion in determining which
cases in which to seek the death penalty is
discriminatory based upon the race of the vic-tim in violation of the defendânt' s : rights
under the Fiftli,i Sixth, Eighth and Fourteenth
United States Constitution and
Article 1, Sections 3, 3a, 10, 15, and 19.
Petitioner is an hispanic male. The victim of
the offense as listet; by autopsy records is
white female. Evidence will be adduced that
will show prosecutions in Nueces County,
Texas, in which the decision to seek the death
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 3
"),.,
(';;~:-" ,.._.r
:~,::4#'
penal ty .'. is
the victim
the race of
certainty. The
United States Supreme Court has before it a.- :- -.. ' """similar issue in McCluskey v . Kemp , No.
84-6811 and Hitchock v. Wainwr ight, No.
85-6756, to be argued before this Court on
October 15 , 1986.
(B) Petitioner was denied effective assi~tance of
~. counsel at trial.. in violation of _his rights
under the Sixth and Fourteenth Amendments,
United States Consti tution, Article 1, Section
3, 3a, 10, 15, and 19. Petitioner will show
in evidence adduced that he was denied effec-
ti ve assistance of counsel under the standardsof Strickland v. Washington, 466 U.S. 1105,
104 Sup.Ct. 2052, 80 L.Ed.2d 674 (1984) in the
following particulars :
.. ........(0l..0d',;........ :...... 2~:. .~:;;.':d,: ,.
':..
:. ~"n.: "': (1) Leå.'d':~ounsei, at trJaion1yto'.PétI:fTOiiertwice . prIor to.thi s óff'.ense.. .
........ .i(2,).,;:...,Tr,i.êl:i~5'C()Pl1S.è:l:;fâ,iOj,'~d...to.lioii.ò~;,'....np."dnfÒr -
..mationánd.in.ye~tigat~/.thoròughl yPet i t i pÌler's., iengthy/,.;hlstprr.)Òf:siipstCinteabuse...to..-deter". mine..if.tlierei'rå~'st.r'fltieIlt........orgaIlici ty...as aresultofsuhstance'abasetcimi tigate.. punish-men t . ' .....\. . ...,....;.;
. .m~ïèi~~f;:l#~i~l~lif~~~~~~~!ilt~liti~.the.assailantandin£orni.âtioI1 concerhing . simi:"lari ties' .hetweÈmPetitioner's.'...app'earànce....andthe alternative assailant. ., ..
and talked'...trìal'..'.. for
.,' :~\~:;::.,:::;.':~"':" ."',';'. . ',' ,":', : ,:. ~~--.: '::": ' ""
...,;:,.: '\)'.::'d.~~';.:'. '~.'" :,:...;~;. . -.::i: ':. .
::,':.:;:. -
.,'. ~ .:~,~'::.
. ... .:. ' , .:':.' '....::'.', :;~!..;.).':,. , :,.,..,,'-:' : . ",'~ ,~. .: ..:: ::':,:,~,,'"
'~i'::,".;'/:'"
.,.; ,; ..~~.?t .:".,:',~, "".~':' . ":~'.:;..: .; .
.' t, :: "::'.:' ,,:~"" . '-' .,~ ,.."':":'::'.;t,:,~"::',.
','-' :,',--,', .
',.;.:",~:: ,::,';:":.,.:':;:;':j'.. ,:"', ,....," '. " . "(4) Trial. counsel,., failed .to adequatelyinvestigate an al ter'tlati ve assailant and to
"'''_'hT'ri1-'rT'''' ~'t't..h ~-,,_.._....-.._.:.. --~----
,.~~
Peti tioner had to present in mitigation ofpunishment, failed to put on a single witnessat the punishment phase of the trial in miti-gation of punishment.
(6) Trial counsel failed to preserve thetestimony of Petitioner's most importantwitness although they had been advised thatthe witness was hospitalized, was near death,and that the testimony of the witness wasabsolutely critical to the defensive hypothe-sis of an alternative assailant.
(7) Trial counsel instructed Petitioner notto cooperate with court-appointed psychologistand psychiatrists for fear that the evidencewould be used against Petitioner. Petitionerwould. show in this respect tha tPet i t ioner' slengthy history of substance abuse, if madeknown to the psychiatrist and psychologistappointed by the Court to evaluate Yeti tionerwould have produced evidence in mitigation ofpunishment.
(C) Petitioner was denied effective assistance of
counsel on the appeal of his conviction inviolation of his rights under the Sixth and
Fourteen Amendments, Uni ted States
Constitution, and Article 1, Sections 3, 3a,
10 , 15, and 19. Petitioner will show that
even if the standards of Strickland v.
Washington, 466 U.S. 1105, 104 Sup.Ct. 2052,
80 L.Ed.2d 674 (1984), apply to the deter-of whether or not counsel was effec-
on the appeal of Petitioner's cause,Peti tioner will show that counsel's brief on
consisting of seventeen pages, was
inadequate and insufficient to effec-
tively present to the Court of Crimiita1
Appeals of Texas all the issues that were pre-
sent at Petitioner's trial.i
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 5
r-
'.);.~.. ..:.-
VII.
That as a basis for these claims an evidentiary
will be requÌrEid to pròvided . addi fionaltestimony
evidence for the Court's consideration thatwas .notdevelop~d åt the tria~ of this cause.
WHEREFORE, PREMISES CONSIDERED, Petitioner prays
that .this Court:
1. Issue a Writ of ,:Habeas Corpus toh¡ive
Petitioner brought before it to end that he may be
discharged from his unconstitutional confinement
and restraint and/or. relieved of his unconstitu-
tional sentence of death;
2. Conduct a hearing at which proof may be
offered concerning the allegations of thisPetition;
3. Permit Petitioner, who is indigent, to
proceed without prepayment of costs or fees;
4. Grant Petitioner, who is indigent, suf-
ficient funds to secure expert testimony to prove
facts as alleged in this Petition;
S. Grant Petitioner the author ity to obtain
in forma pauperis for witnessesanddocu-to prove the facts as alleged in
peti tion;
6. Allow Petitioneraperiod!of sixty (60)
days, which period shall cOJlmence after the comple-
tion of any hearing this ~ourt determines to con-
duct, in which to brief the issues of law raised in
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 6
f)
.....~...~
this petition;
7. Immediately stay Petitioner's execution
pending final disposition of this petition; and
8. Grant such other relief as may be
appropriate.
. D RBank of Dallas Building, LBI33333 Lee Parkway, Suite 930Dallas, Texas 75219214/559-4384Bar No. 01207700
CERTIFICATp OF SERVICE
A copy of this Motion has been forwarded to Mr.
John Grant Jones, District Attorney of Nueces County, Texas,
901 Leopard, Corpus Christi, Texas, 78401 and to Ms. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Floor, Austin, Texas, 787ll.
this the 7'" day of IJ~ , 1986.7J~~'~ERSON ....
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 7
...
""--,'
IN THE 28TH JUDICIAL DISTRICT COURT
FOR NUECES COUNTY, TEXAS
EX PARTE §§§§§
NO.
CARLOS DELUNA
AFFIDAVIT---------STATE OF TEXAS §
§COUNTY OF DALLAS §
CARLOS DELUNA is the Petitioner in this cause andhas stated to me that all the facts stated herein are trueand correct. Because of time limitations, counsel has notbeen able to get an affidavit signed, but will do so as soonas possible pursuant to .ailing lim~~~
A. ANDERSON
SUBSCRIBED AN SWORN TO BEFORE ME, the undersignedauthority~y the said Richard A. Ander~on on ~his ~he ~day of rJ¡'(, , 1986, to certify which witnessmyhand and seal of author i ty.
N~~mSTATE OF TEXAS
Commission Expires: .r;;o-fct
AFFIDAVIT - Page 1
s
~ .....'"....j.
....'O:..
IN THE. 28TH JUDICIAL DISTRICT COURT
FOR NUECESCOUNTY ,TEXAS
§§§§§
NO. p -Cl-ic¡'!~.!l
APPLICATION FOR STAY OF EXECUTION
Petitioner respectfully moves the Court to enter an.. . c.':... .W.,'. .order staying the executio~ ~~ thi sentence of deaih imposed
upon him and scheduled to be carried out before sunrise on
October 15, 1986, pending the final disposition of the pre-
sent proceeding for a writ of habeas corpus, and until
further order of the Court.
This motion is based upon the Petition for Writ of
Habeas Corpus by a Person in State Custody filed contem-
APPLICATION FOR STAY OF EXECUTION - Pagel~-;:¡ 't¡ ~ItLX
o ~ \~:OCT i 1iS.J"")
~~~~/l~~è')O~!1. .;::¡.::~:r:~.!~'.lti.(¡ itt:(I ~.0 '¡)(L ¡ (.(i ...'-..:. .... ,I,. .:if
'---"
"i~.'
0./'-...0"_0"0
por~neously h~rewith, and the Memorandum of Law in support
of Petitioner's Application for a Stay of Execution.
~Bank of Dallas Building, LBI33333 Lee Parkway, Suite 930Dallas, Texas 75219214/559-4384BarNo. 01207700
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
A copy of this Motion has been forwarded to Mr.
John Grant Jones, District Attorney of Nueces County, Texas,
901 Leopard, Corpus Christi. Texas, 78401 and to Ms. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Building, Sixth Floor, Austin, Texas, 787ll.
SIGNED this the 7.p day of ~
.~p-
.íU.~ERSON .
, 1986.
APPLICATION FOR STAY OF EXECUTION - Page 2
.1 (ì
o R D E R~ () ROn this the ~ day of V~
.....
, 1986, came
on to be heard the Defendant's Application for Stay ofExecution, and the same is hereby ((;RATEIl Hatil such tIMe
as a foIl and final de tei niIfiatlon of the Wi it of Mabeiis
Corpus~llcation can be made) (DENIED, to which action the
defendant/petitioner excepYJ~). f) p ~.rl
~J; 7"~/()~' 17~.
tl4~JUDGE PRESIDING,28TH JUDICIAL DIST ICT COURTNUECES COUNTY, TEXAS
APPLICATION FOR STAY OF EXECUTION - Page 3
it
NO. 83-CR-194A
IN THE DISTRICT COURT
28th .JUDICIAL DISTRICT
. NUECES COUNT'r,TEXAS
STATE'S ANSWER TO APPLICATION FORPOST CONVICTION WRIT OF HABEAS CORPUS. " . ".
. Petitioner has filed an Application for. Writ of Habeas
of
He has stated no facts ,.however, whièh if
him, to hab.eas corpus. rélief. Thère is no
evidentiary hearirig, 'and the relief he seeks
should be denied.
GRANT JONESDISTRICT ATTORNEY105TH JUDICIAL DISTRICTNUECES, KLEBERG ANDKENEDY COUNTIES
BY'~;O~!?,IÆLIE POYNTERASSISTANT DISTRICT ATTORNEYSTATE BAR NO. 08327050
CONCLUSION
contains no controverted or unresolved
th.e legaÚty .' of . the applidant's
applicå tionbe.:\: '.
. Appeais", ..... ..-..-..... '.
w:iÙiout...... a
~.:Æ......í1~¡LËÍ~OYNTERASSISTANT 'DISTRICT ATTORNEYSTATE BAR . NO.Ò8327050
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CERTIFICATE OF SERVICE
I hereby certify that a true copy of the State' s Answer
Post Conviction Writ of Habeas Corpus incause has been served on the Defendant,
Defendant i s Attorney and the Assistant Attorney General
following addresses:
Carlos DeLuna.Texas Department of Corrections
Ellis UnitDeath RowHuntsviile, Texås, 77340
Mr. RichardA. AndersonAttoini:y for DefendantBank of Dallas Building , LB#33333 Lee Parkway, Suite 930Dallas, Texas 75219
Ms. Paula OffenhauserAssistant Attorney GeneralSupreme Court BuildingSixth Floor, Austin, Texas 78711
by depositing same in the United States Mail, Postage
Prepaid, on this the 9th day of October, 1986.ß . j.~r~IE 0 NTER U
ASSISTANT DISTRICT ATTORNEYSTATE BAR NO. 08327050
if - .-. .", "ì.ii ..1
NO. 83-CR-194A
IN THE DISTRICT COURT
28TH JUDICIAL DISTRICT. .NUECES COUNTY,. TEXAS
QßThe Court finds that Petitioner i s Writ of Habeas Corpus
not present any controverted or previously unresolved
materiål./to .the iegality of the applicant's:. -"~-,.: . .
The Clerk is therefore ORDERED to immediately . transmit
to the Court of Criminal Appeals in Austin, Texas, a copy of
Petitioner's Application, the State's Answer, and a copy of
this Order.1h
Signed on this ~ day of , 1986.
./ Clerk of District Court of NuecesI, the the 28th
County, Texas do hereby certify that the above Order was
entered on the qth day of ~~1986.OfA,~e.l. ,
GIVEN UNDER MY HAND AND SEAL OF OFFICE.
..~ ;'. 92 'Ai. .2À-~r. ,.DE UTY DISTRICT CLERKe...NUECES COUNTY, TEXAS
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il18238
S~~Q.~\q~~~i(:,~~;St~te of Texas 'Is: CARLO.S. DELUNA
CAPITALMUEif ,.
Bon~ì \,60) 50 0 Si.L
;;''./'-.'. : :=;'~.. .
. COur:
/.'If'I NAM AN BY AUTORITY OF TH ST¿'J,n~P:XA:
. .'. TH GRA JUY, for theCOuntycif Nueces. , State of Tex, duly selected, empaneled, sworn,
~ged, and organed as such at the February Ter A.D. 19!! of the l05th.Judicial Distnct Co . for said Coty; upon their. oath preent in and to sai court. at said ter that
'.",':"::/.DeLuna
. hereiafter styled Defendat, on or about the day of February AD. 19.J,iid before the presentment of th ~dictment, in the County and State aforesaid,
did then and there while in . the course of committing andattempting to commit the robbery of Wanda Lopez, intentionally
cause, during the commission of said robbery and attempted
robbery, the death of Wanda Lopez by stabbing her with a
knifeCount 2
AND THE GRAD JURORS upon their oaths further present in and
to said Court that on or about the 4th day of February ,1983, .in NuecesCounty , Texas, and anterior to the presentment
of this indictment, Carlos DeLuna did then and there intentionally
and knowingly cause the death of an individual, Wanda Lopez,
· ...... by..sta~ bing" herwf.th a knifeCount 3
;~i:~ltllllr;lt~~~ll¡:i~iiÎt¡~t/.Lópeza:nd ..\oith.t~e,iritent ..to.. depdvè Wanda Löp~zofsuch"~prbp~~ty;.intenti.qniiíi; and knOwÚigiy,diiringthe~ommi~'~ionof said theft , c~ti~~skdous bodily inj?ry, namëlyd~a:th, to
Wanda Lopez by .st~bbing her with a knife ../ ..~.n/o:rn (IFEB 171983
. Foreman of the GrandJu~
Onginal.-Pink; State's Copy-Blue; Defendatlt's Copy-Yelow
¡
l
I
. agaist the peace and dignty of the State.
15
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NO. 83-CR-19it-i\
THE STATE OF TEXAS
VS.
IN THE DISTRICT COURT
28TH JUDICIAL DISTRICT
CARLOS DE LUNA NUECES COUNTY, TEXAS
JUDGMENT
This case was called on July 5, 1983. Both pa~ties
appeared and announced ready for trial. Attorneys for
the State were Steve Schiwetz and Kenneth Botary. Attorneys
for the defendant were James .Lawrence and Hector De Pena, Jr.
A jury was selected and sworn.
In the presence of the jury, the indictment was read.
Defendant pleaded not guilty to the offense alleged.
Evidence was submitted to the jury.
The jury received the court's charge, heard the arguments
of counsel, and retired to determine its verdict.
On July 20, 1983, the jury concluded its deliberations
returned the following verdict:iiWe,tbeJury, find the Defendant, Carlos De Luna, guilty
thè offense of Capital Murder, as alleged in the indictment.
/ s / ALFRED G. MORALESFOREPERSON i i
The verdict was filed. and entered of .record on July20, í 983, at.5: 30 p.m. /.
On the issue of punishment the" jury beard evidence;
received a charge by the court, heard the arguments òf
counsel, and retired to à€termine its verdict.
:I
the issue of punishment the jury h~ardevidence,
the court, heard. thèLarguinents óf
to determine its verdict.
1983, the jury concluded its deliberations
'returned the following verdict:
the Defendant, Carlos De Luna, that..of the de~"e~sed, Wanda Lopez, coinitted
deliberately and with .the reasonable expectation that the','
death of the dèceased. or another wouid resulti
ANSHER
We, the Jury, unanimously find and determine beyond
a reasonable doubt that the answer to this Special Issue
is 'Yes.'
I s I ALFRED G. MORALESFOREPERSONii
"SPECIAL ISSUE NO.2
a.. probability that the Defendant, Carlos De. Luna
acts of violence that would constitute
ánddetermine beyond a
that the answer tofhi.sSpeciaL Issue is
lsi ALFRED G.. MORALESFOREPERSONIi
17
;"
:r;
"VERDICT
:,tole, the Jury, return in open Court the above answers
asriur answers to the Special Issues submitted to us, and
the same is our verdict in this case.
lsi ALFRED G. MORALESFOREPERSONii
This verdict was filed and entered of record on
21, 1983,at8: 52 p.m.
It is ORDERED, ADJUDGED AND DECREED by the Court
that the Defendant, Carlos De Luna, is guilty of. the offenseof Capital Murder and that he be punished by death in
accordance with the jury's verdict.
The Court further finds that the offense alleged in
the indictment was committed on February 4, 1983.
Before pronouncing sentence, the Defendant was asked
whether he had anyth ing to say why the sentence should
not be pronounced against him. He answered he did not.
It is, therefore, the Order of the Court that the
Defendant is sentenced to death; but the law further
providing for an automatic appeal to the Court of Cr iminal
App~als of the Stae of Texas, the sentence is suspended~-, ."
until tbedecis ion of the Court of Cr iminal Appeals has
~~~~~. received by this Court. -"";~è'.f;.:'The Defendant is now remanded to the custody of the
.:Sh~Ùf(of Nueces County, Texas, to be transported to the
Corrections at Huntsville, Texas, there
of the Court of Criminal Appeals and the
further orders of this Court.
SIGNED on th is the 22nd day of July, 1983.tÎ~~i'¡ALLACE MOORE
JUDGE PRESIDING
.. ,:Á.,_,
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IN THE DISTRICT COURT
28TH JUDICIAL DISTRICT
../NUECES COUNTY, TEXAS
July 5, 1983. Both parties
appeared and anriounced ready for trial. Attorneys for
the State were Steve Schiwetz and Kenneth Botary. Attorneys
for the defendant were James Lawrence and Hector De Pena, Jr.
A jury was selected and sworn.
In the presence of the jury, the indictment was read.
Defendant pleaded n.ot guilty to the offense alleged.
Evidence was submitted to the jury.
The jury received the court's charge, heard the arguments
of counsel, and retired to determine its verdict.
On ~uly 20, 1983, the jury concluded its deliberetions
following verdict:find the Defendant, Carlos De Luna, guilty
.Capital Nurder, as alleged in the indictment.
lsi .ALFRED G.FOREPERSON"
and entered of record on july
p.m.
On the ~ssueöf punishment the ju~y heard evidence~
received a cha~ge by the court, hearà the arguments of
counsel, and retireè to determine its verdict.
AI 00
..... -, ~'-,J.J-
of punishment the jury heard evidence,
by the court, heard the arguments of
retired to determine its verdict.
21, 1983, the jury concluded its deliberations
arid returned the following verdict:
..íiSPECIAL IS.SUE NO. 1
¿onduct of the Defendant, Carlos De Luna, that
cåused the death of the deceased, Wanda Lopez, committed
deliberately and with the reasonable expectation that the
death of the deceased or another would result?
ANSHER
We, the Jury, unanimously find and determine beyond
a reasonable doubt that the answer to this Special Issue
is 'Yes.'
/ s / ALFRED G. MORALESFOREPERSON Ii
"SPECIAL ISSUE NO.2
ility that theDefendan¿, Carlos ~e Luna
that woulò constitute
. ,a~d deseririneg~;ondå
answer to this Special Issue ,is
/ s /ALFREDG .FOREPERsm~ II
,20
-- '\ ..
"VERDrCT
We, the Jury, return in open Court the above answers
as our answers to the Spec ial Issues submitted to us, and
the same is our verdict in this case.
lsI ALFRED G. MORALESFOREPERSON'i
This verdict was filed and entered of record on
July 2l, 1983, at 8:52 p.m.
It is ORDERED, ADJUDGED AND DECREED by the Court
that the Defendant, Carlos De Luna, is guilty of the offense
of Capital Murder arid that he be punished by death in
accordance with the jury's verdict.
The Court further finds that the offense alleged in
the in¿ictment was committed on February 4, 1983.
Before pronouncing sentence, the Defendant was asked
whether he had anything to say why the sentence should
not be pronounced against him. He answered he did not.
I t is, therefore, the Oràer of the Court that the
Defendant is sentenced to death; but the law further
providing for an automatic appeal to the Court of Criminal
Appeals of the Stàf~--exas, the sentence is suspended
of the Court of Criminal Appeals has
received by this Court.
~he Defendant is now remanded to the custody of the
Sherlff of Nueces County, Texa£, to be transported to the
Texas Department of Corrections at Huntsville, Texas, there
to awäit the action of the Court of Criminal Appeals and the
further orders of this Court.
This judgment replaces the judgment in this case which
was signed on July 22, 1983, and is madt for the purpose of.
correcting thE. date on \-Thich the punishn~ent verdict \-.'a~
21
.'. '"\. ~_....
-Due toåcler icaletror, thåt date was incorrectly
'-, ."':'-.-..:":::
on the ... d11~y of . ,.c:. .. .,July 22,1983.
22
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DeLUNA, 'ipi:~iiå~t
v. Appeal from NUECES County
TEXAS, Appellee
o P I NI ON-------was convicted of capital murder. The jury
both special issues intheaffirmative and death was
as punishment. Article 37.071, V.A.C.C.P. Appellantraises seven grou~ds of error. We will affirm.
The evidence showed that during a robbery in Corpus Christi
appellant fatally stabbed the clerk of a gas station. He was
seen and identified by witnesses before, during, and after the
offense. Police conducted a search of the neighborhood into
which the robber had reportedly fled and two officers found
appellant hiding under a truck parked at a curb. Appellant does
not challenge the sufficiency of the evidence.
Only appellant' s sixth ground of error pertains to presenta-
tion of evidence at the guilt-innocence phase of trial.
a photograph of him taken at police head-
of his arrest was improperly admitted into
at trial that "the proper
actually took the picture,or anything of this nature, if,, . ";. - '-. :." - -"
of Officer
d.escribed.ap~~iiantá.shaviI1gå. glassy,/
the time of . his arrest, a description
".'-... -0" - -- .the officer had n6tlncluded. those words in his offense report.
coritestedon crossexamination on the basis that
On redirect examination Officer Schauer was shown the photograph
of appellant and asked if he recognized it:
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DeLUNA -2-
"A: Yes, sir.Q: Who is that a photograph of?
A: It i S Carlos, the suspect.Q: Is that how he looked the night that you arrested
him after you took him :to the booking desk?
A: Yes.
Q: Does he have that stare that you have described?
A: I think so. .Q: This is how he looked when you took him to the
booking desk that night?
A: He has a kind of a smirk on his face, too.
Q: This was taken at the police department?
It was upatthebôoking desk.A:
..Q:", ....',
On the 4th .aáyOfrebr\1ary, i 983: is that.correct?._ ,':':3-::,.;:"~;' .:'.:-.. .-,' ..,.,y.;~~--". '. ,:.-:.:.0........ .....A: Yes,sir."..,".-.-,:;./~' .~':~c,' .:. ...... "-::'-..:~..-;,.:~. .' .- '. .,. ,'.:-;.-': ...
5.;" .\!, '.,.)Âtthat poirit:;'¡JtWél"~atg~r:aplfrwaG' offeredanaD~cimi~f.E!diAt.ò",.",. ,',: -:. ,".' :C.~._'::'~_:';'. -:.. '". . _: ...~'.:.~.;¿';.. .-'- '_.: ,_').:~:~); ;:t:.:'. ,:_., /-.r~;'~'---'_:;";"~:'::-' ' ".-. ~ '.,' -: ~':-:' :_:" ..: :~_:.:'~~.A~~\/!:'(':~:,-;;,;-,~: '.-,L'.,.-.-.-.-
;.),; ;:.",;l:,;;;.;~~~,d.....t.J .~pe . .:it.l~f:".'w.1~~'~.ì~.'~i~ng.! ,. ';:~~f;;~;';,~~.t.. ..~ri5ros:;:",....,,~~~%~~~~,~~~~~î.gt:~;g.,~,~j:,,:,~ '-:. ~: ". ....."': , ..-.- .'. .- .... ""':"'.,:,;~ '. "" '. . . '. ' " . ' . "',' .. . .. ".:):,"
;..ádniiS.i:dble if .... it.i'srê1.évaÎ1't'-:\tÕ..a.. jnate'riç.l isS'fi'¿':~/~h'dYt,f:'s'ah.
-,..... ....i"êp~r'~te t.~Ptes~~~i~.g~~.;~~§~~f~~~~~~Cg?~f'~ì,.¡.~:lll~¡~il~~~ ?~~i',
v . State ,6oås.W.:ià645,649.(~~x. Cr.App. i 980). ..,Wh¿£h~rthe. ., ' '-..:::--/:.:\" "':..ò;' '. ::¡:~~'._' " ::'.' ' .' . '::;'~;"; ::;:':-,:;'~:;)f~::t~~~~if?:~;:;1%f~f;~~?:r~':";'~ ".: ':"';;:¿~'~':~~~::: .;: , .' .
.. ..phöt6g r ciph, was r~lêyånttOårly/;)drt~-tè f'f~ü.. . i 58 ue.E1ji-.¥lle.~',.~¥.iål.~~iiš:.
gG~'~ti o.qab. Ie.., . ... lJU't: t.ha :t....wå s.. ':d~~the.'.. bas is :ó.fi'J.'a.;pJ,~.;tii~n.£:1\!~;~.
obj ection'.'; 'nor ofhÚ/grou~áof~~r();:;.;~?~:;:)~d;':b.~f.;;.~tIS.'~.,.,.;X. :;,- . .;~t:-;..~-' . "
Schauer's testimony established the time, place, elt1å:ad?~t'~?y;Óf..'. ..~.'
the photograph. There was rio need to ~eetappèiiårit' s~pedifi.cnl,;ø("r;nn +n::+- "..,.Q n.,nl"o", Y"~o"'';_"=-lro i...__.,.L "\__~_ ..._...
;.
~~;.=..'
-3-
taken. David v.
453S.W.2d 172, 177-178 (Tex.Cr.App. 1970). Appellant's
öf.error numb.er six is overruled.
,In his seventh ground of error appellant contends the trial. ." . - ", . ~
evidence.
refusing to give a charge onccircumstantial
The jury was, however, properly instructed on the
presumption of innocence, that the burden of proof was on the
State, and on the requirement that appellant be acquitted if
there was a reasonable doubt of his guilt. In such a case a
charge on circumstantial evidence is no longer required.Hankins v. State, 646 S.W.2d 191, 199 (Tex.Cr.App. 1983)
(Opinion on State's motion for reheariCig). Ground of error
number seven is overruled.
At the punishment phase of trial the State put on evidence
that appellant had committed an unadjudicated, extraneous
offense. Appellant's parole officer testified tli.l.t appellanton parole from the Texas Department of
13, 1982, and had been cha~ged with a new
including the
The
a frienàoihis.ti:om T.D.C~ was
thi.s.~~~nt.~ ....'SÁccbrdingto. :., ~~- . -
", .",- ..'...... . ," --,'
returned to the.. hoiisel.~tert.llatnightgone.
LLyiti~f 'iri\"béd, arÌ¿f'Jieheld .apillow ..overhérfabe.
s~rag91.~dhe told her to be quiet, thre~~eried Ú'.~ill
:When . she
her, and
hit her several times, breaking three of her ribs and bruisingher face. The complainant testified that though appellant
25
.."-.,..7'
'DeLUNA -4-lowered his pants while lying atop her, he did not sexually
her, but instead left the house after about twenty
of unadjudicated, extraneous offenses is admissible in
thepunishment phase of a capital murder trial, absent a showing
that the defendant is unfairly surprised by such evidence.
Williams v. State, 622 S.W.2d 116, 120 (Tex.Cr.App. 1981). To
prove that appellant was not surprised by this evidence the
State offered three pages of an offense report describing the
offense. The first page of the report had been initialed by
defense counsel and dated some months before trial. The trial
court accepted this exhibit outside the jury's presence, for the
limi ted purpose for which the State offered it. Appellantobjected that the offense report should be admitted before the
jury for all purposes. The trial court overruled the objection
on the basis that the offense report was "the clearest kind of
admissible even by agreement, and hearsay, .is. -- hasnoweightd of an evidentiary nature whatsoever."" Âppellantnowcontends, in his ground of error. numbe:r four,
"'.'::".':'".,:' - '.
;ithat. tlie:éxclusionof this evidence was erroneous.'';~:\~''':':':'' ," .;:".,~. '."' ::', .'
He argues
'~gb&r~eá,otiiyanaSSaui t. . (In the report the investigating
~ff.i~er concluded.; ~"Upon investigating this complaint it was
deterIiinedt.hàt . there was no rape or attempted rape that waspro~écutable in this case,
ihowever there was a class A assault
that ,c~uid be prosecuted . ") Appellant wanted the jury to have
this "evidence." In other words, he wanted this out of court
statement offered to prove the truth of the matter. asserted
therein. As the trial court held, this was obvious hearsay. Ex
26
-5-
parte Martinez, 530 S.W.2d 578, 580 (Tex.Cr.App. 1975); lA Ray,
Law of Evidence (3d ed. 1980) §781. The officer who made
the report did not testify concerning the offense, so the report
could not have been used to impeach .any inconsistent testimony
heiii~ht have given. Nor did the statement falL. within any
other exception to tbe hearsay rule.A trial court has wide discretion in admitting or excluding
evidence at the punishment phase of a capital murder trial. King
v. State, 657 S.W.2d 109, 111 (Tex.Cr;App. 1983). Nevertheless,
the rules of evidence still govern the admissibility of
evidence. Id. The offense report in the ins tant caseconstituted inadmissible hearsay and was properly excluded by
the trial court. Appellant's ground of error number four is
overruled.
Appellant's fifth ground of error complains that the trial
court overruled his objection to the charge on punishment.
objected that the charge did not include
of the words. "deliberately" and "a probability," as
In King v. State, 5~3 S. W. 2d
(T-ex~Cr.App. 1977), this Court expressly held that
'''..''. '.-. ._Tli.~issueappears to be well settled.
the court's charge to the
Barefoot v.S.~1.2d 875, 887 (Tex.Cr.App. 1980); Russell v. State,
II771,780 (Tex.Cr.App. 1983).- Ground of error five is
ioverruled.
In his third ground of error appellant asserts that the
- --- - - - ---- ~--
II-But see this writer's dissenting opinion in Russell, supra,
at 781. See also Williams v. State. 674 S.W.2d 315. 3~2. n. 6(Tex.Cr.App. 1984).
.-..¡. (
. -,,;,:,,¡,.
-6-
trial court. :~f~ed. ii;sendingthe jury back to deliberate furtherWhenitrir$t..i~.t.u1:~ed.Withtiio'answer .to special issue number. ~; '-.:' ..~. '::;:':'-~::-"/J" ~-,,~-~.'.::'-::.
t~l:. APPeileiÏi~.;,.CeiIÎt1Ïldsth~"còi.rt.Shoiâd instead have assess.ed
.'(l;sentenCEi.~~.'l:if7.' imprisolutÌent at that time, pursuant to. ,,'-.",:-.".
37 .òii(~)~ . ~~Á~~.c. P...,
jury deliberated. . After the punishment hearing and some time
The record . is unclear as to the exact amount of time the
before lunch, the jury began its deliberations.Some time
before dinner the same day, they returned with special issuenumber one answered in the affirmative, but no answer to the
second special issue. The following exchange then took place
between the foreman and the trial court:"THE COURT: Let me ask you, Mr. Morales, as
Foreperson, do you think that with further delibera-tions yoU could resolve what difficulty you
were havingwith that issue?
. I would -- Your Honor, I wouldcertainly could give it a try.
is'y()urthou9ht in the matter?difficulties you're having andeitheryés or noon it?
. li~veeXhaui;ted . both , avenues,
it':wolÚd be råtlÍerdi.ffiClÌ1t'. toand)iiåke a decision, sir."j~rRr.indiyi.db~iJ.Yif:he or she
mOre time to
asked th~ìi't.o .~ontinue their deliberations.
h¡iHieVèá:clverdict: .couldbe reached,..........;
except one juror, who
Your Honor." .Given that large majority
the trialSome time
after a recess for dinner, the jury returned with affirmative
answers to both..' Special issues 0
the jury was polled, arid each responded that the answers to the
úpon the defendant's request
28
-.,..,,'
-7-
At-ticle 36. 3l,V.A.C.C.p., provides:,',\".:",,'.- ' , ";,.',--.-',-it~ft~r the c~use.,is submitted to
the jury, it may beidisCharged when it cannot agree and both parties
~consent to the' discharge; or the court may in its. discretion discharge it where it has been kept together. f()rsuch time as to render it altogether improbable.that it can agree. it .
Thus the length of time the jury deliberates rests in the sound
discretion of the trial court, and absent an abuse of that
discretion there is no error. Garcia v. State, 522 S.W.2d 203,
208 (Tex.Cr.App. 1975).
In Williams v. State, 476 S.W.2d 300, 305 (Tex.Cr.App.
1972), the defendant moved for a mistrial after the jury had
deliberated for six and a half hours, whereupon the trial court
had the jury return to the courtroom and asked if they could
reach a verdict. Only one juror indicated they could not. This
Court held there was no abuse of discretion in the trial court 's
jury to continue its deliberations. In Andrade
S.W.2d 585 (Tex.Cr.App. 1985), no abuse of
shown when . the trial court had the jury continue
a'veJ:dtcton s1?ecialisstie number one. Thejury
four. and ahal.fhours that they had reached
'f~;sue, .blltthe. . triaic~urtPverrui:edCthemistriaL. The jury continued deiiberating
.11:00 p..m. They resumed at 9:00 o'clockifoilowing morningeind reached unan:tmity within half an hour.
. "Consideringt.he nature of the case, aand the time of deliberation, approximately
twelve hours, we find no abuse of discretion on the part of the
trial court." ~., at 589.
.~o.r'ü
~ø'
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in the instant case when the trial court
jury continue its deliberations the court
gåv~noåd¿Utionai charge. and made no comment on either the law. '.-': ., ',': ....-,.../..,.' .oi:,theevidènce.'''See Muniz v. State, 573s.W~2d.792, 794, n. 4
1978). Where as here the forem.an. expressed a
willingness to continue trying to reach a verdict, and only one
other juror indicated the jury could not, it was not "altogether
improbable" that the jury would "agree." .Article 36.31, supra.
There was no abuse of discretion in the trial court i s having the
jury continue its deliberations. Ground of error number three
is overruled.
Finally, appellant i s grounds of error one and two allege thetrial court erred in overruling his motion for new triaL. A
hearing was held on the motion, during which one of the jurors
testified. The juror was a clerk in a convenience store, and
defense counsel had discovered that during the trial she was the
victim. of a crime similar to the one of which appellant was
Appellant i S contention that she was "the victim of the
-:"'::',-'.
.'. :.' . '...';êi:~btsaÌiiii.-t~~üoti" as that presented at
trial is inaccurate,::d.c':~h~~:ver~"Y'IE!3urör'tèstified that she had been work.in~at the"::.:
.......",,_.
,st'Cf.è'at '1:60 å.ií/whèn she accused a "kid," fourteen
or fifteeni;y~;äÇsôld~ .6,lsh()~Ì.fting. When he was cornered. b:/tliejuror
arid..her coworker ,the shoplifter removed a: jug. ofwinëtrÒri his
produceda knife, with whichi he threatened the juror
;." "'-',.:.'';";:" -'.",'::-,..~. '.;.'
to make his escape. The juror characterized
2/¥hat this contention of appellant i s must not be read
literally is obvious. If the juror had been the victim of the"exact same" type of crime as the capital murder with whichappellant was charged she would not have been available totestify at the motion for new trial hearing.
30
.,,., \ .
"'/t.,"'..~
thing" . that had no
uriêqui~od~ilX.tlia.ts~~-iladn9tbeen scar.ed by the.'L:- .
..; \l~()i: ..a1:the
"Q: All right. And my question, then, is: Did thatsituation in any way influence your verdict in theDeLuna case?
,. .' .exC:helng~ . between . the trial. court and the
A: No, sir.Q: And are you sure of that in your own mind?
A: Yes, sir."Appellant now contends his motion for new trial should have
been granted because the juror was disabled from serving under
Article 36.29, V.A.C.C.P., which provides in part:
when pending the trial of any felony case, onedie or be disabled from sitting at any timecharge of the court is read to the jury,the
of the jury shall have the power to render
on Griffin v. State, 486S.W.2d 948, 951
"disabled" in thïs ..context as
troin........£J#~\al1d_...fair ly
A~p~ii~kt,~~~gÙ'~ridsthe
definition..... be~~u~~S~~Ø;~~~~riertce
her agaúlst;X~~~~li~I1t,i~h()'~as
offense.. ../.,ii ..v. State, 597 S.W.2a 769,771 t'rex.cr.App,
this Court held that disabi,Iityofa.jiirorinthis.:,., " . ';.; . ...
context. re£ei~ only to physical, mental, or~ml:~i~ri.impairments,
not to bias or prejudice. Appellant contends the juror in thiscase must have .been so "mentally impaired" by
the bias or
prejudice produced by her victimization that she was disabled
, ,
;l1
",:""..
..._: ..... '.- ..L.9S1).;in ~..afterthe jury
had been selected but.before. the
~tt~~p~è~~~Ùt~i md~der trial began one of the jurors was
...... '.~h~~~t~rÍed by~'m.in:i,h~ entered her hedroo~. with a k~î.fe .
This'courf.reitera.t¿d,ho~~-:er, that any bias or prejudïce produced
. by such asi tuationdoes not render the juror disabled under
v. State, 622 S.W.2d 101 (Tex.Cr.App.
.Article 36.29, supra. ~., at 106. The mental impairment
referred to in ~ was that the juror herself testified thatshe had been so shaken by her experience that she could notconcentrate on the case in which she was sitting as a juror. In
the instant case, to the contrary, the juror testified that she
had not been frightened by the "common shoplifting" incident in
her store and that that offense had not colored her decisions at
trial. In light of this testimony the trial court did not abuse
discretion in overruling the motion for new trial.
reversible error, we affirm the judgment of the
32
..--.
Appellant
vs. - - - APPEAL. FROM NUECES COUNTY
TEXAS, Appellee
CONCURRING OPINION
-_.-:.::,.-'.,' .
to write because of the way the majority opinion
appellant's seventh .ground of error. The majoritystates'the following: "In his seventh. ground of error
appellant contends the trial court erred in refusing to give a charge
circumstantiai evidence . The jury was, however, properly instructed
on the presumption on innocence, that the burden of proof was on the
State, and on the requirement that appellant be acquitted if there was
a reasonable doubt of his guilt. In such a case a
charge oncircumstantial evidence is no longer required. Hankins v. State, 646
S .W.2d 191, 199 (Tex.Cr.App.1983) (Opinion on State's motion for
rehearing. Ground of error number seven is overruled. II (My emphas is. )
The way I interpret what the majority opinion states is that
whether an instruction on circumstantial evidence must be given hinges
oris conditioned on whether the jury was instructed on presumption of
innocence, on the burden of proof, and if there
was a reasonable doubt:'the jury should'a6quit the defendant. If they were, the defendant does
:n()t get suchal1instruction. If they were not, the defendãntdoes get- -:".:-,:-.,.'.
ii.. '"l~~,~j-~~~~,: el~-;:i ~~Êr~c £'bn.
'..' . ';'":;;.(,,..., The majori tyopinion thus implies that in some cases,
as a matter::.-aSb.f :iÙî\4,~Idet~h~~~t will be entitled t() receive an i~struction on
\:: .::~:;.
'¡cirèiimstantiâ.lévidence. It cites Hankins v. State,
supra, as itsfor this proposition. Hankins, f supra, however, did not so
limi t i tse If .
33
..~,y
LUNA - 2
In fact, but as I and others, including Judge Clinton, the author
of the majority opinion in this cause, correctly pointed out in the
concurring and dissenting opinions .that were filed in Hankins, supra,
the then aggressive and assertive majority of this Court held that no
of law, would an accused person be entitled to an
instruction on circumstantial evidence. I stated the following in the
dissenting opinion that I filed in Hankins, supra:- "In. any event, the
mighty circumstantial evidence charge in our law is now consigned by
the. mljority opinion to its death and burial in the refuse heap of
Texas law, preceded in death only recently by the doctrine of carving.
See Ex parte Mc Williams, 634 S.W.2d 815 (Tex.Cr.App.1982)." (221).
In summary, until Hankins v. State, supra, is expressly overruled
by this Court, or the Legislature of this State so provides, an
accused person in Texas will not ever be entitled, as a matter of law,
to receive an instruction on circumstantial evidence.
TEAGUE, Judge
, ;" :~...
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.....:... .:. .
3.1
No.
FRO
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Tex
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CARLOS DE LUNA
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Issu
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TRiA"L COURT NO. 83-CR-194-A
Appellant _,
. . ~.
....69,24.5.,,-.
.,.: -~.-..vs.
The State of Texas, Appellee_.
was determined; and therein our said COURT 'OF CRIMINAL APPEALS made its order in these words:
. "This cause came on to be heard on the transcript of the record of the Court below, and the same being
c():nsidered, because it is the opinion of this Coutt that there was no error in the judgment, it is ordered, adjudged
.arid decreed by the Court that the judgment be in all things affirmed, and that the appellant pay all costs in this
behalf ~xpended, and that this decision be certified below for observance."
We command you to observe the order of our said COURTOF CRIMINAL APPEALS in this
duly recognized, obeyed and executed.
....~.ìb... Deputy Clerk.
. 35
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THE STATE OF TEXAS
COUNTY OF NUECES
I, OSCAR SOLIZ, Clerk of .the District Courts, in and for
Nueces County, State of Texas, do hereby certify that the
above and foregoing are true and correct copies of all the
proceedings directed by counsel to be included in the TRANSCRIPT
had in the case of THE STATE OF TEXAS VS CARLOS DE LUNA, as the
same appears from the originals now on file and of record in this
office.Given under my hand and seal of said Court, at office, in
the City of Corpus Christi, on the 9th day of October, A.D. 1986.
OSCAR SOLIZ, DISTRICT CLERKNUECES COUNTY, TEXAS
\,
..~.' r" ~ "BY.: !'Uß,i,W" JU'lUWDEPUTY
i~'
~~e¡.-a 0 Ar . -I II. 00 4-
.úk~~rx:7 '- £) tl -A .~~~.~ ~ ~¿'AA'~;A/J~(ó~ r '~~""~.h~~~¡J~~~ ~.M l).Cl..~/~-~~~
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~~ ,,,q ,._,...... ~":'~_.e_, :'.'" :"_.','.'0_'-",-: v........."-,,~........"V_.,.,.,_.__~.,. ".~¥._'- .... ""...-. ...,',..'.-......,. '-.'-"'~ ,:,.-,.,",".._-,.'.-.'-~'- '."
IN THE 28TH JUDICIAL DISTRICT COURT
FOR NUECES COUNTY, TEXAS
EX PARTE §§§§§
. NO.
CARLOS DELUNA
APPLICATION FOR WRIT OF HAEAS CORPUS AND
BRIEF APPLICATION FOR ~ STAY OF MADATE
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now CAROS DELUNA, Petitioner in the above
styled and numbered cause, by and through his Attorney,Richard A. Anderson, and files this his Application for Writ
of Habeas Corpus and Brief Application for Stay of Mandate,
and in support hereof would respectfully show the Court as
follows:
I. CUSTODY
Peti tioner is confined on Death Row in the Ell is I
Unit of the Texas Department of Correction in Huntsville,
Texas, pursuant to a judgment of conviction and sentence of
death in Cause No. 83-CR-194-A pUrsuant to a jury verdict
returned July 15, 1983. The Court of Criminal Appeals of
Texas affirmed the conviction and sentence of the Petitioner
in Opinion No. 69,245, an En Banc Decision delivered June 4,
1986. Petitioner's court-appointed attorney on appeal did
not file a Motion for Rehearing in the Court of Criminal
Appeals of Texas, and did not seek an Application for Writ
of Certiorari to the Supreme Court of the United States.
Peti tioner' s cause was abandoned by his court-appointed
attorneys after affirmance by the Court of Criminal Appeals
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 1
u ' ROFlLMEOc .
of Texas and Petitioner's first execution date has been set
for October ls, 1986. On October 7, 1986, Petitioner has
filed a Motion for Stay of Execution addressed to Justice
Byron White, Associate Justice, United States Supreme Court.
As of the date of the filing of this Application for Writ of
Habeas Corpus and Request for Stay of Mandate, no decision
has been rendered on that Motion for Stay of Execution.
II. JUISDICTION
Peti tioner invokes this Court's jurisdiction pur-suant to Article ll. 07, Texas Code of Criminal Procedure.
III. PROCEDUR HISTORY
On July 15, 1983, a jury returned affirmativeanswers to the issues submitted to them at Peti tioner' scapital murder trial, and the Judge sentenced Petitioner to
death. Petitioner was represented by two court-appointed
counsel.
The conviction and sentence were affirmed by theCourt of Appeals of Texas on June 4, 1986. No Application
for Writ of Certiorari has been made at this time.
Petitioner is scheduled to be executed on October
15, 1986. No previous applications under Article 11.07,Texas Code of Criminal Procedure have been made by
Petitioner or advanced on Petitioner's behalf prior to
the filing of this petition.
Present counsel has agreed to represent Petitioneras volunteer counsel and Mr. DeLuna has agreed to present
counsel's representation in this cause.
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 2
f ~ L M E 0h\tCRO
IV. EXHAUSTION OF ~ REMEDIES
Peti tioner has presented none of the claims pre-sented here on direct appeal and no court in Petitioner'scase has passed upon Petitioner i s contentions in thisApplication for Writ of Habeas Corpus.
v. STATEMNT OF THE CASE
Peti tioner was convicted on an indictment thatalleged that on the 4th day of February, 1983, while in the
course of attempting to commit a robbery of Wanda Lopez, he
intentionally caused the death of Wanda Lopez by stabbing
her with a knife.
VI . STATEMENT OF CLAIMS
Petitioner was denied rights of constitutionaldimension, as guaranteed under both United StatesConstitution and the Constitution of the State of Texas, in
the following particulars:
(A) Prosecutorial discretion in determining which
cases in which to seek the death penalty isdiscriminatory based upon the race of the vic-
tim in violation of the defendant's rights
under the Fifth, Sixth, Eighth and Fourteenth
Amendments, United States Constitution and
Article 1, Sections 3, 3a, 10, 15, and 19.
Peti tioner is an hispanic male. The victim ofthe offense as listed by autopsy records is
white female. Evidence will be adduced that
will show prosecutions in Nueces County,
Texas, in which the decision to seek the death
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 3
MiCROF1LMED
penal ty is invoked is based upon the race of
the victim to a statistical certainty. The
Uni ted States Supreme Court has before ita
similar issue in McCluskey v. Kemp,. No.
84-681l and Hi tchock v. Wainwright, No.
85-6756, to be argued before this Court on
October l5, 1986.
(B) Petitioner was denied effective assistance of
counsel at trial in violation of his rights
under the Sixth and Fourteenth Amendments,
United States Constitution, Article 1, Section
3, 3a; 10, 15, and 19. Petitioner will show
in evidence adduced that he was denied effec-
tive assistance of counsel under the standards
of Strickland v. Washington, 466 U.S. 1105,
l04 Sup.Ct. 2052, 80 L.Ed.2d 674 (l984) in the
following particulars:
(1) Lead counsel at trial only saw and talkedto Petitioner twice prior to his trial forthis offense.
(2) Trial counsel failed to follow up infor-mation and investigate thoroughly Petitioner'slengthy history of substance abuse to deter-mine if there was sufficient organicity as aresul t of substance abuse to mitigate punish-ment.
(3) Counsel at trial failed to thoroughlyinvestigate an al ternati ve hypothesis con-cerning an assailant other than Petitionereven when provided with a name and location ofthe assailant and information concerning simi-larities between Petitioner's appearance andthe alternative assailant.(4) Trial counsel failed to adequatelyinvestigate an alternative assailant and touse technology such as spectroscopic voiceidentification techniques on a tape recordingof the actual assault and offense to determinewhether or not the voice on the tape was thatof the Petitioner or another assailant.
(5) Trial counsel, all though being advisedof numerous witnesses that this 21 year old
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 4
MiCROFILMED
Peti tioner had to present in mitigation ofpunishment, failed to put on a single witnessat the punishment phase of the trial in miti-gation of punishment. .
(6) Trial counsel failed to preserve thetestimony of Petitioner's most importantwitness although they had been advised thatthe witness was hospitalized, was near death,and that the testimony of the witness wasabsolutely critical to the defensive hypothe-sis of an alternative assailant.
(7) Trial counsel instructed Petitioner notto cooperate with court-appóinted psychologistand psychiatrists for fear that the evidencewould be used against Petitioner. Petitionerwould show in this respect that Petitioner'slengthy history of substance abuse, if madeknown to the psychiatrist and psychologistappointed by the Court to evaluate Pet,itionerwould have produced evidence in mitigation ofpunishment.
(C) Petitioner was denied effective assistance of
counsel on the appeal of his conviction inviolation of his rights under the Sixth and
Fourteen Amendments, United States
Constitution, and Article l, Sections 3, 3a.
10, 15. and 19. Peti tioner will show that
even if the standards of Strickland v.
Washington. 466 U.S. 1105, 104 Sup.Ct. Z05Z.
80 L.Ed. Zd 674 (1984). apply to the deter-
mination of whether or not counsel was effec-
ti ve on the appeal of Petitioner's cause,
Petitioner will show that counsel's brief on
appeal. consisting of seventeen pages, was
whol1y inadequate and insufficient to effec-
ti vely present to the Court of Criminal
Appeals of Texas all the issues that were pre-
sent at Petitioner's trial.
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 5
MtCROF1LMED
VII.
That as a basis for these claims an evidentiary
hearing will be required to provided additional testimony
and evidence for the Court's consideration that was not
developed at the trial of this cause.
WHEREFORE, PREMISES CONSIDERED, Petitioner prays
that this Court:
i. Issue a Writ of Habeas Corpus to have
Petitioner brought before it to end that he may be
discharged from his unconstitutional confinement
and restraint and/or relieved of his unconsti tu-
tional sentence of death;
2. Conduct a hear ing at which proof may be
offered concerning the allegations of this
Petition;
3. Permi t Petitioner, who is indigent, to
proceed without prepayment of costs or fees;
4. Grant Petitioner, who is indigent, suf-
ficient funds to secure expert testimony to prove
the facts as alleged in this Petition;
5. Grant Petitioner the authority to obtain
subpoenas in forma pauperis for witnesses and docu-
ments necessary to prove the facts as alleged in
this petition;
6. Allow Petitioner a period of sixty (60)
days, which period shall commence after the comple-
tion of any hearing this Court determines to con-
duct, in which to br ief the issues of law raised in
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 6
Ml(;l(UljlMfD-
this petition;
7. Immediately stay Petitioner i s execution
pending final disposi tion of this peti tion; and
8. Grant such other relief as may be
appropriate.
sr¡.
Bank of Dallas Building, LBl33333 Lee Parkway, Sui te 930Dallas, Texas 75219214/559-4384 .Bar No. 01207700
CERTIFICATB OF SERVICB
A copy of this Motion has been forwarded to Mr.
John Grant Jones, District Attorney of Nueces County, Texas,
gOL Leopard, Corpus Christi, Texas, 7840l and to Ms. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Building, Sixth Floor, Austin, Texas, 78711.
SIGNED this the 1~ day of £?~ , 1986.
rí~
APPLICATION FOR WRIT OF HAEAS CORPUS - Page 7
lA t C 1( U r . L M f 0
IN THE 28TH JUDICIAL DiSTRICT COURT
FOR NUECES COUNTY, TEXAS
EX PARTE §§§§§
NO. /3- (¡t-, 191.. If
CARLOS DELUNA
APPLICATION FOR WRIT OF HABEAS CORPUS AND
BRIEF APPLICATION FOR ~ STAY OF MADATE
TO THE HONORABLE JUDGE OF SAID COURT:
Comes now CALOS DELUNA, Petitioner in the above
styled and numbered cause, by and through his Attorney,Richard A. Anderson, and files this his Application for Writ
of Habeas Corpus and Brief Application for Stay of Mandate,
and in support hereof would respectfully show the Court as
follows:
I. CUSTODY
Peti tioner is confined on Death Row in the Ellis I
Unit of the Texas Departm-entof Correction in Huntsville,
Texas, pursuant to a judgment of conviction and sentence of
death in Cause No. 83 -CR-194-A pursuant to a jury verdict
returned July 15, 1983. The Court of Criminal Appeals of
Texas affirmed the conviction and sentence of the Petitioner
in Opinion No. 69,245, an En Banc Decision delivered June 4,
1986. Petitioner's court-appointed attorney on appeal did
not file a Motion for Rehearing in the Court of Criminal
Appeals of Texas, and did not seek an Application for Writ
of Certiorari to the Supreme Court of the United States.
Peti tioner' s cause was abandoned by his court-appointed
attorneys after affirmance by the Court of Criminal Appeals
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 1 r;:, If O ~ i-;JI..,! t'_ "\ L~
r;;'\1 ~; j
r t..
tAiCROF i L M E 0 OCT iJ ;il~. illfuf:)
9..§GARßOLIZ. CLi;.:r:!.:
of Texas and Petitioner i s first execution date has been set
for October l5, 1986. On October 7, 1986, Petitioner has
filed a Motion for Stay of Execution addressed to Justice
Byron White, Associate Justice, United States Supreme Court.
As of the date of the filing of this Application for Writ of
Habeas Corpus and Request for Stay of Mandate, no decision
has been rendered on that Motion for Stay of Execution.
II. JUISDICTION
Peti tioner invokes this Court t s jurisdiction pur-suant to Article ll.07, Texas Code of Criminal Procedure.
III. PROCEDUR HISTORY
On July 15, 1983, a jury returned affirmativeanswers to the issues submitted to them at Petitioner i scapital murder trial~ and the Judge sentenced Petitioner to
death. Petitioner was represented by two court-appointed
counsel.
The conviction and sentence were affirmed by theCourt of Appeals of Texas on June 4, 1986. No Application
for Writ of Certiorari has been made at this time.
Peti tioner is scheduled to be executed on October
l5, 1986. No previous applications
Texas Code of Criminal Procedure
under Article 11.07,
have been made by
Peti tioner or advanced on Petitioner's behalf prior tothe filing of this petition.
Present counsel has agreed to represent Petitioneras volunteer counsel and Mr. DeLuna has agreed to present
counsel's representation in this cause.
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 2
~A C R 0 F L M f 0
IV. EXHUSTION OF STATE REMEDIES--Petitioner has presented none of the claims pre-
sented here on direct appeal and no court in Petitioner i scase has passed upon Petitioner i s contentions in thisApplication for Writ of Habeas Corpus.
V. STATEMENT OF THE CASE
Peti tioner was convicted on an indictment thatalleged that on the 4th day of February, 1983, while in the
course of attempting to commit a robbery of Wanda Lopez, he
intentionally caused the death of Wanda Lopez by stabbing
her with a knife.
VI. STATEMENT OF CLAIMS
Peti tioner was denied rights of constitutionald imens i on, as guaranteed under both United StatesConsti tution and the Constitution of the State of Texas, in
the following particulars:
(A) Prosecutor ial discretion in determining which
cases in which to seek the death penalty isdiscriminatory based upon the race of the vic-
tim in violation of the defendant i s rights
under the Fifth, Sixth, Eighth and Fourteenth
Amendments, United States Constitution and
Article l, Sections 3, 3a, 10, 15, and 19.
Petitioner is an hispanic male. The victim of
the offense as listed by autopsy records is
whi te female. Evidence ~ill be adduced that
will show prosecutions in Nueces County,
Texas, in which the decision to seek the death
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 3
I\.Mt.~\\ U r l
M. \ l;
penal ty is invoked is based upon the race of
the victim to a statistical certainty. The
United States Supreme Court has before it a
similar issue in McCluskey v. Kemp, No.
84-68ll and Hitchock v. Wainwright, No.
85-6756, to be argued before this Court on
October l5, 1986.
(B) Petitioner was denied effective assistance of
counsel at trial in violation of his rights
under the Sixth and Fourteenth Amendments,
Uni ted States Constitution, Article 1, Section
3, 3a, 10, 15, and 19. Petitioner will show
in evidence adduced that he was denied effec-
tive assistance of counsel .under the standards
of Strickland v. Washington, 466 U. S. 1105,
l04 Sup.Ct. 2052, 80 L.Ed.2d 674 (l984) in the
following particulars:
(1) Lead counsel at trial only saw and talkedto Petitioner twice prior to his trial forthis offense.
(2) Trial counsel failed to fo~low up infor-mation and investigate thoroughly Petitioner'slengthy history of substance abuse to deter-mine if there was sufficient organicity as aresul t of substance abuse to mitigate punish-ment.
(3) Counsel at trial failed to thoroughlyinvestigate an al ternati ve hypothesis con-cerning an assailant other than Petitionereven when provided with a name and location ofthe assailant and information concerning simi-larities between Petitioner's appearance andthe al ternati ve assailant.
(4) Trial counsel failed to adequatelyinvestigate an alternative assailant and touse technology such as spectroscopic voiceidentification techniques on a tape recordingof the actual assault and offense to determinewhether or not the voice on the tape was thatof the Petitioner or another assailant.
(5) Trial counsel, all though being advisedof numerous witnesses that this 2l year old
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 4
~ U th\ ~ C
~\.M.l~
Petitioner had to present in mitigation ofpunishment, failed to put on a single witnessat the punishment phase of the trial in miti-gation of punishment;
(6) Tr ial counsel failed to preserve thetestimony of Petitioner's most importantwi tness although they had been advised thatthe witness was hospitalizedt was neaT deathtand that the testimony of the witness wasabsolutely critical to the defensive hypothe-sis of an al ternati ve assailant.
(7) Trial counsel instructed Petitioner notto cooperate with court-appointed psychologistand psychiatrists for fear that the evidencewould be used against Petitioner. Petitionerwould show in this respect that Petitioner'slengthy history of substance abuse, if madeknown to the psychiatrist and psychologistappointed by the Court to evaluate Petitionerwould have produced evidence in mitigation ofpunishment.
(C) Petitioner was denied effective assistance of
counsel on the appeal of his conviction inviolation of his rights under the Sixth and
Fourteen Amendments, United States
Constitution, and Article l, Sections 3, 3a,
10, 15, and 19. Peti tioner will show thateven if the standards of Str i ckland v.Washington, 466 U.S. 1105, l04 Sup.Ct. 2052,
SO L.Ed.2d 674 (l9S4), apply to the deter-
mination of whether or not counsel waseffec-ti ve on the appeal of Petitioner i s cause,Peti tioner will show that counsel i s brief onappeal, consisting of seventeen pages, was
wholly inadequate and insufficient to effec-
ti vely present to the Court of Criminal
Appeals of Texas all the issues that were pre-
sent at Petitioner's trial.
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 5
OF~LMtO~\ \ C R
VII.
That as a basis for these claims an evidentiary
hearing will be required to provided additional testimony
and evidence for the Court's consideration that was not
developed at the trial of this cause.
WHEREFORE, PREMISES CONSIDERED, Petitioner prays
that this Court:
i. Issue a Writ of Habeas Corpus to have
Petitioner brought before it to end that he may be
discharged from his unconstitutional confinement
and restraint and/or relieved of his unconsti tu-
tional sentence of death;
2. Conduct a hear ing at which proof may be
offered concerning the allegations of this
Petition;
3. Permit Petitioner, who is indigent, to
proceed without prepayment of costs or fees;
4. Grant Petitioner, who is indigent, suf-
ficient funds to secure expert testimony to prove
the facts as alleged in this Petition;
5. Grant Petitioner the authority to obtain
subpoenas in forma pauperis for witnesses and docu-
ments necessary to prove the facts as alleged in
this petition;
6. Allow Petitioner a period of sixty (60)
days, which period shall commence after the comple-
tion of any hearing this Court determines to con-
duct, in which to brief the issues of law raised in
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 6
tJ1\CRO F ~ L M E 0
this petition;
7. Immediately stay Petitioner's execution
pending final disposition of this petition; and
8. Grant such other relief as may be
appropriate.
.Bank of Dallas Building, LBl33333 Lee Parkway, Sui te 930Dallas, Texas 75219214/559-4384Bar No. 01207700
CERTIFICATE OF SERVICE
A copy of this Motion has been forwarded to Mr.
John Grant Jones, District Attorney of Nueces County, Texas,
90i Leopard, Corpus Christi ,Texas, 78401 and to ~s. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Building, Sixth Floor, Austin, Texas, 787ll.
SIGNED this the ?r' day of ¡J~ , 1986.
r¡~
APPLICATION FOR WRIT OF HABEAS CORPUS - Page 7
r';? CP.OFlLMfO
IN THE 28TH JUDICIAL DISTRICT COURT
FOR NUECES COUNTY, TEXAS
EX PARTE §§§§§
NO.
CARLOS DELUNA .
APPLICATION ~.~ OF EXECUTION
Petitioner respectfully moves the Court to enter an
order staying the execution of the sentence of death imposed
upon him and scheduled to be carried out before sunrise on
October l5, 1986, pending the final disposition of the pre-
sent proceeding for a writ of habeas corpus, and until
further order of the Court.
This motion is based upon the Petition for Writ of
Habeas Corpus by a Person in State Custody filed contem-
\
APPLICATION FOR STAY Qf EXECUTION - Page 1
M CROFlf ftC'n
poraneously herewith, and the Memorandum of Law in support
of Petitioner's Application for a Stay of Execution.
~Bank of Dallas Building, LBl33333 Lee Parkway, Suite 930Dallas, Texas 75219214/559-4384Bar No. 01207700
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
A copy of this Motion has been forwarded to Mr.
John Grant Jones, District Attorney of Nueces County, Texas,
901 Leopard, Corpus Christi, Texas, 78401 and to Ms. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Building, Sixth Floor, Austin, Texas, 787l1.
SIGNED this the 1iP day of ~ , 1986.
¡¡~
APPLICATION FOR STAY OF EXECUTION - Page 2
~!CROFlLMEO
o R D B R- - - --On this the __ day of
t 1986 t tame
on to be heard the Defendant' 5 Application for Stay ofExecutiont and the same is hereby (GRATBD until such time
as a full and final determination of the Writ of Habeas
Corpus Application can be made) (DBNIEDt to which action the
defendant/peti tioner excepts).
JUDGE PRESIDING t28TH JUDICIAL DISTRICT COURTNUECES COUNTY t TEXAS
APPLICATION FOR STAY OF EXECUTION - Page 3
MiCfiUf!LMfO
IN THE 28TH JUDICIAL DISTRICT COURT
FOR NUBCBS COUNTY, TBXAS
EX PARTE §§§§§
NO. l,j -(1-111-. ilCARLOS DELUNA
APPLICATION FOR STAY OF EXECUTION
Petitioner respectfully moves the Court to enter an
order staying the execution of the sentence of death imposed
upon him and scheduled to be carried out before sunrise on
October is, 1986, pending the final disposition of the pre-
sent proceeding for a writ of habeas corpus, and until
further order of the Court.
This motion is based upon the Petition for Writ of
Habeas Corpus by a Person in State Custody filed contem-
ROflLMEOM t C
APPLICATION FOR STAY OF EXECUTION - Page 1
r~Iru
~ ~ F~ ~ :. ;, .
OCT ') 1£:&
OSCAR SOLIZ, Ci:.r:X!i':~~~.~~~1.. 'i.E" i:~l'~i. y IW:.
Cli,;;t4 df -j()l (M r!~ri;!
. '.
poraneously herewith, and the Memorandum of Law in support
of Petitioner's Application for a Stay of Execution.
~Bank of Dallas Building, LBl33333 Lee Parkway, Suite 930Dallas, Texas 75219214/559-4384Bar No. 01207700
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE
A copy of this Motion has been forwarded to Mr.
John Grant Jones, Distr ict Attorney of Nueces County, Texas,
90l Leopard, Corpus Christi, Texas, 78401 and to Ms. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Building, Sixth Floor, Austin, Texas, 787ll.
SIGNED this the ~~ day of . ~ , 1986.
il~
APPLICATION FOR STAY OF EXECUTION - Page 2
M IcaUrlLMEO
NO. 83-CR-194A
IN THE DISTRICT COURTEX PARTE
28th JUDICIAL DISTRICTCARLOS DELUNA
NUECES COUNTY, TEXAS
STATE'S ANSWER TO APPLICATION FORPOST CONVICTION WRIT OF HABEAS CORPUS
Peti tioner has filed an Application for Writ of Habeas
Corpus. This is Petitioner's First Application for Writ of
Habeas Corpus. He has stated no facts, however, which if
true would entitle him to habeas corpus relief. There is no
need for an evidentiary hearing, and the relief he seeks
should be denied.
GRANT JONESDISTRICT ATTORNEY105TH JUDICIAL DISTRICTNUECES, KLEBERG ANDKENEDY COUNTIES
By,~jJ~l(,LIE POYNTER
ASSISTANT DISTRICT ATTORNEYSTATE BAR NO. 08327050
CONCLUSION
This application contains no controverted or unresolved
facts material to the legality of the applicant'sconfinement.
WHEREFORE, the State prays that this application be
transmitted to the Court of Criminal Appeals without ahearing.
~£~LE IE POYNTERASSISTANT DISTRICT ATTORNEYSTATE BAR NO. 08327050
\-Ül~~\ ? ,-,~,...',.,' rCT --9 1986Ý~..;..i.:1 B,J~i.. c~.J....I" ~ ellli ~t~~l!~'lt~
-l1 i f'"
.? n. r: i l. M F n
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the State i s Answer
to Appilç~tion for Post Conviction Writ of Habeas Corpus in
the above entitled cause has been served on the Defendant,
the OefenQant i s Attorney and the Assistant Attorney General
at the following addresses:
Carlos DeLunaTexas Department of CorrectionsEllis UnitDeath RowHuntsville, Texas, 77340
Mr. Richard A. AndersonAttorney for DefendantBank of Dallas Building, LB#33333 Lee Parkway, Suite 930Dallas, Texas 75219
Ms. Paula OffenhauserAssistant Attorney GeneralSupreme Court BuildingSixth Floor, Austin, Texas 78711
by depositing same in the United States Mail, Postage
Prepaid, on this the 9th day of October,
M c u U F L M E 0
~
':'~m~~~,'~'i"öj;', rr /Íri m0lJf~~~\ ~~UUUUt¿:~.~::'\'.;:...:::..:."/ DISTRICT COURTS
OSCAR SOLIZ / DISRICT CLERKP.O. BOX 2987 I CORPUS CHRISTI, TEXAS 78403AREA CODE 512 888-0450
Court of Criminal AppealsBox 12308Capitol StationAustin, Texas 78711
Dear Sir:
Nt
October 9, 1986
Enclosed please find the Transcript on the Post Conviction ;Writ ofHaDeas Corpu~ filed on Carlos De Luna under cause number 83-CR-194-A.
Sincerely
Oscar Soliz, District ClerkNueces County, Texas
By Cl U1.:iJ ô) hOUl ~Deputy
CC: Mr. WindhorstMs. OffenhauserMr. Anderson
L),ý'/
(?l'o;(~ç~~
ÇJ
. .
.: ~ )
Cause No. 83-CR 194-A
PETITIONER Carlos DeLuna
ADDRESS Ellis I UnitTexas Department of CorrectionsHuntsville, Texas
FRON Oscar Soliz, Distr~ct Clerk901 LeopardP. O. Box 2987Corpus Christi, Texas 78403
Walter Dunham, Jr.JUDGE
ATTORNEY FOR PETITIONER ATTORNEY FOR STATE
Richard A. AndersonBank of Dallas Bldg, LB#33333 Lee Parkway, Suite 930Da11ad, Texas 75219 .
Grant Jones, District Attorney901 LeopardNueces County CourthouseCorpus Christi, Texas 78403
INDEX
Application For Writ of Habeas Corpus and B.ief Application fora Stay of Mandate filed on October 9, 1986 1
lApplication For Stay Of Execution filed on October 9, 1~86 andOrder Denied and recorded on crn7 page 524
9State i S An.wer To Application For Post Conviction Writ of HabeasCor pus f i 1 e don 0 c to b e r 9, 19 86 and 0 r d err e cor d e don cm 7 / 5 5 3
12Indictment filed on Februarv i7~ 1983
15
Judgment and Sentence signed on July 23, 1983 and recorded oncm5/213-215 16
Judgment Nunc Pro Tunc signed on July 27, 1983 and recorded oncm 5 pages 231-234 19
Opinion filed on June 24, 1986
Mandate signed on June 20, 1986 and filed on June 24, 1986
23
35
Docket Sheet 37
Clerk's Certificate 46
tJ i. ii. U L l~l L II.., l
A.RiCHA~'ALAN ANDERSON
.-ÁTIRNBY AT LAW
BA OF DALA BUIDING
3333 LEE PARAY SUI 930 LB-3
DALA, TBX 7$219
LICENSED iN TE AND COWRA
BOARD CSIUIFIED: CRIMINAL LAWTEXAS BOARD OF LEGAL SPECIALIZATION
(214) 559-4384
October 9, 1986
Mr.CourtBox 12CapitolAustin,
mmy Lowe, Clerkf Criminal Appeals
8tationxas 78711
RE: Carlos DeLuna v. State of Texas
Dear Tommy:
Enclosed you will please find the original andten (10) copies of the Motion for Stay of Execution in theabove captioned matter. Please return to me a file-markedcopy of same in the enclosed self-addressed, stamped enve-lope.
tact me.If you have any questions, please feel free to con-
ANDERSONRA/cv
CC: Mr. Christopher Vasilc/o United States Supreme CourtOne 1st Street, N.E.~a$hington, D.C. 20543
'\~ C R o F ~ L M F f\ .-Ll'-'
CL erk of the CourtCourt of Criminal AppealsOctober 9,. 1986
Page 2
Mr. John Grant Jones - wi Encls.District Attorney of Nueces County, Texas901 LeopardCorpus Christi, Texas 78401
Ms. Paula Offenhauser - wi Encls.Assistant Attorney General200 W. 14th, Supreme Court Building, 6th FloorAustin, Texas 78711
Mr. Richard Windhorst, Chief Deputy - wi Encls.Fifth Circui t Court of Appeals600 Camp StreetNew Orleans, LA 70130
Honor. able Walter Dunham, JUdV. e28th Judicial District CourtNueces County Courthouse901 Leopard StreetCorpus Christi, Texas 78401
MiCROFILMED
IN THE 28TH JUDICIAL DISTRICT COURT
FOR NUECES COUNTY, TEXAS
EX PARTE §§§§§
NO.
CARLOS DELUNA
AFFIDAVIT---------STATE OF TEXAS l
lCOUNTY OF DALLAS l
CARLOS DELUNA is
SUBSCRIBED AN SWORN TO BEFORE ME, the undersignedauthority~ the said Richard A. Anderson on this the ~day of ,*- , 1986, to certify which witness myhand and seal of authority.
~ 1~ ,N'1\r4B~~ ~~ THESTATE OF TEXAS
Commission Expires: í?~o-rct
AFFIDAVIT - Page 1
MlCROFlLMfD
NO. 83-CR-194A
EX PARTEIN THE DISTRICT COURT
28TH JUDICIAL DISTRICTCARLOS DELUNA
NUECES COUNTY, TEXAS
ORDER
The Court finds that Peti tioner . s Wri t of Habeas Corpus
does not present any controverted or previously unresolved
facts material to the legality of the applicant i S
confinement.
The Clerk is therefore ORDERED to immediately transmi t
to the Court of Criminal Appeals in Austin, Texas, a copy of
Petitioner'~ Application, the State i s Answer, and a copy ofthis Order. ~
Signed on this ~ day of , 1986.
I, the Clerk of the 28th District Court of Nueces
County, Texas do hereby certify that the above Order was
entered on the 1"l day of ~ , 1986.GIVEN UNDER MY HAND AND SEAL OF OFFICE.
~:Udb Th.~Q;#DE UTY DISTRICT CLERKNUECES COUNTY, TEXAS
~~C R 0
F L M t 0
. '.
o R D E R- - - ---, (?fJ ROn this the 9 day of t¿~ , 1986, came.
on to be heard the Defendant's Application for Stay ofExecution, and the same is hereby (SRATEB Hfttil such time
a. a fl111 and final deteimInatlon of the Wtit of Mabea-'s
Corpus ApplIcation can he made) (DENIED, to which action the
defendant/peti tioner excep~~). ~ p ~r I~ N. (r~(0~1 Ii l$.
l/dl~JUG R I ,28TH JUDICIAL DIST ICT COURTNUECES COUNTY, TEXAS
APPLICATION FOR STAY OF EXECUTION - Page 3
f:~i l Çt h 'J£¡tMiR
:~,,")
'\ I
THE STATE OF TEXAS
COUNTY OF NUECES
I, OSCAR SOLIZ, Clerk of .the District Courts, in and for
Nueces County, State of Texas, do hereby certify that the
above and foregoing are true and correct copies of all the
proceedings. directed by counsel to be included in the TRANSCRIPT
had in the case of THE STATE OF TEXAS VS CARLOS DE LUNA, as the
same appears from the originals now on file and of record in this
office.Given under my hand and seal of said Court, at office, in
the City of Corpus Christi, on the 9th day of October, A.D. 1986.
OSCAR SOLIZ, DISTRICT CLERKNUECES COUNTY, TEXAS
,..\. '~ 1B Y ~ ItL6.¡;!i JX'l U ()
I DEPUTY
lf~'
.\)HN F. ONION. JR.F"RF.SIDING JUOGF
QCourt of QIriminat :àpprnl!5
~tntc of ~cxns
jßox 12308
(£npitol ~tntíon~ustín 78711
RICHARD BANKS. EXECUTIVE ADMINISTRATOR
THOMAS LOWECLERK
ïOM G. DAVISW.C. DAVISSAM HOUSTON CLiNTONMICHAEL J. MCCORMICKMARVIN O. TEAGUECHUCK MILLERCHARLES F. (CHUCK) CAMPBELLBILL WHITE
JUDGES
October 13, 1986
Honorable Wal ter DunhamPresiding Judge28th Judicial District CourtNueces County CourthouseCorpus Christi, TX 78401
..~ ::..¥ ,-
r':
Dear Judge Dunham:
RE: CARLØS;'DeLUNA v. TheState of TexasWrit No. 16,436-01
Enclosed herein is an order entered by the Court regardingthe above-referenced peti tioner.
If you should have any questions concerning this matter,please do not hesitate to contact me.
RB :mscc: Oscar Soliz
District ClerkNueces County Cour thouseCorpus Christi, TX 78401
Grant JonesDistrict Attorney901 LeopardCotpus Christi, TX 78403
Sincerely,
Richard Banks,Executi ve Admini strator
Mr. Christopher Vasilc/o Uni ted States Supreme CourtOne 1st Street, N~ E.Washington, D.C. 20543
Ms. Paula OffenhauserAssistant Attorney General200 W. 14, Supreme Court Bldg.6th FloorAustin, TX 78711
l\A1 G ~ U t 1 L M E D.. ~ .
cc: Richard A. AndersonAttorney at LawBank of Dallas Bldg., LB #33333 Lee Parkway, Suite 930Dallas, TX 75219
Mr. Richard WindhorstChief DeputyFifth Circuit Court of Appeals600 Camp StreetNew Orleans, LA 70130
S. o. Woods, DirectorRecords & ClassificationsP. O. Box 99Huntsville, TX 77340
..
lA\.C~U~
V"1f.
~LlAi.U
" ..
.....
. . .. --. .. __ _'_
NO.
IN THE
COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS,
AUSTIN, TEXAS
*** ***** **** *** * * ** * ** ** * ** ** *
CARLOS DELUNA,
PETITIONER
VS.
THE STATE OF TEXAS,
RESPONDENT
** *** * ************* * ** *** ** ** *
On Appeal From Denial of Wri t of Habeas CorpusFrom the 28th Judicial District Court,
Nueces County, Texas
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
MOTION FOR STAY OF EXECUTION
THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS, STATEOF TEXAS:
CARLOS DELUNA prays that an order be entered
staying the execution of his death sentence scheduled to be
carried out for a time before sunrise on the 15th day of
feif n D f,"!
I -i) :..
J .: t .~:J
f ~:1'.'~
~ t. f'~_.. .-;.i
. .
OGT131~:mMOTION FOR STAY OF EXECUTION - Page i
JA T C R 0 F 6 I M r rj-.()SCAR SOLiZ., CU::f:~i':Ä.A,;Y COIJR,T:';fjr."E,s U;II:FY, IF.XA~:(.. YIUflhH'U .11,.... _ .
October, 1986, pending â hearing on an Application for Writ
of Habeas Corpus fil ed October 8, 1986, in the 28th Judicial
District Court of Nueces County, Texas, and denied October
9, 1986, without hearing. In support, the Petitioner would
show:
1.
CARLOS DELUNA was convicted of capital murder and
sentenced to death by a Texas jury on the 15th day of July,
1983, in the 28th Judicial Distr ict Court of Nueces County,
Texas, in Cause No. 83 -CR- 149 -A.
II.The Court of Criminal Appeals of Texas affirmed the
conv iction and sentence of the Peti tioner in Cause No.
69,245 in an En Banc Opinion deli vered June 4, 1986. A copy
of that Opinion is attached to this Motion as Appendix A..
Peti tioner' s court -appointed attorney on appeal did not filea Motion for Rehearing in the Court of Criminal Appeals of
Texas, and did not seek an Application for Writ of Cetiorari
to the Supreme Court of the Uni ted States. Pet i ti oner ' s
cause was abandoned by his court-appointed attorneys after
affirmance by the Court of Criminal Appeals of Texas and
Peti tioner' s first execution date has been set for October
MOTION FOR STAY OF EXECUTION - Page 2
t'..~ eRG FI LM fU
15, 1986. An Application for Stay of Execution addressed to
the United States Supreme Court pending the filing of a Writ
of Certiorari was filed on October 8, 1986. The Supreme
Court will be meeting to determine this issue on October 10,
1986, but it is anticipated that the stay will be denied
because the issues to be presented have not been Ii tigated
in State Court.
III.Peti tioner on October 8, 1986, filed an original
Application for Wri t of Habeas Corpus under Article 11.07,
Texas Code of Criminal Procedure, along with an Application
for Stay of Execution pending hearing on that Wri t of Habeas
Corpus. The Wri t of Habeas Corpus raises substantial issues
as pointed out below that are of consti tutional dimension
that were not Ii tigated in the trial court at the time of
the original trial, was not raised upon appeal to the Court
of Criminal Appeals of Texas, and no evidentiary hearing has
been granted in any court to determine the val i di ty of these
issues. That on October 9, 1986, the trial court in the
28th Judicial District Court, Nueces County, Texas, denied
Peti tioner the opportunity of an evidentiary hearing, deniedhis Application for Wri t of Habeas Corpus wi thout hearing,
and denied the Stay of Execution.
MOTION FOR STAY OF EXECUTION - Page 3
tJ \ C R O. F ~L M f o
iv.Absent the granting of a Stay of Execution by this
Court, Peti tioner will be executed by lethal injection onthe 15th day of October, 1986, before he has had an oppor-
tuni ty to present to this Court the substantial consti tu-
tional issues in his case, which include:
(A) Prosecutorial discretion in determining which
cases in which to seek the death penal ty isdiscriminatory based upon the race of the vic-
tim in violation of the defendant 's rights
under the Fifth, Sixth, Eighth and Fourteenth
Amendments , United States Consti tution and
Article 1, Sections 3, 3a, 10, 15, and 19.
Peti tioner is an hispanic male. The victim ofthe offense as listed by autopsy records is
whi te female. Evidence will be adduced that
will show prosecutions in Nueces County,
Texas, in which the decision to seek the death
penal ty is invoked is based upon the race of
the victim to a statistical certainty. The
Uni ted States Supreme Court has before ita
similar issue in McCluskey v. Kemp, No.
84 - 6811 and Hi tchock v. Wainwr ight, No.
85 - 6756, to be argued before this Court onOctober 15, 1986.
MOTION FOR STAY OF EXECUTION - Page 4
eRO F1LMMf D
CD) Petitioner was denied effective assistance ofcounsel at. trial in violation of his rights
under the Sixth and Fourteenth Amendments,
Uni ted States Consti tution, Article 1, Section
3, 3a, 10, 15, and 19. Petitioner will show
in evidence adduced that he was denied effec-
ti ve assistance of counsel under the standardsof Str ickland v. Washington, 466 U. S. 1105,
104 Sup.Ct. 2052, 80 L.Ed.2d 674 (1984) in the
following particulars:
(1) Lead counsel at trial only saw and talkedto Petitioner twice prior to his trial forthis offense.
(2) Trial counsel failed to follow up infor-mation and investigate thoroughly Peti tioner' slengthy history of substance abuse to deter-mine if there was sufficient organici ty as aresul t of substance abuse to mitigate punish-ment.
~ (3) Counsel at tr ial failed to thoroughlyinvestigate an al ternati ve hypothesis con-cerning an assailant other than Peti tionereven when provided wi th a name and location ofthe assailant and information concerning simi-1arities between Petitioner's appearance andthe alternative assailant.(4) Trial counsel failed to adequatelyinvestigate an alternative assailant and touse technology such as spectroscopic voiceidentification techniques on a tape recordingof the actual assault and offense to determinewhether or not the voice on the tape was thatof the Peti tioner or another assailant.(5) Trial counsel, all though being advisedof numerous witnesses that this 21 year old
MOTION FOR STAY OF EXECUTION - Page 5
C R. 0 F l LM F 0M
Petitioner had to present in mitigation ofpunishment. failed to put on a single wi tnessat the punishment phase of the trial in miti-gation of punishment.
(6) Trial counsel failed to preserve thetestimony of Peti ti oner' s most importantwi tness al though they had been advised thatthe witness was hospitalized, was near death,and that the testimony of the wi tness wasabsolutely critical to the defensive hypothe-sis of an alternative assailant.
(7) Trial counsel instructed Petitioner notto cooperate wi th court-appointed psychologistand psychiatrists for fear that the evidencewould be used against Petitioner. Petitionerwould show in this respect that Peti tioner' s1 engthy history of substance abuse, if madeknown to the psychiatrist and psychologistappointed by the Court to evaluate Peti tionerwould have produced evidence in mi tigation ofpunishment.
(C) Petitioner was denied effecti ve assistance ofcounsel on the appeal of his conviction inviolation of his rights under the Sixth and
Fourteen Amendments, Uni ted States
Constitution. and Article 1. Sections 3. 3a,
10, 15, and 19. Petitioner will show that
even if the standards of Strickland v.
Washington, 466 u.S. 1105, 104 Sup.Ct. 2052,
80 L.Ed.2d 674 (1984), apply to the deter-mination of whether or not counsel was effec-
ti ve on the appeal of Peti tioner' s cause,Peti tioner will show that counsel's brief on
MOTION FOR STAY OF EXECUTION - Page 6
M) \ C R 0F , L M f o
appeal, eoft9i§ting or seventeen pagê~, WäS
wholly inadequate. and insufficient to effec-
ti vely present to the Court of Criminal
Appeals of Texas all the issues that were pre-
sent at Petitioner's trial.
v.
delay.
A stay of execution is not requested for purpose of
No legi timate state end would be serv.ed by pro-ceeding wi th the execution by lethal injection before the
Peti tioner has an opportuni ty to have the consti tutionalchallenges to his conviction and sentence of death reviewed
by this Court after an appropr iate evidentiary hearing.
That further, there exists no method by which Peti tioner
could have adequately presented his claim raising these
issues by direct appeal to this Court and the only method by
which he can establish the evidence necessary to support
these issues is by ordering the trial court to hold an evi-
dentiary hearing on original Application for. Wri t of Habeas
Corpus under Article 11.07, Texas Code of Criminal
Procedure.
MOTION FOR STAY OF EXECUTION - Page 7
M\CROF1LM E D
The Petitioner respectfully .requests an order
stayin~ his execution pending further order of this Court.
Respectfully submitted,
.Bank of Dallas Building, LBl33333 Lee Parkway 1 Suite 930Dallas, Texas 75¿19214/559-4384Bar No. 01207700
CERTIFICATE OF SERVICE
A copy of this Motion has been forwarded to Mr.
John Grant Jones, Distri ct Attorney of Nueces County, Texas,
901 Leopard, Corpus Christi, Texas, 78401 and to Ms. Paula
Offenhauser, Assistant Attorney General, Supreme Court
Building, Sixth Floor, Austin, Texas, 78711.
SIGNED this the ~ day of ~ , 1986.
MOTION FOR STAY OF EXECUTION - Page 8
~,a I C R 0 F i L M E D.
.".........;.:.,....
Otf~11Øb..~
. .
NO. 16,436-01
IN THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
EX PARTE CARLOS DeLUNA MOTION FOR STAY OF
EXECUTION AND APPLICATION
FOR POST CONVICTION WRIT OF
HABEAS. CORPUS PURSUANT TO
ARTICLE 11.07, V.A.C.C.P.
From NUECES County
ORDER ON PETITIONER i S MOTION FOR STAY
OF EXECUTION AND APPLICATION FOR WRIT OF HABEAS CORPUS
On this day came to be considered by the Court of Criminal
Appeals the Motion for Stay of Execution presented by the
applicant, Carlos DeLuna, in which he requests this Court to stay
his execution which has been scheduled tl~be carried out before
sunrise on October 15, 1986¡ and also came on to be considered by
the Court of Criminal Appeals the application for post conviction
writ of habeas corpus which was filed by applicant in the 28th
District Court of Nueces County pursuant to Article
and a copy of which application for writ ofwas presented to this Court along with the
,::.:; .
stay of execution.
Honor able Wal ter Dunham Jr., Judge of the said 28th
Judicial District Court, entered an orde.r ,on October 9, 1986, on
the a~plication for_""r.it of habeas corpus filed in the trial
court finding no controverted, previously unresolved facts..
material to this cause, and recommending that all rel ief be
denied.
This Court is of the opinion that said motion for stay of
execution should be denied and that all relief requested in said
application for writ of habeas corpus, which is returnable to
this Court under Article 11.07, V.A.C.C.P., should be denied.
-e¿LUNA - 2
Therefore, it is th~ order of the Court of Criminal Appeals
that said motion for stay of execution be, and it is hereby, in
all things denied; and that all relief requested in said
application for writ of habeas corpus be, and it is hereby, in
all things denied.
IT is SO ORDERED this 13th day of October 1986.
Per Cur iam
-"r~ ~~,!- '.f; V rr.'
"" '
NO. l.:tQl
TN THE (OURT O~ CRIMINAL APPEALS
() r Tll E ::: T,W E 0 r: 'l E X:i:ì
¡;;~: ¡JAR'l'E CARLOS DeLUNA nOTION FOR STAY OF
EXECU'lION ¡\ND APPLICATION
PaR POST COtrvICTION r'lRIT OF7'
HABEAS CORPUS PURSUANT TO
ARTICLE 11.07, V.A.C.C.P.
From NUECES County
QRDER ON PETITIONER i S MOTION FOR STAY
OF EXECUTION AND APPLICATION FOR WRIT OF HABEAS CORPUS. .(,
On th i s day came to be co nsi de r ed by th E Co ur t of Cr iminal
Appeals the r-Iotion for Stay of Execution presented by theapplicant, Carlos DeLuna, in which he requests this Court to stay." ;". ,~- ",' I.. l'his execution which has i.eèn scheduled ~tÖ óe carried out befóre
sunrise on October 15, 1986~ and als~ came on to be considered by
the Court of Criminal Appeals the application for post conviction
i,¡it of habeas corpus which was filed by applicant in the 28th
Judicial District Court of Nueces County pursuant to Article
11.07, V.A.C.C.P., and a copy of which application for writ of
habeas corpus was presented to this Court along with the
appl ication for stay of execution.
The Honorable Wal ter Dunham Jr., Judge of the said 28th
Judicial District Court, entered an order on October 9, 1986, on
the application for writ of habeas corpus filed in the trial
court finding no controverted, previously unresolved facts..
material to this cause, and recommending that all relief be
deni ed.
This Court is of the opinion t1lat said motion tpr stay of
execution should be :denied and that all relief requested in said
application for writ of habeas corpus, which is returnable to
this Court under Article ll.07, V.A.C.C.P., should be denied.
~tG~Ur ~ \. M E 0 .. :
'~'h(~retor(:, it is th(~ order c,i the (c.urt rJt Crin.,inal l\~pea.ls
DeLU~,,\ - :2
thüt ~.:id .mntiun for stay or ,:,xe..utiol1 be, and it i:i hereby, i.n
.: 1. 1 t ii i :: g s den i e d ; ¿¡ n d t h ù t .J 11 r eli r: f r. cq u e :: t (' din ,~a i d. ",::
.1ppli.c.:ti¡m tor writ of h:JL.e.::: co::'L1s be, ::;r~d it i.s herety, in
all :;hinu:: denied.
IT 1.3 SO ORDERED this 13th Jay or October 1986.
./
Per Curiam
r.~
~l CXUflLMfD~."
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