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1 NO. 83-CR-194-A
2 THE STATE OF TEXAS IN THE DISTRICT COURT
3 VS.
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28TH JUDICIAL DISTRICT
NUECES COUNTY, TEXAS4 CARLOS DE LUNA
STATEMENT OF FACTS
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PRETRIAL HEARING:JUNE 10 .L 1 9 ~l.
:¿-:c,;:)ll~_'':
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--.HON. WALLACE C. MOORESitting for the28th District CourtNueces County CòurthouseCorpus Christi, Texas 78
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BEFORE:11
APPEARANCES:
fiLED INl' nf nßlMltUl APPEALS
FEB n 1984
o'mas Lowe, Clerk
, , I' ..._-
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.,,', ':''(")
~.~~JUDGE PRESIDING
Nueces County District Attorney's OfficNueces County CourthouseCorpus Christi, Texas 78401
BY ~ STEVE SCHIWETZ
COUNSEL FOR THE STATE
MR. JAMES R. LAWRENCEAttorney at LawP.O. Box 8365Corpus Christi, Texas
-and-MR. HECTOR DSPENA, JR.Attorney at Law2933 Norton, Suite 207Corpus Christi, Texas 78415
COUNSEL FOR THE DEFENDANT
_ORIGINAL VOLUl1E I I OFSIXTEEN VOLUMES
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INDEX TO PROCEEDINGS - VOL. II
PAGEJUNE 10, i 9 8 3
PRETRIAL MOTIONS
BY THE COURT 2. . . . . . . . . . . . . . .DEFENDANT'S SECOND MOTION FORCONTINUANCE BY MR. LAWRENCE . . . . . . . . . 2
FOR THE DEFENDANT
JAMES R. LAWRENCE
DIRECT TESTIMONY BY MR. LAWRENCE. . .. 4CROSS EXAMINATION BY MR. SCHIWETZ . .. 7
FOR THE STATE
HECTOR DePENA, JR.
DIRECT BY MR. SCHIWETZ. 1'4. . . . . . . .COURT'S RULING . 22. . . . . . . . . . .
MOTION FOR INVESTIGATIVE ANDEXPERT ASSISTANCE FEE . . . . . . . . . 22
MOTION FOR DISCOVERY AND INSPECTIONOF EVI DENCE . . . . . . . . . . . . . . . " 22
MOTION FOR EVIDENCE FAVORABLE TODEFENDANT . . . . . . . . . . . . . . . . . . 22
MOTION FOR INVESTIGATIVE AND EXPERTASSISTANCE FEE IN INDIGENT CASE . . . . . . . 22
MOTION TO QUASH THE INDICTMENT. 27. . . . . . .MOTION FOR HEARING VOLUNTARINESS OF ANYADMISSION OR CONFESSION WHETHER WRITTENOR ORAL . . . . . . . . . . . . . . . . . . . 29
MOTION FOR JURY LIST. 31I
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DEMAND FOR INDIVIDUAL VOIR DIRE 32. . . . . . .
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MOTION TO ELECT . . . . . . . . . . . . . . .;2
IDENTIFICATION HEARING ANDMOTION TO SUPPRESS. . . . . . . ... . . . . .DEFENDANT i S PRO SE MOTION FORDISCOVERY AND INSPECTION. . . . . . . . . . .MOTION TO PRODUCE EXCULPATORY ANDMITIGATING EVIDENCE . . . · . . . . . . . . .
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iii1 I VOL. PAGE--2 GARCIA, GILBERT
DIRECT BY MR. SCHIWETZ. . . . . . . . XII 8q CROSS BY HR. LAWRENCE XII 9i) . . . . . . . .
4 GARCIA, JUANITADIRECT BY MR. SCHIWETZ. . . . . . XII 21
5 CROSS BY MR. LAWRENCE . . . . XII 27
6 DIRECT BY MR. SCHIWETZ. . . . . . . . XII 40
"1 GARCIA, LUCINDA,
DIRECT BY MR. SCHIWETZ. . . . XII 118
DIRECT BY MR. SCHIWETZ. . . . . . . . XII 309
GARRETT, SGT. GARY10 DIRECT BY MR. SCHIWETZ. . . . . . . . XII 2
11 GARZA, SGT. EDDIEDIRECT BY MR. SCHnvETZ. . . . . . . . . XII 4
12GOMEZ, DOROTHY
.'...'. 13 DIRECT BY MR. SCHIWETZ. . . . . . . . X 184/\,
14 GONZALES, ESTELLADIRECT BY MR. SCHIWETZ. . . . . . . . XI 321
15 CROSS BY MR. LAWRENCE . . . . . . . . XI 327.. REDIRECT BY MR. SCHIt-lETZ. . . . . . . XI 329;;10 16.,N GONZALES, PETE"60 DIRECT BY MR. SCHIWETZ. X 162a: 17 . . . . .ó CROSS BY MR. LAWRENCE . . . . . . . . X 170uc; 18 i..~ GONZALEZ, ERNESTOea:
19 DIRECT BY MR. SCHIWETZ. . . . . . XI 363wlLc CROSS BY MR. LAWRENCE XI 363lL . . . . . .IIa: 20wI-a: INFANTE, JOEL0lL SCHIWETZ. X 189w
21 DIRECT BY MR. . .ir . . . . .0 CROSS BY MR. LAWRENCE . . . . . . X 2030e REDIRECT BY MR. SCHIWETZ. X 204ii 22 . . . . . .a:~a:0 JIMENEZ, ESTELLA FLORESII 23 EXAMINATION BY THE COURT. . . . . . . XIV 27
24 DIRECT BY MR. DePENA. . . . . . . . . XIV 31
25 1KLEMP, ROBERT
DIRECT BY MR. SCHIWETZ. XI 374 ,i . . . . . . .I 11 :
ivf
1 i VOL. PAGE
2 ! LAWRENCE, JAMES R.i\ DIRECT BY MR. LAWRENCE. II 4. . . . . . .
3 ! CROSS BY MR. SCHIWETZ . . . . . . . . II 7
4 I McCONLEY, LT. EDDIEDIRECT BY MR. SCHIWETZ. . . . . . . . ' III 47
5 CROSS BY MR. LAWRENCE . . . . . . . . III 52
6 DIRECT BY MR. SCHIWETZ. . . . . . X 287
7 MEJIA, BRUNODIRECT BY MR. SCHIWETZ. . . . . . . . X 64
8 CROSS BY MR. LAWRENCE . . . . . . X 74REDIRECT BY MR. SCHIWETZ. . . . . . . X 80
9 II MYLETT, THOMAS DAMIENi
10 DIRECT BY MR. SCHIWETZ. . . . . . . . X 157
11 DIRECT (CONT. ) BY MR. SCHIWETZ. . . . XI 463
12 i PERALES, MARY ANNL !DIRECT BY MR. SCHIWETZ. XI 449. . . . . . .
13 VOIR DIRE BY MR. LAWRENCE . . . . . . XI 454DI RECT (CONT.) BY MR. SCHIWETZ. . . . XI 455
14 CROSS BY MR. LAWRENCE . . . . . . . . XI 455
15 RIVERA, RUBENDIRECT BY MR. SCHIWETZ. . . . . . . . X 81
1 " CROSS BY MR. DePENA . . . . . . . . . X 90~
1'7 RUPP, JOSEPH C. , M. D.0 DIRECT BY MR. SCHIWETZ. . . . . . . . X 206u .CROSS BY MR. LAWRENCE X 214c; 18 . . . . . . . ...~IIiz
19 SCHAUER, MARK DAVIDwlLc DIRECT BY MR. SCHIWETZ. . . . . . . III 101lL .II CROSS BY MR. LAWRENCE III 115a: 20 . . . . . . . .WI-iz0lL DIRECT BY MR. BOTARY. X 110w
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0 CROSS BY MR. LAWRENCE . . . . . . . . X 1380e REDIRECT BY MR. BOTARY. X 149ii 22 . . . . . . .c:
X 156~ RECROSS BY MR. LAWRENCE . . . . . . .a:0u. 23 THAIN, DONALD
24 DIRECT BY MR. SCHIWETZ. . . . . . . . XI 366\,
25 : DIRECT (CONT. ) BY MR. SCHIWETZ. . . . XI 370CROSS BY MR. LAWRENCE . . . . . . . . XI 372 ' '
vVOL. PAGE
VARGAS, LUISDIRECT BY MR. SCHIWETZ. . . . . . . · x 21
WAGNER, MARK ~1.DIRECT BY MR. SCHIWETZ. . . . . . · . x 176
WAYCHOFF, WAYNEDIRECT BY MR. DePENA. . . . .CROSS BY MR. SCHIWETZ . . . .
. . . . XIXI
388 ,392. . . .
WILSON, ERNEST DAVE
DIRECT BY MR. SCHIWETZ. . . . . . . . XI 333CROSS BY MR. LAWRENCE . . . . . . . . XI 341REDIRECT BY MR. SCHIWETZ. . . . . . . XI 342RECROSS BY MR. LAWRENCE . . . . . . . XI 344
REDIRECT BY MR. SCHIWETZ. . . . . . . XI 458RECROSS BY MR. LAWRENCE . . . . . . . XI 461
2
1 On the 10th day of June, 1983, the above en-
2 titled and numbered cause came on for hearing before
3 said Honorable Court, Wallace C. Moore, Judge presiding,
4 and the following proceedings were had:
5 THE COURT: Informally, gentlemen, where are
6 we now?
7 MR. LAWRENCE: Your Honor, we i re ready to
8 start our pretrial motions. The first motion we want
9 to take up would be the Motion for Continuance, and
10 make a determination on that i and then, depending on11 what the Court does there, take up some non-evidentiary
12 motions.
13 THE COURT: All right, is that agreeable with14 you, Mr. Schiwetz?
15 MR. SCHIWETZ: Yes, sir, I think that would be16 preferable.17 THE COURT: With reference to this motion, I
18 note on the docket sheet that on March the 28th that19 the State announced ready and the case was passed at
20 the request of Counsel for the Defendant, and I see
21 this labeled as the First Motion for Continuance.
22 MR. DePENA: Your Honor, the -- the matter
23 that was raised back on the 28th was the fact that
24 there was a -- that there was a need for a psychiatric25 exam) ahd so the Court just more or 1e s s took that on
3
1 the basis of the fact that he --2 THE COURT: All right. I see that that was
3 done.
4 MR. DePENA: Yeah.5 MR. LAWRENCE: We will make an oral motion at
6 this time to make, then, this the
7 THE COURT: Whatever.8 MR. LAWRENCE: The Defendant's Second Motion
9 for continuance instead of the First.
10 THE COURT: All right, sir. I also see in11 Paragraph i the last sentence has been struck and
12 initialled" C. D. " Are the se the initials of the
13 Defendant?
14 MR. LAWRENCE: That is correct, Your Honor.
15 And we would also ask that in reference to the second16 page, that the prayer, that the last --17 THE COURT: I was about to get to that. Would
18 you ask that that be deleted also?19 MR. LAWRENCE: That be deleted, Your Honor.
20 THE COURT: All right.21 MR. LAWRENCE: Were you ready to proceed,
22 Your Honor?
23 THE COURT: Yes, sir.24 MR. LAWRENCE: Okay. Your Honor, at thi s time
25 I would call myself to the stand as a witness on
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Defendant i S Second Motion for Continuance.THE COURT: All right. You may stand there
and give your testimony.
MR. LAWRBNCE: All right.
~ES R. LAWRENCE,
being an ofticer of the Court and the oath having been
waived, duly testified as follows:
DIRECT TESTIMONY
BY MR. LAWRENCE:
Q Your Honor, my name is Jim Lawrence. I am anattorney appointed to represent Carlos De Luna in
this cause before the Court. I am a practicing
attorney here in the State of Texas and have been
so for the last 14 years. On -- on or about April
the 15th of 1983, I was appointed as co-counsel in
this cause and on or about May the 5th of 1983 I
was engaged in a murder trial entitled State of
Texas versus Robert De La Rosa that was tried in
the 94th District Court, which basically ended some
where around the middle of May. Beginning the
middle of May of 1983 I started investigating this
case. I met numerous times with Steve Schiwetz,
the Assistant District Attorney that's present here
in Court and handling the case, and I have filed at
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least ten motions in behalf of Mr. De Luna since
around the middle of May of 1983.
One of the motions that was filed was for a --
an appointment of an investigator, since my counsel
since my client~was an indigent, we went ahead
and filed the motion. There was nothing done be-
cause of the fact that the case was under Judge
Dunham'Ls Court, the 28th District Court, and at the
time we were asking for a visiting judge and so no
one took any action on our motion, and it wasn It
until the beginning of this week that I contacted
Mr. Schiwetz and I asked him if he could some how
or another help us in trying to get thi s investiga-tion or investigator appointed for our client, and
he helped and we talked to Judge Dunham and it
wasn't until yesterday morning that I talked to
Judge Dunham, and he approved the -- I don't think
he signed the order as such, but he did tell us
orally and did tell me orally as of yesterday on
June the 9th. I immediately then contacted an in-
vestigator, in fact, the investigator i s name is
Mr. Horacio Ortiz, who came to our office yester-
day at 1l: 00 0 i clock and began the investigation ofthis cause.
We feel that there are about four or five
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witnesses that we have been unable to get ahold of,
and I feel the names provided by Mr. De Luna to us
and with the investigator working on it, that it's
going to take a short period of time in which we
can either locate these witnesses or not, and what
we're asking the Court is that we feel that we are
ready on the aspect of being provided with almost
everything that the District Attorney has in his
file.THE COURT: I was about to say it's
replete with the finest cooperation so far as
discovery.(By Mr. Lawrence) We have absolutely no obj ectionto that, Your Honor; However, because of the --
of the problem on the investigator, if we could go
ahead and determine where our witnesses are and
wha t they're going to say, then we can be ready.
And it's for this reason we are asking that we be
continued to a little bit later date. We're not
asking for a whole lot of time, but just in order
that we may be able to see that justice is done and
that he -- my client be afforded a fair trial and
if, in fact, the witnesses can come forth, it would
certainly be to his benefit and, of course, the
seriousness of this case, I think, would dictate,
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certainly I hope the Court feels this way --
THE COURT: Certainly I do.
Q (By Mr. Lawrence) that we be granted a shortcontinuance in order to complete our investigation.
MR. LAWRENCE: And basically that's --
that i s what we have to offer on our Defendant'Secone Motion for Continuance, Your Honor.
THE COURT: Mr. Schiwetz?
CROSS EXAMINATION
BY MR. SCHIWETZ:
Q Mr. Lawrence, when did you -- when did your client
first tell you of the alibi witnesses?
I was told of several of these witnesses beginning
-- it would have to have been after -- certainly
after May the l5th, and it would have to have been
either the beginning of of June or the latter
part of May. I have got Sa turday, this pastSaturday when I visited him at the jail, in getting
a complete statement from the Defendant which would
cover that aspect of it. Up until that point I
didn't have any.
And was he able to give you addresses and phone
numbers?No, he was only able to give me names and the names
in certain instances were just the first name, but
A
Q
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Q
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we -- I was given approximate locations.
Approximate locations of addresses?
Of addresses. And I will be even more honest with
the Court, we had a -- and with the State -- we had
a call this morning that one of our witnesses, whom
the address we were given was completely wrong, has
been located by the investigator and an appointment
has been set up and a witness will be talked to, I
think, tomorrow.
Okay --Q
THE COURT: How many witnesses are we
talking about?
THE WITNESS: We're talking about two,
three, four.THE COURT: Okay. And one of them ha s
already been located?
THE WITNESS: The mother of one of them
has been located, and the mother will, give usthe address of the young lady.
THE COURT: Do you th ínk, though, that
with that progress that ten days would be
ample?THE WITNESS: Well, I don f t know, Your
Honor. It's very difficult for me to justcome out and tell the Court.
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the fact that it took approximately a month or two
months before the file was complete with all the
evidence that the police Department finally pro-
vided it.After Mr. Hunter left, Ideal t with Mr. Grant
Jones, who was the newly appointed DA, and he
finally provided me with a review of the entire
file, which was probably in the latter part of
March.My conversations with Mr. De Luna during this
period of time provided me with the names, the firs
names of the girls or the names of the girls and,
in fact, I pointed it out to the DA's office at the
time that I -- that I was trying to locate these.
!n fact, I had an offer and I tried to spend some
time locating them and it was to no avail because
of the fact that I was trying~ to do -- work up
part of the case and -- and -- and work on this
matter at the same time, which is why in April I
requested that the Court provide co-counsel in the
case to assist me with it bècause I felt like the
-- that there was some leg work that needed to be
done that I could not do because of trying to main-
tain my own practice and my own cases and case load
schedule that I had, as well as trying to work on
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this case at the same time.
Is it correct when the Defendant asserts that you
didn'lt visit him between March the 1st and the
present time?
At That i s correct. In the meantime Mr. Lawrence had
Q
been appointed and he had -- in ass,isting me inthat regard, had spent considerable amount of time
visiting with th.e prisoner, I mean with the
Defendant, and so that was the basis of my not
double-timing or, you know" going up there after-
wards.
Q Is there any particular reason why you didn't filea motion for an investigator?
A No, I didn't at that time simply because I thought
that I could do the investigation myself at that/
point in time, and that was the reason that. Ididn i t do so. In the meantime because of the in-formation that I was provided by the offense re-
ports, I went ahead and requested the -- the
psychia tric exam, which took some time because ofthe fact that the papers remained on -- remained
with the Court for some period of time before the
order for psychiatric exam was signed.
Q Who is' the person who has been located in thiscase who migh.t lead you to some witnesses?
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A
Q
The mother of the two girls, the Perales. girls.
Has she indicated she knows where her daughters
are?Basically, this is the impression I have from the
investigator, Mr. Orti~ ~ I spoke with him this
morn inc¡ .
The invèstigator is Mr. Garza?
Yeah.
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Q
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THE COURT: ortiz ~THE WITNESS: Well, Mr. Ortiz is thé head
of the investigating firm, Your Honor, and Mr.
Art Garza is one of his associates who appar-
entlystarted doing part ,of the leg ,work.
(By Mr. Schiwetz) And he told you he had located
Mr s. Perales?
He's located their mother, yes.
Okay. And wha t 's her name?He didn't give me the name. I'm sorry.
MR. SCHIWETZ: I don r t have any otherquestions.
THE COURT: How do you feel about it?
MR. SCHIWETZ: Your Honor, I -- I didn't
know they were, going to file thi s until I came
up here this morning, approximately an hour
ago. Were this not a cap~tai murder case, I
A
Q
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1 would be opposed to it. I would like to have
2 an opportunity to talk to my boss, the Distric
3 Attorney, about it.
4 THE COURT: How long would that take?
5 MR. SCHIWETZ: Ten minutes, fifteen
6 minutes.7 THE COURT: Why don't you take fifteen
8 minutes. Let me ask what everybody else has
9 done, since I have inconvenienced everyone.
10 Do you want to work right through the lunch
11 hour?12 MR. LAWRENCE: Whatever the Court wishes.
13 THE COURT; Well, I have already encroache
14 on your time.15 MR. DePENA: I have no obj ection, Your16 Honor, however -- whatever the Court wants.
17 MR. LAWRENCE: I believe so, Your Honor.
18 THE COURT: All right.
19 MR. SCHIWETZ: That's fine with me.
20 If I could take ten minutes.
21 THE COURT: We' 11 be in recess for ten
22 minutes.23 (At this time a recess was taken, after
which the following proceedings werehad before the Court with, counsel forthe state, counsel for the Defendant,and the Defendant present:)
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1 MR. SCHIWET Z : Your Honor, I consul ted with
2 Mr. Jones, the District Attorney_ He suggested that
3 that we continue with the services of the Police Depart
4 ment, the Sheriff's Department, and our investigators
5 to help them find their witnesses. He also pointed out
6 that we i rè not scheduled to go to trial for another ten
7 days; we don't anticipate having a jury for another
8 seventeen days before we start putting on evidence.
9 The State's case is going to take four or five days,
10 so really we're looking at three weeks before they're
11 going to put their witnesses on, and we think if these12 witnesses are findable, we will find them during that13 period of time and we will do whatever we can to help
14 them locate their witnesses and we're opposed to the
15 Motion for Continuance.
16 MR. LAWRENCE: Your Honor, if we may say that
17 the state has had this case, of course, from February
18 4th, and they have worked out their case, and we have
19 been provided with all ther material as of probably the20 first few days in June, so they had, of course, three
21 or four and a half months to prepare their case, and
22 all we're asking for is maybe another 30 days at the
23 most in order to prepare and get our investigation24 completed. We all know that from a defensive point of25 view that if you get police officers and Sheriff's
22
1 officers out to start looking for people that are going
2 to help, that this may have an adverse effect on trying
3 to locate our own witnesses, and to what they will
4 actually say, so we're asking that we be provided with
5 at least an extra 30 days to prepare our case.
6 THE COURT: Well, the docket here actually
7 doesn't permit that. Of course, that's not paramount
8 so far as Constitutional questions are concerned, but
9 I'm going to overrule the motion.
10 MR. LAWRENCE: Note our exception.
11 THE COURT: Yes, sir.
12 MR. LAWRENCE: Your Honor, if you're ready,
13 we can take up the rest of these motions.14 THE COURT: All right. What would you sug-
15 gest I do with reference to this investigative and
16 expert assistance fee? The Judge has not signed it.
17 MR. LAWRENCE: Hé has not signed it, but as I
18 told the Court, he officially granted it as of yester-
19 day.THE COURT: I will just leave it blank then.
21 And in what order would you like to take up the motions ?
20
22 MR. LAWRENCE: However they appear. Probably
23 they're in the Court's file.24 THE COURT: Discovery and inspection?
25 MR. LAWRENCE: That will be fine, Your Honor.,
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i~ there any question aboutFine. No. 1
that from the state?
MR. SCHIWETZ: No, sir. The only -- the only
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THE COURT: I know. I know that.
THE WITNESS: And I also realize that
even though the case is set for the 2 Oth, that
tha picking of the jury may last four or five
days, that we would have that time, you know,
extra
Q
THE COURT: Yes.
THE WITNESS: to be using the investi-gator. However, I think from the defense
standpoint in selecting the jury, we would
like to know what our witnesses are going to
say so that we can qualify the jury, and that's
my problem right now.
THE COURT: Certainly. I didn't mean to
interrupt ':you ,Mr. Schiwetz.(By Mr. Schiwetz) Mr. Lawrence, why was the Defend-
ant unable to provide you with the names of these
witnesses up until just recently?
I didn't talk to Mr. De Luna until I got through
with my case after May the 15th, and it was at that
time, and I make it a habit of doing this in all my
cases, is going to the Assistant District Attorney
that's handling the case, in this case you, and
getting as much information as I can and figuring
out what type of case I'm looking at; and then
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Q
after that, I go and talk to my client, which I did
in this particular case. I told him everything
that the District Attorney's office had on him, and
I told him I would be back in two or three days,
that I wanted him to think and give me his complete
story as to what took place and that's what
happened this past Saturday.
Okay. So you actually didn't hear your Defendant's
side of what happened until this past Saturday?
That is correct.
And that would be, what, the -- I don't know what
date that is.Right, the beginning of June somewhere.
4th?
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Q
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Q
THE COURT: 4 th.
(By Mr. Schiwetz) Is there any reason why the
Defendant was unable to give you all this informa-
tion in, what, the last four or five months, four
months?I did not see my -- my client because I was not
appointed until late April, as I have already
related. I don ~ t know what he provided to other
co-counsel.Well, you: have discussed with co-counsel what elsehe provided, haven't you?
A
Q
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A I discussed with co-counsel what he had provided,
and he had provided co-counsel even less than what
he had provided me.
Going over Article 29.06 regarding motions by
defendant for continuance, it states: it shall be
necessary if the request for continuance is based
on the absence of a witness, to state the name of
the witness and his reasons, if known. Can you
tell us who these witnesses are?
I can tell you th. two witnesses that I have whose
last name I have, and whom we have just gotten in
touch with and that basicaiiy is a person by the
name of -- let me see , what's the fir s t name. MaryAnn Perales and Linda Perales, whose address was
given to us as the West Point Apartments, but which
is not correct.
Okay. What is the correct address?
I have no idea. I have not talked to the investi-
gator that called us this morning.
Is the West Point Apartments a correct former
address?I have no way of knowing. Evidently it must have
been. I don't see how else he could have gotten in
contact with them.
You indicated there were four witnesses; that's
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i two of them. Who were the other two?
2 A There's another one by the name of Ronnie Gonzalez.3 i have absolutely no address on him other than the
4 general location of off Kostoryz and SPID.
5 Q Is that where he works or --6 A That i s where he lives.7 Q Any idea where he works?
8 A No. The other witness that we have is a person by9 the name of Danny, who works where:,the Defendant
10 was working at the time of his arrest, which is the11 -- I gue.s s it's Tr iarch Corporation.
12 Q Triarch, Inc.?13 A Triarch Corporation.14 Q One of the other requirements of 29.06 is the facts15 which you expect to prove through these witnesses,16 and, of course, it i S required for materiality. Can17
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you tell me what those facts might be?
Basically, it i s going to be an alibi, that he was
either with these witnesses or a different place
at the time that the robbery took place.
It shouldn't be any problem locating Danny, should
there, since he wo:iks there?
If he still works there.
The Defendant'ls stepfather works there, does he notb
Yes, he does.
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He would know whether Danny works there?
Yes, sir.What diligence have you used to find out whether
Danny still works there?
We have got the investigator working on it. I have
talked to my client's mother, I haven't talked to
the father.Is Danny basically going to testify to the same
th~ng as Mary Ann, Linda and Ronnie?
No.
How would that be different?
Well, it's going to be different sequence, differ-
ent time sequence, different times of day and
evening.Well, --
MR. DePENA: We could have it where --
where -- you know
(By Mr. Schiwetz) The defense isn't conte stingthat the Defendant was arrested within 30 minutes
after this murder, are you?
No.
Was he changing partners or friends r'peatedlt
within the 30 or 45 minutes or hour on either side
of this murder?
Was he what, now?
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Q Well, I mean, was he with the same people or was he
chang ing who
No. He was with different people.MR. SCHIWETZ: I don i t have any more
questions.THE COURT: How does the State feel
about this?MR. SCHIWETZ: I would like to call Mr.
DePena as a witness.
MR. LAWRENCE:, That i s f ina, Your Honor.
THE COURT: Mr. DePena.
A
HECTOR DE PENA~ JR'L
being an officer of the Court and the oath having been
waived, was called as a witness by the state and
testified as follows:
DIRECT EXAMINATION
BY MR. SCHIWET Z :
Q When did you get on this case?A I was initially appointed -- I don't have exactly
the appointment, I think possibly the docket sheet
would reflect the original appointment. Sometime
about the middle of February.
Q The Motion for Continuance which is sworn to by
your client reflects that you had not -- had not
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come by to see him since March the 1st of 1983,
which would be basically a period of a little over
three months, and that you had never filed any
motions on his behalf. Now, is it correct that you
have not been by to see him since March 1st, 1983?
I saw the Defendant, I think probably the record
would bear out through the card, where I think I
visite,d with him twice during the initial period of
my appointment.Well, when would that be?
I don It have the exact date.THE COURT: February the 7th, according
to this, was your appointment date.
(By Mr. Schiwetz~ You visited with him twice right
after you were appointed?
Right.Okay.
Initially when I first visited with him, I got as
much of the story as I could concerning the
Defendant i s involvement or non-involvement with thecase and spent the majority of my time during that
period o~ time trying to obtain the facts from the
DA i s office, because it took considerable amount oftime for the investigating officers to work up the
complete case. During that period of time I dealt
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reason it hasn't been done already is the person who
did the analysis on the fingerprints didn i t prepare a.
report. I'm, going to hava him prepare a report.
TaE COURT: All right. I i m going to mark thatgranted, and it will be
MR. LAWRENCE: That will be fine.
MR. SCHIWETZ: The upshot of it is that there
aren't any fingerprints.
THE COURT: Scientif ic tests, which would
include your knife.MR. SCRIWETZ: Dr. Rupp, who is the county
medical examiner, was given that. I talked to Olivia
Escobedo, the investigating officer, yesterday. She
indicated that she had repeatedly asked Dr. Rupp to
give that to her. He hasn i t yet. It's my understand-
ing he i s supposed to be back in town Monday. I thinkhe's on vacation. I will take that up with him as soon
as I can.
THE COURT: All right. No. 2 is granted.
Articles of clothing?
MR. SCHIWETZ: I can show them that today.
THE COURT: Sir?MR. SCHIWETZ: I can show them that today.
THE COURT: Thà t ' s gran ted.
MR. SCHIWETZ: Analysis of blood count and
25
1 scientific tests; we have no opposition to that. We've
2 already given them that.
3 TH& COURT: Granted.4 Clothing of the decedent.5 MR. SCHIWETZ: That's supposes to be trans-
6 ferred to our evidence locker today, and I will make it
7 available to the defense attorney.
8 THE COURT: Granted.9 MR. SCHIWETZ: No.6 we have no opposition to.
10 We l va already done that.11 THE COURT: Granted.12 MR. SCHIWETZ: No. 7 we have no obj ection to.
13 THE COURT: Granted.14 MR. SCHIWETZ: 8, I believe they have already
15 got copies of the medical records that we have got. I16 . don l t know if the blood type is indicated in there or
17 not, but we agree to it.18 THE COURT: All right. It's granted.19 MR. SCHIWETZ: No. 9 we agree to; they have
20 already got that.21 No. 10 we agree to.22 11, I'm not aware of any form that's used.23 THE COURT: The lineup sheet?24 MR. SCHIWETZ: There was no live lineup con-
25 ducted. There was a show-up at the scene of the
26
1 offense. They don't use a form for that. We did pro-
2 vide them with the offense reports regarding it and
3 witness statements. The only lineup was a photo lineup
4 and they don 1 t use a particular form for that.5 THE COURT: All right. How about the witness
6 that was present at whatever lineup?
7 MR. SCHIWETZ: okay. If the show-ups were8 police officers, I have given every offènse report.
9 THE COURT: It says each witness --10 MR. SCHIWET Z : Okay.
11 THE COURT: at the lineup. I think he was12 talking about other than officers.13 MR. LAWRENCE: Eye witnesses.14 MR. SCHIWETZ: Eye witnesses; I have already
15 given that to them.16 THE COURT: 11m going to mark it granted then.
17 MR. SCHIWETZ: Oh, yes, sir.18 THE COURT: Even though there was no formal
19 show-up.
20 MR. SCHIWETZ: Okay. No. 12. We have no
21 objection to that. We1re just saying there isn't any
22 such thing. If we had it, we would give it to them.
23 THE COURT: Photographic lineup, show-up.
24 MR. SCHIWETZ: No obj ection.25 THE COURT: Granted.
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MR. SCHIWETZ: No. 14; we don i t have any ob-
j action to that.THE. COURT : Granted.
MR. SCH-IWET Z : No. 15; wè have no obj ection to
that. The only thing I know of in that respect we
have already given to them, which is one offense report
by an officer named Mylett, M-y-l-e-t-t.
THE COURT: I will consider this a continuing
motion and those things that are to be given to you, if
you will notify the Court if they have not been.
MR. LAWRENCE: That will be fine, Your Honor.
THE COURT: Your exculpatory motion is, of
course, granted. And the next one was the investigat-
ive and expert assistance fee, and I will leave that
blank since the Judge, you have already indicated
MR. LAWRENCE: That will be fine.
THE COURT: Motion to Quash the Indictment;
has that been ruled on?
MR. LAWRENCE: No, it has not.
THE COURT: All right. I will hear that.
MR. LAWRENCE: Your Honor, basically what we
are alleging in this motion is that the indictment it-
self in Count No. 1 alleging capital murder does not in
effect allege the entire provisions of capital murder,
which in effect deal with the three questions that must
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be answered by the jury and the jury having no way of
knowing what is taking place as far as Count 1, and
the Defendant not being made aware of the outcome,
which is a particular part of the capital murder
statute, not being made aware in thê indictment of the
three questions that must be asked. We feel that thisdoes not provide him with everything that is necessary
according to Article 21.03 of the Code of Criminal
procedure, and, therefore, does not it violates his
rights under that Article, as well as the Fourteenth
Amendment to the Constitution, and Article 1, Section
1 019 0 f the T ex asS tat e Con s tit uti 0 n .THE COURT: I have never seen a count alleged
exactly in this verbiage.
MR. SCHIWETZ: If I might present a case to
the Court, Your Honor.
THE COURT: All right.
MR. SCHIWETZ: The same issue was raised in
the Y~heault case, V-i-g-n-e-a-u-1-t, 600 SWL2d) 318.
I presented a copy of that case to the defense attor-
ney earlier this morning. The appropriate headnote is
under 14.THE COURT: Well, that was not his objection.
MR. SCHIWETZ: Sir?THE COURT: I didn i t under stand that to be
29
1 your obj ection or your Motion to Quash the First Count.
2 14 is he was not deniad notice of special issues pre-
3 scribed by statute would be submitted to the jury.
4 MR. SCH¡WETZ: We,ll, that's the basis of the
5 Motion to Quash, Your Honor, is that, or it's the re-
6 quirement of 19.03 or, excuse me, of 21.03 of the Code
7 of Criminal Procedure. Everything should be stated in
8 the indictment which is necessary to be proved. The
9 purpose is to give notice to the Defendant.
10 THE COURT: Have you got a Penal Code' there?
11 I don't have one up here.
12 It's the state's contention that the only13 paragraph that charges capital murder is the first14 paragraph?
15 MR. SCHIWET Z : Yes, sir.
16 THE COURT: It's overruled.17 MR. LAWRENCE: Note our exception.
18 THE COURT: Hearing on the voluntariness of
19 the confession.20 MR. SCHIWETZ: We need a hearing on that.
21 THE COURT: You' ré not set up to do it today?22 MR. SCHIWETZ: Yes, sir, I can do it today.23 There are several things here I think we i re going to24 need hearings on: the voluntariness of the confession25 and the identification hearing and the Motion to
30
i Suppress Identification we will need hearing, on. The
2 rest of them I think we can dispose of. I agree to
3 most of the rest of them.
4 THE. COURT: How long do you think those hear-
S ings would take?6 MR. SCHIWETZ: A lot of that depends on the
7 defense attorney. I have got three identification8 witnesses; one involves a photographic lineup, two in-
9 volve show-ups. I have the police officer who con-10 ducted the show-up and the police officer who conducted
11 the prese-ntation of the photographs, and I have several
12 officers who were present at the tima the Defendant
13 was arrested and heard some things he said.14 MR. LAWRENCE: Your Honor, if I --
15 THE COURT: Would it be possible to hear these
16 then, and these hearings the first day of trial before17 we pick our jury?18 MR. LAWRENCE: I would respectfully request
19 the Court to do that. That would afford me the oppor-
20 tunity also to complete my investigation and there woulc
21 be no problem in doing it at that time.22 THE COURT: All right. Why don't we do it23 that way.
24 MR. SCaIWETZ: That t s fine with me. I have a25 number of witnesses out in the hall. If I could step
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out there and let them go.
THE COURT: If you would. I'm sorry, I didn't
know that.
MR. SCHIWET Z : Thank you, Your Honor.
THE COURT: How are thajury lists served on
the defendant in this county?
MR. LAWRENCE: Your Honor, I believe that we
were handed this morning a list of the -- a jury list.
THE COURT: For the week of the 20th?
MR. LAWRENCE: For the week ot the 20th.
And I acknowledge receipt of it here in my file and for
all practical purposes, it has been granted. The only
thing that I would ask with regard to the jury list is
that I'm aware of the fact that the jurors may be
closer to trial and certainly not on the day of trial
will come in and fill out their questionnaires.
THE COURT: Information sheets.
MR. LAWRENCE: And if we could have those
questionnaires, say, the the Friday before the 20th,
which would be 19 -- the 17th, this is a usual request
and it's usually granted that those questionnaires be
in.THE COURT: I don't know how you get the jury
in the week before they, get here.MR. LAWRENCE: Well, if we could --
32
1 THE COURT: But that day, now, we i re going to
2 have hearings out of their presence while they can
3 fil,l out their sheets.4 MR. LAWRENCE: Well, that's fine so long as
5 we're provided --
6 THE COURT: Certainly . Individual voir dire
7 is granted. I believe I asked you earlier; do you in-
8 tend to submit all three counts, if substantiated by
9 the ev idenc e?
10 MR. SCHIWET Z : Ye s, Your Honor, I do.
11 THE COURT: All right. Your Motion to Elect12 is overruled, then.
13 MR. LAWRENCE: Note our exception.
14 THE COURT: Relocation Hearing, Motion to
15 Suppress, okay. And that will be done the day of the16 trial. Are there any other motions?
17 MR. LAWRENCE: There are none at this time,
18 Your Honor.
19 THE COURT: All right. Now, for the purpose
20 of the record, the Defendant, I believe, fi led a pro21 se motion for discovery and inspection.22 MR. LAWRENCE: That is correct.
23 THE COURT: All right. Have we satisfied that
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or is there any further hearing to be had on that?
MR. LAWRENCE: I believe that has been
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satisfied, as far as I i m concerned.
THE COURT: Is there any question, Mr. DePena?
MR. DePENA: No, Your Honor.THE COURT; Any question from you, Mr.
De Luna?
THE DEFENDANT: No.
THE COURT: Al 1 right. i will note on the
bottom of that motion, then, that the defense states
that they are satisfied at this timè.
MR. LAWRENCE: That is correct, Your Honor.
THE COURT: He has also filed a Motion to
Produce Exculpatory and Mitigating Bvidence which is
. granted.Are there any other motions, then, to be dis-
posed of?MR. LAWRENCE: Not that I am aware of.
THE COURT: I have an affidavit on the Defend-
ant i s comprehension of the English language that is not
signed and -- signed this morning and filed this morn-
ing~, Is there any question about that?
MR. LAWRENCE: No, Your Honor.MR. DePENA: No, Your Honor.THE COURT: Mr. De Luna, did you -- did you
file the statement that -- that you understand and
speak the English language?
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THE DEFENDANT: Ye s, sir.
THE COURT: And you do not need an interpreter
THE DEFENDANT: No, sir.
THE COURT; All right. All right, what else,
gentlemen? I give you back your Penal Code, then what
do we do?
MR. LAWRENCE: Your Honor, for purposes of the
record, there may be a few motions in limine filed on
the day of trial, but they will probably be --
THE COURT: Fine.MR. LAWRENCE: to serve the appropriate
things that are always done.
THE COURT; All right.
MR. LAWRENCE: I believe that's all we have.
THE COURT: Okay.
MR. SCHIWETZ: I have nothing.
THE COURT: Then, off the record.
END OF VOLUME
