Ô)4)~ d!n&,,,, ~~ judge presiding ) ~....ms. paula offenhauser - wi encls. assistant attorney...

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


"),.,

(';;~:-" ,.._.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


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


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 ....


...

""--,'



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



901 Leopard, Corpus Christi. Texas, 78401 and to Ms. Paula


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


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

..~.i.

t"~..-..'.!!'~. ..'

I 1\~ l..i ;'. .

~ t~ í...

.-,

f'.:", H;,/~'-l7JG.. . ...:";:~;~,:..~~tc~~ii~~¡;;~E'¡;.r.üù5fi;;;~~

,.J)~-#1l.~~~".~.. i.' ..,1:;. ..\1... .,.... I','_\

.~ r,

.ÅA-


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


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

-'- ~_L ~.;,

,. -0, '-~t~~

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

,.'-:-; :':;,'-,~,-;';-"'~':,"'.-'.~~ '.;...... - .

~., Si--';:.~.;;/

NO. 83-CR-19it-i\

THE STATE OF TEXAS

VS.



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.,_,

-.4-..

~¡"\ ..



../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

- "

, ".:a "

~-;.' . ..~;."

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:

.-, r-' i-..~..P I

ò"."; ::\!

it. '- II ! " 1

I r "i-L:

f \.~ '. "

L~u

.Jmi 2;4 ~G':\:

.. :,~~£ it;:~. "23

~ .4f~

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'

-8-

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

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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

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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




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



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





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


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.


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



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



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


Peti tioner is an hispanic male. The victim ofthe offense as listed by autopsy records is

white female. Evidence will be adduced that




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.


October l5, 1986.

(B) Petitioner was denied effective assistance of

counsel at trial in violation of his rights


United States Constitution, Article 1, Section

3, 3a; 10, 15, and 19. Petitioner will show


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


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.



Fourteen Amendments, United States

Constitution, and Article l, Sections 3, 3a.

10, 15. and 19. Peti tioner will show that


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


sent at Petitioner's trial.


MtCROF1LMED

VII.


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.


that this Court:

i. Issue a Writ of Habeas Corpus to have



and restraint and/or relieved of his unconsti tu-


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




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


Ml(;l(UljlMfD-

this petition;

7. Immediately stay Petitioner i s execution

pending final disposi tion of this peti tion; and


appropriate.

sr¡.

Bank of Dallas Building, LBl33333 Lee Parkway, Sui te 930Dallas, Texas 75219214/559-4384 .Bar No. 01207700

CERTIFICATB OF SERVICB



gOL Leopard, Corpus Christi, Texas, 7840l and to Ms. Paula


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


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




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


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





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


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.


~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



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


(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


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




I\.Mt.~\\ U r l

M. \ l;



United States Supreme Court has before it a

similar issue in McCluskey v. Kemp, No.

84-68ll and Hitchock v. Wainwright, No.


October l5, 1986.

(B) Petitioner was denied effective assistance of

counsel at trial in violation of his rights


Uni ted States Constitution, Article 1, Section



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



(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


~ 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.



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-





OF~LMtO~\ \ C R

VII.


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.


that this Court:

i. Issue a Writ of Habeas Corpus to have



and restraint and/or relieved of his unconsti tu-


2. Conduct a hear ing at which proof may be

offered concerning the allegations of this

Petition;

3. Permit Petitioner, who is indigent, to




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


tJ1\CRO F ~ L M E 0

this petition;

7. Immediately stay Petitioner's execution

pending final disposition of this petition; and


appropriate.

.Bank of Dallas Building, LBl33333 Lee Parkway, Sui te 930Dallas, Texas 75219214/559-4384Bar No. 01207700




90i Leopard, Corpus Christi ,Texas, 78401 and to ~s. Paula



SIGNED this the ?r' day of ¡J~ , 1986.

r¡~


r';? CP.OFlLMfO



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


October l5, 1986, pending the final disposition of the pre-





\

APPLICATION FOR STAY Qf EXECUTION - Page 1

M CROFlf ftC'n

poraneously herewith, and the Memorandum of Law in support


~Bank of Dallas Building, LBl33333 Lee Parkway, Suite 930Dallas, Texas 75219214/559-4384Bar No. 01207700







Building, Sixth Floor, Austin, Texas, 787l1.

SIGNED this the 1iP day of ~ , 1986.

¡¡~


~!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


MiCfiUf!LMfO


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


October is, 1986, pending the final disposition of the pre-





ROflLMEOM t C


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


~Bank of Dallas Building, LBl33333 Lee Parkway, Suite 930Dallas, Texas 75219214/559-4384Bar No. 01207700




John Grant Jones, Distr ict Attorney of Nueces County, Texas,

90l Leopard, Corpus Christi, Texas, 78401 and to Ms. Paula



SIGNED this the ~~ day of . ~ , 1986.

il~


M IcaUrlLMEO

NO. 83-CR-194A

IN THE DISTRICT COURTEX PARTE

28th JUDICIAL DISTRICTCARLOS DELUNA


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


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

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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



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


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

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F L M t 0

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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


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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

,..\. '~ 1B Y ~ ItL6.¡;!i JX'l U ()

I DEPUTY

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.\)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

..~ ::..¥ ,-

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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

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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,"!

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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.


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:


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


Amendments , United States Consti tution and


Peti tioner is an hispanic male. The victim ofthe offense as listed by autopsy records is

whi te female. Evidence will be adduced that





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.


eRO F1LMMf D

CD) Petitioner was denied effective assistance ofcounsel at. trial in violation of his rights


Uni ted States Consti tution, Article 1, Section



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



(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


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


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


M) \ C R 0F , L M f o

appeal, eoft9i§ting or seventeen pagê~, WäS

wholly inadequate. and insufficient to effec-




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.


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



John Grant Jones, Distri ct Attorney of Nueces County, Texas,



Building, Sixth Floor, Austin, Texas, 78711.

SIGNED this the ~ day of ~ , 1986.


~,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.'

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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

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Ô)4)~ d!n&,,,, ~~ judge presiding ) ~....ms. paula offenhauser - wi encls. assistant attorney...

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