OERK, U S DISTRICT COURT SOuTHERN DISTRICT OF TEXAS FI LED IN THE UNITED STATES DISTRICT COURT JUll 21988 FOR THE SOUTHERN DISTRICT OF TEXAS JESSE E. CLARK, CLERK CORPUS CHRISTI DIVISION BY DEPUTY:'1';, ~ CARLOS DELUNA § § V. § C.A. NO. C-86-Z34 § O. L. MCCOTTER, DIRECTOR, § TEXAS DEPARTMENT OF § CORRECTIONS OR HIS SUCCESSOR §
~MO~T~I~O~N __TO ATTACH AFFIDAVITS ___AN___D EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS
TO THE HONORABLE HAYDEN W. HEAD, JR., JUDGE, UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF TEXAS, CORPUS CHRISTI DIVISION:
Comes now the Applicant, CARLOS DELUNA, and makes this his Motion to Attach Affidavits and other Evidentiary Matters to pleadings previously filed in this cause, and for cause.wou1d show unto the Court the following:
I. The Court presently has before it a Motion for Relief from Order asking the Court to reconsider its Order dismissing Applicant's Petition for Writ of Habeas Corpus by Order filed June 13, 1988; in the alternative, a Motion for
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 1 --- Ht62/071188/DELuNAI-2
I ~ Certificate of Probable Cause and Notice of Appeal to the Court of Appeals for the Fifth Circuit; and Petitioner's First Amended Application for Writ of Habeas Corpus and Brief. At the time of the dictation of those pleadings, Petitioner had not had sufficient opportunity to gather necessary affidavits and evidence in support of the allega tions contained in the pleadings and seeks through this Motion to have those affidavits and evidence amended to the respective pleadings.
II. AFFIDAVITS Attached to this Motion are affidavits from wit nesses necessary to support Petitioner's claim for ineffec tive assistance of counsel for failure to investigate and put on evidence in mitigation of punishment for this 21 year old Petitioner at the sentencing phase of his capital murder case. Such affidavits from Petitioner's close friends and family members attest to their availability and desire to testify at the time of trial, the substance of their testimony, and the lack of contact with attorneys for the Petitioner, who failed to discharge their duty to investigate information for mitigation. Such failure to present mitigating evidence is the type of Sixth Amendment
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 2 '16Z/071188/DELUNAI-Z violation that is not subject to a harmless error analysis. Satterwhite v. Texas, U.S. (No. 86-6284, Decided May 31, 1988); Franklin v. Lynaugh, U.S.
(No. 87-5546, Decident June 22, 1988); Penry ~ Lynaugh, 832 F.2d 915 (5th Cir. 1987) (Cert. Granted 7/88). The affidavits support the fact that an evidentiary hearing to determine whether such failure to investigate mitigating circumstances was in fact in violation of Petitioner's Sixth Amendment rights.
III. EVIDENTIARY MATERIAL Also attached to this Motion are evidentiary material from the files of the trial lawyers, James R. Lawrence and Hector DePena, Jr., reflecting discovery given them by the State of Texas concerning Petitioner's activity of substance abuse which was never explored with the jury in mitigation of punishment, other than the offense itself was commi t ted after Petitioner had consumed several alcohol i c beverages. It is submitted that this extensive background of substance abuse, including chemical inhalence, which might have lessen Petitioner's responsibility for the homi c ide or mi t i ga ted against the death penalty was not pre sented because the present structure of the Texas Death
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 3 - 1162/071188/DELUNAl-2 Penalty Statute would have prevented the jury from con sidering such evidence as mitigating. As jurors under Texas Sentencing Structure under Article 37.01, Texas Code of Criminal Procedure, would be required to answer only Special
Issue No. 1 (whether the murder was committed "deliberately") and Special Issue No. 2 (whether ther was a "probability" that Petitioner would continue to pose a "threat" of violent behavior that would consti tute a con tinuing threat to society) such evidence of substance abuse or mental disease or prompted by extensive substance abuse, while mitigating in the sense that would lessen respon sibility for murder, may actually have supported the finding of probability of future dangerousness. The failure of the Texas Sentencing Structure to give the jury a third option, i. e., to consider whether the evidence of mental illness resulting from drug abuse was substantial enough as a miti gating circumstance to call for a life sentence in face of the affirmative findings on the special issues prevented the defense attorneys from putting on and further investigating the mi tigat ing evidence revolving around substance abuse. Such failure to put on mitigating evidence and further investigate such possibility in light of the Texas Sentence, mayor may not have been trial strategy, and requires an evidentiary hearing to determine whether such activi ty was violative of Petitioner's Sixth Amendment rights.
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS --page 4 --- Ir6z/071188/DELUNAI-Z
Q IJ IV. That the interest of justice require that the material contained in this Motion in the form of affidavits and evidentiary matters be attached and incorporated in Petitioner's previously filed Motion for Relief from Order, Motion for Certificate of Probable Cause, and Notice of Appeal and Petitioner's First Amended Application for Writ of Habeas Corpus and Brief in support of both of those pleadings.
WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that the affidavits and evidentiary matters be attached and appended to Petitioner's First Amended Application for Writ of Habeas Corpus and Brief and Petitioner's Motion for Relief from Order, Motion for Certificate of Probable Cause and Notice of Appeal and
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS --page 5 '162/071188/DELUNAl-2 incorporated therein as if fully set out in support of such pleadings.
RI
75219
ATTORNEY FOR PETITIONER
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion has been forwarded to Mr. William C. Zapalac, Assi stant Attorney General, 200 W. 14th, Supreme Court Building, Sixth Floor, Austin, Texas, 78711; Mr. Richard Windhorst, Fifth Circuit, Court of Appeals, 500 Camp Street, New Orleans, Louisiana, 70130, and Mr. Christopher
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOUSLY FILED PLEADINGS - Page 6 - 116Z/071188/DELUNAI-Z Vasil, United States Supreme Court, One First Street, North East, Washington, D.C., 20543.
SIGNED this the ~day of -...... ;.-t-,---J~ , 1988.
CERTIFICATE OF CONFERENCE That at the time of the dictation of this Motion, I did not have an opportunity to talk to Mr. William C. Zapalac, Assistant Attorney General.
MOTION TO ATTACH AFFIDAVITS AND EVIDENTIARY MATTERS TO PREVIOU~Y FILED PLEADINGS --page 7 - H16z/071188/DELUNAI-2
\ AFFIDAVITS 1162/071188/DELUNA4 AFFIDAVIT
SfATE OF TEXAS * KNJW AU. MEN F!{ TIiESE PRESENTS: COUNIY OF DALI..J\S *
"My name is Mary Arredomo, am I am over the age of 21 years of age am am fully competent to make this Affidavit. I am the sister of Carlos Delllna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at Texas Instruments. My phone number am address are (214) 278-7881 301 East Miller, Garlan:L Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude.
I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify, I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty.
My brother Carlos Delllna is very dear to me. He is the YOUI¥Jest boy from a family of nine. As he was growing up we spent lots of hO\.n"S in movies, carnivals, parks an:i so on. As the years went by he would go to our home after some of us had gotten married am spent many hO\.n"S with us. He enjoyed the family gatherings am holidays at Mom's house. It was always something we all looked forward to. I remember when Carlos got a job at What-A-Burger. He couldn't wait to get paid. That day he came home with a lot of bJrgers am fries for all of us. He was very generouse .with his nephews, always taking them places am buying them things. Till this day I fim it hard to believe that he is where he's at. I was at his trial till the em. I thought that another person was being tried. The lawyer ~asked me to testify for his behalf. I might be wrong in saying this, but I never thought he had good. representation from the appointed. attorney. Carlos was already judged. guiI ty before he stepped into the door by the media, all the newspapers. I believe Carlos deserves a chance. He was very yOl.lOJ at the time. When I talk to him now I can see~s wiser am at peace with himself. He is very close to our Lord, Jesus Olrist. Carlos needs kirxlness am another chance with his family who loves him so much.
I am presently available am willing to testify concerning these facts. as I was during the time of the investigation am trial of Carlos' case."
\. . i-, ~lBED AND SWORN TO BEFORE ME on this the J:l+1; day of ~~r .~OO. _
PUBLIC 1: FOR nlE STATE 9F T,EfXAS I I .Tj1ij(~(\
Commission Expires AFFIDAVIT srATE OF TEXAS * KOOW AIL MEN BY 1HES.E PRESENTS: COUNIY OF DAll..AS *
"My name is Robert Arredoooo. ani I am. 18 years of age ani am. fully competent to make this Affidavit. I am. the nephew of Carlos DeLuna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am. presently employed at Brad Rhoton & Associates. My phone number am address are (214) 278-7881. 301 East Miller. Garlam. Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude.
I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify. I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury givirg the death penalty.
My uncle. Carlos Deluna am I are very close. Carlos was always good to me am my brothers. He would always do things with us. Carlos would take my brothers ani I to the park or the library at times. He was a very givirg person l::uyirg us small gifts ani when he could he would take us to the movies. I got to know Carlos pretty well whi Ie he was stayirg with us. Carlos has grown up a lot in the last five or six years. I know he is studyirg ani takirg classes ani working hard on improvirg himself . We all love Carlos very much.
I am. presently available ani willirg to testify concerning these facts. as I was during the time of the investigation ani trial of Carlos' case. II
~ AND SIIOllII 10 IlE:f\:XlE ME on this the {l-tb day of ~ .1988. .,. AFFIDAVIT
STA1E OF TEXAS
COON:rY OF DAI..LAS .
"My name is Max ArTedor.do. ard I am 19 years of age am am fully competent to make this Affidavit. I am the nephew of Carlos Del..llna who is presently an inmate on death row at the Ell is Unit in the Texas Department of Corrections. I am presently a student at Richlard College am am employed at United Parcel Service. My phone number ani address are (214) 278-7881. 301 East Miller. Garlam, Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude.
I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify, I would have told the jury many thirYJs concemirYJ Carlos I life that I believe would have mitigated against the jury givirYJ the death penalty.
I am writirYJ this letter to let you know about a person my family am I care a great deal for; my uncle, Carlos De1J..ma. I remember as a yOl.JI'g child Carlos would take me to the park. where we would play football. This is when I learned to enjoy the game am grew closer to him. I never had an older brother. In a sense my Uncle Carlos was my older brother. He would take me am my yOl.JI'ger brothers to the movies am out to eat after gettirYJ paid. The thirYJ that I noticed the most about him is how much he has charYJed. You should see him now. he is a better person, he has four.d God. He is also a more carirYJ person. I know he is still the good person he has always been.
I am presently available ar.d willirYJ to testify concemirYJ these facts. as I was durirYJ the time of the investigation am trial of Carlos' case. " . .. /I/,I /,,) ~ /If I:..Z/p,i( /~~Rc~~~c~ /
srA~i·. 11 JJ Prlnt or~ l ~tl/'lVt':J o 0 . . Commission Expires
\\1 AFFIDAVIT
STAlE OF 'I'EX}S .,. fOOW AlL MEN BY TIiESE PRESENTS: "My name is Salvador Marquez. and I am over the age of 21 years of age am am fully competent to make this Affidavit. I am a brother- in-law of Carlos DelJJna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at American Iron am Metal. My phone number am address are (214) 388-7967. 6600 Ethel Drive. Dallas. Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify. I would have told the jury many thirgs concernirg Carlos' life that I believe would have mitigated against the jury givirg the death penalty. Carlos has stayed with us am he worked with me at Arrow Ind. He is know to be a hard workirg person. am he has always had respect for me am my wife. He took care of my fami ly when my wife worked. He is very good. with kids am a very urderstamirg person. The kids really love him am miss him. He was very yourg at the time all this happened. I feel with age he has gotten wiser in life. I would be willirg to testify that he is a charged person. With Gcd's help am yours Carlos wi 11 be a contrirutirg person to society. I am presently available am willirg to testify concernirg these facts. as I was durirg the time of the investigation am trial of Carlos' case." Jak~~:;:.. ~ AND SWOON 10 BEFORE ME 00 this the 12H. day of .1986. ~ Y PUBL~ FOR '!HE :¥~HCi1nv~ Commission Expires \'1 AFFIDAVIT STATE OF TEXAS 'I< KNOW AI..L MEN BY THESE PRE.3ENTS: COUNTY OF DAlLAS " "My name is Michael Arredondo, and I am 17 years of age and fully competent to make this Affidavit. I am the nephew of Carlos Deluna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently a student at South Garland High School. My phone number and address are (214) 278-7881, 301 East Miller. Garland, Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testIfy. If I had been called by the lawyers to testify, I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty. Carlos is my uncle and a nice man. He always took my brothers and me to many different places, the movies, out for ice cream, and out for hamburgers. He always was like a big brother to me. Carlos always took care of us. Carlos needs a chance to prove to society that people can, and do change In I He. He was real yOun::r when this hap:pened. Now he is alot different, older and wiser. When I think of Carlos, all I remember is how he always helped me whenever I needed it, and he was always nIce to us. Now he has lost about sixty ]X)unds, he sent us a picture and he looks good and his letters sound very happy. I am presently available and willing to testify concerning these facts, as I was during the time of the investigation and trial of Carlos' case." ~Ilfll AND SWORN 11) BEroRE ME on this the v , 1988. SI'A1E OF TEXAS * KNOW AlL MEN BY THESE PRESENTS: COUNTY OF DALLAS * "My name is Maria Conejo. and I am over the age of 21 years of age and fully competent to make this Affidavit. I am the sister-in law of Carlos DeLuna who is on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at Y0llI1 I think about all the good things he did when he was around us. He lived with us for quite a while. While he was here with us, he used to take our kids to the park along with his nephews when they were around. He used to do some errands for me like going to the store and mailing the bi 11s and make money orders for us when we needed them. He would take care of my kids while I worked cleaning houses. I remember one time, he brought this girl with two babys to be here with us because he was in love with her at that time. He went out looking for a Job and found it. She left him and went back home to her parents. When he was YOllI1 I am presently available and willing to testify concerning these facts, as I was during the time of the investigation and trial of Carlos' case," ~ AND SWCilN 10 BEFORE ME on this the 1)..+11 daY. of ~'i .1989. ~__ NCl1:: Y PUBLIC FDR TIlE :nvHi~ tkM~ - Ccmmission Expires AFFIDAVIT STA1E OF 'l'.EXAS * KOOW AU.. MEN BY TIiESE PRESENTS: COONTY OF DAI.lJ>.S w "My name is Daniel J. Conejo. ani I am over the age of 21 years of age and fully competent to make this Affidavit. I am the brother of Carlos Deluna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed as a carpenter. My phone number ani address are (214) 278-8545. 220 East Miller. Garland. Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify. I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty. I have known and lived with Carlos much of his childhocd. and teenage life. where I have passed great and happy moments with him and have great brotherly love for him. To my urderstanding Carlos has always been a nice obedient l:x>y as a child and throughout his teenage years. I have had close contact with Carlos since his incarceration. He has always shown respect for me and his fellowman. always letting me know of his future plans and schooling. i.e.• courses he has taken there while being confined with TOC. In his letters they have demonstrated much transformation and maturity in him. self acknowledgement of life with great respect for human life and God I S creations ani all that surrourds mankirrl. I truly believe his incarceration with TOC has made Carlos a better citizen. Like I said. it has shown him to have great respect for human life. This is why I believe if Carlos is given a secorrl chance he would be a better citizen in this society of ours ani this is why I believe Carlos Deluna should not be executed urrler those circumstances of capital punishment. I am presently available and willing to testify concerning these facts. as I was during the time of the investigation arrl trial of Carlos' case." C -----....2 "--G~ SUBSCR~ AND SliOIlN 10 BEFORE ME on this the Jl +~ day of JY .1988. ~ ~~~ STATE..OF J I I i 0 HO(Yh.l Print or Commission Expires AFFIDAVIT STAlE OF TEXAS .(1( "(I( KN:)W AIL MEN BY THESE PRESENTS: (X)IJN'fY OF DA.I.LAS liMy name is Freddy Gutierrez, ar:d. I am 20 years of age ar:d. fully competent to make this Affidavit. I am the nephew of Carlos DeLuna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at Kraft. My phone number ar:d. address are (214) 271-8461, 201 EastRidgewood, Gar1ar:d. , Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had. been called by the lawyers to testify, I would have told the jury many thiNJe concemi[YJ Carlos' life that I believe would have mitigated against the jury givi[YJ the death penalty. I would have told them about the time when Carlos came to visit us. There was a group of larger kids who were always beati[YJ up on the yOUrYJer kids, includi[YJ myself. Carlos, by himself, went to each house of the bully kids, ar:d. talked to the parents ar:d. informed them of their children's activites. He was always concerned about those folks who were helpless. ar:d. he always did what he could to see that they got the help they needed. I am presently available ar:d. willi[YJ to testify concerning these facts. as I was duri[YJ the time of the investigat· n and tr~ of los I case." ~ AND SiICRN TO BEFORE: ME on this the l::l}f> day of ~ .1988. ~It =~·nfE Print oro AFFIDAVIT STATE OF TEXAS .~ * KNOW AlL MEN BY 1HESE PRESENTS: roJNTY OF DAlLAS * liMy name is Alfredo Gutierrez, am I am over the age of 21 years of age and fully competent to make this Affidavit. I am the brother in-law of Carlos Delillla who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed by Kraft. My phone number am address are (214) 271-8461, 201 East Ridgewood, Garlam. Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called. by the lawyers to testify. I would have told the jury many things concerning Carlos' life that I believe would have mitigated. against the jury giving the death penalty. I have know Carlos since he was a little boy. approximately ten years. He is a nice boy. even when he grew older he was nice to me am my family_ Carlos has always respected me at all times. Carlos used to go fishing with us. He would come to my house in the summertime. Carlos deserves another chance to prove he has changed. In the summert ime he would work. arourd the house. He is the hardest worker I have ever known. I am presently available am willing to testify concerning these facts, as I was during the time of the investigation aId trial of Carlos' case. ,. ~BEll AND SWORN 10 BEFalE ME on this the / / fh day of T ../ ,,/ // .' Iv 'y # 1988. ~~..- ~... ./ ~.. . • '-. ~- tIiJI'i\Ry PUBLI IN AND fOR 1HE Print or ~ o'F/C, AFFIDAVIT STATE OF TEXJ\S * KNOW AIL MEN BY TIiESE PRffiENTS: caJN1Y OF DAUAS .. "My name is Milda Callahan, ani T am over the age of 21 years of age am am fully competent to make this Affidavit. I am a friem of Carlos Delllna who is is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently retired. My phone number ani address are (214) 840-1895, 216 East Miller, GarI ani, Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify, I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty. I knew Carlos Delllna several years ago when he lived next door with his brother Daniel Conejo ani his wife. He worked as a cook at a fast food place. We a11 spent many hours sitting out in the yard together. Many times I would be there by myself ani he always sat ani talked. He was always so nice ani polite to me, a very sweet boy. We laughed a lot together. He was always so happy ani good with his yOl.ll":ger nephews, playing ball ani a11 with them. I am Sixty-three years of age, ani I enjoy seeing young people trying to do so good. I think he deserves to 1ive ani to be happy again. ani to show what kim of a nice young man he really is. I am presently available ani willing to testify concerning these facts, as I was during the time of the investigation ani trial of Carlos' case." Commission Expires AFFIDAVIT STATE OF TEXAS '* KOOW AU. MEN BY 1liEEE PRESENI'S: COONIY OF DALI..AS '* "My name is Rosemary Deluna-Earley, am I am over the age of 21 years of age am am. fully competent to make this Affidavit. I am the sister of Carlos Deluna who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at Brad Rhoton am Associates. My phone number am address are (214) 991-1580, 5050 Olorum Drive, Dallas, Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify. I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty. As kids we were never that close to our parents. My dad was an alcoholic am they never had time for us. Maybe because my mom. am dad were older parents or maybe my mother was tired or raising kids. My mom had six kids from a previous marriage. Carlos am I were very close to each other. He would always play with me as kids. Where we grew up all these kids were boys. There were no girls to play with. Carlos would tell his frierrls that if I could not play with them he would not play. He always helped me with school work. We stayed up late Friday am Saturday am watched t.v. am ate popcorn. My mom. worked so she would make me clean the house am cook. My other brothers never helped me rut Carlos would am if I broke something around the house am. if my Mom foum out she would spank me. fut Carlos always helped me glue it back together. When my Mom bought Carlos a new truck am he worked at What-A-IUrger, he always took me out to eat am would ruy me clothes for school am. take me out to movie shows am. he taught me how to drive. He took me to school am picked me up. We stayed up late talking. When I talked about me problems he always listened to me am helped me out. When I was first married. he lived with us am. took care of my baby. He always helped me with the household bills. Carlos has always been nice am. friemly to everyone he knew. I have never seen him arqry. He was always smiling. Carlos am I write to each other every week. He has completed school programs am he is very much at peace with himself. I can keep writing more about us as kids rut I know deep in my heart Carlos is a good person. I am presently available am. willing to testify concerning these facts, as I was during the time of the investigation am trial of Carlos' case. " c--'-' ,~'i ~~ !...-._-_. \/\ ~O '\-~~:'>- r+h ~IBED AND SWORN TO BEFORE ME on th~:_the / ,J da~ of v r .1988. (:Ii!fI-~~ OOI'ARY PUBLI I AND FOR 1HE SfA1E.-Cf/'-lv ~ He-()!1v Print or Commission Expires AFFIDAVIT \ SI'A'IE OF TEXAS ,.,. KOOW AIL MEN BY TIiESE PRESENTS: COUN1Y OF DAllAS '/( "My name is Rebecca Marquez, ani I am over the age of 21 years of age ani am fully competent to make this Affidavit. I am the sister of Carlos DeLuna. who is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently employed at Dallas Tailor Laundry Supply. My phone number ani address are (214) 388-7967, 6600 Ethel Drive, Dallas, Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify, I would have told the jury many things concerning Carlos' life that I believe would have mi tigated against the jury givirg the death penalty. I know for a fact that while Carlos stayed with me in Dallas he worked very hard ani helped me with our expenses ani would also baby- sit my children while I worked. My childred were then a 7 yr. old, a 4 yr. old ani a 2 yr. old. He was great with the children ani my children love their Uncle Carlos. They wouldn't stay with anyone else but him. :Everyone has respect from Carlos. I will testify in court how well behaved he is, not only because he is my brother, but Carlos is the greatest. There is somethirg special about him. He always says yes when you need him. If he would go ani buy somethirg for himself he never would come home empty harxied. He always brought everybody somethirg back. if it were a coke or cardy. I do think he deserves to live, to show how much he has improved. QJr father is an alcoholic ani never supported us when we were YOl.1l"WJ. QJr poor mother had to work to support her family. Maybe thirgs would have been different if mother would have had the time to keep Carlos away from. the wron;;r crowd, rut now he knows who the good ani bad crowd are, ani he has chosen the good crowd. He is takin;;r classes to improve his education. He finished high school ani is now workin;;r on college classes. He is a much different ani better person that he was six years ago. I pray God is with you, as you read this, ani with Carlos. I am presently available ani willing to testify concernin;;r these facts, as I was durin;;r the time of the investigation ani trial of Carlos' case." ~~ AND SWORN TO BEFDRE ME on this the ____~__~,~ ___~-----, 1900. ./ Prlnt or 0. Commission Expires AFFIDAVIT SfATE OF TEXAS * * KOClW AlL MEN BY THESE PRESENTS: OJUNIY OF DALI..AS * liMy name is Joe Anthony Conejo. ard I am sixteen years of age ard am fully competent to make this Affidavit. I am the nephew of Carlos DeWna who is is presently an inmate on death row at the Ellis Unit in the Texas Department of Corrections. I am presently a student ard am employed at Krogers. My address is 6600 Ethel Drive. Dallas. Texas. I have never been convicted of a felony or a misdemeanor of moral turpitude. I was never contacted by the attorneys to testify. If I had been called by the lawyers to testify. I would have told the jury many things concerning Carlos' life that I believe would have mitigated against the jury giving the death penalty. I used to stay with my Uncle Carlos when I was small. We had lots of good times together when our Uncle Carlos used to take care of us. He woulJ let us watch t.v. all we wanted to ard would get mad at us when we didn' t eat our vegetables. I remember once he took us downtown ard spent all his money to ruy us a remote control car. We had fun that day even though I errled up breaking it ard we hid because if Mother would have fourrl out he spent his money on a silly car she would be mad. so we never told her up to this day. There would be times when it was too hot in the summer ard he would bathe us outside with the watemose. That was fun. Carlos was a sweet loveable person. He was the big brother I never had. I pray everything will turn out fine ard let him show you what kirrl of person he really is. I wait with open arms to see him again ard pick up where we left off when I was small. Things wi 11 be different now that I am older arrl try to urrlerstard life better. I wish nothing rut the best for my Uncle Carlos. May God. be with him. I am presently available ard willing to testify concerning these facts. as I was during the time of the investigation ard trial of Carlos' case." ------E V IDE N T I A R Y MAT T E R S EVIDENTIARY MATTERS H162/071188/DELUNA4 -- -~"'------ DELUNA , CARLOS "904096~ 031562 W/M 5-07 i50~BR/BR ,~, ' . , ,',' ATTEMPT .....BUF:GLARY' ,; -4 r '. . "",", , RELS TO PARENT~~ ~ :.: " t'" _ ' . , ,-.. ' '.,,¥, ',,:BtJRGtAR't ,. .' :.:.-..... -"-'----- 1 RLS. NO CHARGES FILED "--_., _. -- - .•.. "---'--'-'-- ..----,--,.--...... ,.,..--'------_._---...... --~------._ : ',:' ., ,", ' ,'''.'' .~"" " ' f~- • ,_," ~f r-----·--- --~----. 'lRUNAWA.,....>;;I'J;{~~r'),,' TRANS TOMARf' H~Lf .' . --AA'NO:CG90'4O:;-ARDHG61978 OFFNO:806191t3 IRE~--' 1 '---'- , .' <,' • .' ~IFFIN'~. TRANS TO MAF:~ HALL -.-:-.AR~Q~~fYtSf·~~ARI);140; ;·97~;~~m'9(J451t.'::~~SN,~ FFIN';-- 'k-:-l;,~~~:-f{:':"""'E~-:,~-~:-"-- --'-----1:TRANs-TlTlimrrR~tt~~\~K?l<:.:;:r..:{·;: .. rifU'fO>:Cfb196 ARDrrei~~~l~t'~F~ti :81 ~30044 i·.~-·------, -. ')) , - ..__._-----.....--.-.------,----~--- fARGE AFTER INVESTIGATION :FICER CHANGING CHARGE(SI F04tfIGM CIIftfNCY· ._ :;~_,;:;,,~;=:....:._:.c.. , " ;...'••••••l.:l••• fER DISPOSITION (OR) REMARKS RIl(:EI\/ED WHEN RELEASED I------!:..;::.::;::.::~___-I 'FFICER CHANGING CHARGE(S) .~~, . >fICER CHANGING ·~o V/\.tU! Of CHtexS ,NSFERRfD TO COUNTY ON "'MJ'\KG,i' TRANSFERRED BY EMf'.' il:R DIS?OSITrON (OR) REMARKS .. . 'Zt, R'S ~:NArURE ACKNOWLEOGES PROPERTY RECEIVEO WHEN RELEASED j. 17 . . II ~~---J. ( /'" II. ~ (J ", r ~ .. r- _~jlJ -..t-t1 - ~_i·..'.'~"""" .~ • .:-= .:..: 'RPUS CHRISTI POLICE DEPARTMENT '~~====~~~~==~====~~~~=~~.~.,.. .'-" - ....-,.------..,-----, CHARGE AFTER INVESTIGA NO, OF CHICKS VALUE OF CHECKS :lTHER DISPOSITION (OR) REMARKS RECEIVED WHEN RElEASEDf--__..,=;.:.:y.='---::-_-I ,:, . ARREST 5.Hi&T NlJM&iIil· • .I_~~~:::._::-::-::-::==-:::""':::\h:::",:::~===',.~--::.I~.. ~. :~R~'.is C~~I~~ P~:~C_E D~:~i~~:..:..,-_·"'_-=·~~tn~rrTi''''t:'''t'''~,..~''''''''';'~f-j ..-f}t: -~ V~+----~~C4.k/~t .___~~FENSE:::NuMB1~~lN'i:iM:w=~::::-prACiOiHiiiffi~=? ·r' -"... , ... ,. AllAS RACE SEX AGE til 11 17 TIME OF ARRES!a . / /"1 ! CHARGE AFTER INVESTIGATION . , ... ~':: "-, ' .-"!,, '. )THER DISPOSITION (OR) REMARKS p.ROP~7ECEIVE WHEN DArE \ Y/; ~1 AXXl:~' ;,i1tl;1 NvMlil:R - ". ,.,.,," .' F:- "'. ..- / .... IX) ',: C 3 2"05'3" ORPUS CHRISTI POLICE DEPARTA6EN ...... --..---.------. ~ ~. ALIAS CHARGE AFTER INVeST/GA \, C 0 F' P !' ,':, I S 'f J :.> f: :. . I !". C CF: I 11 r ~' ,', ',.. i.! I: ,~ I '):: i r:: ii' I 1~" C' ::~ r'o 'n ; -: .~ !; :, ! Ii J ( : , ! k ,,' ':ll'! r ~'::: Li!.H l' :' L,·t[ ~·r'~!~'.·· 1- :, \ ) r' ~.. I \. ' i \ !f.: F:'C! n ,~.t!::f;·F.~ S ',' ~>) 1,S FdJ I.: Is !'en:: D ST ,~PT i .. ·.\r·~lI:' CHFIEi(.\.i ARReST APRE~T OFFENSE 'r,l~q I1a[E.-...' ._J!.!J.llDE,:'S " C,n:: ':'i''.':'f '., , 'tr• ",ryr~,3t1~!,!,w1!tJ't~~~P.l'l'.I~~''t'?~F.~ " ' lS'l~"M"'i~t!'¥~!,!!.i#.iIiAM;;'JNlf¥'RU~~~Tm~~rnr.. ff!m~~~i,"",~~i'W'!W'fJHti+3acaa:lW1S1QffiilW~, " ""'f~ r . :t, " I ~b. 11-~~f~IJr "HI... \,,,,,, '~D..,!!~f!'!ffl~'f~..~;g·t;'fM!..~!l!ma;eQ..MfiH",J"!,"'~I~~rrr~~~'" .. ' .. f.!~~r"'~"!'~I'""!~"fflM\A;;aJi4!lif4L"(,!~~~t;a" !1~f'W~~{ii"'5?'&Vi.fPA.'tV1!*'!~ i" 1 f,,' l I f1~",~q·~~Em~m\~fI.!!?JiIltii4hW6~mn,".... ; ~ I''!. t" • , i :,'.1 , ..... f'IM4'!ISJ1U!if'~~~fa.ka4.8~~~~~fia'rr~, ;:\',":/ " I ." of ':,L lnS ..,1;:,FI.III't.1.- . . f.;.e.RLO: . , I l:t!(lf::I~ ."'~~!~/ TX DL i 003G46~~ . .'.' f:LMflf',:r, .)~;.t: JnCh.E T·']FrF'Ii...E / ,'IOfSFC IiJ F T' I. :.' , . -~., ,_ ,. ~"::':'O~>i-~ r:.IIl) flF' r:'!,<~FL{~Y ~,""~'-::F"" DI'.;1fv O;1..'o-~o'J1 .... , ... r t " I ....'! j! ... '''''.: ' >!T . , ' .• f .,; I ;" "r C H i~' I ,..\ " ,'( ;, (:, F'i:: '\ _"f . :".) '-'e '.• J ,:;.•:. ' t\'" .• i '"',1 ; r.~ :i.:-: ~j "'1 .' ;::.:... :",{.\ "").' ~ -., '.! 2 ()? ::: (, {.; .,... : ...... : '-~ I,;; 1)328B0 o{)32E:O:: 1 052380 t'1 UN I ::~,. '~_ ,~. I~. !',_ (,~tJt~::)i"~' • "t ••, .•••, •.;' \j i( ... r \ •• r f ...... :.~ ....;;}, if '..' : '·1>""(' '" \' , -, SfcDet< /Yl yt yJ ~ pi Drr,( t11fl rJ l" 0 r-, I I ''----'-+rb..r...-l----"-"-(£-1 CORPUS CHRISTI POLICE DEPARTM'T - n,., y'U/J\~ C A~/O-S .0. NUMBER lNI+,.. t.. ,'" -.J FN! Mil ALIAS PLA EMPtOYMel'o, RACE SEX AGE DATE OF 81RTH HEIGHT WEIGHT EYES HAIR ORIVER LICENSE NO. Ql. :orATE EXP.OA Rl:~IOENCc NEXT OF KIN SOCIAL SE I WI.E OF ARREST DATE OF ARREST TIME BOOKED VEHICLE . <.7;..,5'.. u .~ 51' ""RMESTING 'OFrICER(S) EMP.I YR. STATE TYPE OF PREMISE - ~ lEFOR RElEA . 11 - ..::t ~ 1! (r( t' 1:, ; II:s """' ~ ~t..A· fJtJlJ...rs fDc..A.d ~ tV /7)tJ h 0-C:1 ....<24..,.~ I.). ADDITIONAL OFFENSE REPORT WRITTEN 7AAi'>lSFeRRED fa COUNTY ON CHARGE TRANSFERRED BY EMP' SIGNED OUT BY EM? ., :>rHER DISPOSITION (OR) REMARKS IN OUT . RT. INDEX FINGER RT. INDEX flNGH 'IUSONER'S SIGNATURE ACKNOWLEDGES PROPERTY RECEiVED WHEN RELEASED RelEASED ,u. DATE -I TIME ,': .' .' • '\ ::,~ 1.1 V I ,; A 1':1 • r) ,j. TX II If';>' 't' • !I FVIlEI.'JfB .!:~I/lJ'<; •.)"X/",.",~,!:/!;.tJl,f'/(\,!I:'I",2 ' , , ,\') ..\1. :1 ;I'~'.J i>: {q f''''t1.·O 1.'1 'JI j '.IJ• .In ,.r,,;I:"\( 'i' )IA!;,J.I,(, !:IOCUII) 1':\1: ,f 'I, Ii 'I:',II;. ~. f: '\ - " \)1 ~t) t .'~ JX I~j~ t 1('1,Q f1 , 1 ;> /' j '} / I, ~ I ,~ ; • t1 ~ ~. "2 ,I 1I,'I'),\;ll ;I,U;:: t 'I Ii,; ',~ .. I ',,~t'T fJ'lH/I.\JI~1";2 j/~~I/I)Fr:nIA.(:":lI."'; Sf;(I" /P:/ "') ":1,; ' ~ i , I J~ I: ' I ~i " i'i I • ," j. TY II ;; . v I',. "11\' '/1)e: '.'lI,i \ • r; AI}! ,()~~ • • j:,j,. ,,1'-':1,'. IJLE/H 11 "";>' ,J Illi Ie, " ,', .'....;' , I I, !\O;':PT!:IJ II 7,\!. 'II' /~) :';',ill" '11~ 11 '.J,~/! ;l't ~ . ~., .,l3. l,,1 ,I "I, ("il I. 1.1j,. 1";11: ;"'".'>1:,( ',!lVTX";>hl"'/,' 1,lll/l'!'l<">n"l)!':'\ f'J/··~'1II':l [::1 111:-1.:11'.• ';\,11.0:; " ,I nO'l/t1ill')"':> i'!I~/vy IIr:T/';+1 ';"1'11 ,,' ,~(F/" Ii!) Ii P 11'1:: t-:I'C/rq :.JJ:1Y<.1:r ',',t'J.h:rT"1 , ·,:lJtrllJ·'~1. !!If'!'TIHI;IlS ! ')"',' :'. ;) ! ~ : l,t ," ) J.;'; ll~) :;'-I/T"'[: u, AIIo/T,\T HI. I/"/:;C ;q~)(I':A ,," [flU,1. ",!1Ii';~iT-; - I ::iIAI~;'':~ CUI.f(CT(LII;j (.''''''il:;<: 1 , ~:I,:X!J~1. ,\S;~'ILT 'I I STI)1.1-.Il VI:Iltr:LE , I. ~'rr '\III;':';'!' 'jIF[Il" !TII':'.IIIl' :I, i~;!'lVE) "I;;'jIO l:<:I','/t'V:':l 1J~, 1.1,\:; ',11 ; ';LlJIIT ;jTII ru~; (f rK:I.IIIJ!:[) ,~I~(,'/F) - '" ,.. hI !)i;xIlM, 1'o~;:;"JI'-T 1;(,11'11 (:[I:U ' , ' ... CI)I'I'IIIE/JY ';i fllY/l VEltlCI,F Col wv r..TIEl) I ' C(,IIF llrnv : CiI;iTII'l{ :;nTIS - i ! ,() I., I:', " r ,< Il!" Vr "(Y:?!Trl(;" 1"",'IQ",J' p:,,, I ,I;: I) 1 :>, -! I , tlf) "I : rr II: :I' I "(,1 11'1:1'1("] '~')J n' I'!",I ': I i C' 1" 'I, 'y' rx .ILl'!' I ~J, !.'~;f; '~i I d'; I ~'" ~);~:~ ,! I,i":" r " ; 11 I',,: h""'"'' n: 1l',j'l r~ ," II Ii : t· r f (1 , 1." i"·, ') P,A '''1,': 1.'::1,1')': ;;,').1'-""')1; lA 111:1'1 ('{)'/IIH:I'IIl'1 PJ"'~ P "'?O! ,: I ,,111 ,.I'i:~,lII ,/1\ 11. "~i;(ll H' ,""'1,1'1'11,/'1 f~JlPIII\·I<;I·.\jL '~'l HII":,' ,,' ,'n "'I'll ) , 't :~ 1~ ~ DATE Of< BIRTH ,.~< ", , ~hED:;~lesa:S;m·atar:a~i~itaa...t, Art:m:o Saaa advised ·)fthat:hia~s:f..atet" Ida and Carl08DelnDII'.~·to.v.:f.ct:1Dl·s;tesideDce ·;to use the~. carlos i.:.~; aat.., and talked with v.lctim "in~'tba~~IXr:x:m:~''1ba fa=tJCUD':f'~ left:. and tp:I1 gett:in;J ;'f:}xlDaArtuJ:o SiWcarJas pull."&:ladyt.pn:aa·fraa hlta belt.': ;>Carlos then toc:k out the JIDJ:ley and. fcoci staq;:a aDd 'tbJ:ew. the bUlfOUS" ..'de~,\! carles ,ta:it victim's l*sc:aw. c:hec:kb::lOJc, tore it into p.ieces ana. t:h.z:ar thepier:=-;IIe..r.:;~.CArlcs.1Ild Ida then: left·with the·Dr.1l'leY and food staarps.,:~Ataa:a:C1x1matley S.s49Rt.w8j~'Vecl'& c:all.t.o:504Js J.'laXl.'~ We were admitted by , . Artm:o.\;.tJpal arrival into ,the. halSa:;;r-.obae:tved. Ida stM'db:q by the bed lco1dnq down. ::' 'J."ller:e WlIS, aJ.so. a verys~·oda:cxf)ap::ay;paint.; wa.aakecl Ida.:1f Cs.rlca was tber:e arxi she ,? saidi"carloswtD?":·;We lcxIkec1'urder.;tba:l:aim:l. fotD1 Carlca and 'atdexed him out. Ida was COMPI.AiNI 'NICTlM'S NAME ,'DeLuna't ~<..arlcB""F ~1"" '" ,.; ,,; ~:;.:;"i' '~·':"":-·:;F~~·;'~' ";, -,., !;~ ";::.::~t;::~r?;t~r~~:, ' 101 ,'; ': ''',~'' ..' ! :~:, ~;\, ! '}i"J\ .•. ;j· >'-:;[h" :"ii;t.~.~" .f.~:~~' hh~:·;J,· ~ '~J.; ',:'- . ,:~ .'~:~~} t' ~~~::~, i I~ :J.l4: ~~~~' c~~ . ~ >.' -, ' , • ; ," , ,. . I· .' jl' • . , , ,.1 . ,.. ;1 J ' ",;' ~ ';" SUPP\.EMENTARY REPORT FORM ~ ;;.. Theft &,'Paint~ Sniffing Bonnie , ", • ! ...... ,.....,'...... 'I. ; .'.' -, ." ;1: :' . :1: , " t, .. ~UPPLEMENTARY REPORTfOAM .~Ir· .. :(~ :":k~ .,,>}.'::v.q&..:' ~ .-:,', .. '~~,~}.• "- A.c·,.,.··~ • "' .~T~/V~I=CT=I~M~'S~N~AM~E~------.Laningham,.. Bonnie , . : ." '. ,< . ~~.~ ~ .. ,:' ~:' ~~: ,~~, ~ : t ;ot ~:.. " ":-!.. :t' ; .~.~ I ,oL., .', .u..,:,. '.~ ':',,~ :,., - ...... ~.'.-.~'"-~~ ... ','i" • 'f ..-i i , :, · ,.; i FIT. INDEX FINCi DATE 0" 81 A'rH ______STATltt,___ .a . ~ to SaIIl'B::Just::a1 Blaeltal:y sc:hcol ref· : era;lI:)e-'suapmoas . sd;)jects· , , .,upftatbli''i;art:ablemlilcUnga, c:teer:ved CD! S\b :"jectirUnniD,; betW¥l'tbe bali ]dil¥:l81n·~th8~rear:"Qf\tba. .scI:o:ll... :~; Offiaa: aR,xehended S\i)ject an .' fc\D1 him.tohave'a,half can c:ifItaykli'8il~;sp:zr:fpaintcmJhillnllxl cb1erued also to have a CXlke;'can:with'paintiD. it.·;~ Qi)ject:/alsQ:had hishallds7"atw:fDDlth'W1th silver spray paint. S ~ject:placedUDder~ farpaint.'aaiffmirm:l when taksnback.'to tile D."CIlt of the p:lr1:abl.8 " "bd]d;l'J.JI,~CiRiXI=ebea3ed the ot:bertwa;subject:awith asaistancebythit '127, Sgt. FeatheJ:stcn ,.:,~ '. '.the otbeJ::.t:JrI) EJti:)jec:ts also bad sil~,spr:ay~paint al their haIldsand lICUth am also \fare in :t;:.p;:aaesNODaffCXlke.CBDS withsil~l~paint. in tbaD.:fAllthl:ee subjects were anested a: ~t ·':t:rans);Xl1:ted to 'Cit.yJaU and lx:dced.!~~!ll~lcs'Da tUDa:/16,~~ of 2046 axkford~ arrest f' sheet 1Cl.0616.~·\ 12 El:neSt Cr:uz,. 14,,"!t:m.'of~:2360 Soledad, arrest' sheet tcl0617. 13 Ida Sosa, ,. ------ !.~ ~I. .. .. ; .. , , ~ .' .. ' " 1 ,"', ,'~ ! .'1 .0.,: ... •. ~~: :.~"'J' .i :~ ;." ';::J;'j;;:). ;!:': ;·,~.i~; , \ ':'..... 1~ t· ~ ¥It.;..... ~. .,. ; l~ ~." ...... "*"~'.;~'" ".;'~' : . ., :_:1'~' ~.; .. ~t:;. ~ ....:i ~ .::~. : ,~ ". ~.. :~ r;. ' .....J ,-. ~', . ~ .'. " , '-,\ ", .. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION CARLOS DELUNA § § V. § C.A. NO. C-86-234 § O. L. MCCOTTER, DIRECTOR, § TEXAS DEPARTMENT OF § CORRECTIONS OR HIS SUCCESSOR § On this day came on to be heard Petitioner's Motion to Attach Affidavits and Evidentiary Matters to Previously Filed Pleadings, and the Court, having considered the Motion in all respects finds that it should be granted as follows: IT IS THEREFORE ORDERED that the Affidavi ts and Evidentiary Matters be attached and incorporated in Petitioner's First Amended Application for Writ of Habeas Corpus and Brief; and IT IS FURTHER ORDERED that the Affidavits and Evidentiary Matters be attached and incorporated in Petitioner's Motion for Relief from Order, Motion for Certificate of Probable Cause, and Notice of Appeal. SIGNED this the __ day of ______1988. JUDGE ORDER - Page 1 #162/071188/DELUNA3