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Court of Criminal Appeals No. WR-64,654-02
Trial Court No. F98-02133-N
IN THETEXAS COURT OF CRIMINAL APPEALS
AND
THE 195TH JUDICIAL DISTRICT COURT
OF DALLAS COUNTY
EX PARTE CHARLES DON FLORES
STATE’S MOTION TO DISMISS
CHALLENGE OF CERTAIN SCIENTIFIC EVIDENCE UNDER
TEX. CODE CRIM. PROC. ART. 11.073 AND
SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS
UNDER TEX. CODE CRIM. PROC. ART. 11.071, §5
and
RESPONSE TO MOTION FOR STAY OF EXECUTION
Susan Hawk Rebecca D. Ott
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24074842
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
214-653-3829 / 214-653-3643 (fax)
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TO THE HONORABLE COURT OF CRIMINAL APPEALS AND THE 195TH
JUDICIAL DISTRICT COURT:
The State of Texas, through the Criminal District Attorney of Dallas County,
files this motion to dismiss Charles Don Flores’ challenge of certain scientific evidence
under Article 11.073 and subsequent application for writ of habeas corpus under
Article 11.071 of the Code of Criminal Procedure, and deny his request for stay of
execution. In support of this motion, the State presents the following:
I.
PROCEDURAL HISTORY
A jury convicted Charles Don Flores of capital murder for the shooting death of
64 year-old Elizabeth Black in the course of committing and attempting to commit
robbery and burglary. In accordance with the jury’s answers to the special issues, the
trial court sentenced him to death on April 1, 1999. This Court affirmed Flores’
conviction and sentence on November 7, 2001. Flores v. State, No. AP-73,463 (Tex.
Crim. App. Nov. 7, 2001) (not designated for publication). The United States Supreme
Court denied his petition for certiorari on direct appeal on April 29, 2002. Flores v.
Texas, 535 U.S. 1039 (2002).
Counsel for Flores filed an Original Writ of Habeas Corpus1 on September 13,
1 Both the Original Application and the Supplemental Application were filed by appointed habeas
counsel, Roy Greenwood. Larry Mitchell was appointed as co-counsel. Subsequently, on January
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March 24, 2008, Flores filed his amended petition.3
The United Stated Magistrate
Judge recommended that relief be denied on March 3, 2011. Flores v. Thaler , No. 3-
07-CV-0413-M-BD, 2011 U.S. Dist. LEXIS 158338 (N.D. Tex. Mar. 3, 2011).
Subsequently, Flores filed a motion to withhold a determination pending the Supreme
Court’s decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler ,
133 S. Ct. 1911 (2013). Following the Supreme Court’s opinions in these cases and
supplemental briefing by the parties, the federal district court denied relief and
declined to grant Flores a certificate of appealablility. Flores v. Stephens, No. 3:07-
CV-0413-M, 2014 U.S. Dist. LEXIS 97028 (N.D. Tex. July 17, 2014). The Fifth
Circuit Court of Appeals also refused to grant Flores a certificate of appealability.
Flores v. Stephens, 794 F.3d 494 (5th Cir. 2015).
On October 20, 2015, the State filed a motion to set Flores execution date on
March 15, 2016. Flores filed a response opposing the setting of an execution date prior
to the United States Supreme Court’s resolution of Flores’ petition for writ of
certiorari. In a hearing held on December 3, 2015, the trial court decided to grant
complete the Batson hearing; and
(d) Flores received ineffective assistance when appellate counsel did
not raise a claim alleging ineffective assistance for trial counsel's
failure to secure a ruling on the Batson challenge.
Flores, 794 F.3d at 500 – 01.
3 At this stage in the proceedings, Flores was represented by Bruce Anton and Meg Penrose. Flores
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Mrs. Black’s body, police officers found a .380 caliber bullet. Officers
located a shell casing of the same caliber and a piece of potato on the
floor inside the garage. The spent cartridge’s presence suggested that a
semiautomatic pistol, rather than a revolver, had fired the shot that killed
Mrs. Black. A police detective testified that a second round struck thedog. Although officers did not find another bullet or shell casing, they
did find a hole in the carpet, and the size of the wound and patterns of
blood and potato spatter tended to corroborate this hypothesis.
While searching the rest of the house, police discovered a hole in
the wall above the toilet in the hall bathroom. In the master bathroom,
someone had punched a hole in the wall near the laundry hamper, opened
the commode top, and tore the sink and medicine cabinet from the wall.
Police found a large potato inside the sink. A ladder extending to the attic
access-door stood in a rear room. There were no signs of forced entry or
struggle.Officers discovered $39,000 in cash hidden inside the master
bedroom closet. Mr. Black stated that the Blacks’ incarcerated son, Gary,
had left this money with his parents before going to prison for selling
drugs. Gary’s common-law wife, Jackie Roberts, had been receiving
$500 of this money from the Blacks each month.
Neighbors reported that a purple, pink, and yellow Volkswagen
had been parked in the Blacks’ driveway around 7:35 on the morning of
the murder. The garage door was open a few feet, which was unusual.
The Volkswagen driver got out, rolled underneath the garage door, andraised the door to admit the Volkswagen’s passenger. A neighbor
identified [Flores], dressed in dark-colored clothing, as the passenger, but
other witnesses could not identify the passenger. After entering the
garage, the two men shut the door. One neighbor heard a thud, but
stopped investigating the matter upon observing the multi-colored
Volkswagen, which he had previously seen at the home of Jackie
Roberts.
Jackie Roberts (Jackie), who was on probation for possessing
methamphetamine, lived with her mother and three children on Emeline
Street, a short distance from the Blacks’ home. She had become
romantically involved with Ricky Childs about three weeks before the
murder. Childs, a drug dealer, habitually carried a .380 semiautomatic
pistol in the back of his waistband.
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Childs, [Flores], and several acquaintances spent the early morning
hours of the day of the murder inside [Flores’] trailer using
methamphetamine and marijuana. Childs and [Flores] left the trailer
together in Childs’ multi-colored Volkswagen at approximately 3:00
a.m., arriving at Jackie’s home at some time later that morning. Jackiehad arranged for an acquaintance, Terry Plunk, to sell Childs and [Flores]
a quarter-pound of methamphetamine. She had not expected [Flores],
dressed in a long black duster, to accompany her and Childs to purchase
the methamphetamine, but [Flores] refused to hand over his money
without attending the drug transaction for fear of being “ripped off.” The
trio rode in Jackie’s El Camino to an apartment near Love Field Airport,
where they met Plunk. During the transaction, [Flores] weighed the
drugs on a portable digital scale and declared that the quantity delivered
by Plunk was a quarter-ounce short.5 Plunk made up the alleged shortage
to avoid a confrontation. Jackie, Childs, and [Flores] then drove to[Flores’] home with the drugs. [Flores] weighed the methamphetamine
again and again accused Plunk of shortchanging him, insisting that the
deal had been for a half-pound instead of a quarter-pound. [Flores] then
pointed a gun at Jackie and asked what her “connection” would pay for
her head. While Childs attempted to calm [Flores] down, Jackie
telephoned Plunk to see if he would cover the claimed shortage. Plunk
refused. Childs, [Flores], and Jackie then drove to a nearby house, where
Childs and [Flores] acquired three firearms. [Flores] was armed with a
“long, blue gun” and a handgun. Childs carried a larger handgun. WhenJackie asked the men why they had armed themselves, they told her that it
was none of her business.
To make up the alleged shortage, she agreed to pay [Flores] $3,900
from the cash that Gary Black had hidden at his parents’ home. Childs
confirmed the existence of this money, and the two men dropped Jackie
off at home sometime between 6:35 and 7:15 a.m. Childs’ formergirlfriend, Vanessa Stovall, testified that Childs and [Flores] arrived at
Childs’ grandmother’s home on High Meadow around 6:30 that morning.
[Flores] and Stovall smoked some methamphetamine before they left in
the Volkswagen between 6:45 and 7:00 a.m.
In her living room, Jackie spoke briefly with Doug Roberts
(Doug), who had arrived to take their son to school. Later that morning,
5 Jackie testified that Plunk had not shortchanged them and that [Flores] was trying to rip off Plunk.
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Jackie left to visit Plunk. A short time after Jackie’s departure, her
mother told Doug about the murder of Mrs. Black. That evening, Doug
went to the home of the victim’s daughter, Sheila Black, and learned that
neighbors had observed a pink and purple Volkswagen outside the house.
Doug drove to Plunk’s house to inform Jackie not only about the murder but also that neighbors had seen the multi-colored Volkswagen at the
scene. He tried to convince Jackie to go with him to the police
immediately, but Jackie feared possible retaliation or prosecution.
Consequently, Doug drove her from Plunk’s house to a hotel.
On his way to the police station, Doug disposed of a map,
discovered by Plunk, that Jackie had drawn showing the area of her own
home and the Blacks’ house.6
He reported Childs’ possible involvement
to the police that night and submitted to another police interview the next
day. Law enforcement officers apprehended Jackie at Doug’s apartment
four days after the murder. By then, the police had arrested Childs.When he was arrested, Childs possessed amphetamine and a partial
box of the same brand of .380 ammunition found at the murder scene. A
police search of his grandmother’s residence uncovered a .44 Magnum
revolver and shells, two boxes of .357 bullets, and a pair of gloves.
Polarized-light microscopy of granular material found inside the Magnum
barrel identified starch grains consistent with those from a potato.
A day after the offense, [Flores] admitted to a friend, Homero
Garcia, that he had shot the dog, but blamed Childs for killing the “old
lady.” [Flores] made a similar statement to his father-in-law [JonathanWait, Sr.].
7
Two days after the murder, [Flores] and two others8towed Childs’
Volkswagen to the parking lot behind the Grand Prairie roofing business
owned by [Flores’]s father. There, between 6:00 and 7:00 p.m., [Flores]
sprayed the Volkswagen with black spray paint. At some point, the
6 At trial, Jackie denied drawing the map for Childs and [Flores], stating that she drew it four days
before the murder to guide her ex-husband’s girlfriend to the Blacks’ home to babysit. She initially
told police she drew it for Childs.
7 Flores told Wait that he had gotten himself into a little trouble and needed to get out of the country.
Wait showed Flores a newspaper ar ticle about Mrs. Black’s murder and said, “You call this a little
bit of trouble, killing a 64-year-old woman,” to which Flores responded, “I only shot the dog.”
(RR37: 82 – 86).
8Myra Wait and her brother Jonathan. (RR36: 261 – 68).
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license plates were removed. The group then towed the vehicle up an I-
30 freeway entrance ramp and onto the shoulder of the road. [Flores]
doused the Volkswagen with gasoline and set the interior on fire. When a
passing motorist stopped to offer assistance, [Flores] got into the tow car
and drove away. Jonathan Wait, who was in the tow car with [Flores],testified that the other motorist followed, but [Flores] eluded the other
vehicle after an extended high-speed chase during which [Flores] fired
several shots at the other car.
On April 18, 1998, at 7:00 p.m., Kyle police officers Slaughter and
Oaks stopped a blue Volvo traveling north on I-35. [Flores], the
vehicle’s sole occupant, could not produce a driver’s license, but
identified himself as Juan Jojola, [Flores’] brother, and presented a social
security card bearing that name. Because of the alias, the officers did not
discover that [Flores] had an outstanding federal warrant for his arrest.
An angry motorist stopped at the scene to complain that the Volvo hadalmost run his automobile off the road.
After [Flores] failed a series of field sobriety tests, Officer
Slaughter initiated an arrest for driving while intoxicated. As the
policeman started to cuff the suspect’s hands behind his back, [Flores]
turned quickly and struck Officer Slaughter’s head with his elbow. A
struggle ensued, during which [Flores] tried to push both police officers
in front of oncoming traffic on the freeway. [Flores] called the arrest
“bullshit” and insisted that it was not going to happen. Finally, Officer
Slaughter managed to push the group from the roadway into a nearbyditch. By chance, Deputy Mike Davenport of the Hays County Sheriff’s
Department arrived on the scene and assisted the police officers in
handcuffing [Flores]. The officers transported [Flores] to the Hays
County jail, where they charged him with driving while intoxicated and
two counts of assault on a peace officer. Officer Slaughter suffered a
swollen eye, and Officer Oaks had a bite on her arm and an injury to a
bone in her right hand. [Flores] was released from jail on bond before
authorities learned his true identity.
Following his arrest for the instant offense, [Flores] was taken to
Parkland Hospital for treatment of a knee injury, accompanied by Officer
Bobby Sherman. Because of the nature of [Flores’] injury and because he
rode in a wheelchair, [Flores] was virtually unrestrained. As Sherman
and [Flores] passed through an infirmary door, [Flores] reached around
with both hands and grabbed the grip of Sherman’s pistol. Sherman
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grabbed [Flores] by the neck, and they fell against the wall, then to the
ground. Sherman felt the pistol coming out of its holster, but pushed the
gun to the ground, forcing it from [Flores’] hands. [Flores] struggled for
it again, threatened to kill Sherman, then bit him just above the elbow.
As Sherman yelled, “Grab the gun,” he again forced the gun from[Flores’] hand, and a doctor grabbed it. Sherman remained on top of
[Flores] trying to hold him down, although [Flores] continued to struggle
violently. Sherman then tried to spray [Flores] with Mace, but [Flores]
grabbed the can from him and began spraying it into Sherman’s eyes and
on hospital staff members. Sherman continued to try to restrain [Flores]
with the help of two or three hospital staff members. At some point,
someone grabbed Sherman’s handcuffs and handcuffed [Flores].
Flores, No. 73,463, slip op. at *2 – 8.
III.
ARGUMENT
FLORES FAILS TO MEET ARTICLE 11.071, §5 REQUIREMENTS;
ALTERNATIVELY, FLORES’ CLAIMS ARE MERITLESS.
In the instant subsequent state application for writ of habeas corpus, Flores
raises the following four grounds for relief: (1) new scientific knowledge discredits the
testimony of the only eyewitness to the crime; (2) Flores was denied the effective
assistance of trial counsel when trial counsel failed to investigate or produce any
mitigating evidence on Flores’ behalf during the sentencing proceedings; (3) Dallas
County continues to evidence racial bias in its prosecution and punishment in capital
cases and Texas’ capital-punishment statutes are unconstitutional as applied to Flores,
a Hispanic, because they arbitrarily allowed the white male principal to be released on
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parole even before the less culpable Hispanic accomplice is scheduled to be executed;
and, (4) as applied to Flores, the “law of parties” is unconstitutional because it allowed
an unjustifiable disparity between the more-culpable principal and less-culpable
accomplice. See Flores’ writ at 34, 63, 119, 124.
Article 11.071, § 5(a) of the Texas Code of Criminal Procedure provides as
follows:
(a) If a subsequent application for a writ of habeas corpus is filed after filing
an initial application, a court may not consider the merits of or grant relief
based on the subsequent application unless the application containssufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have
been presented previously in a timely initial application or in a
previously considered application filed under this article or Article
11.07 because the factual or legal basis for the claim was
unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of theUnited States Constitution no rational juror could have found the
applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United
States Constitution no rational juror would have answered in the
state’s favor one or more of the special issues that were submitted
to the jury in the applicant’s trial under Article 37.071, 37.0711, or
37.072.
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a) (West 2015). This statute makes it
clear that applicants are restricted to one habeas review and that subsequent writ
applications are prohibited, except in those circumstances defined. See id . A factual
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claim is unavailable within the meaning of Section 5(a) if it “was not ascertainable
through the exercise of reasonable diligence on or before that date.” Tex Code Crim.
Proc. Ann. art. 11.071, § 5(e) (West 2015). A legal basis for a claim is unavailable if
the legal basis was not recognized by or could not have been reasonably formulated
from a decision by the Supreme Court, federal appeals courts, or the Court of Criminal
Appeals on the date of the prior application. Tex Code Crim. Proc. Ann. art. 11.071, §
5(d) (West 2015).
None of the claims Flores has raised in the instant subsequent application satisfy
the requirements of Article 11.071, § 5, and should be dismissed as an abuse of the
writ.
CLAIM ONE:
NEW SCIENTIFIC EVIDENCE
In his first claim, Flores argues that “new scientific knowledge discredits the
testimony of the only eyewitness to the crime”— Jill Bargainer. Flores presents the
May 7, 2016 affidavit of Dr. Stephen Lynn, Ph.D.9 in support of his claim that new
scientific developments discredit Bargainer’s in-court identification of Flores. See
Flores writ at p. 34; Exhibit 1. Flores’ claim for relief is based on Article 11.073 of
the Texas Code of Criminal Procedure.
9 Dr. Lynn states that he was retained by counsel on April 18, 2016. See Flores writ Exhibit 1 at p. 1.
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Flores, however, fails to show that he is entitled to relief under Article 11.073.
Not only is the affidavit of his current expert not new scientific evidence within the
meaning of Article 11.073, but Flores also cannot show, on the preponderance of the
evidence, that had this evidence been presented at trial, he would not have been
convicted. Contrary to Flores’ assertions, Bargainer’s identification was far from the
only evidence linking him to this crime.
Background Facts
The instant claim is based on Bargainer’s in-court identification of Flores as the
passenger in the Volkswagen that was seen in the Blacks’ driveway shortly before the
murder. Of note, Bargainer is not an eyewitness to the crime itself; rather, she was one
of several witnesses who testified to seeing two men get out of the vehicle.
In a hearing outside the presence of the jury, Bargainer, one of the Blacks’
neighbors, testified that she went to the police station on the morning of the murder to
give an account of what she had seen; she told the police that she had seen two men
getting out of a Volkswagen in front of the Black s’ home. (RR35: 152 – 62). She
described these two individuals to the police and subsequently identified Richard
Childs from two photographic lineups as the driver. (RR35: 154 – 55). Several days
later, she underwent hypnosis. (RR35: 155). She made no additional identification
immediately after the hypnosis, nor did she enlarge on her descriptions of the men.
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(RR35: 155 – 56). It was not until the morning that Bargainer was going to testify, and
saw Flores in court, that she informed the prosecution that she was able identify Flores
as the passenger. (RR35: 13 – 15, 155 – 56; RR36: 85 – 86).
Defense counsel objected that the State had not demonstrated the
trustworthiness of hypnotically induced refreshed testimony as required by Zani v.
State, 758 S.W.2d 233 (Tex. Crim. App. 1988). In response, the prosecutor offered to
have a “full blown Zani hearing” the following morning. (RR35: 157– 61). A
videotape of the hypnosis session was introduced as State’s Exhibit 84 and was viewed
by the court. (RR35: 157; RR36: 117).
The testimony at the Zani hearing revealed that Bargainer, not the police or the
prosecution, requested hypnosis. (RR36: 31, 89, 100). She testified that she had
assisted the police with making a composite drawing of the driver and had been
requested to do a composite of the passenger. (RR36: 90). Bargainer found composite
drawing difficult and thought hypnosis might help her to relax and be more precise.
(RR36: 90).
A hypnosis session was held at the Farmers Branch Police Station on February
4, 1998. The session was conducted by Officer Alfredo Serna, a certified hypnotist,
and witnessed by Investigator Jerry Baker, who operated the camera that videotaped
the session and who otherwise said nothing. (RR36: 18 – 19, 34). Neither officer was
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aware that Flores had become a potential suspect in the murder.10 (RR36: 20, 30 – 31,
38, 57).
Officer Serna testified that Bargainer was a suitable subject for hypnosis.
(RR36: 48). She appeared to be in good physical and mental condition and was not
fatigued, depressed, intoxicated or on drugs. (RR36: 48). During the course of the
hypnosis session, Officer Serna suggested nothing to Bargainer, provided no feedback,
and avoided reinforcing any aspect of her recollection. (RR36: 37, 40, 41, 49).
The State called George Mount, a psychologist with extensive experience in
forensic hypnosis, as an expert witness at the Zani hearing. Having viewed the
videotape of the hypnosis session, Dr. Mount’s expert opinion was that the hypnosis
session had been conducted in such a way as to guard against the “four possible
dangers” of hypnosis and had satisfied the ten factors of Zani. (RR36: 60 – 62, 65 – 71,
72). He saw no evidence on the tape of any incorrect procedures. (RR36: 63 – 65).
Bargainer testified that while the hypnosis session had made her more relaxed, it
did not “firm up” an impression of the second person. (RR36: 101). While she may
have seen photographs of Flores in the past, she had not looked at the newspaper
10 The State stipulated that another Farmers Branch police officer had spoken with the police in
Irving and knew that they were looking for someone who went by the name “Fat Charlie.” (RR36:
28). Investigator Baker stated, however, that neither he nor Officer Serna knew any of the details
until after the hypnosis session. (RR36: 30 – 31).
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during trial nor had she seen a picture of Flores during the trial. (RR36: 108). She
understood the seriousness of the situation and was positive in her identification.
(RR36: 108 – 109).
At the conclusion of the hearing, the court denied Flores’ motion to suppress
Bargainer’s in-court identification of Flores. (RR36: 117 – 18). The trial court made
specific findings of fact and conclusions of law,11
and granted the defense a “running
objection” to Bargainer’s identification testimony. (RR36: 117 – 18, 277). In the
11 The trial court dictated the following findings of fact and conclusions of law to the court reporter:
THE COURT: Well, the Court finds that Officer Alfredo Serna was a qualified
forensic hypnotist; that Farmers Branch investigators that were involved in the case
and in the hypnotic – or hypnosis session had no photograph of Mr. Flores and no
description of Mr. Flores at that time which they could impart to Ms. Bargainer.
The Court has viewed the video and saw nothing that it believed was subjective,
either verbal or nonverbal, nor any cues to Ms. Bargainer about her identification.
The hypnotist merely inquired whether she could describe the two persons who had
gotten out of the Volkswagen, and she had very little. In fact, although it’s obvious
that there was a hypnosis session, whether you could call her hypnotically refreshed –
her testimony hypnotically refreshed is a question.
I noticed no refreshment beyond perhaps the eye color, and I believe she had
previously stated that they were dark eyes, and it was compatible even with that.
The real issue here is whether her in-court identification is trustworthy or not. And if
it is not trustworthy by reason of the hypnosis, then obviously it could not be
admissible.
There is ample corroboration of the fact that the Defendant was the passenger in the
Volkswagen, all which was just enumerated by the Prosecutor. The Court finds thatunder the totality of the circumstances, that there is clear and convincing evidence
that the hypnosis undergone by Ms. Bargainer did not render her eyewitness – in-
Court eyewitness identification of the Defendant untrustworthy; therefore, the motion
of the Defendant to disallow her testimony is denied.
(RR36: 117 – 18).
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presence of the jury, Bargainer identified Flores as the passenger in the Volkswagen
who entered the Black s’ home. (RR36: 283 – 85). She was unequivocal in this
identification. (RR36: 283 – 85).
Finally, in an abundance of caution, the trial court included the following
instruction in its charge to the jury:
During the trial there was testimony that on February 4, 1998, State’s
witness Jill Bargainer was hypnotized by Farmers Branch Police Officer
Serna in an effort to refresh, restore, or improve her memory regarding a
description of the passenger of a multi-colored Volkswagen automobile
she told officers she had seen at the residence of Elizabeth Black on themorning of January 29, 1998. If you find and believe from the evidence,
or if you have a reasonable doubt, that her in-court identification of the
defendant, Charles Don Flores, as such passenger was a false memory or
the result of suggestion or any improper influence, whether intentional or
unintentional, arising from her having been hypnotized, if she was
hypnotized, which rendered her in-court identification of the defendant
untrustworthy, you will disregard her in-court identification of the
defendant and not consider it for any purpose whatsoever. However, if
you find and believe from the evidence beyond a reasonable doubt thather in-court identification of the defendant was not a false memory or the
result of suggestion or improper influence while she was hypnotized, if
she was, you may consider her credibility and the weight to be given her
testimony regarding her in-court identification of the defendant as you
would the testimony of any other witness.
(CR1: 134-135). The jury was thus specifically instructed to disregard her identification
testimony if they believed it was the product of hypnosis.
Procedural History
In addition to Flores’ trial court objection to Bargainer’s identification
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testimony, Flores has also raised claims challenging the admission of Bargainer’s
identification on direct appeal, in his original state habeas application and in his federal
habeas petition.
On direct appeal, Flores claimed that the trial court erred by admitting the
identification testimony of Bargainer because the state failed to prove that the hypnosis
had not tainted her testimony. Flores, No. 73,463, slip op. at 22. This Court denied
this complaint on the basis that the trial court’s procedures substantially complied
with Zani, that it was aware of the dangers inherent in hypnosis, that it did not abuse its
discretion in allowing the testimony, and that the jurors were free to attach whatever
weight they deemed appropriate to Bargainer ’s testimony. Id . at 22 – 23.
In his original state application for writ of habeas corpus,12
Flores again
12
Trial counsel, Doug Parks and Brad Lollar, provided affidavits addressing several claims ofineffective assistance of counsel raised by Flores in his original state writ. The trial court found both
attorneys to be credible witnesses, that the statements contained in their affidavits were worthy of
belief and accepted the statements contained in the affidavits as true and correct. (Tr. Ct.’s Findings
of Fact and Conclusions of Law at pp. 28 – 29). In his affidavit, Mr. Lollar attested to the following:
I did not call Myra Wait to alibi the defendant because [Flores] told me that he was,
in fact, present at the home of the decedent [with] co-defendant, Rick Childs . . . and
that at the time they were engaged in the burglary of the decedent. I could not
sponsor testimony that was perjurious.
. . . .
Moreover, such testimony [concerning potatoes as silencers] merely confirmed what
the defendant told us, that he and the codefendant had gone to the house to do the
burglary and had armed themselves with potato-laden guns in order to shoot the
Doberman dog they expected to find there.
(Tr. Ct.’s Findings of Fact and Conclusions of Law, Appendix B at 2– 3). Mr. Parks averred:
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challenged Bargainer’s in-court identification, alleging that it was unconstitutionally
tainted because the State used improper hypnotically enhanced identification
procedures which denied him due process under the Texas and United States
constitutions. (Tr. Ct.’s Findings of Fact and Conclusions of Law at p. 47). The trial
court found that his claim was procedurally barred because it was raised and rejected
on direct appeal. ( Id . at p. 47). Additionally, the trial court analyzed the merits of the
claim in the alternative, reaffirmed its prior findings, found that Flores had failed to
show that the witness’s identification of him was the result of hypnosis or
unconstitutionally tainted, and concluded that the testimony was properly admitted and,
even if it was not, that any harm was prevented by a curative instruction. ( Id . at 47 –
54). These findings were adopted by this Court in its order denying relief. Flores,
WR-64,654-01, 2006 Tex. Crim. App. Unpub. LEXIS 744, 2006 WL 2706773, at *1.
In his federal petition, Flores claimed that the trial court improperly admitted the
hypnotically-enhanced identification testimony of Jill Bargainer in violation of
his Fourteenth Amendment right to due process and his Sixth Amendment right to
confrontation. Flores, 2011 U.S. Dist. LEXIS 158338, at *2, 20. In support of his
Mr. Lollar and I met with Myra Wait in Mr. Lollar’s office prior to trial. I recall we
discussed alibi as a possible defense. It was clear that Ms. Wait was getting a lot of
pressure from Mr. Flores’ family, particularly his father. We spoke to Myra outside
the presence of Mr. Flores’ parents and she told us that she could not truthfully
provide an alibi for Mr. Flores.
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claim, Flores included the affidavit of Dr. R. Edward Geiselman,13
an expert in
eyewitness psychology. Id . at 24. In his affidavit, Geiselman “conclude[d] that ‘the
forensic interview session might have caused and otherwise affected the in-court
identification of Charles Flores by eyewitness Jill Bargainer.’” Id . “According to Dr.
Geiselman, Bargainer’s identification testimony was untrustworthy and unduly
suggestive because the interviewer told her, while under hypnosis, that ‘[y]ou might
find yourself able to recall other things as time goes by.’” Id . The magistrate
recommended that relied be denied, noting that “[e]ven if the court considers the
Geiselman affidavit, which was never presented to the state habeas court, it does not
overcome the presumption of correctness attached to the state court findings.” Id .
The federal district court adopted the magistrate’s recommendation. Flores,
2014 U.S. Dist. LEXIS 97028, at *27 – 28. The district court also rejected Flores’
request to amend his federal petition, in light of the United States Supreme Court’s
decisions in Martinez v. Ryan, 566 U.S. 1309 (2012) and Trevino v. Thaler , 133 S. Ct.
1911 (2013), to include a claim that trial counsel was ineffective for failing to
(Trial Court’s Findings of Fact and Conclusions of Law, Appendix E at 1).
13 Apparently, Dr. Geiselman provided two different affidavits, both of which were included byFlores at various points in his federal habeas litigation. The first affidavit, signed on March 21,
2008, was included in his petition, and relied on by the magistrate judge. A copy of the affidavit has
been attached herein as State’s Appendix A. The second affidavit, dated August 3, 2007, was
included in Flores’ supplemental briefing on June 1, 2012 as Petitioner’s Exhibit 6. It has been
attached herein as State’s Appendix B.
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adequately contest Bargainer’s testimony. Id . at 41. The district court determined that
the claim would be procedurally barred and time barred, but also noted:
Flores has not shown that an objection to this testimony would reasonablyhave prevailed if it had included the new evidence presented in these
proceedings[, i.e., Geiselman’s affidavit]. Since trial counsel could not
be faulted for failing to take a futile action, see Clark v. Collins, 19 F.3d
at 966, an ineffective-assistance-of-trial-counsel claim for failing to make
this objection would not be substantial as required by Martinez.
Id . at 41.
Next, the Fifth Circuit denied Flores’ request for a certificate of appealability to
appeal the district court’s denial of leave to amend his federal habeas petition to raise
three ineffective assistance of counsel claims, including the one described above.
Flores, 794 F.3d at 502. In specifically addressing Flores’ claim concerning trial
counsel’s failure to properly challenge Bargainer’s testimony, the Fifth Circuit
explained:
Reasonable jurists also could not debate the district court’s conclusion
that amendment would be futile because Flores failed to present a
substantial [ineffective assistance of trial counsel] claim based on the
failure to properly challenge Bargainer ’s identification testimony, and
therefore failed to show cause to excuse the procedural default of that
claim. The record reflects that trial counsel vigorously challenged the
admission of Bargainer’s testimony. Fearing that Bargainer might
identify Flores in the courtroom, defense counsel requested and obtained
a hearing at which the State had the burden of producing clear and
convincing evidence that the hypnosis session did not affect Bargainer ’s
identification of Flores. When the trial court denied their motion to
suppress her testimony, defense counsel requested and received a running
objection to her testimony. Further, defense counsel cross-examined
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Bargainer about her ability to see the passenger in the Volkswagen, in an
effort to discredit her identification. Even assuming that trial counsel
performed deficiently by failing to present expert testimony such as that
in the affidavit of Dr. Geiselman, and assuming further that the trial court
would have excluded Bargainer ’s in-court identification of Flores hadsuch expert testimony been presented, there is not a reasonable
probability that the outcome of the trial would have been different,
because there was ample other evidence that placed Flores at the scene of
the murder, including his own admissions that he was there and shot the
dog.
Id . at 505 – 06.
Appli cable Law
Article 11.073 of the Texas Code of Criminal Procedure applies to relevant
scientific evidence that, in part, contradicts scientific evidence relied on by the state at
trial. Tex. Code Crim. Proc. Ann. art. 11.073(a)(2). A court may grant a convicted
person relief if:
(1) [T]he convicted person files an application, in the manner provided by Article 11.07, 11.071, or 11.072, containing specific facts
indicating that:
(A) relevant scientific evidence is currently available and
was not available at the time of the convicted
person’s trial because the evidence was not
ascertainable through the exercise of reasonable
diligence by the convicted person before the date of
or during the convicted person’s trial; and
(B) the scientific evidence would be admissible under the
Texas Rules of Evidence at a trial held on the date of
the application; and
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(2) the court makes the findings described by Subdivisions (1)(A) and
(B) and also finds that, had the scientific evidence been presented
at trial, on the preponderance of the evidence the person would not
have been convicted.
Tex. Code Crim. Proc. Ann. art. 11.073(b) (West 2015).
Analysis
In his affidavit, Dr. Lynn opines that “given the new information about the risks
of hypnosis that has accrued since the Zani hearing, and given the knowledge
regarding hypnosis and memory available at the time of the hearing, which was not
adequately addressed in the judicial proceedings, serious consideration should be given
to the possibility that a miscarriage of justice was perpetrated in the case of Mr.
Flores.” See Flores’ writ Exhibit 1 at p.21. Dr. Lynn does not give the opinion that
Bargainer’s identification was, in fact, the product of hypnosis or was a false memory.
Dr. Lynn’s affidavit does not constitute newly discovered scientific evidence
within the meaning of Article 11.073. Simply because Flores obtained the opinion of a
different psychologist, one month before his scheduled execution, does not render that
opinion newly discovered evidence. While Dr. Lynn does discuss new studies that
have been conducted on memory since Flores’ trial, he also describes how these studies
expanded on the knowledge that was already available at that time. Essentially, he
argues that another expert, such as himself, should and could have testified to
challenge the testimony of Mr. Serna and Dr. Mount. Clearly, any alternative expert’s
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testimony would have been based on knowledge and understanding of hypnosis and
memory that was availa ble at the time of Flores’ trial.
Finally, even if this Court were to find that Dr. Lynn’s affidavit constitutes new
scientific evidence within the meaning of Article 11.073, Flores still fails to show by a
preponderance of the evidence that he would not have been convicted had Dr. Lynn
testified at his trial. See Tex. Code Crim. Proc. Ann. art. 11.073(b)(2) (West 2015).
Contrary to Flores’ assertions, Bargainer’s identification was far from the only
evidence connecting him to this crime. First, there was other testimony that
corroborated Bargainer’s identification. Vanessa Stovall, one of Childs’ girlfriends,
placed Flores in the Volkswagen with Childs, whom Bargainer had positively
identified as the driver, just moments before the men were seen getting out of the same
car at the Blacks’ home. (RR35: 75, 95). Stovall testified that Childs and Flores came
to her home around 6:30 a.m. on the morning of the murder. (RR35: 69, 71, 82, 89).
The three of them smoked methamphetamine together. (RR35: 73 – 74, 90). Flores and
Childs then left Stovall’s home, together, in the Volkswagen. (RR35: 75, 95).
Testimony from Michelle Babler and Nathan Taylor put the Volkswagen in front
of the Black home at the time Bargainer saw the men. (RR35: 104, 106, 108, 135 – 39,
144, 149). These witnesses saw two men get out the car. (RR35: 108, 139). Babler
testified that Flores and the passenger in the Volkswagen were similar in appearance.
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(RR35: 115 – 16). Her son Nathan noticed that the men were dressed in black and had
gloves on. (RR35:140). Other witnesses had testified between the time Flores left his
trailer and Mrs. Black’s murder, he was dressed in black clothing, particularly a long
black coat called a duster. (RR34: 84, 175 – 76, 195). The Volkswagen was seen by
Robert Bargainer on his way to work just after his wife, Jill, had seen the vehicle and
Flores. (RR35:174 –75). Unquestionably, the Volkswagen was in front of the Blacks’
home in the relevant time frame and Flores can be placed in the car only shortly before
the murder.
Moreover, Flores’ own statements to those close to him placed him at the scene
of the crime. Flores’ friend Homero Garcia and his father -in-law Jonathan Wait, Sr.
both testified that Flores told them that he was at the crime scene and participated in
the offense. Homero Garcia, an old high school friend of Flores, testified that he saw
Flores the evening after the murder. (RR36: 237). Flores told Garcia that he and
Childs had gone to a house to get some money and the whole deal had gone bad.
(RR36:237). Flores explained that he had shot a dog and that Childs had shot an old
lady. (RR36: 219, 224, 235). Garcia and Flores then traded guns; Garcia got a .380
from Flores and gave him a .357. (RR36: 220, 222). Garcia testified that he had seen
Flores with a .380 on prior occasions. (RR36: 221). Garcia also testified that when he
asked Flores if this was the gun that had been used in the shooting, Flores told him that
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it was not.14
(RR36: 228).
Jonathan Wait, Sr., the father of Flores common-law wife Myra Wait, also
testified. Flores told Wait that he had set the Volkswagen on fire and also told him that
he needed to get out of the country. (RR37: 85 –86). Wait’s son had previously called
his attention to a newspaper article about the murder and told him that Flores was the
man they were looking for. (RR37:82). When confronted with this article, Flores told
Wait that he had gotten into a “little trouble” and admitted that he “shot the dog.”
(RR37: 84-85, 94). The passenger of the Volkswagen seen at the Blacks’ residence
could have been no one except Flores.
Accordingly, Flores has failed to show he is entitled to relief under Article
11.073.
CLAIM TWO:
INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO COUNSEL’S
FAILURE TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE
DURING THE PUNISHMENT PHASE OF FLORES’ TRIAL
In his second claim, Flores asserts that he is entitled to habeas relief because he
was denied the effective assistance of trial counsel during the punishment phase of his
trial. Specifically, Flores asserts that trial counsel failed to investigate or present any
mitigating evidence during his sentencing proceedings. In support of his claim, Flores
14 Ballistics testing excluded the gun as the murder weapon. (RR38: 88).
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submits a 2008 neuropsychological evaluation from Dr. Richard Fulbright, a clinical
neuropsychologist, and the affidavits of three family members and a high-school
friend. Flores argues that this evidence is compelling mitigation evidence and would
either have resulted in a not guilty verdict or a sentence less than death.
Flores, recognizing that his claim is procedurally barred, argues that this Court
should consider the merits of his claim due to the ineffective assistance of his original
state habeas counsel. Flores presents this Court with four alternatives in which it could
reach the merits of his claim; this Court should: (1) “ permit an equitable exception” to
the statutory bar on subsequent writs in order to address “Trevino’s watershed change
in the law” and enable the Court “to consider a claim of ineffective assistance of
habeas counsel as a gateway to considering an otherwise-forfeited claim of ineffective
assistance of trial counsel;” (2) reconsider its decision in Ex parte Graves15 because it
was incorrectly decided; (3) treat the instant application as an initial application for
writ of habeas corpus in light of Ex parte Medina;16 or (4) recognize an ineffective
assistance of counsel claim for failing to investigate, discover, and present significant
mitigation evidence at trial as a claim under § 5(a)(3) of Article 11.071. Flores’ writ at
15 Ex parte Graves, 70 S.W.3d 103, 113 (Tex. Crim. App. 2002) (holding that a claim of ineffective
assistance of prior habeas counsel is not cognizable in a post-conviction writ proceedings because
there is no constitutional right to counsel in a habeas proceeding).
16 Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011).
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pp. 87 – 116. However, this Court should not adopt any of Flores’ alternatives because
he has failed to present a substantial claim for relief; he cannot establish that his trial
counsel were ineffective under the standard set forth in Strickland v. Washington, 466
U.S. 668 (1984).
First, the record reflects that Flores’ trial attorneys did conduct a mitigation
investigation. The record contains an order granting trial counsel’s motion for the
appointment of scientific experts.17
Flores, 794 F.3d at 506; State’s Appendix C. The
trial court appointed clinical and forensic psychiatrist Dr. J. Douglas Crowder to
evaluate Flores and administer psychiatric tests. Id . Dr. Crowder informed defense
counsel that Flores was “somewhat psychopathic,” but not a “full- blown psychopath.”
Id .; see also State’s Appendix D. Dr. Crowder also noted, as to the “future danger
issue problem,” there was a “little bit of mitigation – genetics and drug usage;”
however, he also noted that it “will not be of use” because it was “not as bad as some
people we see.” Id . at 506; State’s Appendix D.
Clearly, trial counsel conducted an investigation and made an informed decision
regarding whether to put on this evidence. If they had called Dr. Crowder to testify as
an expert, the State would have also been entitled to call an expert in rebuttal.
17 This document was included in Flores’ supplemental briefing as Petitioner’s Exhibit 3 in the
federal habeas proceedings and has been included here as State’s Appendix C. Additionally, Flores
included a note concerning Dr. Crowder’s evaluation of Flores in his supplemental briefing as
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Certainly, any benefit they would have received from Dr. Crowder’s discussion of
Flores’ genetics and drug usage as mitigating factors would have been outweighed by
the risk that the jury would hear evidence of Flores’ psychopathy. Trial counsel’s
decision not to call Dr. Crowder was reasonable based on the facts. See Ex parte
McFarland , 163 S.W.3d 743, 755 (Tex. Crim. App. 2005) (determining that trial
counsel’s decision not to call an expert witness did not constitute ineffective assistance
in the absence of a showing that the expert’s testimony would have benefitted the
defendant).
Moreover, the record reflects that trial counsel intended to have Flores’ father
Caterino Flores, mother Lily Garcia Flores, and common-law wife Myra Wait Flores
testify during the punishment hearing. Id . at 506; (RR40: 139 – 42). However, after the
State rested its punishment case, trial counsel learned that all three witnesses intended
to invoke their Fifth Amendment privileges against self-incrimination if they were
called to testify. (RR40: 139 – 42). All three were facing charges for aiding Flores in
avoiding apprehension in this case. (RR40: 140 – 41). Counsel stated on the record that
as a result of this development he could not, in good faith, call any of them as
witnesses. (RR40: 142). While counsel likely intended to call them to testify about
Flores’ drug usage and family life, counsel’s hands were effectively tied by their
Petitioner’s Exhibit 4, which the State has included here as State’s Appendix D.
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decisions to invoke the Fifth Amendment. Finally, counsel argued vigorously in
closing argument that Flores was not the one who had shot Mrs. Black and should not
be sentenced to death. (RR4: 71 – 83). Flores’ trial counsel made reasonable strategic
decisions based on the resources available to them.
Flores, however, now asserts that the testimony of Dr. Fulbright, his mother Lily
Flores, his half-brothers Jose Flores and Juan Jojola, and his friend Justin Prather
would have resulted in a different verdict and sentence. Flores’ claim is without merit.
During the punishment phase of his trial, the State presented evidence that
established Flores had a significant criminal record, including an aversion to arrest and
a violent nature. (RR39: 123 – 26,135 – 37, 141 – 44, 151 – 52, 161 – 67, 186 – 93, 206 – 12,
215; RR40: 15 – 18, 36 – 50, 65 – 69; SX: 143, 144, 147). The State also presented
evidence that Flores had been a problem in jail prior to the trial and with his jailers
during trial. (RR40: 91 – 104; RR41: 28 – 33). In light of this evidence and the evidence
the jury heard during the guilt-innocence phase, Flores cannot show that the evidence
he now presents is the type of evidence that would have swayed the jury and resulted in
a different outcome.
While Dr. Fulbright’s neuropsychological evaluation of Flores reveals some
level of cognitive impairment, which he opines is due to Flores’ drug use, the
intelligence testing he conducted revealed that Flores is of average intelligence, with an
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IQ of 90.18
Moreover, the cognitive impairment found by Dr. Fulbright, in his
examination conducted ten years after the capital murder, hardly undermined Dr.
Crowder’s pre-trial evaluation, in which Dr. Crowder concluded that Flores exhibited
symptoms of psychopathy. Dr. Crowder’s conclusion related to symptoms of a
personality disorder. Dr. Fulbright did not evaluate Flores for personality disorders;
instead, Dr. Fulbright limited his evaluation of Flores to his cognitive functioning at
the request of present counsel. Moreover, even if Dr. Fulbright had been called to
testify, the State would have had the opportunity to cross-examine him and would also
likely have obtained its own mental health expert to testify.
Additionally, the affidavits from his family and Prather, obtained within a month
of his execution date, would have done little to influence the jury in this case. First,
Flores’ mother could have testified at his trial but chose not to. Moreover, this
evidence — that Flores’ parents consumed alcohol and argued when he was a young
child, that his brothers bullied him and exposed him to drugs and alcohol, that his
parents failed to intervene when they learned of his drug and alcohol use, or that his
parents struggled economically when Flores was a teenager — is not the type of
evidence that would have swayed the jury, in light of all of the other evidence before
the jury. In fact, it is likely to have resulted in the opposite effect, especially seeing as
18 Dr. Fulbright’s testing revealed that Flores has a WAIS – III full scale IQ of 90. See Flores writ
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all of Flores’ affiants have criminal history of their own. The jury could have easily
seen a family of criminals who disregarded the law, avoided responsibility, minimized
their own culpability and blamed others for the situations in which they found
themselves.
Finally, Flores’ claim has already been addressed in federal court. As noted
above, one of the four claims raised by Flores in his March 25, 2008 amended federal
petition was that he received ineffective assistance of counsel on state habeas.19
Of
note, Flores did not claim habeas counsel were ineffective for failing to raise an
ineffective assistance of trial counsel claim based on trial counsel’s failure to conduct a
mitigation investigation and present any mitigating evidence. Rather, counsel only
alleged that state habeas counsel were ineffective for not challenging trial and appellate
counsel’s failure to raise certain Batson claims. Flores, 794 F.3d at 500 – 01.
It was not until after the United States Supreme Court’s decisions in Martinez
and Trevino that Flores attempted to add a claim challenging trial counsel’s
performance during the punishment phase of his trial, arguing that the claims only
became “ripe” after the two decisions were issued. Flores, 2014 U.S. Dist. LEXIS
97028, at *33. The court was not persuaded by Flores’ claims, explaining that Flores
could have raised “any potentially meritorious ineffective-assistance-of-trial-counsel
Exhibit 3 at p. 14.
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claims that he may have had, even if any such claims may have been subject to a
procedural bar at the time. Instead, he chose to present a different claim that is wholly
without cognizance in federal habeas proceedings: that his counsel in state habeas
proceedings was ineffective. This may well have been a considered decision, however,
since the underlying allegations of ineffective assistance of trial counsel appear
meritless.” Flores, 2014 U.S. Dist. LEXIS 97028, at *33 – 34.
The court ultimately denied Flores leave to amend his petition to include the new
claim, noting:
Flores seeks to set forth a claim that trial counsel was ineffective in
failing to investigate and present potentially mitigating evidence, even
though counsel obtained the expert assistance of a psychiatrist and
authorization to also obtain assistance from a psychologist to administer
tests. Flores complains of the absence of a comprehensive written report,
but does not explain why such a written report is necessary or whether it
could have been discoverable on cross examination and therefore not
desired by trial counsel. (Petitioner’s Supp. Br. at 32.) Flores also listsareas of potentially mitigating evidence that were known to him as early
as September 4, 2007, but does not adequately explain why they were not
made a separate claim or even set forth in his original petition filed on
September 18, 2007, or in the amended petition filed on March 24,
2008. (Petitiner’s Supp. Br. at 33 – 34 and Ex. No. 5.) He now claims that
he would like to investigate these areas of potentially mitigating evidence,
but does not identify which, if any, of these areas were not already known
to and reasonably considered by trial counsel in apportioning the limited
investigative resources available before trial as required by Wiggins v.
Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 156 L. Ed. 2d 471
(2003) (holding that the focus is not on whether particular mitigating
evidence was presented but whether the investigation supporting
19 In support of this claim, Flores attached the same documentation he has attached here as Exhibit 7.
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counsel’s decision was itself reasonable). (Petitioner’s Supp. Br. at 34 –
43.) Therefore, these allegations are not shown to have any merit as an
independent claim and would not come within the exception to
procedural bar created in Martinez.
Flores, 2014 U.S. Dist. LEXIS 97028, at * 38 – 40. The Fifth Circuit, in denying Flores
a certificate of appealability, likewise determined that his claim was insubstantial:
The record reflects that trial counsel performed some level of mitigation
investigation and made strategic choices in their mitigation strategy.
Prior to trial, defense counsel filed a motion for expert scientific
assistance. The trial court appointed a psychiatrist, Dr. J. Douglas
Crowder, and ordered that he be given access to Flores to administer
psychological tests. A handwritten note indicates that Dr. Crowder metwith Flores and concluded that he was “somewhat psychopathic” but “not
a full- blown psychopath.” If trial counsel had called Dr. Crowder to
testify at the punishment phase, the State would have been allowed to
have the same psychiatric access to Flores and the opportunity to offer its
own expert on rebuttal. The record also reflects that trial counsel
intended to call as witnesses Flores’s father, mother, and wife [Myra
Wait], but all of them indicated that they would invoke their Fifth
Amendment privileges against self-incrimination. At the punishment
phase, trial counsel argued in mitigation that Childs, not Flores, shot Mrs.Black. Reasonable jurists would not debate the district court’s conclusion
that Flores failed to plead a substantial claim that counsel’s decisions
with respect to mitigation were deficient and not the result of sound trial
strategy under these circumstances. See Strickland v. Washington, 466
U.S. 668, 689 (1984) (“[T]he defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered
sound trial strategy.” (internal quotation marks omitted)).
Linda Tussay’s affidavit,20
presented for the first time in Flores’
supplemental briefing, consists largely of unsupported speculation andhypotheses about mitigating evidence that might exist. In the light of the
20 While Flores included Tussay’s affidavit in his supplemental briefing in federal court as
Petitioner’s Exhibit 5, he has not included it here. Accordingly, the State has included it as State’s
Appendix E.
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evidence about the facts of the murder, Flores’s destruction of evidence,
his extensive criminal background, and his numerous, violent attempts to
avoid apprehension and escape custody, Flores has failed to present a
substantial claim that there is a reasonable probability that the jury would
have given him a life sentence had counsel presented mitigating evidenceof the types identified by Flores, assuming such evidence actually exists
and would have been admissible at trial.
Flores, 794 F.3d at 506. Notably, neither court believed Flores’ claim merited a stay in
proceedings to permit Flores to return to state court to further pursue the claim. There
is simply no merit to Flores’ ineffective assistance of counsel claim and the evidence
he presents now does nothing to further his claim.
Clearly, Flores has not presented the facts necessary to overcome the Article
11.071, § 5 procedural bar, and this Court should decline to entertain any of the
alternative ways in which Flores suggests this Court could reach the merits of his
claim.
CLAIMS THREE AND FOUR:
RACIAL BIAS IN DALLAS COUNTY’S PROSECUTION OF CAPITAL
CASES AND THE CONSTITUTIONALITY OF THE LAW OF PARTIES
In his third claim, Flores argues that he is entitled to habeas relief because Dallas
County continues to evidence racial bias in its prosecution and punishment in capital
cases and Texas’ capital-punishment statutes are unconstitutional as applied to Flores,
a Hispanic, because they arbitrarily allowed the white male principal to be released on
parole even before the less culpable Hispanic accomplice is scheduled to be executed.
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In his fourth claim, Flores argues that the Law of Parties, as applied to him, is
unconstitutional because it allowed an unjustifiable disparity between the more-
culpable principal and less-culpable accomplice.
First, Flores’ third and fourth claims are procedurally barred and should be
dismissed. Flores does not explain how these claims meet the requirements of Article
11.071, section 5. Thus, he fails to allege sufficient specific facts establishing an
exception to the subsequent writ bar.
However, the State would like to correct a factual misstatement presented in
Flores’ claims. Flores was indeed prosecuted as the “triggerman.” In fact, this is
clearly evidenced in the State’s closing arguments in the guilt-innocence phase and
punishment phase of his trial. (RR39: 48 – 64, 91 – 101; RR41: 45 – 60). Notably,
prosecutor Jason January made the following argument during the guilt-innocence
phase:
But I’m telling you the reasonable deduction from this evidence is
[Flores] is the shooter. Why do I tell you that?
We know the Defendant carried .380’s. Again, we’ve heard about
the arsenal that he had. He’s very comfortable with .380’s. The Defendant
was the driving force. He was the one angry. He wanted the situation. He
was the one that had previously, within hours, pulled a gun on a human
being, on Jackie Roberts. He was the driving force.What was destroyed or secreted or traded away? Well, the murder
weapon. Well, who do we know in this case is known to have destroyed
evidence out there on I-30? Who destroyed that Volkswagen with the
glove tag in it and some master work gloves. Who’s doing that? Well, the
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Defendant.
Now, the Defense lawyer said that it’s probably Rick Childs that
threw that gun away. Let’s look at that. If he threw that gun away, how
come he didn’t throw the .44 away that’s sitting right in his own house
with the potato inside of it? I mean, I know Rick Childs is a doper, butit’s a reasonable deduction from that he’s not that stupid. Why throw
away the murder weapon - - why not throw away the - - both guns in this
case? It doesn’t even make any sense.
The Defendant is the one that wanted to not use his car. He’s the
driving force behind this whole effort of being anonymous and going
over to commit this crime.
Rick Childs opened the garage door for him, the big cheese
walking through. And finally after the offense is committed, who takes
drastic measures to not be caught in this case? Who’s willing to kill?Who’s willing to kill to stay out of that chair over there? Who do we
know to a 100 percent certainty was going to kill one of your Sheriff’s
officers to stay out of that chair so you wouldn’t be facing him right now
and those eyes wouldn’t be looking at him? The shooter.
(RR39: 95 – 96). And, finally, this Court, in its direct appeal opinion, found the
evidence presented by the State was sufficient for a rational jury to conclude that
Flores had committed the murder of Mrs. Black by himself, or as a party. Flores, No.
73,463, slip op. at *9 – 10.
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
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38
IV.
CONCLUSION
The State asks this Court to dismiss Flores’s motion to challenge certain
scientific evidence and subsequent application for writ of habeas corpus and deny his
motion for stay of execution.
Respectfully submitted,
/s/ Rebecca D. Ott
Susan Hawk Rebecca D. OttCriminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 24074842
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
(214) 653-3829 (phone)
(214) 653-3643 (fax)
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
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39
CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify that a true copy of the foregoing response was served on counsel
Bruce Anton and Mary Margaret Penrose, by electronic communication through
eFile.TXCourts.gov on May 25, 2016, and by U.S. mail to Gregory W. Gardner, 641 S.
Street, N.W., Third Floor, Washington, D.C. 20001.
I further certify that the total word count in this document, which was prepared
using Microsoft Word 2010, is 10,527, exclusive of the Appendix.
/s/ Rebecca D. Ott
Rebecca D. Ott
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
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ppen ix
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
41/74
STATEOF CALIFORNIA §
§ AFFIDAVIT
COUNTY OFLOSANGELES §
BEFOREME the undersigned
authority
personally appeared
R
EDWARD GEISELMAN
Ph.D.
who upon being sworn
did
depose and state
the
following.
My
name
is R
Edward
Geiselman PH.D.
I was contacted by
attorney Bruce Anton in July of2007 in
regard to serving
as £in expert
witness
inthe
appeal
ofthe
matter styled
CharlesFloresvs. The State
of
Texas Court
of
Appeals
No. 73 463. The
focus of
my analysis
was
to
examine
the potential
suggestiveness
ofan interview in this case
as
it
related to the in-court identification
of
Charles Flores by
eyewitness
Jill
Bargainer. Based
on my
review
and
analysis
of
the
documents
and the audio-video recording ofthe hypnosis session that
I wasprovided it is my
summary opinion
thatthe instantinterview
in thiscasemayverywellhavecausedandotherwise affectedthe in-
court identification
of
the defendant by the
eyewitness. It is my
opinion that eyewitness Bargainer s threshold for making an
identification was
likely lowered
as a
result
ofthe
hypnosis interview
While
she failed
to
make
an
identification
of
the
defendant
from a
fair
photo array
subsequent
to the hypnosis
session
she may have
felt
compelled asa
result
oftheinterview toidentify thedefendant with
marked
certainty
when
shewas ultimately exposed to the
defendant
ina
suggestive courtroom
setting. Given these
circumstances
the
identification of Charles Flores by
eyewitness
Jill Bargainer was
unreliable and possiblymistaken.
This
Expert s
Relevant Background
I
have
been qualified to offer expert testimony about
issues
relevant
to
eyewitness psychology
in
over
300 criminal trials and
hearings
in
several states spanning 17 years. I have reviewed over 600 criminal
cases
for
both trial
and
appellate courts where eyewitness issues were
central.
In addition
Ihave
participated
in the analysis and
critiquing
of
police interviews
and
I
have served as an
investigative interviewer
for law
enforcement
on cold cases.
Ihave
published approximately
100 theoretical and research
papers
concerning a wide variety of
issues related to
memory
with an emphasis on eyewitness
recollection. Those publications are listed on my curriculum vita
which is attached to this affidavit
AFFIDAVIT OFR.
EDWARD
GEISELMAN Ph.D. - Page I
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
42/74
I co-developed a standardized protocol for interviewing victims and
witnessesof crimecalledtheCognitiveInterview. Elementsof this
protocol formed
part
of the
basis for
the
Department
of
Justice
guidelines
on
handling and
preserving
eyewitness
evidence
published
in 1999 (U.S. DOJ, Eyewitness Evidence: A Guide for Law
Enforcement,**
1999)
as
well
as the follow-up
training
materials
published in 2003 (U.S.DOJ, Eyewitness Evidence: A Trainer*s
Manual forLaw Enforcement, 2003). Elements oftheirprotocol are
described throughout
bothDOJ
documents, and this
protocol
is
more
fullydescribed inthevolume titled, Memory-Enhancing Techniques
for hivestigative
Interviewing:
The Cognitive Interview, * (Fisher &
Geiselman, 1992).
I have
published research
in which
the
original version of
the
Cognitive Interview protocol
was
compared directly with forensic-
hypnosis interviews conducted
by
experienced
law
enforcement
personnel(Geiselmanet
al
1985). In addition,Ihaveconductedand
published
a
meta-analysis
of
studies concerning
the
reliability
of
information
obtained
using forensic hypnosis
(Geiselman &
Machlovitz, 1987).
Materials Reviewed from this
Case
In
the
preparation ofthis
report,
I reviewed
the
following documents
and materials
1
Audio video recording
of
the
forensic
hypnosis session with
Jill Bargainer;
2. JillBargainer*s trial testimony;
3. Texas Court ofCriminal
Appeals*
Opinion;
4. Zani
hearing
testimony;
5.
Jill
Bargainer*s
testimony outside presence ofjury;
6. Briefing onWrit;
7.
Photo lineup
and
photos
of
Robert Flores;
Forensic-Hvonosis Interviews and
Hvpersuggestibility
Summary research suggests that some forensic hypnosis procedures
ABFIDAVITOFR.EDWARD
GEISELMAN,
Ph,D. -
Page
2
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
43/74
may lead to false identifications as well as to elevated eyewitness
confidence in the
mistaken identifications
(see
Steblay
Bothwell,
1994,
forameta-analysis ofthe
relevant
literature). Some of these
problems
canbe attributed to the
hypnotized
witness being
more
suggestible to leading questions and other interdictions from the
interviewer. However, even in the
absence
ofleading questions
and
other forms of direct suggestion from the interviewer, some
hypnotized eyewitnesses will come to
believe
that they should
remember
more
details
asaresult ofthehypnosis
session experience
(Green
Lym, 2005;
Whitehouse,
Dinges,
Ome, Ome, 1988).
In this case, it ismy understanding that
eyewitness
Jill Bargainer
initiated a request that she be hypnotized inanattempt to ease her
anxiety
towardclarifyinghermemory. Indeed,OfficerSema testified
that he
employed
themovie theater technique
because
hesensed in
Ms.
Bargainer
a
high level
of
anxiety
(pp.
46-47,55-56).
However,
considerable
research has
shown
that
hypnosis
results are, at
best,
no
different
for high anxiety and trauma situations compared to
more
mundane circumstances (Lynn, Myers,
Malmoski,
1997;Krakow,
Lynn Payne, 2006).
Furthermore,
it has been argued that the
induction
component of anhypnosis interview is ineffective
as
a
memory-enhancement technique, butrather anhypnosis interview is
sometimes
observed to be effective only
because
some
hypnosis
interviewers also
utilize
reliable
memory-retrieval
techniques,
such
as mental reinstatement of the context that surrounded the incident
(Yirille Kim,1987; alsoseeGeiselman etal., 1985; Geisehnan
Machlovitz, 1987).
It isnot
uncommon
forhypnotized
eyewitnesses
to
come
to believe
that
they
should
remember
more (Vi^tehouse et
al.,
1988). An
identification
ofa
person
ismuch likea signal detection taskwhere
once
the feeling of familiarity for a person exceeds the witness's
threshold,
the
witness
will
make the
identification. Itis
my opinion
that
the
trial court s
limiting instruction to
the
jurywas adequatewith
respect to anypolice
suggestion
during the hypnosis
interview,
but
the
court did not adequately
address self-suggestion
originating from
the witness's own thought processes; that she could have left the
hypnosis interview
believing
that she should remember the person
whomshe sawbrieflyon the day in question.
The Forensic Hypnosis
Interview in this ase
Itismyopinion thatthejudge attheZani
hearing
was correctwithhis
remark that, (T)he real issue here is whether her in-court
AFFIDAVIT OFR.
EDWARD GEISELMAN,
Ph.D. - Page3
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
44/74
identification istrustworthy or
not.
(p.
17)
Givenmyunderstanding
of the facts
leading
up to eyewitness Jill Bargainer s in-court
identification
ofdefendant Charles
Flores,
her
identification
was not
trustworthy,
andI believe
this
tobe
true
inpart
because
ofthe
prior
hypnosis session.
It did not
appear that
the interviewer in this case
utilized any
recognized memoiy-retrieval techniques following the hypnosis
induction. I found it difficult to determine precisely what
Ms.
Bargainer
was
saying
at
some
points
during the
taped
interview.
However, near theconclusionofthe session, aftertheinterviewerhad
announced that he would be counting from 1 20 to bring her
out
of
hypnosis andbring herbacktothepresent
day:
1. The interviewer stated that when he reached 20: You will
find
that
all
stress
has
been gone,
and,
You might
find
yourself able to
recall other
things as
time
goes by.
When
the
interviewer
in fact reached 20:
2. Ms.
Bargainer
appeared
to say: Now it
seems
I
can pick
something up.
3
3. At this point, the interviewerreinforcedhis earlier statement
witha post-hypnotic suggestion using
words
such as: Tou
might find yourself just recalling things. It s almost a
phenomenonthewaythish^pens.. .sothatisnotuncommon
justto
remember something after
the
session. [Note
—
hese
comments from
thehypnosis interviewerare in stark contrast
towhat
has
been recommended bythe American Society of
Clinical
Hypnosis
(ASCH,
Hammond
etal, 1995) to
present
a discussion ofthe imperfections ofmemory in and outof
hypnosis .]
4.
Ultimately, near the end
of
the recording, Ms. Bargainer
appeared to say: I feel like I could seemore
better
(sic).
This statement is in stark
contrast with
Ms. Bargainer s
testimony
in 1999 at the Zam hearing that
(the
hypnosis
session)
did
not
firm
up
an
impression
of
the second person,
(p. 101)
Itis
not
possible to
determine the
extent to
which eyewitness Jill
Bargainerfeltthatsheshouldremembermoredetailsasaresultofthe
forensic
hypnosis
interview experience.
However, it
is entirely
AFFIDAVirOF R. EDWARD GEBELMAN. Ph.D. -
Page
4
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
45/74
possible that while she did not feel that she could make an
identification from a photo array shown to her subsequent to the
hypnosis session (perhaps because she did not have an adequate
opportunity to view the target person on the day in question), she
nevertheless was inclined to recognize defendant Charles Flores
once he was the onlyperson presented as an option in the courtroom
at trial. This scenariowould be especially likelygiven her exposure
to the representative picture of Charles Flores in the photo anay
shown to her earlier. It is unlikely that any other person from the
photo array was present in court for the trial ofRobert Flores. Ms.
Bargainer's threshold for making an identification
of
someone in the
courtroommayhavebeen loweredas a result
of
the hypnosissession,
such that she thought that she should remember; and given the
enhanced familiaritywith RobertFlores from viewing his picture in
the photo array, she was inclined to identify him and with great
confidence. Research has failed to .find support for the theory that
eyewitnesses are simply more likely to identify a perpetrator when
seen in person rather than from a representative photograph (Cutler,
Herman, Penrod, & Fisher, 1994).
Summary Conclu si on
Based onmy reviewand analysis
of
thedocuments andmaterials that
I was provided, it ismyopinion that the forensic hypnosis interview
session might have caused and otherwise affected the in-court
identification ofCharles Floresby eyewitness Jill Bargainer. A post-
hypnoticsuggestionwasused bythe forensichypnotistto implythat
Ms. Bargainer should remember more following the interview, and
post-interview statements by Ms. Bargainer support the possibility
that she believed that she could now remember more clearly.
Citat ions
Cutler,B. L.,Beiman,G.L.,Penrod, S.D.,&Fisher,R.P. Conceptual
Practical and Empirical Issues Associated with Eyewitness
Identification TestMedia In Adult
Eyewitness Testimonv:
Current
Trends and Developments. D.F. Ross, J.D,Red, &M.P. Toglia(eds),
New York: Cambridge University Press (1994).
Fisher, R. P. & Geiselman, R.E., MemoryEnhancementTechniques
for Investigative Interviews: The Cognitive Interview. Springfield,
Illinois: Charles C. Thomas Publishers. (1992)
AFFIDAVITOFR. EDWARDGEISELMAN,Ph.D. - Page 5
8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus
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Geiselinan,R.E. ̂ Eyewitness ExpertTestimony. LagunaBeach,CA:
AmericanCollegeofForensicPsychologyPress(186pages)(1996) -
n Ed
Geiselman,
R.E.,
R. P. Fisher, D.P.
MacKinnon,
H.L. Holland,
Eyewitness Memory Enhancement in the Police Interview:
Cognitive
Retrieval
Mnemonics Versus Hypnosis,
Journal of
AppliedPsvcholoav. 70,401-412 (1985)
Geiselman,R.E. KR.Machlovitz, MethodologicalFactorsAffect
the Success of Hypnosis Memory Recall, American Joumal of
Forensic Psychology. 1, 37-46 (1987)
Geiselman,
R.E. et
al.
Mechanisms ofHypnotic and
Nonhypnotic
Forgetting. Joumal of
Experimental Psychology:
T
eflminfyMfiinniy^
and Cognition. 9, 626-635 (1983)
Green, J.P. Lynn, S.J.
Hypnosis
vs. Relaxation: Accuracy and
Confidence inDatingIhtemationalNewsEvents. Appliftri rngnitivft
Psvchoiogy. 19,679-691 (2005)
Hammond, D.C., etal. ClinicalHypnosis andMemory: Guidft1inp.R
for
Clinicians
andfor
Forensic Hypnosis. Des Plaines,
II. American
SocietyofClinicalHypnosis Press (1995)
Krakow,E.,Lynn,S.J., Payne,D. TheDeathof Prin