state's motion to dismiss charles flores' application for writ of habeas corpus

8/16/2019 State's motion to dismiss Charles Flores' application for writ of habeas corpus

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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)

[email protected]


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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.


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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)

[email protected]


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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


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ppen ix


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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


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


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


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. -

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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


46/74

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

state's motion to dismiss charles flores' application for writ of habeas corpus

Documents