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WR-64,654-02
Trial Court No. F98-02133-N
IN THE
TEXAS COURT OF CRIMINAL APPEALS
AND
THE 195TH JUDICIAL DISTRICT COURT
OF DALLAS COUNTY
Susan Hawk
Criminal District Attorney
Dallas County, Texas
Rebecca D. Ott
Assistant District Attorney
State Bar No. 24074842
Dallas County District Attorneys Office
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
214-653-3829 / 214-653-3643 (fax)
Rebecca.Ott@dallascounty.org
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
2
2000 and a Supplemental Application on December 11, 2000. Flores filed, pro se, an
Amended Application on December 14, 2000. The trial court issued findings of fact
and conclusions of law denying habeas relief on April 12, 2006. This Court adopted
the trial courts findings and denied relief on September 20, 2006. Ex parte Flores, No.
WR-64,654-01, 2006 Tex. Crim. App. Unpub. LEXIS 744 (Tex. Crim. App. Sept. 20,
2006) (not designated for publication). The United States Supreme Court denied his
petition for writ of certiorari on October 1, 2007. Flores v. Texas, 552 U.S. 884 (2007).
On September 18, 2007, Flores filed an initial federal habeas petition.2 On
11, 2001, the trial court granted a motion to substitute habeas counsel to Steven Rosen, who was
retained by Flores family. Thereafter, Flores retained Alexander Calhoun to replace Rosen.
2
By agreement of the parties and the magistrate judge, Flores timely filed a skeletal federal habeas
petition on September 18, 2007, raising 45 potential claims, with the promise to file a final amended
petition, raising no new claims, by March 24, 2008. In accordance with that agreement, he filed an
amended petition on March 24, 2008, raising only four claims:
(1)
(2)
(3)
(4)
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. 307-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
Courts decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler,
133 S. Ct. 1911 (2013). Following the Supreme Courts 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. 3:07CV-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 Courts resolution of Flores petition for writ of
certiorari. In a hearing held on December 3, 2015, the trial court decided to grant
At this stage in the proceedings, Flores was represented by Bruce Anton and Meg Penrose. Flores
4
Flores additional time, and set Flores execution for June 2, 2016, six months from the
hearing.
The United States Supreme Court denied his petition for writ of certiorari on
January 25, 2016. Flores v. Stephens, 136 S. Ct. 981 (2016).
Flores filed his instant subsequent writ application on May 19, 2016. Flores is
scheduled to be executed on June 2, 2016.
II.
STATEMENT OF FACTS
While Flores has included a statement of the case in his application, the State
disagrees with his interpretation of the testimony and evidence presented at his trial.
Accordingly, the State presents this Courts own summary of the facts contained it its
November 7, 2001 opinion issued in Flores direct appeal:4
Elizabeth Black, the deceased, resided with her husband in Farmers
Branch. At approximately 6:30 a.m. on January 29, 1998, Mr. Black left
for work. He returned home three hours later to discover Mrs. Blacks
body beneath the den table. Mr. Black immediately called the police,
who arrived at the scene within a few minutes. An autopsy established
that Mrs. Black had died as the result of a single gunshot.
Nearby, officers discovered the Blacks Doberman pinscher,
Santana, shot through the back. The size of the wound suggested a largebore weapon, such a .44 caliber. Fragments of potato littered the floor,
table, walls, and ceiling in the vicinity of the victim. On the floor near
is currently represented by Anton and Penrose.
4
Undersigned counsel has added footnotes 7 and 8, with additional facts. These additions include
citations to the record.
5
Mrs. Blacks 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 cartridges 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 the
dog. 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. Garys 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, and
raised the door to admit the Volkswagens 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.
6
Jackie testified that Plunk had not shortchanged them and that [Flores] was trying to rip off Plunk.
7
Jackie left to visit Plunk. A short time after Jackies departure, her
mother told Doug about the murder of Mrs. Black. That evening, Doug
went to the home of the victims daughter, Sheila Black, and learned that
neighbors had observed a pink and purple Volkswagen outside the house.
Doug drove to Plunks 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 Plunks 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 Dougs 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 grandmothers 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 [Jonathan
Wait, Sr.].7
Two days after the murder, [Flores] and two others8 towed 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-husbands 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 article about Mrs. Blacks 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: 8286).
8
license plates were removed. The group then towed the vehicle up an I30 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
vehicles sole occupant, could not produce a drivers 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 had
almost 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 suspects hands behind his back, [Flores]
turned quickly and struck Officer Slaughters 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 nearby
ditch. By chance, Deputy Mike Davenport of the Hays County Sheriffs
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 Shermans pistol. Sherman
9
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 Shermans 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 Shermans handcuffs and handcuffed [Flores].
Flores, No. 73,463, slip op. at *28.
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
10
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 contains
sufficient 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)
(3)
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
11
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 crimeJill 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 Bargainers 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.
Dr. Lynn states that he was retained by counsel on April 18, 2016. See Flores writ Exhibit 1 at p. 1.
12
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, Bargainers identification was far from the
only evidence linking him to this crime.
Background Facts
The instant claim is based on Bargainers 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 Blacks home. (RR35: 15262). She
described these two individuals to the police and subsequently identified Richard
Childs from two photographic lineups as the driver. (RR35: 15455). 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.
13
(RR35: 15556). 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: 1315, 15556; RR36: 8586).
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: 15761). A
videotape of the hypnosis session was introduced as States 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: 1819, 34). Neither officer was
14
10
aware that Flores had become a potential suspect in the murder. (RR36: 20, 3031,
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. Mounts 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: 6062, 6571,
72). He saw no evidence on the tape of any incorrect procedures. (RR36: 6365).
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: 3031).
15
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: 108109).
At the conclusion of the hearing, the court denied Flores motion to suppress
Bargainers in-court identification of Flores. (RR36: 11718). The trial court made
11
specific findings of fact and conclusions of law, and granted the defense a running
objection to Bargainers identification testimony. (RR36: 11718, 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 its 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 that
under the totality of the circumstances, that there is clear and convincing evidence
that the hypnosis undergone by Ms. Bargainer did not render her eyewitness inCourt eyewitness identification of the Defendant untrustworthy; therefore, the motion
of the Defendant to disallow her testimony is denied.
(RR36: 11718).
16
presence of the jury, Bargainer identified Flores as the passenger in the Volkswagen
who entered the Blacks home. (RR36: 28385). She was unequivocal in this
identification. (RR36: 28385).
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, States
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 the
morning 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 that
her 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, Flores has also raised claims challenging the admission of Bargainers
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 courts 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 Bargainers testimony. Id. at 2223.
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 of
ineffective 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. 2829). 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 23). Mr. Parks averred:
18
Mr. Lollar and I met with Myra Wait in Mr. Lollars 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.
19
Apparently, Dr. Geiselman provided two different affidavits, both of which were included by
Flores 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 States Appendix A. The second affidavit, dated August 3, 2007, was
included in Flores supplemental briefing on June 1, 2012 as Petitioners Exhibit 6. It has been
attached herein as States Appendix B.
20
adequately contest Bargainers 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 reasonably
have prevailed if it had included the new evidence presented in these
proceedings[, i.e., Geiselmans 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 courts 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
counsels failure to properly challenge Bargainers testimony, the Fifth Circuit
explained:
Reasonable jurists also could not debate the district courts 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 Bargainers 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 Bargainers 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 Bargainers
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
21
(B)
(2)
testimony would have been based on knowledge and understanding of hypnosis and
memory that was available at the time of Flores trial.
Finally, even if this Court were to find that Dr. Lynns 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, Bargainers identification was far from the only
evidence connecting him to this crime. First, there was other testimony that
corroborated Bargainers 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: 7374, 90). Flores and
Childs then left Stovalls 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, 13539,
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.
24
(RR35: 11516). 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. Blacks murder, he was dressed in black clothing, particularly a long
black coat called a duster. (RR34: 84, 17576, 195). The Volkswagen was seen by
Robert Bargainer on his way to work just after his wife, Jill, had seen the vehicle and
Flores. (RR35:17475). 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
25
Ballistics testing excluded the gun as the murder weapon. (RR38: 88).
26
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
pp. 87116. 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 counsels motion for the
appointment of scientific experts.17 Flores, 794 F.3d at 506; States 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 States 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; States 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 Petitioners Exhibit 3 in the
federal habeas proceedings and has been included here as States Appendix C. Additionally, Flores
included a note concerning Dr. Crowders evaluation of Flores in his supplemental briefing as
28
Certainly, any benefit they would have received from Dr. Crowders 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 counsels
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
counsels decision not to call an expert witness did not constitute ineffective assistance
in the absence of a showing that the experts 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: 13942). 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: 13942). All three were facing charges for aiding Flores in
avoiding apprehension in this case. (RR40: 14041). 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, counsels hands were effectively tied by their
Petitioners Exhibit 4, which the State has included here as States Appendix D.
29
18
Dr. Fulbrights testing revealed that Flores has a WAIS III full scale IQ of 90. See Flores writ
31
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 counsels 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
counsels failure to raise certain Batson claims. Flores, 794 F.3d at 50001.
It was not until after the United States Supreme Courts decisions in Martinez
and Trevino that Flores attempted to add a claim challenging trial counsels
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.
32
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 *3334.
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. (Petitioners Supp. Br. at 32.) Flores also lists
areas 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. (Petitiners Supp. Br. at 3334 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.
33
While Flores included Tussays affidavit in his supplemental briefing in federal court as
Petitioners Exhibit 5, he has not included it here. Accordingly, the State has included it as States
Appendix E.
34
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 moreculpable 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 States closing arguments in the guilt-innocence phase and
punishment phase of his trial. (RR39: 4864, 91101; RR41: 4560). Notably,
prosecutor Jason January made the following argument during the guilt-innocence
phase:
But Im telling you the reasonable deduction from this evidence is
[Flores] is the shooter. Why do I tell you that?
We know the Defendant carried .380s. Again, weve heard about
the arsenal that he had. Hes very comfortable with .380s. 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. Whos doing that? Well, the
36
Defendant.
Now, the Defense lawyer said that its probably Rick Childs that
threw that gun away. Lets look at that. If he threw that gun away, how
come he didnt throw the .44 away thats sitting right in his own house
with the potato inside of it? I mean, I know Rick Childs is a doper, but
its a reasonable deduction from that hes not that stupid. Why throw
away the murder weapon - - why not throw away the - - both guns in this
case? It doesnt even make any sense.
The Defendant is the one that wanted to not use his car. Hes 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? Whos willing to kill?
Whos 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 Sheriffs
officers to stay out of that chair so you wouldnt be facing him right now
and those eyes wouldnt be looking at him? The shooter.
(RR39: 9596). 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 *910.
37
IV.
CONCLUSION
The State asks this Court to dismiss Floress 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
Criminal District Attorney
Dallas County, Texas
Rebecca D. Ott
Assistant District Attorney
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)
rebecca.ott@dallascounty.org
38
39
Appendix A
STATE OF CALIFORNIA
AFFIDAVIT
_J
Ph.D., who upon being sworn, did depose and state the following.
ofTexas, Court ofAppeals No. 73,463. The focus ofmy analysis was
to examine the potential suggestiveness of an interview in this case
j
-
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 thedefendant
in a suggestive courtroom setting. Given these circumstances, the
identification of Charles Flores by eyewitness Jill Bargainer was
-j
"I
"1
-!
_j
Geiselman, 1992).
~j
Cognitive Interview protocol was compared directly with forensichypnosis interviews conducted by experienced law enforcement
personnel(Geiselmanet al, 1985). In addition,I have conductedand
Machlovitz, 1987).
Materials Reviewed from this Case
1J
1.
1
-
2.
3.
4.
Zanihearing testimony;
5.
6.
Briefing on Writ;
7.
^
J
~j
_j
(Yirille & Kim, 1987; also seeGeiselman et al., 1985; Geisehnan &
-
Machlovitz, 1987).
_
I
-|
J
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 the conclusionofthe session, afterthe interviewerhad
1.
find that all stress has been gone," and, "You might find
~j
2.
1
-J
3.
~j
~t
hypnosis".]
n
i
4.
J
-(
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 only person presented as an option in the courtroom
at trial. This scenario would be especially likely given 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 of Robert Flores. Ms.
Bargainer's threshold for making an identification ofsomeone in the
courtroom may have been lowered as a result ofthe hypnosissession,
such that she thought that she should remember; and given the
enhanced familiarity with Robert Flores 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 Conclusion
Cutler, B. L., Beiman, G.L., Penrod, S.D., & Fisher, R.P. "Conceptual
Practical and Empirical Issues Associated with Eyewitness
Identification Test Media." In Adult Eyewitness Testimonv: Current
J
!
-J
1
J
~1
1
Green, J.P. & Lynn, S.J. "Hypnosis vs. Relaxation: Accuracy and
Confidence inDatingIhtemationalNews Events. Appliftri rngnitivft
Psvchoiogy. 19,679-691 (2005)
Hammond, D.C., etal. "Clinical Hypnosis and Memory: Guidft1inp.R
~|
the
J
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day of MAA.M
2008,
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Appendix B
Affidavit
I was contacted by Attorney Bruce Anton in July ot 2007 about serving as an expert in
the appellate matter ofCharles Flores versus The State ojTexas (Case No. 73,463, Court
ofCriminal Appeals). It is my understanding that the focus ofmy analysis was to
examine tlie potential suggestiveness ofan interview in this case as itmay relate to the incourt identification of Charles Flores by eyewitness Jill Bargainer. Based on my review
and analysis ofthe documents and the audio-video recording ofthe hypnosis session that
I was provided, it is my summary opinion that the instant interview in this case may very
well have caused and otherwise affected the in-courtidentification of the defendant by
hypnosis session, she may have felt compelled as a result of the hypnosis interview to
identify the defendant with remarkable certainty when she was ultimately exposed to the
defendant in a suggestive courtroom setting. Given these circumstances, the
identification of Charles Flores by eyewitness JillBargainer was at bestunreliable and
possibly mistalcen.
This Expert's Relevant Background
I have been qualified tooffer expert testimony about issues relevant to eyewitness
psychology inover 300 criminal trials and hearings inseveral states spanning 17 years. I
have reviewed over 600 criminal cases for both trial and appellate courts where
eyewitness issues were central. Inaddition, 1have participated inthe analysis and
critiquing ofpolice interviews, and I have seived as an investigative interviewer for law
enforcement on cold cases. 1have published approximately 100 theoretical and research
papers conceming awide variety ofissues related to memory with an emphasis on
eyewitness recall. Those publications are listed on my curriculum vita which isattached
to this affidavit.
throughout both DOJ documents and this protocol ismore fiilly described in the volume
titled "Memory-enhancing techniques for investigative interviewing: the cognitive
interview" (Fisher Sc Geiselman, 1992).
I have published research in which the original version ofthe Cognitive Interview
protocol was compared directly with forensic-hypnosis interviews conducted by
experienced law-enforcement persomiel (Geiselman et al., 1985). In addition, I have
conducted and published ameta-analysis ofstudies concerning the reliability of
information obtaining using forensic hypnosis (Geiselman & Machiovitz, 1987).
Materials Reviewed horn tliis 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. Jill Bargainer's trial testimony.
3.
4.
5.
6.
7.
Forensic-Hypnosis Interviews
Dlnges, Orne, & Ome, 1988). In this case, it is myunderstanding that eyewitness Jill
Bargainer initiated a request that shebe hypnotized in an attempt to ease heranxiety
toward clarifying her memory. However, considerable research has shown that hypnosis
results ai'e at best no different for high anxiety and traumasituations compared to more
mundane circumstances (Lynn, Myers, & Malinoski, 1997; Kiackow, Lynn, & Payne,
2006). Furtliermore, it has been argued thatthe induction component of anhypnosis
interview is ineffective as a raemory-enlianceraent technique, but rather an hypnosis
interview is sometimes obseiwed to be effective only because some hypnosis interviewers
also utilize some reliable memory-retrieval techniques, such as reinstatement of the
incident context(Yuille & Kim, 1987; alsosee Geiselmim et al., 1985; Geiselman &
Machlovitz, 1987).
ftis not uncommon for hypnotized eyewitnesses to come to believe that they should
remember more. An identification of a personis much like a signal detection task where
once the feeling offamiliarity for a person exceeds the witness's tlireshold, thewitness
will make the identification. It is my opinion that the trial court's instruction to theJury
was adequate withrespect to any police suggestion dm-ing the hypnosis interview butthe
courtdid not adequately address self-suggestion originating from the witness's own
thought processes; that she could have been left the hypnosis interview believing that she
should remember the personthat she saw briefly on the day in question.
The Forensic-Hvpnosis Interview in this Case
It did not appearthat the interviewer in tliis caseutilized anyrecognized memoryretrieval techniques following thehypnosis induction. I found it difficult to determine
precisely what Ms. Jill Bargainer was saying at some points during tlie taped interview.
However, near the conclusion of the session, after the interviewer had announced thathe
would be countingfrom 1-20 to bringher out of hypnosis and bringher backto the
present day...
1. Tlie interviewer stated that when he reached 20: "You will find that all stress has
been gone" and "Youmight find yourself ableto recall otherthings as time goes
by."
When the interviewer reached 20,
2. Ms. Bargainer appeared to say: "Now it seems I can pick something up."
Case 3:07-cv-00413-M
3. Atthis point, the interviewer reinforced his earlier suggestion with a posthypnotic suggestion using words such as "You might find yourselfjustrecalling
things... It's almost a phenomenon theway this happens... so that is not
uncommon just to remember something after the session." [Note- these
comments from the hypnosis interviewer ai'e in stark contrast to whathas been
recommended by the American Society of Clinical Hypnosis (ASCH, Hammond
et al., 1995) to present a discussion of theimperfections of memory "in and outof
hypnosis."]
4. Ultimately, nearthe end of the recording, Ms. Bargainer appeared to say: "I feel
like I could see more better."
It is not possible to determine whetlier eyewitness Jill Bargainer felt that she should
remembermore details as a result of the forensic hypnosis interview experience.
However, it is entirely possible that while she did not feel that she could make an
identification from a photo arrayshown to her subsequent to tlie hypnosis session
(perhaps because she did not get a good look at theperson on the day in question), she
nevertheless was inclined to "recognize" defendant Charles Floresonce he was the only
person presented as an option in the courtroom, at trial. This would be especially likely
given her exposure to the representative picture of Charles Flores in the photo array. It is
unlikely that anyotherperson from the photo array was present in courtfor the trialof
Robert Flores. Ms. Bargainer's thresholdfor makingan identification of someone in the
courtroom may have been lowered as a result of the hypnosis session such that she
thought that she shouldremember; and given the enlianced familiarity with Robert Flores
from viewing his picturein the photo array, she was inclinedto identifyhim and with
great confidence.
Other Concerns with the Indentification
It is my opinion that the judge at the Zani hearing was correct with his remark that
"tlie real issue here is whether her in-court identification is tnistworthy or not" (p 117).
believe this to be true not simply becauseof the priorhypnosis session. In my opinion,
other factors commonly studied within the field of eyewitness psychology would have
contributed to any self-suggestion effects of the hypnosis interview leading to a potential
.mistaken identification of Chaiies Flores. Eyewitness Bargainer stated tliat she felt
considerable stress when thinking about this incident. It is well known that stress
narrows attention and interferes with memory recall. The identification was cross racial
in nature. It is well known that cross-race identifications are less likely to be accurate
than same-race identifications. In is my understanding that eyewitness Bargainer
requested the hypnosis session on her own and volunteered her identification of Charles
Flores at the courtroom. It is well Icnown that eyewitnesses are biased toward making a
selection from an identification procedure and Ms. Bargainer's actions suggest that she
felt compelled to help solve tliis case. Furthennore, Ms. Bargainer testified at trialthat
shemight haveseen a picture of Charles Flores in the mediaat somepoint priorto her
exposure to Mr. Flores in court (p 108). Finally, eyewitness Bargainer failed to identify
Charles Flores from a fair photo array prior to the suggestive in-court exposureto Mr.
Flores. Aside from tlie suggestive nature of tlie one-person in-court show up, there would
have been a carry-over effect from her viewing the picture of Mr. Flores in the photo
array. Such carry-over effects are well known witliin the field of eyewitness psychology.
Each of these factors likely contributed to the end product, higli level of confidence
Based on my review and analysis of tlie documents and materials that 1was provided,
it is my opinion that it camiot be ruled out with any certainty that the forensic hypnosis
interview caused and otherwise affected the in-court identification of Giarles Flores by
eyewitness Jill Bargainer. It is likewise my opinion that other factors well known to
affect the accuracy of eyewitnesses were likely to have contributed to any self-suggestion
from the hypnosis interview leading to a mistaken identification of Charles Flores at trial.
Citations
Cutler, B.L. & Penrod, S.D. "Mistaken Identification: The evewitness. psychology,
Geiselman, R.E. & FI.R, Machlovitz, "Methodological factors affect the success of
hypnosis memory recall," American Journal of Forensic Psychology. 1, 37-46 (1987)
Geiselman, R.E et al. "Mechanisms of hypnotic and nonhypnotic forgetting." Journal
of Experimental Psychology: Learning. Memory, and Cosnition. 9, 626-635 (1983)
Green, J.P. & Lynn, S.J. "Hypnosis vs. relaxation: Accuracy and confidence in dating
intemational news events. Applied Cognitive Psvcholonv. 19, 679-691 (2005)
Hammond, D.C. et al. "Clinical hypnosis and memory: Guidelines for clinicians and
tbr forensic hypnosis." Des Plaines, IL: American Society of Clinical Hypnosis Press
(1995)
Krackow, E., Lynn, S.J., & Payne, D. "Tlie death of Princess Diana: The effects of
memory enhancement procedures." Imagination. Cognition, and Personality (2006)
Lynn, S.J., Myers, B., & Malinoski, P. "Hypnosis, pseudomemories, and clinical
guidelines: A sociocognitive perspective. In D. Read St S. Lindsay (Eds.), Recollections
of trauma: Scientific studies and clinical practice. Plenum Press: New York.
Steblay, N.M. & Bothweil, R. "Evidence for hypnotically refreshed testimony," Law
and Human Behavior. 18, 635-651 (1994)
Tiinm, H.W. "Tlie factors theoretically affecting the impact of forensic hypnosis
techniques on eyewitness recall," Journal of Police Science and Administration. 11, 442450 (1983)
Wliitehouse, W.G., Dinges, D.F., Ome, E.G., & Ome, M.T. "Hypnotic hypermnesia:
Enhanced memory accessibility or report bias?" Journal of Abnormal Psvchologv. 97,
289-295.
Respectfully submitted.
Appendix C
NO.
F98-02133-N
V.
COURT OF
ORDER
On this the
Experts.
t h e r e GRANTED.
to wit:
Dr.
J.
Douglas Crowder;
Page
are hereby SEALED until the trial of this cause or the further
order of this court.
ORDER
Page
Appendix D
-H^'ageiD 1139
' .a^yC J
'Z>e^
Appendix E
federal appealphase who present Mr.Flores' social history through their testimony. In
order to investigate Mr. Flores' social historyand other mitigating factors, I follow the
standard of care required by mental health and medical professionals whowillrely
upon the investigation to reach their expertopinions. I alsotake into accountthe body
Flores'original trial in order to determine the scopeof investigation necessary for the
Page 2of15
cursory investigation ofMr. Fiores' background was conducted prior to his original
trial and sentencing, and that substantial investigation was necessary to prepare an
b.
anoutline ofhis social history, including his medical history, learning disabilities,
possible mental impairments andhistory ofchildhood drug abuse.
c.
but by nomeans all or even a representative sampie, ofMr. Ffefes' biological family
members.
d.
e.
f.
g.
civU records relating to Mr. Fiores' parents, caretakers and siblings. Dozens ofrecords
have been identified and were ordered for review.Others will require subpoena.
Page 3 of 15
employment records thatneed to be obtained for Mr. Flores, his siblings, and others
who had a significant role inhis life. These records arenecessary notjust todetermine
family patterns ofbehavior but also todetermine genetic predisposition tomedical and
psychiatric disease, including addictive disease.
j.
k.
economical and efficient manner in which to obtain records, locate witnesses, and
interview witnesses.
3.
hypotheses and support them with court worthy evidence such asdocumentation and
testimony by lay witnesses.
4.
Page 4of 15
pattern ofMr. Flores' inability to maintain academic expectations and discipline with
his peers. He was evaluated, placed in alternative school, hisgrades significantly below
acceptable levels forhisintelligence anddropped outofschool in the ninthgrade
because he no longerwanted to attend school. School recordsprovide the names ofhis
regular classroom teachers, principals, andcounselors who needto be located and
7.
first wife and mother of two of his sons,Julian andJoe, because she was addicted to
drugs andrefused to stop. Carter was awarded custody of the boys. Lily Carter's first
husband was killed in a motor vehicle accident. He was father of her son's, Antonio and
ends meet. Lily adopted her niece, Frances, andraised her asher daughter. Carter and
lily married whenAntonio was twelve. Charles was born soon after.The family didnot
merge easily. Carter tried to be a fatherto theJojola boys but Antonio (Tony) didnot
accept Carter right away. Tony frequently ran away to stay with his uncle andothers of
hismother's relatives. Tonystated duringhis interview that he beganhiscriminal
Case 3:07-cv-00413-M
Page 5 of15
expelled from school at age fifteen andhe never returned. By the timeCharles was ten,
Tony was in prison.
8.
9.
Syndicate. Tony denies any association. Ifparoled he would like to go back to Auto
Mechanics.
10.
Things were very roughforthem for a few yearsandthey lost everything. Thefamily
relocated to Irving, Texas. Charles had lived in the sameplace sincekindergarten and
wasdose to his friends in Midland. Charleswas very upset about the move. Hefelt
Charles feels remorse for the things he has done. Charles maintains his
innocence in the case for which he is currently incarcerated. Heis remorseful for the
12.
Page 6of15
Mr. Flores sustained multiple head injuries during childhopd that may
have contributed to cognitive impairment. According toMr. Flores and his father, Mr.
Flores was somewhat ofa daredevil and was frequently injured bya series ofaccidents
on his motorcycle. Mr. Flores' parents did not take him for medical treatment after
these accidents even though he demonstrated signs ofconcussion. They did not mean
to withhold medical treatment as some form ofdeprivation or abuse. They simply felt
that his injuries would improve without treatment. Potential brain damage could be a
result ofthe head injuries alone and could be exacerbated by prolonged exposure to
illegal drugs.
13.
Mr. and Mrs. Flores believed that indulging their sons with motorbikes
and other types of entertainment was their way ofshowing affection. Mr. Carter Flores,
Charles Flores' father, stated that he was so occupied with his business that he
frequently indulged his sonswith expensive toys in lieu ofhis time and attention. Mrs.
Flores assisted with the business too.
14.
are currently incarcerated or have been incarcerated for murder or attempted murder.
All have drug histories. The husband of his sister made his living selling illegal drugs.
Charles looked up to his brothers and he followed their examples. Charles' brother,
Antonio was interviewed and stated that herecalls thatCharles was encouraged to
smoke marijuana asearly as five years old.
15.
Mr. Flores may also have asignificant history offamily illness that made
him genetically vulnerable to mental illness. His brother's pattern ofbehavior are
consistent with symptoms of bipolar mood disorder, which is known to have astrong
Page 7of15
genetic component, and Post Traumatic Stress Disorder. These symptoms include
addiction to alcohol and Illicit drugs, hyper-sexuality, episodes ofmania and
impulsivity, anxiety and depression. Charles was successfully being treated with
Welbutrin for depression while incarcerated but that medication has been terminated
because Charles was accused ofabusing it.Charles needs to be re-evaluated for anti-
which heattributes tohis depression. Itisone ofthe only things hecan control.
16.
17.
Mr. Carter Flores and Mrs. Lily Fibres aredevoted members ofthe
Church ofChrist. They are and were elders ofthe church since Charles was about five
years old. Prior to that Carter Flores admitted to ahistory that included alcohol. Lily
Flores experienced the death ofher first husband and father ofher two oldest sons. She
may have used alcohol during that period and before her religious recommitment. She
may have ingested alcohol during her pregnancy with Mr. Flores and his siblings.
Friends of Mr. Flores' mother need to be identified, locatedand interviewed to
determine ifshe drank during her pregnancy with Mr. Flores and ifshe demonstrated
symptoms commonly associated with mental illness in order to determine ifMr. Flores
had agenetic predisposition tomental illness. One ofMr. Flores* brothers died in
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prison. The medical examiner's report for his death needs to be obtained, along with
investigation reports.
18.
Mr. Flores' medical records offer evidence for multiple hypotheses about
the origin ofliis brain damage. His neurologic impairments may be the result ofearly
drug use ofmarijuana, inhalants, amphetamines, barbiturates, and cocaine. Drug use
causes both physical and mental abnormalities. Mr. Flores' medical records describe
the following diagnoses that are associated with mental illness; bipolar disorder, Major
Depressive Disorder, Adult Attention Deficit, Sleep Disorder, Post Traumatic Stress
Disorder, various Personality Disorders and eating disorder. He has physical illnesses
including gastrointestinal issues, obesity and headaches.
19.
Mr. Flores' addiction to illicit substances began early in life and at the
instigation ofhis brothers. By the age offive, according to several reports, his brothers
and other relatives gave him alcohol and drugs toentertain him. Mr. Flores' brain
functioning may also have been disrupted early in. his childhood when he consumed
toxic qualities of alcohol daily and later in his adolescence when he ingested nearly
fatal quantities ofillicit drugs. He also ingested dangerous quantities of organic
solvents (glue and paint), known to cause irreversible brain damage. Mr. Flores began
his chronic use ofalcohol and drugs atthe behest ofhis brothers and continued touse
Drugs and alcohol are especially toxic to developing brains in infants, children and
adolescents. In 1984, shortly after his arrest for the juvenile offenses, apsychological
assessment concluded Mr. Flores' use ofdrugs and sniffing gasoline may have
Page 9 of 15
permanently effected his mental functioning and noted his poorjudgment and history
ofblack outs. We are developing a detailed drug andalcohol history with Mr. Floras,
butneed toverify the history with percipient witnesses. Charles brother, Tony, was
interviewed and corroboratedhis earlydruguse.
20.
Since his incarceration for the current offense,Mr. Floras has received
neurological disease, anxiety related disorder, and depression. Medical and staffnotes
medications for the treatment ofsymptoms frequently associated with Post Traumatic
depressive disorders), and anxiety. During our interviews with Mr. Flores' relatives and
/
Charles Flores stated that He was never able to maintain any type of
22.
Charles reported that he experienced sexual abuse from his cousin, Nick
Gonzalez, Jr., when he was in first or secondgrade. Charles stated that hiscousinwas
thirteen years old at thetime and that theabuse continued for a number ofj'ears. Nick
Page 10 of15
Gonzalez died of AIDS several and is unavailable to corroborate this activity. Charles
confused him regarding hisability to have a normal sexual relationship. Charles stated
that he neverdisclosed anything aboutthe abuse to anyone before this investigation.
23.
gather appropriate records about otherfamily members .who have mental disabilities
or historiesthat affected Mr.Flores' behavioror functioning. The tasksnecessary for
Page 11 of15
including Food Stamps, AFDC, WIG, v/elfare, counseling records, referrals, and medical
and mental health treatment, records associated with adoption agencies (his sister is
that treated his mother, including those for his birth and the birth of his 'siblings to
determine the extent ofher alcohol use during pregnancies.
progress notes, referrals and court files for Mr. Flores and his siblings.
g. Locate and interview his parents and siblings and obtain their
releases for medical, educational, and employment records.
h. Locate and interview the friends who knew ofhis sexual and
physicalabuse.
Page 12 of 15
Wichita Falls, Texas to.obtain release and psychiatric, educational, and employment
records.
psychiatric staffat the Polunslqr Unit regarding Mr. Flores' prison conduct and good
behavior.
Tiffany Farris, Mary Stark,John Hernandez, Terry Hernandez, Butch Martin, Raymond
Rodriguez, Brad Pace,Justin Cody Pratlier,Jimmy Martindaie, Corey and Lance Brown,
Mayra, Horaero and Michael Gonzalez.
24.
the legal proceedings and conversations with trial counsel, it is my opinion the
investigation into mitigation for Mr. Flores' appeal is, at this time, inadequate and
incomplete until we complete or attempt to complete the above outlined tasks. In my
opinion, acompetent and reliable investigation ofmitigation evidence to present at the
appeal phase in Mr. Flores; case will require an additional 160 hours.
25.
This estimate reflects the time intensive nature of interviews with and
about victims and perpetrators ofcMd physical, sexual and emotional abuse that Mr.
Page 13 of15
Flores survived Mitigating interviewing is the core skill ofpreparing for this appeal. It
is the means though which the story ofthe defendants life is elicited and the most
important single source ofdiagnostic data for mental health experts. Mitigation
specialists are trained in the framework for the interview, the structure and process of
the interview, the context of the interview, and special situations and types of
interviews. Information must be obtained in acomplete and unbiased fashion and then,
organized andrelated to alarger fund ofinformation about the defendant's life history
and hypotheses that provide insight into his behavior.
26.
consuming and complex. Foremost, it is very likely that serious child abuse occurred
during Mr. Flores' chddhood, but it does not mean that the experience or long term
consequence is the same for all capital defendants. Presentation ofchild abuse must be
particularized, investigated, and evaluated on its own merit in each case. The nexus
between the abuse and other adverse factors must be investigated and documented.
The interplay between poverty, race and ethnic bias, substance-abuse, impaired
cognition, brain damage, and trauma outside the home forms asocial historical profile.
27.
disprove that specific acts occurred. The majority oflegally admissible information is
collected by interviewing witnesses other than the defendant and the perpetrators.
Witnesses to abuse and perpetrators are extremely reluctant to divulge accurate
information about the nature and frequency of abuse within the household. Interviews
around issues of abuse are likely to fracture and disrupt family functioning and cause
Page 14 of15
non cooperation with some family members- especially the perpetrators. Shame,
embarrassment, and fear initially create barriers to accurate disclosure, and the
mitigation specialist must exercise skills aimed at overcoming those barriers. She must
build an atmosphere oftrust and respect for the witnesses and provide confidentiality
for disclosure. Multiple and lengthy interviews over time are necessary in order to
create aprotective climate that allows reluctant and fearful witnesses to provide
accurate information.
28.
perpetrators ofchUd abuse. Interviewing the perpetrators ofchild abuse and neglect
can provide credible validation that abuse occurred. Perpetrators can be biological
parents, step-parents, foster parents, caretakers injuvenile residential programs,
neighbors, teachers, clergy, or other relatives. Itis important to gather as much
background information as possible before Interviewing the suspected perpetrators,
including criminal history, hobbies, likes, dislikes, personal history, and evidence or
previous reports ofdomestic violence in current and prior residences. The mitigation
specialist's goal is to build rapport with the perpetrators and to encourage openness.
Page 15 of 15
Ideclare under penalty ofperjury under the laws ofthe State ofTexas that the
foregoing is true and correct to the best ofmy knowledge based upon interviews and
documentation collected for the purpose ofthis investigation.
Executed this4thday ofSeptember, 2007.