IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
NO. WR-64,654-02

EX PARTE CHARLES DON FLORES, Applicant

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS

IN CAUSE NO. F98-02133 IN THE 195 JUDICIAL DISTRICT COURT

DALLAS COUNTY

Per curiam. Newell, J., filed a concurring opinion. Keller, P.J., filed a
dissenting opinion. Meyers, J., dissents.
ORDER

This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071 5.

In April 1999, a jury found applicant guilty of the offense of capital murder. The
jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure

Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This
Court affirmed applicant's conviction and sentence on direct appeal. Flores v. State, No.
AP-73,463 (Tex. Crim. App. Nov. 7, 2001)(not designated for publication). Applicant

Flores - 2

filed his initial application for a writ of habeas corpus in the convicting court in
September 2000, and he timely filed supplements to the application in December 2000.

This Court subsequently denied relief on all of his claims. Ex parte Flores, No. WR64,654-01 (Tex. Crim. App. Sept. 20, 2006)(not designated for publication).
On May 19, 2016, applicant filed in the trial court his first subsequent application
for a writ of habeas corpus. Applicant raises four allegations inhis application. After

reviewing applicant's application, we find that his first allegation satisfies the
requirements of Article 11.071 5. Accordingly, applicant's first allegation is remanded
to the trial court. Applicant's motion to stay his execution is granted pending the
resolution of his habeas application.

IT IS SO ORDERED THIS THE 27th DAY OF MAY, 2016.

Do not publish

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
NO. WR-64,654-01

Ex parte CHARLES DON FLORES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F98-02133

IN THE 195 JUDICIAL DISTRICT COURT

OF DALLAS COUNTY

NEWELL, J., filed a concurring opinion.

I concur in this Court's decision to stay the execution in this case. Applicant
was convicted of capital murder and sentenced to death based in part upon
hypnotically-enhanced eyewitness testimony. As we have noted in Tillman v. State,

eyewitness misidentification is the leading cause of wrongful convictions across the

country. Tillman v. State, 354 S.W.3d 425, 441 (Tex. Crim. App. 2011). I cannot

imagine that the concerns regarding suggestive eyewitness identification evaporate

when eyewitness testimony is enhanced through hypnotism. Regardless of whether
Applicant can ultimately prevail in his subsequent writ, he has made a prima facie

Flores Concurring - 2
case that Article 11.073 applies and this Court rightly stays the proceedings so he can

develop that claim. We may ultimately grant relief. We may ultimately deny relief.

But either way, given the subject matter, by granting a stay this Court acknowledges
that whatever we do, we owe a clear explanation for our decision to the citizens of
Texas. And at this juncture, I see no reason to enhance the arguments of either party
by arguing the merits.

With these thoughts I concur.

Filed: May 27, 2016

Do Not Publish

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS
NO.WR-64,654-01

Ex parte CHARLES DON FLORES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F98-02133

IN THE 195th JUDICIAL DISTRICT COURT

OF DALLAS COUNTY

Keller, P.J., filed a dissenting opinion.

I will assume that Dr. Lynn is an expert on hypnosis whose opinion constitutes newly
discovered scientific evidence. I would nevertheless dismiss this application because applicant has

failed to show that it is more likely than not that he would not have been convicted if Dr. Lynn's
testimony had been presented at trial.

First, although Bargainer underwent hypnosis, no one suggested to her a physical description

of applicant, and she had not seen a currentphotograph of him.1 This is not a case where someone
described the defendant during hypnosis and that description became the basis of the identification.

Before hypnosis, Bargainer said the Volkswagen passenger's eyes were dark, and after hypnosis she

Flores v. State, No. AP-73,463 (Tex. Crim. App. Nov. 7, 2001).

FLORES DISSENT - 2

said that they were brown, but she said that other than that, she did not remember anything new as

a result of hypnosis. Bargainer eventually identified applicant at trial, but it is not clear that Dr.
Lynn's testimony about hypnosis has any bearing on that identification.

But second, even if Bargainer's testimony was tainted by the hypnosis, other testimony
implicated applicant in the murder. The jury could have found applicant guilty by acting alone or
as a party. In addition to Bargainer's testimony, our opinion on direct appeal set out these facts that
implicate applicant, at the very least, as a party:

[Applicant] manifested an intent to steal Gary Black's money to satisfy the perceived
shortfall on the drug deal. [Applicant] and Childs armed themselves with three
firearms. . .At the time of his arrest, [applicant] had ammunition of the same caliber
and brand as the shell casing found at the murder scene. . .[Applicant] admitted that
he was at the scene and told two people that he shot the dog and Childs shot "the old
lady." Other evidence places [applicant] with Childs around the time of the murder:
they spent the early morning hours ofthe day ofthe murder haggling over a dope deal
with Jackie Roberts; they "did dope" with Vanessa Stovall and then left in the same
vehicle that was seen by several witnesses at the scene of the murder around the time
of Mrs. Black's death. . .[A] neighbor testified that [applicant] bore a resemblance
to the passenger, although she could not make a positive identification... [Applicant]
also attempted to destroy evidence, avoid apprehension, and escape from custody. .
.[Applicant] repainted and burned the distinctive Volkswagen in which he and Childs
had driven to the Blacks' house and then fled from a motorist who witnessed the

arson. He presented false identification to peace officers who stopped his car near
Kyle and assaulted them when they attempted to arrest him for driving while
intoxicated. He also tried to escape from the officer who escorted him to Parkland

Hospital for medical treatment.2

The record also shows that applicant told a friend that he had gotten himself into a little

trouble and needed to get out of the country. When the friend said, "You call this a little bit of

trouble, killing a 64-year-old woman," applicant said, "I only shot the dog."
And, as applicant admits, his own counsel acknowledged that applicant was present at the

2 Id.

FLORES DISSENT - 3

Blacks' house on the morning of the murder.

For these reasons, I respectfully dissent.

Filed: May 27, 2016
Do not publish