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Court of Criminal Appeals No.

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

EX PARTE CHARLES DON FLORES

STATES 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
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

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 jurys 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,

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)

the jury instructions on mitigation were constitutionally defective;

(2)

the prosecutor failed to disclose known impeachment evidence regarding an


expert witness for the State;

(3)

the trial court improperly admitted hypnotically-enhanced eyewitness


testimony in violation of his Fourteenth Amendment right to due process and
his Sixth Amendment right to confrontation; and

(4)

state habeas counsel rendered ineffective assistance by failing to raise claims


that
(a) Flores's due process rights were violated when the trial court
failed to complete a Batson hearing initiated by trial counsel;
(b) Flores received ineffective assistance when trial counsel failed to
secure a ruling on his Batson challenge after initiating a hearing;
(c) Flores received ineffective assistance when his appellate counsel
failed to raise a due process challenge to the trial court's failure to
3

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

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 50001.
3

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

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 Jackies home at some time later that morning. Jackie
had 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 Jackies 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. When
Jackie 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 former
girlfriend, Vanessa Stovall, testified that Childs and [Flores] arrived at
Childs grandmothers 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.
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

Myra Wait and her brother Jonathan. (RR36: 26168).


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)

by a preponderance of the evidence, but for a violation of the


United 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
states favor one or more of the special issues that were submitted
to the jury in the applicants 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
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 if they believed it was the product of hypnosis.


Procedural History
In addition to Flores trial court objection to Bargainers identification
17

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

challenged Bargainers 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 witnesss 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. 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

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, Bargainers 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 magistrates recommendation. Flores,
2014 U.S. Dist. LEXIS 97028, at *2728. The district court also rejected Flores
request to amend his federal petition, in light of the United States Supreme Courts
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 Courts Findings of Fact and Conclusions of Law, Appendix E at 1).


13

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

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 Bargainers in-court identification of Flores had
such 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 50506.
Applicable 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
persons 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 persons 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
22

(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
Bargainers identification was, in fact, the product of hypnosis or was a false memory.
Dr. Lynns 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 experts
23

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

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: 8586). Waits 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 COUNSELS
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).
26

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 Trevinos 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).


27

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

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: 7183). 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: 12326,13537, 14144, 15152, 16167, 18693, 20612,
215; RR40: 1518, 3650, 6569; 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: 91104; RR41: 2833). 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. Fulbrights 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
30

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.
Crowders pre-trial evaluation, in which Dr. Crowder concluded that Flores exhibited
symptoms of psychopathy. Dr. Crowders 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
evidencethat 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 teenageris 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. 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

counsels decision was itself reasonable). (Petitioners 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 * 3840. 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 met
with 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 Floress 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 courts conclusion
that Flores failed to plead a substantial claim that counsels 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 Tussays affidavit,20 presented for the first time in Flores
supplemental briefing, consists largely of unsupported speculation and
hypotheses about mitigating evidence that might exist. In the light of the
20

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

evidence about the facts of the murder, Floress 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 evidence
of 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 COUNTYS 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.
35

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

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

39

Appendix A

STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

AFFIDAVIT

_J

BEFOREME, the undersigned authority, personally appeared R. EDWARD GEISELMAN,


.J

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 intheappeal ofthematter styled Charles Floresvs. The State

ofTexas, Court ofAppeals No. 73,463. The focus ofmy analysis was
to examine the potential suggestiveness of an 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 ofthe
documents and the audio-video recording ofthe hypnosis sessionthat
I wasprovided, it is my summary opinion that the instant interview
in this casemayverywellhavecausedandotherwise affectedthe inn
i

j
-

court identification of the defendant by the eyewitness. It is my


opinion that eyewitness Bargainer's threshold for making an
identificationwas likely lowered as aresult ofthe hypnosis interview,

While she failed to make an identificationofthe defendantfrom afair

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

unreliable and possibly mistaken.


This Expert's Relevant Background

I have been qualified to offer expert testimony about issues relevant

-j

to eyewitness psychology inover 300 criminal trials and hearings in

several states spanning 17 years. I have reviewed over 600 criminal

"I

central. In addition, Ihave participated in the analysis and critiquing

cases forboth trial andappellate courts where eyewitness issues were

ofpolice interviews, andIhave served as an investigative interviewer


for law enforcement on cold cases. I have 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.

"1

AFFIDAVIT OFR.EDWARD GEISELMAN, Ph.D. - Page I

I co-developed a standardized protocol for interviewing victims and


witnesses of crime calledthe Cognitive Interview. Elements of this

protocol formed part of the basis for the Department of Justice


guidelines onhandling andpreserving 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 both DOJ documents, and this protocol ismore

fully described inthe volume titled, "Memory-EnhancingTechniques


for hivestigative Interviewing: The Cognitive Interview,'* (Fisher &

_j

Geiselman, 1992).

~j

I have published research in which the original version of the

Cognitive Interview protocol was compared directly with forensichypnosis interviews conducted by experienced law enforcement
personnel(Geiselmanet al, 1985). In addition,I have conductedand

published a meta-analysis of studies concerning the reliability of


information obtained using forensic hypnosis (Geiselman &

Machlovitz, 1987).
Materials Reviewed from this Case

1J

In the preparation ofthis report, I reviewed the following documents


and materials:

1.

Audio-video recording ofthe forensic hypnosis session with


Jill Bargainer;

1
-

2.

Jill Bargainer*s trial testimony;

3.

Texas Court ofCriminal Appeals* Opinion;

4.

Zanihearing testimony;

5.

Jill Bargainer*s testimony outside presence ofjury;

6.

Briefing on Writ;

7.

Photo lineup and photos of Robert Flores;

Forensic-Hvonosis Interviews and Hvpersuggestibility


-i

Summary research suggests that some forensic-hypnosis procedures


ABFIDAVIT OFR.EDWARD GEISELMAN, Ph,D. - Page 2

may lead to false identifications as well as to elevated eyewitness


confidence in themistaken identifications (seeSteblay & Bothwell,
1994, for a meta-analysis of the relevant literature). Some of these
problems can be attributed to the hypnotized witness being more
suggestible to leading questions and other interdictions from the

interviewer. However, even inthe 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).


n

^
J

~j
_j

In this case, it is my understanding that eyewitness Jill Bargainer


initiated a request that she be hypnotized in anattempt to ease her
anxiety toward clarifying hermemory. Indeed, Officer Sematestified
that he employed themovie theater technique because hesensed in
Ms. Bargainer ahigh level ofanxiety (pp. 46-47,55-56). However,
considerable research has shown thathypnosis 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 an hypnosis 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; also seeGeiselman et al., 1985; Geisehnan &
-

Machlovitz, 1987).

It is not uncommon for hypnotized eyewitnesses to come to believe

_
I

that they should remember more (Vi^tehouse et al., 1988). An


identification of a person is much likea signal detection taskwhere
once the feeling of familiarity for a person exceeds the witness's

threshold, the witness will make the identification. Itismy opinion


thatthetrial court's limiting instructiontothejurywas adequate with
respect to any police 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
1

hypnosis interview believing that she should remember the person


whom she saw brieflyon the day in question.
The Forensic-Hypnosis Interview in this Case

Itismyopinionthatthejudge attheZani hearing was correctwith his


remark that, "(T)he real issue here is whether her in-court
AFFIDAVIT OFR.EDWARD GEISELMAN, Ph.D. - Page3

identification istrustworthy ornot." (p. 17) Given myunderstanding


of the facts leading up to eyewitness Jill Bargainer's in-court

identification ofdefendant Charles Flores, her identification was not


trustworthy, andI believe this to be true in partbecause of theprior
hypnosis session.
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

announced that he would be counting from 1-20 to bring her out of


hypnosis andbring herbackto thepresent day:

1.

The interviewer stated that when he reached 20: "You will

find that all stress has been gone," and, "You might find

~j

yourselfable 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."

1
-J

3.

At this point, the interviewer reinforced his earlier statement

witha post-hypnotic suggestion using words such as: 'Tou


might find yourselfjust recalling things. ... It's almost a

phenomenon thewaythish^pens.. .sothatisnotuncommon

justtoremember something after the session." [Note these

~j

comments from thehypnosis interviewer areinstarkcontrast

towhat has been recommended bythe American Society of


Clinical Hypnosis (ASCH, Hammond etal, 1995) topresent
a discussion of theimperfections of memory "in and outof

~t

hypnosis".]
n
i

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 animpression ofthe second person,
(p. 101)

It is not possible to determine the extent to which eyewitness Jill


Bargainer felt thatsheshouldremember moredetailsas a resultofthe

forensic hypnosis interview experience. However, it is entirely


.

J
-(

AFFIDAVir OF R. EDWARD GEBELMAN. Ph.D. - Page 4

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

Based on my review and analysis ofthe documents and materials that


I was provided, it is my opinion that the forensic hypnosis interview
session might have caused and otherwise affected the in-court
identification ofCharles Flores by eyewitness Jill Bargainer. A posthypnotic suggestion was used by the 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.
Citations

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

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., "Memory Enhancement Techniques


for Investigative Interviews: The Cognitive Interview." Springfield,
Illinois: Charles C. Thomas Publishers. (1992)
t

J
!

AFFIDAVITOF R. EDWARD GEISELMAN, Ph.D. - Page 5

-J

Geiselinan, R.E.'^Eyewitness ExpertTestimony." LagunaBeach,CA:


American College ofForensicPsychology Press (186pages)(1996) 2nd 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, "MethodologicalFactors Affect


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 ofExperimentalPsychology: T.eflminfyMfiinniy^
and Cognition. 9, 626-635 (1983)

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

~|

forClinicians andforForensic Hypnosis. Des Plaines, II. American

Societyof ClinicalHypnosis Press (1995)


Krakow,E., Lynn, S.J., & Payne,D. "The Death of PrincessDiana:

The Effects of Memory Enhancement Procedures." Tmaginfltinn,


Comition. and Personality(2006)
1
I

Lynn, S.J.,Myers, B., & Malinoski, P. "Hypnosis, Pseudomemories

and Clinical Guidelines: A Sociocognitive Perspective. InD.Read


n

& S. Lindsay (Eds.), Recollections ofTrauma: Scientific Studies and


Clinical Practice. Plenum Press: New York

Steblay, N.M. & Bothwwell, R., "Evidence for Hypnotically


Refreshed Testimony," Law and Human Behavior. 18, 635-651
(1994)

Tunm, H.W., "The Factors Theoretically Affecting the Impact of


J

Forensic Hypnosis Techniques on Eyewitness Recall," Joumal of


Police Science andAdministratioru 11,442-450 (1983)

AFFBDAVrr OFR. EDWARD GEISELMAN, PhJ5.- Page6

Whitehouse, W.G., Dinges, D.F., Ome, E.G., & Ome, M.T.,


"Hypnotic Hypemmesia: EnhancedMemoryAccessibility or Report
Bias?" Journal of Abnormal Psychology. 97,289-295 (1988)
n

R. EDWARD GEISELMAN, PLD.


Affiant

the
J

SUBSCRIBED AND SWORNTO beforeme,the undersigned notarypublic, onthis

PJSL

day of MAA.M

2008,

THANH LEi

Coinin.l1$3S044

KOTMtYPttBUC-CAUFONKA W
letAA^CwIy
"*

NyCoiiuii.&?ifeiDec.M.2a08t
"1

AFFEAVrr OF R. EDWARD GEISELMAN, Ph.D. - Page 7

Notary Public in and for the Smte of California

Appendix B

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 23 of 27 PagelD 1157

Affidavit

Filedby R. Edward Geiselman, PliD,

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

the eyewitness. It is my opinion that eyewitness Bargainer's tlireshold for making an


identification was likely lowered as a result ofthe hypnosis interview. While she failed
to make an identificationof the defendant from a fair photo amay subsequent to the

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.

Ico-developed a standardized protocol for interviewing victims and witnesses of


crime called the Cognitive Interview. Elements ofthis protocol fonned peirt of the basis
for the DOJ guidelines on handling and preserving eyewitness evidence published in
1999 (U.S. DOJ, "Eyewitness Evidence: Aguide for law enforcement," 1999) as well as
the follow-up training materials published in2003 (U.S. DOJ, "Eyewitness Evidence: A
Trainer's Manual for Law Enforcement," 2003). Elements of this protocol are described

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.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 24 of 27 PagelD 1158


9

3.
4.
5.
6.
7.

Texas Court of Criminal Appeals' Opinion.


Zani hearing testimony,
Jill Bargainer's testimony outside presence ofjury.
Briefing on Writ.
Photo lineup and photos of Robert Floras.

Forensic-Hypnosis Interviews

Summary research suggests thatsome forensic-hypnosis procedures may lead to false


identifications as well as to elevated eyewitness confidence in the mistal^en

identifications (see Steblay & Bothwell, 1994, for a meta-analysis of tlierelevant


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 of leadingquestions and otlier forms of suggestion from

theinterviewer, some hypnotized eyewitnesses will come to believe thatthey should


remember more details as a resultof the hypnosis (Green & Lynn, 2005; Whitehouse,

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

Document 81-1 Filed 06/01/12

Page 25 of 27 PagelD 1159


3

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).

Given my understanding of the facts leading up to eyewitness Jill Bargainer's in-court


identification of defendant Charles Flores, her identification was not trustworthy and I

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

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 26 of 27 PagelD 1160


4

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

expressed by eyewitness Bargainer at trial in her identification of Robert Flores. It is


well known that the confidence expressed by an eyewitness and the corresponding
accuracy of an identification are at best only wealdy related andshould notbe relied upon
alone to deteimine reliability. None of these factors were explainedto tliejury at hial via
experttestimony (see Cutler& Penrod, 1995; Geiselman, 1996). Instead, the jury was
left to rely on the confidence expressed by eyewitness Bargainer to evaluate the
trustworthiness of her in-court identification of Charles Flores as the person she saw
brieflyon the day in question. At that point, her confidence had already been influenced
by the variety of experiences described in this report.
Summarv Conclusion

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,

and the law." New York: Cambridge Press. (1995)


Fisher, R.P. & Geiselman, R. E. "Memory enhancement techniques For investigative
interviews: The cognitive interview." Springfield, Illinois: Charles C. Thomas Publishers.
(1992)
Geiselman, R.E. "Evewitness expert testimony." Laguna Beach, CA: American
College of Forensic Psychology Press. (186 pages) (1996) - 2nd Ed.
Geiselman, R.E., R.P. Fisher, D.P. MacKinnon, & H.L. Holland, "Eyewitness memoiy

enhancement in the police interview: Cognitive retrieval mnemonics versus hypnosis,"


Journal of Applied Psychology. 70, 401-412 (1985)

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.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 27 of 27 PagelD 1161


5

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.

R. Edward Geiselman, PhD


Professor of Psychology
Date: August 3, 2007

Appendix C

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

NO.

THE STATE OF TEXAS

Page 2.of 27 Page|D 1136

F98-02133-N

IN THE 195TH DISTRICT

V.

COURT OF

CHARLES DON FLORES

DALLAS COUNTY, TEXAS

ORDER

On this the

day of February, 1999, came on to be heard

Charles Don Flores' Ex Parte Motion for Appointment of Scientific

Experts.

The Court is of the opinion that it is well taken and is

t h e r e GRANTED.

IT IS FURTHER ORDERED that the Sheriff of Dallas County shall

provide one such expert,

to wit:

Dr.

J.

Douglas Crowder;

qualified psychiatrist, access to the Defendant herein on an as


needed basis until trial of this matter has been completed.

IT IS FURTHER ORDERED that the Sheriff of Dallas County shall


allow .access to the said defendant by Dr. J. Douglas Crowder or

other experts designated by the Court at other times communicated


to the Sheriff's office by the Court or the Court's Coordinator.
IT IS FURTHER ORDERED that the expert's visit shall be a
contact visit in a room suitable for administering psychological
tests.

IT IS FURTHER ORDERED that Dr. Crowder may be accompanied by,

or may designate a qualified psycologist to administer tests to the


Defendant, which psycologist shall be given the same access, under
the same conditions as Dr. Crowder.

In order to preserve the attorney/client relationship and the


confidentiality of the scientific evaluations prior to trial, the
ORDER -

Page

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12 Page 3 of 27 PagelD 1137


following order is entered:

The Sheriff of Dallas County, his employees, agents, servants,

or others who have actual Icnov/ledge of this order are hereby


ORDERED to maintain the records of such experts visits with the
Defendant at their institution in a confidential manner and not to

disclose the dates, times, places or durations of any such visits.


It is further ORDERED that any records to which the experts are

granted access shall not be disclosed, nor shall any information be


provided to any individual concerning the expert's research and
investigations without further order of this court.
IT IS FURTHER ORDERED that the Motion and this Order be and

are hereby SEALED until the trial of this cause or the further
order of this court.

Disclosure of the contents of the Order by

the Dallas County Sheriff's Office, his agents, servants, employees

or others who gain actual knowledge of them are prohibited until


further order of this Court.

SIGNED this 3/lJ^ day of February, 1999.


JUiDGE PRESIDING

ORDER

Page

Appendix D

Case 3:O7-cv-a04i9-M--rpocument Ql-1 >.^6 Q&tSH12 Page

-H^'ageiD 1139

' .a^yC J

I^f-tJt/^ )A^f^ lZ%'^i->T:^ TriipS^'/yi


drwy tj'P'A<)'^
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Appendix E

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 7 of 27 PagelD 1141

DECLARATION OF LYNDA TUSSAY, MA., MITIGATION SPECIAUST


I, Lynda Tussay, M.A., declare as follows:
1.

I am the executivedirector of the Omniphaslc Institute, an organization

that serves to assist defense in capital cases. I am a mitigation specialistassisting


t

defense counselin the current capital appealproceedings against CharlesDon Flores,

My responsibilities includeinvestigating and developing evidence of mitigation to


present at Mr.Flores' hearing, including a reliablesocialand medicalhistory of Mr.

Flores. I also assist counselin identifying, selectingand preparing mental health


experts to evaluate Mr, Flores and to testifyat the hearing.
2.

Much of the information my staffand I developwill be used as a basisof

a social historythat covers significant events andfacts that shapedMr. Flores*


functioningand behavior and willbe relied upon bymental health professionalsat the

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

oflawthat defines mitigating factors andeffective assistance ofcounsel in capital


cases. As part ofmy responsibilities, mystaffand I havecompletedthe following tasks:
a.

Collected and analyzedthe Investigation conducted prior to Mr.

Flores'original trial in order to determine the scopeof investigation necessary for the

appealand analyzed the originaltrial proceedings to determine potential witnesses to


locate and interview and documents to obtain. I determined that an incomplete and

Case 3:07-cv-00413-M Document 81-1 Filed 06/Q1/12

Page 8 of 27 PagelD 1142

DECLARATION OF LYNDA TUSSAY, M.A,, MITIGATION SPECIAUST

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

accurate andreliable social historyandto identify mitigating evidence to present on


Mr.Floras' behalf at his appeal.

b.

Conducted interview.s of Mr. Fiores at Polunsky Unitto develop

anoutline ofhis social history, including his medical history, learning disabilities,
possible mental impairments andhistory ofchildhood drug abuse.
c.

Identified,located and conductedinitial interviews with some,

but by nomeans all or even a representative sampie, ofMr. Ffefes' biological family
members.

d.

Identified, located and conducted or attemptedto conduct initial

interviews with caretakersor those whohad knowledge of caretakers whoassisted in


the care of Mr. Fiores.

e.

Prepared a chronology ofMr. Smith andhisfamily's history

based on preliminary documents, interviews andtrialtestimony.

f.

Prepared a document inventory ofrelevant life history

documents toobtain, requested documents from appropriate and prepared ananalysis


ofdocuments as they were obtained.

g.

Prepared a potential witness list ofthose persons who had

knowledge ofMr. Fiores and hisfamily or caretakers'lives over time.


h.

Conducted court searches,to identifyand retrieve criminaland

civU records relating to Mr. Fiores' parents, caretakers and siblings. Dozens ofrecords
have been identified and were ordered for review.Others will require subpoena.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 9 of 27 PagelD 1143

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST


1.

Page 3 of 15

identified and ordered medical, educational, social service and

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.

Identified, located, andinterviewed some, but not all, percipient

witnesses to the offenses, and reviewedrelevant discovery and defense-acquired


material concerning the offenses.

k.

Metwithcounsel (by phone) and hisstaffto determine the most

economical and efficient manner in which to obtain records, locate witnesses, and
interview witnesses.

3.

Thefirst phase ofthe mitigation Investigation offers several viable

hypotheses oftheconstellation offactors thatshaped andformed Mr. Flores'


development and functioning, butadditional investigation isnecessary to prove the

hypotheses and support them with court worthy evidence such asdocumentation and
testimony by lay witnesses.

4.

Due to the history ofjuvenile drugabuse, a neurdpsychoJogical

examinationshould be conducted to determine if brain damagecould have resulted


fromexposure to such substances.
5.

childhood and Adolescent school records document numerous signs and

symptoms associated withbraindamage, psychiatric disease, or both. There are


regrettably nomedical records available forthisperiod.

Case 3.:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 10 of 27 PagelD 1144

DECLAElATtON OF LYNDA TUSSAY, UA., MITIGATION SPECIALIST


6.

Page 4of 15

Allavailableschool records have been obtained and present a consistent

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

interviewed ifpossible. School records needed to bereviewed to determine academic


andsocial functioning as well asto provide additional namesofschool staffto locate
and interview. School staff and records, includingyearbooks, willprovidepeersto
interview.

7.

Charles Flores belongs to a blended family. CarterFlores divorced his

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

JuanJoJola. Antonio wassevenwhenhisfatherwas killed andJuan was oneyearold.


Afterhis death she moved around and frequentlylivedwith relatives to be ableto make

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

activities early in lifeand he resistedanyattempts byCarterto rein himin.Tony was

Case 3:07-cv-00413-M

Document 81-1 Filed 06/01/12

Page 11 of 27 PagelD 1145

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

Page 5 of15

expelled from school at age fifteen andhe never returned. By the timeCharles was ten,
Tony was in prison.

8.

Frances' husband, TerryHernandez, wasa drug dealer.

9.

Anthony statedthat he andhisfriends first resisted letting Charles

smoke marijuana but finally theygave in.Tony worked as a mechanic andwithCarter


inthe roofing business. He wasmarriedin 1976 to Kathy De La Rosa. He usedheroin
andsolddrugs. In 1977 he decided to giveup heroin and went to his mother's home to

detoxify. He experienced the withdrawal from heroin withthe helpofhismother. He


neverreturned to heroin use but continuedto use marijuanaand cocaine. Tonyhas

beenincarceratedfor Attempted Murder since he was twentythree. He isnow fifty.


During his incarcerationhe has been accused ofgangrecruiting for the Texas

Syndicate. Tony denies any association. Ifparoled he would like to go back to Auto
Mechanics.

10.

Carter Floras' roofingbusiness in Midland, Texaswent bankruptin 1986.

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

displaced. Hestated that he went twoyears withoutany friends.


11.

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

activities he wasinvolved in as a drug dealer. Hestated that in retrospect he feels he


contributedto harming others by making drugsavailable to individuals whose lives
were damaged as a result.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 12 of 27 PagelD 1146

DECLARATION OF LYNDA TUSSAY, M.A,, MITIGATION SPECIALIST

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.

Charles Flores hasfour brothersandone sister.All fourofhisbrothers

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

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 13 of 27 Page!D 1147

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

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-

depressant medication. He is currently suffering from symptoms ofdepression

including mood swings, sleep disorders, inability to concentrate, memory problems


including short term memory issues, impulsivity and hopelessness. He also believes
that God talksto him. Since hisincarceration he hasgained a great deal ofweight

which heattributes tohis depression. Itisone ofthe only things hecan control.
16.

Charles lived a double life. He attendedreligious services at the Church

ofChrist and he was a drug dealerand user.

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

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 14 of 27 PagelD 1148

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

Page 8of15

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

mind-altering substances in an effort to reduce the intense emotions he experienced as


a result offamily stress due tohis brothers' criminal activities and incarcerations.

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

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 15 of 27 - PagelD 1149

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

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

medical treatment for debilitating, extremely painful headaches which canindicate

neurological disease, anxiety related disorder, and depression. Medical and staffnotes

from theDepartment ofCorrections also indicate theMr. Flores experiences episodes


ofdissociation, mental decompensation, clinical depression, mania, paranoia, sleep

disruption, disorientation and mood liability. The Department ofCorrections medical


records showthat Mr. Flores has been prescribed a regimenof psychotropic

medications for the treatment ofsymptoms frequently associated with Post Traumatic

Stress Disorder, depression (including psychotic depressive disorders andmanic-

depressive disorders), and anxiety. During our interviews with Mr. Flores' relatives and
/

otherobservers we will attempt to determine the origin ofthese symptoms.


21.

Charles Flores stated that He was never able to maintain any type of

ordinary employment. This behavior isconsistent with adiagnosis ofuntreated bipolar


disorder. He worked forhisfather's company because he would not be terminated no
matter what he did. Healso stated that he mostly supportedhiniself as a drug dealer.

No employment records werelocated for Mr. Flores.

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

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12

Page 16 of 27 PagelD 1150

DfXLARATION OF LYNDATUSSAY, M.A., MITIGATION SPECIALIST

Page 10 of15

Gonzalez died of AIDS several and is unavailable to corroborate this activity. Charles

believes that this abuse damaged himemotionally andaffected hisself-esteem and

confused him regarding hisability to have a normal sexual relationship. Charles stated
that he neverdisclosed anything aboutthe abuse to anyone before this investigation.
23.

In order to confirm the information we have uncovered to date in the

mitigation investigation, we mustsupportit by independently gathered, collateral

evidence that is required in a capital sentencing proceeding, It iscrucial that the


investigation into Mr. Flores' background employ methods ofdata collection and
interviewing that are accepted bothin the legal and medical communities. Thedata

must becompetent, reliable andvalid evidence. Collateral evidence obtained from


healthcare proAdders, mentalhealthworkers, foster caregivers, law enforcement,
governmental agencies, family, neighbors, friends, schools, and employers mustbe
analyzed and offered to supportvalid claims suchas mental diseases, braindamage,
physical abiise, or drug addiction. It is important to determine the criminal
backgrounds ofadults and others who are significant figures in Mr. Flores' life and to

gather appropriate records about otherfamily members .who have mental disabilities
or historiesthat affected Mr.Flores' behavioror functioning. The tasksnecessary for

continuing the mitigation investigation include the following


a. Obtainschoolrecords from CulverYouth Home by subpoena,

including transcripts, health records, standardized testing, attendance, special


education testingand/ or classes, disciplinary action, andschool records for his .

siblings. Locate andinterview teachers whose names areidentified in additional school


records.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12 Page 17 of 27 PagelD 1151


DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

Page 11 of15

b. Employment records, including applications, attendance, job

assignments, and performance evaluations, medical, and psychological evaluations,


relocations, pay records. Social Security tax records for Mr. Flores' mother, father, and
brothers.

c. Family and individual social service records for his family

including Food Stamps, AFDC, WIG, v/elfare, counseling records, referrals, and medical
and mental health treatment, records associated with adoption agencies (his sister is

adopted), including,placement and discharge reports, progress reports, and medical


educational, mental health and intelligence evaluations whenever available.
d. Medical records, including private physicians, clinics and hospital

that treated his mother, including those for his birth and the birth of his 'siblings to
determine the extent ofher alcohol use during pregnancies.

e. County medical examiner reports, police reports, and news


accounts of his arrest and trial.

f. Youth agency andjudicial records, including defense counsel's

files, pre-trail intervention, community service records,juvenile detention records, and


all related medical, educational and intelligence evaluations, treatment plans, field and

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.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12 Page 18 of 27 PagelD 1152


k

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

Page 12 of 15

i. Locate and. interview brother, Juan, who is incarcerated in

Wichita Falls, Texas to.obtain release and psychiatric, educational, and employment
records.

j. Followupinterviews andsearchfor memorabilia with the


parents.

k. Interview staff, volunteers, counselors, and medical and

psychiatric staffat the Polunslqr Unit regarding Mr. Flores' prison conduct and good
behavior.

1. Identify and locate records relating to the death of his cousin,


Nick, who died from AIDS.

m. Locate and interview witnesses to his motorcycle accidents.

h. Locate and interview Tim Lewis, Steve Smith, Dina Galloway,

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.

Based on my experience in investigating numerous cases at this stage in

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.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12 Page 19 of 27 PagelD 1153

DECLARATION.OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

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.

Several factors make the task of mitigation interviewing especially time

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.

Investigating allegations ofchild abuse requires the mitigation specialist

to validate the allegations by collecting verifiable evidence and information to prove or

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

Case 3;07-cv-00413-M Document 81-1 Filed 06/01/12 Page 20 of 27 PagelD 1154

DECLARATION OF LYNDA TUSSAY, M.A., MITIGATION SPECIALIST

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.

The dynamics ofchild abuse govern the protocol for interviewing

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.

The suspected perpetrator must be allowed as much time as necessary to be


comfortable talking about his life and his perceptions of the defendant Perpetrators
often admit specific acts ofabuse only after multiple visits.
29.

The results of the investigation will be relied upon by counsel to

determine which witness and evidence to present atpenalty phase.

Case 3:07-cv-00413-M Document 81-1 Filed 06/01/12 Page 21 of 27 PagelD 1155

declaration of LYNDA TUSSAY. M.A., MITIGATION SPECIALIST

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.

LyndaTussay, M.A., Mitigation Specialist

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