Motion For Access To Evidence To Conduct DNA Testing

Filled by Gretchen S. Sween on September 9th, 2022

Charles Don Flores is currently confined on Texas’s death row pursuant to the judgment of the 195th District Court, Dallas County, Texas, entered in 1999. By and through counsel, Flores files this Motion for Access to Evidence to Conduct DNA Testing pursuant to Chapter 64 of the Texas Code of Criminal Procedure. Flores’s counsel have previously conferred with counsel for the State, represented in this case by the Dallas County District Attorney’s Office (“DA’s Office”), about seeking the DNA testing described below. The State has not yet clarified whether it opposes the relief requested in this motion. In support of this motion, Flores respectfully shows the following:


Flores seeks a court order allowing access to physical evidence within the State’s control and currently being held by either (1) the Dallas County crime lab aka the Southwestern Institute of Forensic Sciences (“SWIFS”) or (2) the Farmers Branch Police Department, which conducted the original investigation of the 1998 crime for which Flores has been confined on death row since 1999.

The physical evidence in question is a piece of chewing gum found at the crime scene near the slain body of the human victim’s dog. It is undisputed that an unknown male DNA profile was obtained from the gum as a result of testing the State pursued in 1999. The State represents that the gum still exists and is susceptible to further testing.

Flores is asking that either the gum extract obtained during previous testing or part of the gum itself be sent to a reputable laboratory, to be designated by his expert, Dr. Colleen Fitzpatrick of “Identifinders International.” Identifinders International is a forensic genetic genealogy consulting firm that has successfully identified both murder victims and perpetrators using DNA profiles and contemporary analytical methods. Dr. Fitzpatrick is a scientist and the founder of the new field of “Forensic Genealogy.” She was the first individual to use genetic genealogy to generate investigative leads by combining DNA analysis with genealogy, a forensic technique Dr. Fitzgerald pioneered utilizing continuously expanding databases to help solve cold cases. She solved the first cold case using this methodology in 2015. In 2018, it was used to identify the “Golden State serial killer” after decades of failure. Dr. Fitzpatrick is the co-founder of the “DNA Doe Project,” which identifies previously unidentified bodies, and currently runs Identifinders International. See Exhibit 2.

Upon obtaining access, Dr. Fitzpatrick will direct that an SNP DNA profile be derived from the gum using contemporary extraction techniques, which will then be subjected to a new analytical methodology, forensic genetic genealogy, to determine whether the single source of male DNA on the gum can be identified.
Flores’s counsel with the Innocence Project of Texas has offered to bear the costs associated with the testing and analysis requested. Flores merely seeks a court order that will permit access to the gum to enable testing to adduce highly relevant information that is likely exculpatory.

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Reply Brief in Support of Petition for a Writ of Certiorari

Filled on May 24th, 2022

The State’s Brief in Opposition (BIO) contains no cogent legal argument. It relies on a stream-of-consciousness jumble of “facts,” cherry-picked largely from a trial record that is the product of prosecutorial misconduct and junk science.

Presumably, the State’s goal is to suggest that the case of an indigent individual on death row, who has been unable to present evidence of his innocence and of the rampant prosecutorial misconduct that enabled his wrongful conviction, is unworthy of this Court’s attention because the matter is so fact-intensive. Yet the State’s misleading presentation underscores the urgency of the legal issues presented. Actual facts, i.e., the truth, should matter; and the State’s frenetic effort to obscure the facts now known exemplifies the systemic denial of due process in state habeas proceedings in Texas death-penalty cases, a phenomenon that has resulted in overburdening federal courts to which habeas applicants have been forced to turn in search of a full and fair hearing.

See, e.g., Reed v. Goertz, Supreme Court No. 21-442 (granting petition in Texas death-penalty case challenging integrity of 1998 conviction); but see Shinn v. Jones, 596 U.S. __ (May 23, 2022) (curtailing federal courts’ ability to assess constitutional failures accounting for wrongful state-court convictions).

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Cert Petition For a Writ of Certiorari

Filed on March 4th, 2022

Charles Don Flores is again endeavoring to be heard by the highest court in the United States after the state courts refused to consider all the new evidence demonstrating his wrongful conviction and factual innocence.


The State obtained Charles Don Flores’s conviction based primarily on a mid-trial, in-court “identification,” made for the first time thirteen months after the crime as he sat at the defense table. Flores did not match this witness’s initial descriptions of the perpetrators in any respect, a fact kept from the defense for nearly two decades. Her “identification” was made after the police had subjected her to “forensic hypnosis” and then shown her a highly suggestive photo line-up featuring Flores from which she failed to pick him out. She then saw his photo repeatedly in the news. After years during which Flores had no counsel, and after his execution was stayed to pursue a claim narrowly focused on the issue of “forensic hypnosis,” Flores unearthed considerable evidence related to this eleventh-hour “identification” and of extensive police and prosecutorial misconduct that had long been suppressed. When he submitted a subsequent state habeas application delineating the vast support for his Brady, false testimony, and actual innocence claims, the state court arbitrarily concluded that all of his new claims were barred on procedural grounds and refused to consider their merits—even though the evidence had been unavailable when Flores initiated his previous habeas proceeding.

The Questions Presented are:

  1. Is the right to due process violated when a death-sentenced individual is barred from developing substantial habeas claims by the arbitrary application of state procedural law?
  2. Is the fact that the State successfully suppressed Brady material for two decades a legitimate basis for denying a habeas applicant, who is actually innocent, the right to be heard?


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Declaration of John Wixted, Ph.D about Charles Don Flores’ Case

John Wixted is a Distinguished Professor of Psychology at the University of California–San Diego (UCSD). His current research is concerned with the understanding of episodic memory. He investigates the cognitive mechanisms that underlie recognition memory, often using signal detection theory as a guide. A related line of research involves investigating how episodic memory is represented in the human hippocampus, work that is based mainly on single-unit recording studies performed with epilepsy patients. In recent years, his research has also focused on the applied implications of signal detection-based models of recognition memory. The main focus of this line of research is on the reliability of eyewitness memory utilized in forensic

Professor John Wixted wrote a report applying his new research to Charles Don Flore’s case, showing how the eyewitness identification process in his case is evidence of Charles’s innocence, not his guilt. 

Professor Wixted has been given an award by the AAAS (American Association for the Advancement of Science), publisher of one of the top journals in the entire world: Science. Professor Wixted’s lecture accepting the award, on Feb. 18, 2022, is style: “Eyewitness memory is reliable, but the criminal justice system is not.” It will feature Charles Don Flore’s case.

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Forensic hypnosis is big in Texas. Here’s how it got its start

Texas Public Radio | By David Martin Davies

Published December 14, 2021 at 6:00 AM CST

When you think of “hypnosis” it’s probably unlikely you’d picture a Texas law enforcement officer. After all, Texas cops are known for their no nonsense approach to fighting crime. But actually, Texas has one of the most active forensic hypnosis training systems in the nation. That’s despite the fact that nearly half of all states consider it a junk science and have banned or restricted its use.

But how did forensic hypnosis come to Texas? It came from California via one of the most astounding crimes in the last half century. In 1974, in Chowchilla California kidnappers abducted a yellow school bus with 26 children and the driver. [Read more on Texas Public Radio]


One and Done: Researchers Urge Testing Eyewitness Memory Only Once

By Inga Kiderra
November 03, 2021

To prevent wrongful convictions, only the first identification of a suspect should be considered

We all know the scene from countless courtroom dramas: A witness points at the defendant and confidently declares to judge and jury: “That’s the one, that’s who did it!” But is it? Perhaps. If that same witness was also confident the very first time their memory was tested – write a team of psychological scientists and criminologists led by memory expert John Wixted of the University of California San Diego. Otherwise, there’s too high a chance that a contaminated memory will convict an innocent person. [Read more on UC San Diego Press Release]

[Podcast] Ask the Witness Only Once

Source : Podcast of the Association for Psychological Science.

When an eyewitness stands up in court and identifies the person they say committed a crime, the impact can be powerful and effective. This dramatic testimony can be sincere and honest. It can also be wrong and tragically lead to wrongful convictions, lifelong incarcerations, and even the death penalty. But how can this happen? The witness is telling the court what they truly believe and remember. And therein lies the problem: memory, the often fuzzy and malleable recollections of events in the past.

In the latest edition of Psychological Science in the Public Interest, researchers look at the problems with eyewitness misidentifications in the courtroom and explain why prosecutors and law enforcement should test a witness’s memory of a suspect only once. Joining us is John Wixted, a researcher at the University of California at San Diego and first author on this article.

D.A.s Are Asking Biden to End the Death Penalty. But Some Are Still Wielding It Themselves

Prosecutors who have championed criminal justice reforms are still seeking death sentences, opposing appeals, and, in some cases, have even petitioned for execution dates.

On the morning of Jan. 29, 1998, Jill Barganier saw two men outside the home of her neighbor, Elizabeth Black, in Farmers Branch, Texas, according to a statement she later gave police. A short time later, Black’s husband arrived home, and found his wife and dog, both fatally shot.

Barganier told police the men she saw were white, with shoulder-length hair. She identified the driver from photo arrays as Richard Childs. Less than a week after the crime, police administered a hypnosis session for Barganier at her request, according to her trial testimony. The session was conducted by Officer Roen Serna, who had never hypnotized anyone before, according to Flores’s court filings. The goal, Barganier would later testify, was to help her relax so she could create a “good composite” of the passenger.

Afterwards, she was shown an array of six photos, including one of a man named Charles Flores, an associate of Childs’s. At the time, Flores had short, shaved hair, as depicted in his mug shot. She didn’t choose anyone, according to court filings. [Read More in The Appel]

Pleading to oppose the request for the execution date

Filed on April 6th, 2021


On Good Friday, April 2, 2021, the Dallas County District Attorney’s Office elected to file, on the State’s behalf, a Renewed Motion to Set Execution Date (Latest Execution Motion). In light of the circumstances, the State’s Latest Execution Motion is ill-advised and seemingly unprecedented. This Latest Execution Motion should be summarily denied in light of pending litigation, including an Actual Innocence claim and other substantive, meritorious claims that are the subject of an 826-page subsequent writ application now pending before the Texas Court of Criminal Appeals (CCA). See Ex parte Flores, WR-64,654-03 (filed Feb 3, 2021 in district court, received March 1, 2021 in CCA). If the Latest Execution Motion is not summarily denied, Charles Don Flores, by and through his attorneys, asks for a hearing before the Court rules at which Mr. Flores can be present. In support of his requests, Mr. Flores respectfully shows the following: [Read more ]

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2nd Subsequent Application for Writ of Habeas Corpus

Filed on February 3rd, 2021

Applicant Charles Don Flores is currently confined on death row in the Texas Department of Criminal Justice’s Polunsky Unit in Livingston, Texas.

His wrongful conviction was obtained in a trial plagued by police and prosecutorial misconduct and where his insistence on his innocence was overridden by trial counsel in closing argument, reputedly in pursuit of a “strategy” that could have accomplished nothing more than guaranteeing a death sentence. Mr. Flores is confined in violation of the Constitution and laws of the State of Texas and the United States.

He files this second subsequent application for a petition for writ of habeas corpus, pursuant to Texas Code of Criminal Procedure, Article 11.073 and section 5(a) of Article 11.071, to secure the reversal of his capital murder conviction and death sentence and for his release from confinement. The State has filed a motion seeking to set an execution date. The convicting court, however, has entered an order holding a decision on that motion in abeyance until April 1, 2021.

In support thereof, Mr. Flores respectfully shows the following: [Read more ]

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