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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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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Petition For a Writ of Certiorari to The Texas Court of Criminal Appeals


In Rock v. Arkansas, 483 U.S. 44 (1987), this Court found that, although “hypnotically refreshed” testimony was “controversial,” the dangers associated with it could be reduced by “procedural safeguards” that this Court left to the states to adopt. Contemporary scientific understanding of human memory and of the inherently intrusive nature of hypnosis has established that there are no procedural safeguards that reduce the dangers associated with investigative hypnosis. Yet Charles Flores is on Texas’s death row for a conviction that hinges on an eyewitness identification obtained from an individual for the first time in the courtroom—after she had submitted to a hypnosis session conducted by a police officer in conjunction with other suggestive procedures.

The Question Presented is:

Is the Constitution’s guarantee of a fundamentally fair trial compromised when a conviction hinges on an in-court eyewitness identification obtained after an investigative hypnosis session conducted by law enforcement—especially in a death-penalty case that requires heightened reliability in factfinding?

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Objections to District Court Judge’s Recommendations

Charles Don Flores Case - Objections to District Court Judge's Recommendations (10/15/2018)Applicant Charles Flores, by and through counsel, respectfully requests that this Honorable Court:

  • consider the objections presented here;
  • withdraw its Order dated October 3, 2018 (Order), which includes Findings of Fact and Conclusions of Law (FFCL) and contains a recommendation that habeas corpus relief be denied;
  • enter revised FFCL correcting the significant mistakes of fact and law enumerated below;
  • and recommend relief in the form of a new trial.

As Mr. Flores argued to the Court, since his trial in 1999, Texas has made notable strides to try to prevent and unwind wrongful convictions by adopting policies and enacting legislation to improve the reliability of criminal verdicts—including the passage in 2013 of Senate Bill 344, which amended the Code of Criminal Procedure to add article 11.073. 7 EHRR 7-8; see also Ex parte Robbins, 478 S.W.3d 678, 704 (Tex. Crim. App. 2014) (“in 2013, the Texas Legislature also chose accuracy over finality by enacting Article 11.073”). Unfortunately, the Legislature’s intent to make it easier to address wrongful convictions based on outdated science has been thwarted in this proceeding as the Court has abdicated the role of neutral arbiter, ignored the evidentiary record and instead adopted wholesale the State’s error-ridden Proposed FFCL.

The error starts with the very framing of the new-science claim that Mr. Flores alleged (and proved). This case involves a wrongful conviction based on an unreliable eyewitness identification following a highly suggestive, police-conducted, hypnosis session. The Court’s FFCL ignore the fact that the hypnosis session at the heart of his new-science claim is significant only because the hypnotized witness later claimed to be able to identify Mr. Flores as one of two people seen outside of a crime scene. Using new developments in the fields of memory and hypnosis, Mr. Flores demonstrated why, thirteen months after-the-fact, this “eyewitness,” was able to assert with unwarranted confidence that, instead of the white male, with long, wavy hair this witness had described the day of the crime, Mr. Flores, an obese, Hispanic male with very short hair, was one of two men she had glimpsed getting out of a strange car in the pre-dawn hour while she looked through the mini-blinds from a window in the house next door. Mr. Flores also demonstrated, in light of contemporary scientific understanding, why the “science” the State used at trial to convince the fact-finder that the purported identification was reliable is wrong.
As Justice Newell recognized when Mr. Flores’s 11.073 new-science claim was remanded to this Court for consideration on the merits, the forensic hypnosis aspect of this case is inextricably linked to the issue of eyewitness identification more broadly: “As we have noted in Tillman v. State, eyewitness misidentification is the leading cause of wrongful convictions across the country. . . . I cannot imagine that the concerns regarding suggestive eyewitness identification evaporate when eyewitness testimony is enhanced through hypnotism.” Ex parte Flores, WR-64,654-02 (Tex. Crim. App. May 27, 2016 (Newell, J., concurring) (emphasis added).

While state habeas courts are given discretion over the methods for developing and receiving evidence to resolve contested factual claims, see, e.g., TEX. CODE CRIM. PROC. art. 11.071, § 9(a), the fact-finding procedures must be adequate for reaching “reasonably correct results.” Ex parte Davila, 530 S.W.2d 543, 545 (Tex. Crim. App. 1975) (citing Townsend v. Sain, 372 U.S. 293, 316 (1963)).
The Court of Criminal Appeals (CCA), which will ultimately decide this matter following a de novo review, is not bound by the trial court’s FFCL. Ex parte Brandley, 781 S.W.2d 886, 887-88 (Tex. Crim. App. 1989). In deciding whether to defer to a trial court’s findings, the CCA will ask whether the findings are supported by the record, Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989). Here, they are not. Nor were the fact-finding procedures “adequate for reaching reasonably correct results” in light of the Court’s decision to ignore most of the evidentiary record. Davila, 530 S.W.2d at 545. Instead, the Court’s FFCL adopt the State’s advocacy positions as “facts” and rely heavily on suspect materials that were never admitted into evidence in this, or any proceeding—after limiting Mr. Flores’s ability to put on evidence relevant to rebut the State’s purported “corroborating evidence” of guilt.

The Court’s manifest errors of law and fact and indefensible omissions are best explained by its decision to adopt, in toto, the State’s Proposed FFCL. This Court should revise its FFCL to remedy several fundamental errors including:

  • The Court’s Mischaracterization of Mr. Flores’s New-Science Claim and the Misrepresentation of the Law Relevant to the “Science” of Forensic Hypnosis;
  • The Court’s Wholesale Distortion of the “Science” the State Relied on at Trial in 1999 and the Contemporary Scientific Critique of that Trial Testimony;
  • The Court’s Omission of the Evidence Amassed During This Proceeding Showing Significant Changes in the Relevant Science Since the Time of Mr. Flores Trial;
  • The Court’s Omission of Evidence Amassed during this Proceeding about the Context that Led to, and Followed from, the Hypnosis Session;
  • The Court’s Omission of Other Significant Evidence Adduced during this Proceeding Relevant to the Reliability of the State’s Witnesses in the 1999 Zani Hearing;
  • The Court’s Due Process Violation Evidenced by the Decision to Adopt the State’s Proposed FFCL Wholesale;
  • The Court’s Adoption of the State’s Advocacy Positions as “Facts” Instead of Serving as an Independent Arbiter of the Evidence;
  • The Court’s Misuse of the Legal Concept of Judicial Notice to Rely on Materials That Were Not Admitted into Evidence in this or Any Other Proceeding.

PDFDownload full document in PDF : “Objections to District Court Judge’s Recommendations”.