Professional Documents
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OF TEXAS
NO. WR-64,654-02
Per curiam. Newell, J., filed a concurring opinion. Keller, P.J., filed a
dissenting opinion. Meyers, J., dissents.
ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071 5.
In April 1999, a jury found applicant guilty of the offense of capital murder. The
jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure
Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This
Court affirmed applicant's conviction and sentence on direct appeal. Flores v. State, No.
AP-73,463 (Tex. Crim. App. Nov. 7, 2001)(not designated for publication). Applicant
Flores - 2
filed his initial application for a writ of habeas corpus in the convicting court in
September 2000, and he timely filed supplements to the application in December 2000.
This Court subsequently denied relief on all of his claims. Ex parte Flores, No. WR64,654-01 (Tex. Crim. App. Sept. 20, 2006)(not designated for publication).
On May 19, 2016, applicant filed in the trial court his first subsequent application
for a writ of habeas corpus. Applicant raises four allegations inhis application. After
reviewing applicant's application, we find that his first allegation satisfies the
requirements of Article 11.071 5. Accordingly, applicant's first allegation is remanded
to the trial court. Applicant's motion to stay his execution is granted pending the
resolution of his habeas application.
I concur in this Court's decision to stay the execution in this case. Applicant
was convicted of capital murder and sentenced to death based in part upon
hypnotically-enhanced eyewitness testimony. As we have noted in Tillman v. State,
Flores Concurring - 2
case that Article 11.073 applies and this Court rightly stays the proceedings so he can
develop that claim. We may ultimately grant relief. We may ultimately deny relief.
But either way, given the subject matter, by granting a stay this Court acknowledges
that whatever we do, we owe a clear explanation for our decision to the citizens of
Texas. And at this juncture, I see no reason to enhance the arguments of either party
by arguing the merits.
failed to show that it is more likely than not that he would not have been convicted if Dr. Lynn's
testimony had been presented at trial.
First, although Bargainer underwent hypnosis, no one suggested to her a physical description
of applicant, and she had not seen a currentphotograph of him.1 This is not a case where someone
described the defendant during hypnosis and that description became the basis of the identification.
Before hypnosis, Bargainer said the Volkswagen passenger's eyes were dark, and after hypnosis she
FLORES DISSENT - 2
said that they were brown, but she said that other than that, she did not remember anything new as
a result of hypnosis. Bargainer eventually identified applicant at trial, but it is not clear that Dr.
Lynn's testimony about hypnosis has any bearing on that identification.
But second, even if Bargainer's testimony was tainted by the hypnosis, other testimony
implicated applicant in the murder. The jury could have found applicant guilty by acting alone or
as a party. In addition to Bargainer's testimony, our opinion on direct appeal set out these facts that
implicate applicant, at the very least, as a party:
[Applicant] manifested an intent to steal Gary Black's money to satisfy the perceived
shortfall on the drug deal. [Applicant] and Childs armed themselves with three
firearms. . .At the time of his arrest, [applicant] had ammunition of the same caliber
and brand as the shell casing found at the murder scene. . .[Applicant] admitted that
he was at the scene and told two people that he shot the dog and Childs shot "the old
lady." Other evidence places [applicant] with Childs around the time of the murder:
they spent the early morning hours ofthe day ofthe murder haggling over a dope deal
with Jackie Roberts; they "did dope" with Vanessa Stovall and then left in the same
vehicle that was seen by several witnesses at the scene of the murder around the time
of Mrs. Black's death. . .[A] neighbor testified that [applicant] bore a resemblance
to the passenger, although she could not make a positive identification... [Applicant]
also attempted to destroy evidence, avoid apprehension, and escape from custody. .
.[Applicant] repainted and burned the distinctive Volkswagen in which he and Childs
had driven to the Blacks' house and then fled from a motorist who witnessed the
arson. He presented false identification to peace officers who stopped his car near
Kyle and assaulted them when they attempted to arrest him for driving while
intoxicated. He also tried to escape from the officer who escorted him to Parkland
trouble and needed to get out of the country. When the friend said, "You call this a little bit of
trouble, killing a 64-year-old woman," applicant said, "I only shot the dog."
And, as applicant admits, his own counsel acknowledged that applicant was present at the
2 Id.
FLORES DISSENT - 3