Texas' highest criminal court has once again denied a Dallas County man's appeal challenging his death sentence for a 1998 Farmers Branch murder that relied on what his attorneys say was flawed eyewitness testimony involving hypnosis.
The Court of Criminal Appeals (CCA) on Thursday denied Charles Don Flores' habeas application alleging a new scientific consensus on the reliability of eyewitness identification proves he deserves a new trial.
It was Flores' fourth post-conviction appeal in 25 years, and the court found the appeal hadn't met the necessary requirements.
"There were these new claims with new evidence — that was all dismissed without considering the new claims and the new evidence on procedural grounds," Gretchen Sween, Flores' post-conviction attorney, told KERA News. "And because the order doesn't explain, I can't really say what it was that is behind the decision."
But Sween said the CCA is still considering her suggestion that the court reconsider the claim challenging the use of investigative hypnosis to convict Flores.
Flores, 55, was sentenced to death in 1999 for the murder of 64-year-old Elizabeth "Betty" Black the year prior while attempting a robbery and burglary at her Farmers Branch home. Black's neighbor, Jill Barganier, was a key eyewitness in the case.
According to Flores' court filings, Barganier initially told police she saw two men — both white, and with long hair — getting out of a multicolored Volkswagen and walking toward Black's home that morning. She later pointed to co-defendant Richard Childs as the driver in a photo lineup but did not initially identify Flores.
Farmers Branch police later put Barganier under forensic hypnosis, a long-scrutinized process of obtaining testimony that is now inadmissible as evidence in criminal trials in Texas. She then identified Flores — who is Hispanic and had short hair — as the passenger in the car at the crime scene at his trial a year later.
Childs pleaded guilty to shooting Black in a plea bargain after Flores' conviction. Childs got out on parole in 2016 after serving less than half his sentence.
Flores has challenged the use of hypnosis in previous appeals. His execution was stayed after his attorneys questioned the use of hypnosis. But in 2020 the CCA upheld a Dallas court's ruling that Flores couldn't contest his conviction under the state's "junk science" law, which lets people challenge their convictions if the scientific evidence used during trial has been discredited or would be weighed much differently now.
Flores' most recent appeal in June relied on a University of California San Diego psychology professor John Wixted's recent research on memory that suggests witnesses' memories are most accurate and reliable the first time police test them, especially when a witness is more confident about what they say they remember. Barganier not initially identifying Flores as a suspect points to his innocence, Wixted said at an event in Dallas last year.
The latest appeal also alleged police and prosecutorial misconduct during the lead up to Flores' trial, citing an affidavit from his trial lawyer at the time.
The 2023 bill that made witness statements obtained through police hypnosis inadmissible in criminal trials cannot apply retroactively to Flores' case. Unless Sween presents more new evidence in a subsequent appeal to support his innocence that wasn't available at trial, the court won't consider the appeal.
The Texas Attorney General's Office made it clear this year it was seeking Flores' execution as soon as possible. The office requested in May that a Dallas judge set a date, offering several days in November as available for Flores' execution. Sween called the action unlawful in a court filing, saying only the Dallas County District Attorney's Office has the authority to pursue an execution date — but she said it's likely the AG's office could make another move.
Sween is also Robert Roberson's attorney. The rejection of Flores' appeal came down the same day the CCA granted Roberson an opportunity to prove that he should be given a new trial to challenge the use of shaken baby syndrome in Roberson's conviction for the death of his 2-year-old daughter Nikki in 2003. It's due in part to the recent exoneration of Andrew Roark, a Dallas County man convicted of injuring his girlfriend's infant daughter.
"I happen to represent two people who I think have very strong [junk science] claims that have not yet resulted in a new trial," Sween said. "And I feel like what happened with Robert means you just never give up. There's always a chance."
Toluwani Osibamowo is KERA's law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
KERA News is made possible through the generosity of our members. If you find this reporting valuable, consider making a tax-deductible gift today. Thank you.
Copyright 2025 KERA