FEBRUARY 2006.
CASE SUMMARY
By Charles D. Flores.
CONVICTION:
I was tried and convicted on capital murder in Dallas County, Texas under the law of parties. Under the Texas law of parties a party is guilty of the felony actually committed when the death SHOULD HAVE BEEN anticipated as a result of carrying out the original felony. (TX.CCP7.02.b)
In this case there is no physical evidence. There is no confession by me. There is no murder weapon, no bullet slugs recovered from the victim, no fingerprints, no fibers, no hair, no DNA, nothing that could tie me to this crime. During the investigation the police took many personal belongings of mine searching for evidence to.prove my guilt, including boots, clothing, coveralls, gloves, pocket knife and other items. Also, while in the county jail I was presented with a search warrant allowing the police to take by force if necessary blood samples and cheek swabings from me to test DNA samples for a match. I willingly gave these samples. After conducting these numerous tests nothing tested “positive” to even tie me to this crime, much less to prove me guilty.
Instead the prosecution presented a circumstantial case to the jury using a questionable eye witness who saw the criminals before daylight from over 50 feet away. This witness, Jill Bargainer was a neighbor of the deceased and was under pressure to help catch the criminals. While being questioned by the police she was shown a 6 photo line up that contained my photo. She was unable to identify me as one of the criminals she saw at the crime scene. She then agreed to be hypnotized by the police in efforts to recover any lost memory.
Zani v. State, 758 S.W. 2d 233, is the standard in hypnotically – refreshed memory testimony. In Zani the appeal court cautioned trial courts to remain alert for the recognized evils of hypnosis: 1.) hyper-suggestibility, 2.) loss of critical judgment, 3.) confabulation, and 4.) memory cementing.
To protect against these evils the Zani opinion expounded on a list of factors in determining the trustworthiness of testimony induced by hypnotic recall. They are:
1.) The level of training in the clinical uses and forensic applications of hypnosis by the person performing the hypnosis.
2.) The hypnotist’s independence from law enforcement investigators, prosecution, and defense.
3.) The existence of a record of any information given or known by the hypnotist concerning the ease prior to the hypnosis session.
4.) The existence of a written or recorded account of the facts as the hypnosis subject knew them prior to undergoing hypnosis.
5.) The creation of recordings of all contacts between the hypnotist and the subject.
6.) The presence of persons other than the hypnotist and the subject during any phase of the hypnosis session, as well as the location of the session.
7.) The appropriateness of the induction and memory retrieval techniques used.
8.) The appropriateness of using hypnosis on the kind of memory loss involved.
9.) The existence of any evidence to corroborate the hypnotically enhanced testimony.
10.) The presence or absence of overt or subtle cues or suggestions of answers during the hypnotic session.
At trial the defense raised an objection to allowing this tainted witness’s testimony into the trial. A Zani hearing was held by the court because of this objection. The following factor violations were documented in the hearing. The Hypnotist in this case, Officer Sema, was a Farmers Branch police officer. His being part of law enforcement is a violation of factor #2. The hypnotist also collected evidence from the crime scene. He had personal knowledge of the information that had been uncovered on the criminals. His participation in the investigation is a violation of factor #2.
The police video taped Serna’s pre-hypnosis interview with the witness. No other record was made of Serna’s knowledge about the case. Throughout his responsibilities as part of the investigating team Sema had to acquire some information about the case. Yet there is no record of any information he knew of prior to the hypnosis session. This is a violation of factor #3.
The police video taped Sema’s pre-hypnosis interview with the witness. No other record exists of the witness recollection of the events surrounding the offense before the hypnosis session. This is a violation of factor #4.
The police video taped the pre-hypnosis interview and the hypnosis itself. Officer Sema could offer no explanation as to why the camera focused solely on the witness so that most of the gestures and actions of other persons present could not be seen. Because of this there is not a complete record of all contact between the subject and the hypnotist. This is a violation of factor #5.
Officer Baker helped set up the camera and recording of these events. He was also present for the session. The hypnosis session took place in the office of a lieutenant in the Narcotics division. Sema stated that he selected this site because of its relative seclusion and quietness compared to the rest of the police station. He did not attempt to explain why he chose this site when it went directly against factor #3 in regards to the session being conducted in a law enforcement atmosphere.
The police officers denied any type of cuing or suggestive behavior with the witness. Sema conceded, nevertheless, that the video tape would best reveal any improper techniques. The tape reflects that Serna repeated portions of the witness’s physical description of the criminals, i.e. pretty eyes, black clothes etc. This is a violation of factor #10.
During the Zani hearing Serna informed the court that he was a certified forensic hypnotist by the Texas Commission on Law Enforcement Officer Standards Education (TCLEOSE). He had received 40 hours training in investigative and forensic hypnosis at the University Of Houston. Sema was fully aware of the 4 evils of hypnosis yet was not able to explain why he had violated 50% of the factors given in Zani. Sema could not explain why he chose to use these improper hypnosis techniques that resulted in tainting Bargainer’s testimony.
In the hypnosis session the witness described a distinctive Volkswagen Beatle auto. She states that 2 dirty men exited this vehicle. She described the criminal who she saw as having dark brown or blonde shoulder length hair. She also described him as having pretty brown eyes. After the session the witness was again shown the photo line up and could not identify me.
Over a year later this witness’s memory improved considerably and suddenly she was able to testify in court that she was positive that I was the man she saw at the crime scene that morning. On cross examination the witness admitted that this viewing of the criminals occurred before daylight - while it was dark out - and from over 50 ft. away.
To corroborate this eyewitness testimony the prosecution brought forth a jailhouse informant who testified that while together with him on transport for medical reasons I confessed to him that I had committed this crime. I did not know this individual, nor did I confess to him. He was in jail for felony possession of heroin, the 3rd time he had faced such serious charges. After the trial he was “rewarded” with a 4 yr. prison sentence. This individual contacted the prosecution while in jail, he knew he would receive leniency when sentenced if he came forth with the story of me confessing to him. He had a personal interest to come testify to flat out lies.
A one time friend named Homero Garcia was also a prosecution witness. He testified that a few days after this crime had been committed he and I were drinking beer and I confessed to him stating that my alleged co-defendant had killed the victim and I was there. Again, Garcia had personal reasons to testify against me. Not long before Garcia was arrested for possession of methamphetamine and possession of a handgun. This handgun would be allowed into my trial because Garcia testified that he had received this gun from me. By introducing this gun into my trial the prosecution lulled the jury into thinking this gun was part of the capital murder I was on trial for. After my trial Garcia received probation for the charges he faced and was allowed to go home. Again a prosecution witness was rewarded for testifying against me at trial.
This is the foundation of the prosecution theory as to what happened on the morning this crime was committed. The eyewitness testimony was tainted and questionable to say the least. The corroborating witness testimony were questionable because of their personal motives and rewards received for making the prosecutions case.
There was no witness to testify who, how or why the victim was killed. There was no murder weapon found. There were no bullet slugs recovered. After a year and a half of investigation, peroration, and intimidation the prosecution could not present one piece of evidence that could positively tie me to this crime. Not one piece! After this period in which they left no stone uncovered they could not find any evidence that could connect me to this crime.
All the prosecution had were the words of questionable witnesses. Instead of hard facts and physical evidence the prosecution used smoke and mirrors in telling their theory to the jury as to what they believed happened. In their well acted out performance at trial and with the use of many questionable tactics the foundation - the facts - of this case against me were lost and forgotten. Fact finding, truth and justice were thrown out the window and the show quickly became about who could tell the most believable, convincing story.
My co-defendant, Richard Childs was quickly identified by Bargainer as one of the criminals she saw the morning of the crime. She picked his photo out of a photo line up and there was no doubt about his involvement in this crime.
The day after the crime was committed the police set up surveillance on Childs’ grandmother’s house. Not long after Childs attempted to leave this residence and was quickly stopped and arrested by the police. After searching the vehicle he was driving the police found a box of .380 caliber bullets in Childs’ backpack. This is significant because there was a .380 caliber unspent round found at the crime scene that matched this box of bullets. The police then searched Childs’ grandmother’s house and a .44 caliber handgun was found.
Childs was at one time a neighbor of mine. I had known him for years. At one point we began selling drugs together. I would supply Childs the drugs and he would go across town and deal to a set of people that I did not know. Childs began a sexual relationship with Jackie Roberts and through her he also dealt drugs. Jackie Roberts was the daughter in-law of the deceased, Elizabeth Black. Jackie Roberts’ husband was in prison for drugs. At one point he accumulated a large amount of cash, $50,000+, and he left it with his parents while he went to prison. Jackie Roberts felt that the money was hers and together she and Childs began planning the robbery that would get them the money.
Through Jackie Roberts, Childs learned of the money, where the house was located and when the Blacks would not be home. Jackie Roberts told Childs that she believed the money was hidden in the walls of the house. Childs obtained a garage door opener from Jackie Roberts that gave him access to the Black’s residence.
I learned of this scheme through ChiIds. He would speak of it to people he knew attempting to find someone who was willing to rob the house with him. Childs approached me with the scheme and I told him I wanted no part of it. Childs talked of this scheme for about 2 months.
The day before the crime Childs made a drug purchase using funds that I supplied to him. Childs was buying a considerable amount of drugs from an individual I did not know. I gave Childs the money and he made the deal. Childs was to buy half a pound of methamphetamine for $5000. He only received a quarter pound of the drug. I would later find out that Jackie Roberts had introduced Childs to another drug dealer from whom he was to get the drugs. The day of the drug deal Jackie Roberts was with him. After buying the drugs Childs and Roberts came to my trailer house where I lived. Upon weighing the drugs Childs realized he did not receive the full amount of drugs he paid for. I was upset and told Childs that he owed me the money he had over paid and he better figure out a way to pay me. Not long after that I told everyone in the house to leave and I went to bed.
The next morning Childs and another individual who I believe was Doug Roberts, Jackie Roberts’ ex-husband, went to the Black’s residence and attempted to rob the house. These 2 men went into the house through the garage using the garage door opener Jackie Roberts had supplied them and found Mrs. Black and the family pet, a large Doberman Pincer. Both Mrs. Black and the dog were shot and killed. It would come out in trial that Mrs. Black had met Childs more than once when he was with Jackie Roberts.
Jackie Roberts’ ex-husband, Doug Roberts, was the first person to contact the police. The afternoon the crime was committed be presented himself at the police department advising the police that he is concerned about his ex-wife, Jackie Roberts. He told the police that he heard that a purple Volkswagen Beetle was seen leaving the crime scene. He also establishes his whereabouts during the timeframe the crime was committed and then advises the police that at about 6 am that morning he saw Childs driving a purple Volkswagen when he dropped Jackie Roberts off at her house.
Another important fact in this saga is that before Childs was arrested, Jackie Roberts met with him at his grandmother’s house for 2 hours. She then disappeared for 3 days running from the police and refusing to return home. After 3 days on the run the police obtain a warrant for her arrest for criminal conspiracy to commit capital murder.
Doug Roberts will meet with the police several more times. It will become clear that Jackie Roberts is on the run and the police will pressure him to deliver her into custody. 4 days later he does just that. Jackie Roberts shows up at his house and he contacts the police informing them of her whereabouts. After making this call he leaves the residence.
The police will find Jackie Roberts at Doug Roberts’ house asleep and arrest her. While transporting her to the police department she states, “I didn’t know they were going to kill her.” When the police asked who she was talking about she states, “Charlie and Rick”, referring to Charles Flores and Richard Childs. She then states, “I am scared that Charlie is going to kill me for what I know.” She also states, “I think Rick did what he did because he is scared of Charlie too.”
From this point on Jackie Roberts tells the police about the night before the crime was committed and the drug deal gone bad. She continues to emphasize that both she and Childs are afraid of Charles Flores. She at one point volunteers to lead the police to the trailer house where I lived. The police will take her up on her offer as they begin to search for me.
While in custody Childs gives the police a confession. In this confession he tells the police a bizarre account of my alleged involvement in this crime. He tells the police that I force him at gunpoint to the Black’s house. I then put a handgun in his hand and we enter the house. In his account I shot and killed the deceased and his involvement is minimal: he was forced to go and participate in the crime and all he did was shoot the dog. At this point I become involved and the police begin to search for me.
Before Childs was arrested he and Jackie Roberts met. At this point they knew the police were looking for the purple Volkswagen. It was in their best interest to minimize their involvement and make a 3rd person the killer of Mrs. Black. Childs was in custody for 3 days before he confessed. Before his confession he knew he had been positively identified by the witness, Jill Bargainer. He could not claim innocence and think the police would believe him. Childs blamed me for his attempting to rob the Black’s house and in the process killing the victim. In his mind he thought if he did not owe me money then he would have never tried to rob the house. Childs creates this tale of me forcing him into participating in the crime and his involvement is next to none and forced at gunpoint. Incredibly the police believe his tale.
As stated at the beginning of this summary the police never found the murder weapon. They concluded that two guns had been used. The police never recovered any bullet slugs. One unspent .380 caliber bullet was found at the crime scene.
The prosecution decided that the victim was killed with a .380 caliber gun. This was consistent with the victim’s wounds. The prosecution also decided that the dog was killed with a .44 caliber gun. This was also consistent with the dog’s wounds. The prosecution chose to try me first and decided that I was the shooter. In their theory they will tell the jury that the .44 caliber weapon found at Childs’ grandmother’s house could be the gun used to kill the dog. This gun will be introduced into my trial as if it is in fact the weapon that killed the dog.
By doing this the prosecution paints me as the shooter of Mrs. Black. They will present testimony that I at one time had a .380 caliber handgun. They will introduce the .380 caliber handgun that belonged to Homero Garcia. They will have him testify that he in fact received this handgun from me. Both of these weapons will be placed in front of the jury box throughout the trial as if they are the weapons used in the crime.
These weapons in fact have nothing to do with the capital murder I was on trial for and only prejudice the jury lulling them into thinking and believing that the prosecution has the guns that were used in this crime. The prosecution intentionally misled and tainted the jury. They know both of these weapons have been tested in every possible way and cannot be tied to this crime.
I have done many things in my life that I truly regret. I am the first to say that I was no saint while in the free world. I had a criminal record that included probation and serving 2 years in TDCJ. I was a Mexican American who was supplying dangerous drugs to a considerable number of white men and women.
When I learned that the police wanted to arrest me for capital murder I did the worst thing I could do. I ran. I knew that I was facing life in prison or worse and this scared me greatly, so I acted impulsively and I ran. Thinking that I had nothing to lose I continued to engage in criminal behavior and held no regard for the law.
This does not make me guilty of capital murder. This does not make me the shooter of the deceased. In my trial the judge allowed an incredible amount of information on unadjudicated, extraneous offenses into the guilt/innocence phase of my trial. In doing this the judge made the prosecution’s job much easier. Tales of drug usage, drug dealing, assault, evading arrest and other crimes were presented to the jury. In this setting the questionable facts of this case were lost in wave after wave of extraneous offenses. The jury became inflamed and without a doubt they thought where there is smoke there is fire and in no time convicted me of capital murder.
It did not help that my court appointed trial attorneys did not call any alibi witnesses on my behalf. My attorneys did next to nothing, sitting there allowing the prosecution to put on its grand show. Some of the prosecution’s witnesses went unquestioned. While on trial I came to understand that when a case is brought to trial it is not about truth and justice. It is not about finding facts. It is about who can tell the best, most believable story. I refused to cooperate with the prosecution and from that moment the prosecution decided that I was guilty and they would do whatever it took to prove this at trial. This conclusion came from the first policeman who began to search for me. He automatically thought me guilty. This was passed on until the prosecution put its stamp of approval on it. In the end I am a man who was accused of a crime and have never had a fair chance at proving my innocence. I was convicted and sentenced to die because of my criminal background, because I was the only minority in a group of whites and because I do not come from an affluent family.
MITIGATING EVIDENCE:
In the sentencing phase of my trial the issue of mitigating evidence came up. I distinctly recall my trial attorney asking me, did I have anyone who could possibly come forth and say a few good things about me? I responded that I knew several people who attended my father’s church and they could possibly come and testify. To that he said, what are they gonna say? That they saw you a church a few times? I lowered my eyes and replied, yes and that was the end of that.
No witnesses were called by the defense at the sentencing phase of my trial. No information of head trauma sustained as a child, teen and adult, no information on physical/sexual abuse was shown to the jury. No family friends or anyone I might know were called to come say something positive about me. In fact this is exactly what should have been done, anything to show the jury that I am human, not some drug crazed killer. Yet my attorneys called no one. The prosecution called 2 days worth of witnesses who testified to crimes I had committed, and after such a production the jury sentenced me to death.
At this point of my trial my parents and wife were under indictment on trumped up charges the prosecutor had filed. The charge was hindering the apprehension of a wanted felon. These were serious charges and the prosecutor had shown us he was serious about sending them to prison. Because of this my parents and wife informed the court that if they were called to testify they would plead the Fifth Amendment and not answer any questions. In this way the prosecution took away the ability of those who knew me best to come forth and testify. The prosecutor knew exactly what he was doing because in his closing argument be made direct comment on this tactic saying, “Where is his family, his mom and dad, his wife and brothers? Why aren’t they here to say something good about him? I’ll tell you why, there is nothing good to say about Charles Flores.”
In 2003 I filed a pro-se Wiggins claim. I inserted my facts into the Wiggins case and filed it with the court in efforts to preserve the critical points of error.
STUNBELT:
In the guilt/innocence phase and sentencing phase of my trial I was forced to wear an electronic stun belt, leg shackles, and belly chain onto which my hands were handcuffed. The stun belt consisted of a large black nylon belt that was wrapped around my midsection from waist to underarms and a large black metal box affixed to my back. This novel security restraint was in full view of the jury box. The belly chain and handcuffs were also in full view of the jury box.
The 2 rows of benches directly behind the defense table in the courtroom were restricted and no civilians were allowed to sit in this area. Instead these benches were filled with policemen, jailers and plainclothes cops.
While I sat at the defense table a Dallas County sheriffs deputy sat 3 feet behind me at all times. This deputy was in possession of the stun belt activator. Trial counsel failed to request the court to make findings on critical factual matters relating to the stun belt I was forced to wear during trial, i.e.:
What sort of device was being employed in my trial.
What is the error rate creating the possibility of accidental triggering of the belt.
What are the criteria for triggering of the device.
What medical effects will the discharge of the stun belt have upon my physical health.
During the trial the deputy in possession of the stun belt activator would often lean close to my ear and tell me that I was moving too much and that was making him nervous. If I kept moving he was going to shock me. Over and over this happened. In this way the deputy forced me to focus on the pain and humiliation that I’d suffer should the belt be activated, and in doing so rendered me incapable of effectively participating in my defense, depriving me of my Sixth amendment right to counsel.
The trial court judge abused his discretion in allowing these excessive restraint measures, which violated my Sixth amendment right, to be used in my trial. The court abused its discretion by failing to carefully scrutinize the need to use the stun belt in my trial. The court failed in its “gatekeeper responsibilities” by failing to determine that no lesser restraints would have kept me from disrupting the trial or being a security risk.
These stun belt issues have also been preserved pro-se. Trial counsel told me that I could not be convicted of capital murder. These words were imprinted into my mind and I honestly believed that I would go to trial and be found not guilty. There was no feeling of urgency in preparing a solid defense. I did not understand the law of parties. I did not comprehend that I could in fact be found guilty of capital murder under the lower burden of proof the law of parties provides. Mentally I continued to recall my trial attorney’s words, they can’t find you guilty!
PROSECUTORIAL MISCONDUCT:
The lead prosecutor in my trial intimidated, threatened and in general used Gestapo- like tactics while attempting to gain information to use against me at trial. This super chief prosecutor, Jason January, suddenly resigned in 2001. The rumor is that his actions caught up with him and he was forced to resign.
Another prosecutor in my case, George West also resigned under a storm of controversy that surrounded a death penalty case. In that case appeal attorneys argued that West knew that incorrect testimony was being given and did not correct it. The prosecution knew their witness was lying and that was acceptable to them.
In my experience it is normal procedure for the Dallas DA’s to break laws and rules of conduct in efforts to obtain a conviction. My family, friends and I have found this out first hand. Every friend I had was interrogated by the police, the prosecution’s investigators or the prosecutor himself. If they were not satisfied with the response given - if my friends did not have terrible things to say about me and willingness to become part of the state’s prosecution, then they were harassed and eventually arrested for some trumped up charge. This is simply how the police and the Dallas prosecutor’s office operates.
My parents were arrested several times. The first time they were taken to the Farmer’s Branch Police Department and held for 3 days in a bare cell and no access to a telephone, without medication and under a $50,000 bond each. They were under near constant interrogation, intimidation and threats by the police. My mother is a diabetic and must take medication daily for her condition. When she summoned up the courage to ask about being given some medication the police laughed at her and told her she would receive nothing. She and my father were told that they would be held there until they signed statements that the police wrote for them and were not allowed to read. My parents are elderly, were in fear for their lives and signed the statement.
My wife was arrested several times. On the second day of her custody in Dallas County she was taken to a detective’s office. A policeman in the office made a phone call as soon as I entered the room. He said a few words and handed me the phone. To my surprise and horror my wife Myra Wait was on the other end crying and sobbing hysterically and in fear for her life. The police had arrested her, held her in a bare cell for 3 days with no phone and no way to contact loved ones to tell them where she was. The police had convinced her that they would send her to prison forever and she would never be with the children. Over and over she told me this, crying, totally convinced that she would never go home. She told me they wanted her to say that I confessed but she said that I did no such thing. This sort of police and prosecutorial misconduct continued for one year before my trial.
Because I refused to confess to a crime I did not do, refused to cooperate with police and prosecutor, my friends family and loved ones became the main target of this prosecutorial misconduct. The prosecutor knew he could not get to me personally but he could make my life a living hell by arresting, intimidating and threatening those I loved.
In 2003 Homero Garcia went to prison for violation of probation. During that time a private investigator was working on my appeal and contacted Garcia’s family. Shortly thereafter Garcia and I began corresponding. Through that correspondence I was able to obtain a statement from him. In this statement he admits that the prosecutor, Jason January forced him into testifying against me and put words in his mouth. This is just one more piece of evidence showing the prosecutorial misconduct in this case.
There is much information on this case. I have highlighted the errors that I believe are strongest and are constitutional violations. If you have any questions please contact me and ask. Thank you.
I was tried and convicted on capital murder in Dallas County, Texas under the law of parties. Under the Texas law of parties a party is guilty of the felony actually committed when the death SHOULD HAVE BEEN anticipated as a result of carrying out the original felony. (TX.CCP7.02.b)
In this case there is no physical evidence. There is no confession by me. There is no murder weapon, no bullet slugs recovered from the victim, no fingerprints, no fibers, no hair, no DNA, nothing that could tie me to this crime. During the investigation the police took many personal belongings of mine searching for evidence to.prove my guilt, including boots, clothing, coveralls, gloves, pocket knife and other items. Also, while in the county jail I was presented with a search warrant allowing the police to take by force if necessary blood samples and cheek swabings from me to test DNA samples for a match. I willingly gave these samples. After conducting these numerous tests nothing tested “positive” to even tie me to this crime, much less to prove me guilty.
Instead the prosecution presented a circumstantial case to the jury using a questionable eye witness who saw the criminals before daylight from over 50 feet away. This witness, Jill Bargainer was a neighbor of the deceased and was under pressure to help catch the criminals. While being questioned by the police she was shown a 6 photo line up that contained my photo. She was unable to identify me as one of the criminals she saw at the crime scene. She then agreed to be hypnotized by the police in efforts to recover any lost memory.
Zani v. State, 758 S.W. 2d 233, is the standard in hypnotically – refreshed memory testimony. In Zani the appeal court cautioned trial courts to remain alert for the recognized evils of hypnosis: 1.) hyper-suggestibility, 2.) loss of critical judgment, 3.) confabulation, and 4.) memory cementing.
To protect against these evils the Zani opinion expounded on a list of factors in determining the trustworthiness of testimony induced by hypnotic recall. They are:
1.) The level of training in the clinical uses and forensic applications of hypnosis by the person performing the hypnosis.
2.) The hypnotist’s independence from law enforcement investigators, prosecution, and defense.
3.) The existence of a record of any information given or known by the hypnotist concerning the ease prior to the hypnosis session.
4.) The existence of a written or recorded account of the facts as the hypnosis subject knew them prior to undergoing hypnosis.
5.) The creation of recordings of all contacts between the hypnotist and the subject.
6.) The presence of persons other than the hypnotist and the subject during any phase of the hypnosis session, as well as the location of the session.
7.) The appropriateness of the induction and memory retrieval techniques used.
8.) The appropriateness of using hypnosis on the kind of memory loss involved.
9.) The existence of any evidence to corroborate the hypnotically enhanced testimony.
10.) The presence or absence of overt or subtle cues or suggestions of answers during the hypnotic session.
At trial the defense raised an objection to allowing this tainted witness’s testimony into the trial. A Zani hearing was held by the court because of this objection. The following factor violations were documented in the hearing. The Hypnotist in this case, Officer Sema, was a Farmers Branch police officer. His being part of law enforcement is a violation of factor #2. The hypnotist also collected evidence from the crime scene. He had personal knowledge of the information that had been uncovered on the criminals. His participation in the investigation is a violation of factor #2.
The police video taped Serna’s pre-hypnosis interview with the witness. No other record was made of Serna’s knowledge about the case. Throughout his responsibilities as part of the investigating team Sema had to acquire some information about the case. Yet there is no record of any information he knew of prior to the hypnosis session. This is a violation of factor #3.
The police video taped Sema’s pre-hypnosis interview with the witness. No other record exists of the witness recollection of the events surrounding the offense before the hypnosis session. This is a violation of factor #4.
The police video taped the pre-hypnosis interview and the hypnosis itself. Officer Sema could offer no explanation as to why the camera focused solely on the witness so that most of the gestures and actions of other persons present could not be seen. Because of this there is not a complete record of all contact between the subject and the hypnotist. This is a violation of factor #5.
Officer Baker helped set up the camera and recording of these events. He was also present for the session. The hypnosis session took place in the office of a lieutenant in the Narcotics division. Sema stated that he selected this site because of its relative seclusion and quietness compared to the rest of the police station. He did not attempt to explain why he chose this site when it went directly against factor #3 in regards to the session being conducted in a law enforcement atmosphere.
The police officers denied any type of cuing or suggestive behavior with the witness. Sema conceded, nevertheless, that the video tape would best reveal any improper techniques. The tape reflects that Serna repeated portions of the witness’s physical description of the criminals, i.e. pretty eyes, black clothes etc. This is a violation of factor #10.
During the Zani hearing Serna informed the court that he was a certified forensic hypnotist by the Texas Commission on Law Enforcement Officer Standards Education (TCLEOSE). He had received 40 hours training in investigative and forensic hypnosis at the University Of Houston. Sema was fully aware of the 4 evils of hypnosis yet was not able to explain why he had violated 50% of the factors given in Zani. Sema could not explain why he chose to use these improper hypnosis techniques that resulted in tainting Bargainer’s testimony.
In the hypnosis session the witness described a distinctive Volkswagen Beatle auto. She states that 2 dirty men exited this vehicle. She described the criminal who she saw as having dark brown or blonde shoulder length hair. She also described him as having pretty brown eyes. After the session the witness was again shown the photo line up and could not identify me.
Over a year later this witness’s memory improved considerably and suddenly she was able to testify in court that she was positive that I was the man she saw at the crime scene that morning. On cross examination the witness admitted that this viewing of the criminals occurred before daylight - while it was dark out - and from over 50 ft. away.
To corroborate this eyewitness testimony the prosecution brought forth a jailhouse informant who testified that while together with him on transport for medical reasons I confessed to him that I had committed this crime. I did not know this individual, nor did I confess to him. He was in jail for felony possession of heroin, the 3rd time he had faced such serious charges. After the trial he was “rewarded” with a 4 yr. prison sentence. This individual contacted the prosecution while in jail, he knew he would receive leniency when sentenced if he came forth with the story of me confessing to him. He had a personal interest to come testify to flat out lies.
A one time friend named Homero Garcia was also a prosecution witness. He testified that a few days after this crime had been committed he and I were drinking beer and I confessed to him stating that my alleged co-defendant had killed the victim and I was there. Again, Garcia had personal reasons to testify against me. Not long before Garcia was arrested for possession of methamphetamine and possession of a handgun. This handgun would be allowed into my trial because Garcia testified that he had received this gun from me. By introducing this gun into my trial the prosecution lulled the jury into thinking this gun was part of the capital murder I was on trial for. After my trial Garcia received probation for the charges he faced and was allowed to go home. Again a prosecution witness was rewarded for testifying against me at trial.
This is the foundation of the prosecution theory as to what happened on the morning this crime was committed. The eyewitness testimony was tainted and questionable to say the least. The corroborating witness testimony were questionable because of their personal motives and rewards received for making the prosecutions case.
There was no witness to testify who, how or why the victim was killed. There was no murder weapon found. There were no bullet slugs recovered. After a year and a half of investigation, peroration, and intimidation the prosecution could not present one piece of evidence that could positively tie me to this crime. Not one piece! After this period in which they left no stone uncovered they could not find any evidence that could connect me to this crime.
All the prosecution had were the words of questionable witnesses. Instead of hard facts and physical evidence the prosecution used smoke and mirrors in telling their theory to the jury as to what they believed happened. In their well acted out performance at trial and with the use of many questionable tactics the foundation - the facts - of this case against me were lost and forgotten. Fact finding, truth and justice were thrown out the window and the show quickly became about who could tell the most believable, convincing story.
My co-defendant, Richard Childs was quickly identified by Bargainer as one of the criminals she saw the morning of the crime. She picked his photo out of a photo line up and there was no doubt about his involvement in this crime.
The day after the crime was committed the police set up surveillance on Childs’ grandmother’s house. Not long after Childs attempted to leave this residence and was quickly stopped and arrested by the police. After searching the vehicle he was driving the police found a box of .380 caliber bullets in Childs’ backpack. This is significant because there was a .380 caliber unspent round found at the crime scene that matched this box of bullets. The police then searched Childs’ grandmother’s house and a .44 caliber handgun was found.
Childs was at one time a neighbor of mine. I had known him for years. At one point we began selling drugs together. I would supply Childs the drugs and he would go across town and deal to a set of people that I did not know. Childs began a sexual relationship with Jackie Roberts and through her he also dealt drugs. Jackie Roberts was the daughter in-law of the deceased, Elizabeth Black. Jackie Roberts’ husband was in prison for drugs. At one point he accumulated a large amount of cash, $50,000+, and he left it with his parents while he went to prison. Jackie Roberts felt that the money was hers and together she and Childs began planning the robbery that would get them the money.
Through Jackie Roberts, Childs learned of the money, where the house was located and when the Blacks would not be home. Jackie Roberts told Childs that she believed the money was hidden in the walls of the house. Childs obtained a garage door opener from Jackie Roberts that gave him access to the Black’s residence.
I learned of this scheme through ChiIds. He would speak of it to people he knew attempting to find someone who was willing to rob the house with him. Childs approached me with the scheme and I told him I wanted no part of it. Childs talked of this scheme for about 2 months.
The day before the crime Childs made a drug purchase using funds that I supplied to him. Childs was buying a considerable amount of drugs from an individual I did not know. I gave Childs the money and he made the deal. Childs was to buy half a pound of methamphetamine for $5000. He only received a quarter pound of the drug. I would later find out that Jackie Roberts had introduced Childs to another drug dealer from whom he was to get the drugs. The day of the drug deal Jackie Roberts was with him. After buying the drugs Childs and Roberts came to my trailer house where I lived. Upon weighing the drugs Childs realized he did not receive the full amount of drugs he paid for. I was upset and told Childs that he owed me the money he had over paid and he better figure out a way to pay me. Not long after that I told everyone in the house to leave and I went to bed.
The next morning Childs and another individual who I believe was Doug Roberts, Jackie Roberts’ ex-husband, went to the Black’s residence and attempted to rob the house. These 2 men went into the house through the garage using the garage door opener Jackie Roberts had supplied them and found Mrs. Black and the family pet, a large Doberman Pincer. Both Mrs. Black and the dog were shot and killed. It would come out in trial that Mrs. Black had met Childs more than once when he was with Jackie Roberts.
Jackie Roberts’ ex-husband, Doug Roberts, was the first person to contact the police. The afternoon the crime was committed be presented himself at the police department advising the police that he is concerned about his ex-wife, Jackie Roberts. He told the police that he heard that a purple Volkswagen Beetle was seen leaving the crime scene. He also establishes his whereabouts during the timeframe the crime was committed and then advises the police that at about 6 am that morning he saw Childs driving a purple Volkswagen when he dropped Jackie Roberts off at her house.
Another important fact in this saga is that before Childs was arrested, Jackie Roberts met with him at his grandmother’s house for 2 hours. She then disappeared for 3 days running from the police and refusing to return home. After 3 days on the run the police obtain a warrant for her arrest for criminal conspiracy to commit capital murder.
Doug Roberts will meet with the police several more times. It will become clear that Jackie Roberts is on the run and the police will pressure him to deliver her into custody. 4 days later he does just that. Jackie Roberts shows up at his house and he contacts the police informing them of her whereabouts. After making this call he leaves the residence.
The police will find Jackie Roberts at Doug Roberts’ house asleep and arrest her. While transporting her to the police department she states, “I didn’t know they were going to kill her.” When the police asked who she was talking about she states, “Charlie and Rick”, referring to Charles Flores and Richard Childs. She then states, “I am scared that Charlie is going to kill me for what I know.” She also states, “I think Rick did what he did because he is scared of Charlie too.”
From this point on Jackie Roberts tells the police about the night before the crime was committed and the drug deal gone bad. She continues to emphasize that both she and Childs are afraid of Charles Flores. She at one point volunteers to lead the police to the trailer house where I lived. The police will take her up on her offer as they begin to search for me.
While in custody Childs gives the police a confession. In this confession he tells the police a bizarre account of my alleged involvement in this crime. He tells the police that I force him at gunpoint to the Black’s house. I then put a handgun in his hand and we enter the house. In his account I shot and killed the deceased and his involvement is minimal: he was forced to go and participate in the crime and all he did was shoot the dog. At this point I become involved and the police begin to search for me.
Before Childs was arrested he and Jackie Roberts met. At this point they knew the police were looking for the purple Volkswagen. It was in their best interest to minimize their involvement and make a 3rd person the killer of Mrs. Black. Childs was in custody for 3 days before he confessed. Before his confession he knew he had been positively identified by the witness, Jill Bargainer. He could not claim innocence and think the police would believe him. Childs blamed me for his attempting to rob the Black’s house and in the process killing the victim. In his mind he thought if he did not owe me money then he would have never tried to rob the house. Childs creates this tale of me forcing him into participating in the crime and his involvement is next to none and forced at gunpoint. Incredibly the police believe his tale.
As stated at the beginning of this summary the police never found the murder weapon. They concluded that two guns had been used. The police never recovered any bullet slugs. One unspent .380 caliber bullet was found at the crime scene.
The prosecution decided that the victim was killed with a .380 caliber gun. This was consistent with the victim’s wounds. The prosecution also decided that the dog was killed with a .44 caliber gun. This was also consistent with the dog’s wounds. The prosecution chose to try me first and decided that I was the shooter. In their theory they will tell the jury that the .44 caliber weapon found at Childs’ grandmother’s house could be the gun used to kill the dog. This gun will be introduced into my trial as if it is in fact the weapon that killed the dog.
By doing this the prosecution paints me as the shooter of Mrs. Black. They will present testimony that I at one time had a .380 caliber handgun. They will introduce the .380 caliber handgun that belonged to Homero Garcia. They will have him testify that he in fact received this handgun from me. Both of these weapons will be placed in front of the jury box throughout the trial as if they are the weapons used in the crime.
These weapons in fact have nothing to do with the capital murder I was on trial for and only prejudice the jury lulling them into thinking and believing that the prosecution has the guns that were used in this crime. The prosecution intentionally misled and tainted the jury. They know both of these weapons have been tested in every possible way and cannot be tied to this crime.
I have done many things in my life that I truly regret. I am the first to say that I was no saint while in the free world. I had a criminal record that included probation and serving 2 years in TDCJ. I was a Mexican American who was supplying dangerous drugs to a considerable number of white men and women.
When I learned that the police wanted to arrest me for capital murder I did the worst thing I could do. I ran. I knew that I was facing life in prison or worse and this scared me greatly, so I acted impulsively and I ran. Thinking that I had nothing to lose I continued to engage in criminal behavior and held no regard for the law.
This does not make me guilty of capital murder. This does not make me the shooter of the deceased. In my trial the judge allowed an incredible amount of information on unadjudicated, extraneous offenses into the guilt/innocence phase of my trial. In doing this the judge made the prosecution’s job much easier. Tales of drug usage, drug dealing, assault, evading arrest and other crimes were presented to the jury. In this setting the questionable facts of this case were lost in wave after wave of extraneous offenses. The jury became inflamed and without a doubt they thought where there is smoke there is fire and in no time convicted me of capital murder.
It did not help that my court appointed trial attorneys did not call any alibi witnesses on my behalf. My attorneys did next to nothing, sitting there allowing the prosecution to put on its grand show. Some of the prosecution’s witnesses went unquestioned. While on trial I came to understand that when a case is brought to trial it is not about truth and justice. It is not about finding facts. It is about who can tell the best, most believable story. I refused to cooperate with the prosecution and from that moment the prosecution decided that I was guilty and they would do whatever it took to prove this at trial. This conclusion came from the first policeman who began to search for me. He automatically thought me guilty. This was passed on until the prosecution put its stamp of approval on it. In the end I am a man who was accused of a crime and have never had a fair chance at proving my innocence. I was convicted and sentenced to die because of my criminal background, because I was the only minority in a group of whites and because I do not come from an affluent family.
MITIGATING EVIDENCE:
In the sentencing phase of my trial the issue of mitigating evidence came up. I distinctly recall my trial attorney asking me, did I have anyone who could possibly come forth and say a few good things about me? I responded that I knew several people who attended my father’s church and they could possibly come and testify. To that he said, what are they gonna say? That they saw you a church a few times? I lowered my eyes and replied, yes and that was the end of that.
No witnesses were called by the defense at the sentencing phase of my trial. No information of head trauma sustained as a child, teen and adult, no information on physical/sexual abuse was shown to the jury. No family friends or anyone I might know were called to come say something positive about me. In fact this is exactly what should have been done, anything to show the jury that I am human, not some drug crazed killer. Yet my attorneys called no one. The prosecution called 2 days worth of witnesses who testified to crimes I had committed, and after such a production the jury sentenced me to death.
At this point of my trial my parents and wife were under indictment on trumped up charges the prosecutor had filed. The charge was hindering the apprehension of a wanted felon. These were serious charges and the prosecutor had shown us he was serious about sending them to prison. Because of this my parents and wife informed the court that if they were called to testify they would plead the Fifth Amendment and not answer any questions. In this way the prosecution took away the ability of those who knew me best to come forth and testify. The prosecutor knew exactly what he was doing because in his closing argument be made direct comment on this tactic saying, “Where is his family, his mom and dad, his wife and brothers? Why aren’t they here to say something good about him? I’ll tell you why, there is nothing good to say about Charles Flores.”
In 2003 I filed a pro-se Wiggins claim. I inserted my facts into the Wiggins case and filed it with the court in efforts to preserve the critical points of error.
STUNBELT:
In the guilt/innocence phase and sentencing phase of my trial I was forced to wear an electronic stun belt, leg shackles, and belly chain onto which my hands were handcuffed. The stun belt consisted of a large black nylon belt that was wrapped around my midsection from waist to underarms and a large black metal box affixed to my back. This novel security restraint was in full view of the jury box. The belly chain and handcuffs were also in full view of the jury box.
The 2 rows of benches directly behind the defense table in the courtroom were restricted and no civilians were allowed to sit in this area. Instead these benches were filled with policemen, jailers and plainclothes cops.
While I sat at the defense table a Dallas County sheriffs deputy sat 3 feet behind me at all times. This deputy was in possession of the stun belt activator. Trial counsel failed to request the court to make findings on critical factual matters relating to the stun belt I was forced to wear during trial, i.e.:
What sort of device was being employed in my trial.
What is the error rate creating the possibility of accidental triggering of the belt.
What are the criteria for triggering of the device.
What medical effects will the discharge of the stun belt have upon my physical health.
During the trial the deputy in possession of the stun belt activator would often lean close to my ear and tell me that I was moving too much and that was making him nervous. If I kept moving he was going to shock me. Over and over this happened. In this way the deputy forced me to focus on the pain and humiliation that I’d suffer should the belt be activated, and in doing so rendered me incapable of effectively participating in my defense, depriving me of my Sixth amendment right to counsel.
The trial court judge abused his discretion in allowing these excessive restraint measures, which violated my Sixth amendment right, to be used in my trial. The court abused its discretion by failing to carefully scrutinize the need to use the stun belt in my trial. The court failed in its “gatekeeper responsibilities” by failing to determine that no lesser restraints would have kept me from disrupting the trial or being a security risk.
These stun belt issues have also been preserved pro-se. Trial counsel told me that I could not be convicted of capital murder. These words were imprinted into my mind and I honestly believed that I would go to trial and be found not guilty. There was no feeling of urgency in preparing a solid defense. I did not understand the law of parties. I did not comprehend that I could in fact be found guilty of capital murder under the lower burden of proof the law of parties provides. Mentally I continued to recall my trial attorney’s words, they can’t find you guilty!
PROSECUTORIAL MISCONDUCT:
The lead prosecutor in my trial intimidated, threatened and in general used Gestapo- like tactics while attempting to gain information to use against me at trial. This super chief prosecutor, Jason January, suddenly resigned in 2001. The rumor is that his actions caught up with him and he was forced to resign.
Another prosecutor in my case, George West also resigned under a storm of controversy that surrounded a death penalty case. In that case appeal attorneys argued that West knew that incorrect testimony was being given and did not correct it. The prosecution knew their witness was lying and that was acceptable to them.
In my experience it is normal procedure for the Dallas DA’s to break laws and rules of conduct in efforts to obtain a conviction. My family, friends and I have found this out first hand. Every friend I had was interrogated by the police, the prosecution’s investigators or the prosecutor himself. If they were not satisfied with the response given - if my friends did not have terrible things to say about me and willingness to become part of the state’s prosecution, then they were harassed and eventually arrested for some trumped up charge. This is simply how the police and the Dallas prosecutor’s office operates.
My parents were arrested several times. The first time they were taken to the Farmer’s Branch Police Department and held for 3 days in a bare cell and no access to a telephone, without medication and under a $50,000 bond each. They were under near constant interrogation, intimidation and threats by the police. My mother is a diabetic and must take medication daily for her condition. When she summoned up the courage to ask about being given some medication the police laughed at her and told her she would receive nothing. She and my father were told that they would be held there until they signed statements that the police wrote for them and were not allowed to read. My parents are elderly, were in fear for their lives and signed the statement.
My wife was arrested several times. On the second day of her custody in Dallas County she was taken to a detective’s office. A policeman in the office made a phone call as soon as I entered the room. He said a few words and handed me the phone. To my surprise and horror my wife Myra Wait was on the other end crying and sobbing hysterically and in fear for her life. The police had arrested her, held her in a bare cell for 3 days with no phone and no way to contact loved ones to tell them where she was. The police had convinced her that they would send her to prison forever and she would never be with the children. Over and over she told me this, crying, totally convinced that she would never go home. She told me they wanted her to say that I confessed but she said that I did no such thing. This sort of police and prosecutorial misconduct continued for one year before my trial.
Because I refused to confess to a crime I did not do, refused to cooperate with police and prosecutor, my friends family and loved ones became the main target of this prosecutorial misconduct. The prosecutor knew he could not get to me personally but he could make my life a living hell by arresting, intimidating and threatening those I loved.
In 2003 Homero Garcia went to prison for violation of probation. During that time a private investigator was working on my appeal and contacted Garcia’s family. Shortly thereafter Garcia and I began corresponding. Through that correspondence I was able to obtain a statement from him. In this statement he admits that the prosecutor, Jason January forced him into testifying against me and put words in his mouth. This is just one more piece of evidence showing the prosecutorial misconduct in this case.
There is much information on this case. I have highlighted the errors that I believe are strongest and are constitutional violations. If you have any questions please contact me and ask. Thank you.
