Opposition Brief — Charles Don Flores, Petitioner v. Texas
Supreme Court briefMay 13, 2026
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No. 25-6774
**CAPITAL CASE**
IN THE
Supreme Court of the United States
CHARLES DON FLORES,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
On Petition for a Writ of Certiorari
to the Court of Criminal Appeals of Texas
BRIEF IN OPPOSITION
JOHN CREUZOT
Criminal District Attorney
Dallas County, Texas
MICHELE “SHELLY” O’BRIEN YEATTS
Assistant Criminal District Attorney
Counsel of Record
JACLYN O’CONNOR LAMBERT
Assistant Criminal District Attorney
Frank Crowley Courts Bldg.
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207
(214) 653-3625
syeatts@dallascounty.org
Counsel for Respondent
CAPITAL CASE
QUESTION PRESENTED
Charles Flores was convicted of capital murder and sentenced to death in 1999
for the shooting death of 64-year-old Elizabeth Black in the course of committing or
attempting to commit robbery or burglary. Flores has filed multiple habeas
applications in the Texas Court of Criminal Appeals (TCCA) seeking relief from his
capital murder conviction.
In 2016, weeks prior to his scheduled execution, Flores filed a second habeas
application alleging that newly discovered scientific evidence regarding hypnosis and
its effects on memory recall discredited the testimony of a key eyewitness, Jill
Barganier. Flores utilized a then newly-enacted statute—Article 11.073 of the Texas
Code of Criminal Procedure—to overcome the procedural bar and litigate his “new
science” claim. His execution was stayed, and he was afforded the opportunity to fully
develop his evidence and fairly litigate his claim. Ultimately, the TCCA concluded
that Flores failed to show he was entitled to relief under Article 11.073 and denied
relief. A petition for writ of certiorari was filed and rejected in this Court.
Since that time, Flores has filed two additional habeas applications attempting
to re-litigate this claim and others. His third state habeas application was dismissed
by the TCCA, and a petition for certiorari was filed and rejected by this Court. His
fourth state habeas application, filed in 2025, was again dismissed by the TCCA for
failing to satisfy the procedural requirements of Article 11.071, Section 5 of the Texas
Code of Criminal Procedure. In his current petition for certiorari review of the TCCA’s
dismissal order, the following issue is presented:
In dismissing Flores’s fourth state habeas application, did the
TCCA’s application of an independent and adequate state-law
procedural bar violate Flores’s right to due process?
i
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF CITED AUTHORITIES ............................................................................ iii
STATEMENT OF THE CASE ....................................................................................... 2
I.
The Capital Murder Trial ................................................................................... 2
A.
The capital murder of Betty Black ............................................................. 2
B.
Events precipitating the murder ................................................................ 3
C.
Flores and Childs are identified as suspects.............................................. 6
D.
Flores’s inculpatory statements and actions after the murder ................. 9
E.
Flores’s trial theories and strategies........................................................ 12
F.
The jury charge ......................................................................................... 13
G.
The defense team’s closing arguments..................................................... 14
II.
Respondent Objects to the Facts Flores Presents in his Petition. .................. 15
III.
Flores’s Post-Conviction Proceedings ............................................................... 15
REASONS FOR DENYING THE PETITION ............................................................ 19
I.
An Adequate and Independent State Procedural Bar Forecloses
Certiorari Review. ............................................................................................. 19
II.
Flores’s Current Petition for Writ of Certiorari Rehashes Claims this
Court Rejected in 2022...................................................................................... 22
III.
Flores Does Not Show that His State Habeas Proceeding Failed to
Comport with Due Process. .............................................................................. 23
CONCLUSION............................................................................................................. 30
ii
TABLE OF CITED AUTHORITIES
Cases
Beard v. Kindler,
558 U.S. 53 (2009) ................................................................................................... 20
Coleman v. Thompson,
501 U.S. 722 (1991) ........................................................................................... 22, 29
Dist. Attorney's Off. for Third Jud. Dist. v. Osborne,
557 U.S. 52 (2009) ............................................................................................. 24, 25
Ex parte Adams,
No. WR-29,889-04, 2016 WL 1161091 (Tex. Crim. App. Mar. 23, 2016) (per
curiam) (not designated for publication) ................................................................ 28
Ex parte Campbell,
226 S.W.3d 418 (Tex. Crim. App. 2007) .................................................................. 21
Ex parte Chaney,
563 S.W.3d 239 (Tex. Crim. App. 2018) .................................................................. 26
Ex parte Clark,
No. WR-13,739-06, 2023 WL 8613823 (Tex. Crim. App. Dec. 13, 2023) (per
curiam) (not designated for publication) ................................................................ 27
Ex parte Escobar,
676 S.W.3d 664 (Tex. Crim. App. 2023) .................................................................. 26
Ex parte Faircloth,
No. WR-81,450-02, 2023 WL 2669803 (Tex. Crim. App. Mar. 29, 2023) (per
curiam) (not designated for publication) ................................................................ 27
Ex parte Fischer,
No. WR-79,039-02, 2021 WL 900679 (Tex. Crim. App. Mar. 10, 2021) (per curiam)
(not designated for publication) .............................................................................. 27
Ex parte Flores,
No. WR-64,654-01, 2006 WL 2706773 (Tex. Crim. App. Sept. 20, 2006) (per
curiam) (not designated for publication) ................................................................ 16
Ex parte Flores,
No. WR-64,654-02, 2016 WL 3141662 (Tex. Crim. App. May 27, 2016) (per
curiam) (not designated for publication) ................................................................ 17
iii
Ex parte Flores,
No. WR-64,654-02, 2020 WL 2188757 (Tex. Crim. App. May 6, 2020) (per curiam)
(not designated for publication) .............................................................................. 17
Ex parte Flores,
No. WR-64,654-03, 2021 WL 4566355 (Tex. Crim. App. Oct. 6, 2021) (per curiam)
(not designated for publication) ........................................................................ 18, 23
Ex parte Flores,
No. WR-64,654-04, 2025 WL 2860250 (Tex. Crim. App. Oct. 9, 2025) (per curiam)
(not designated for publication) .................................................................. 18, 21, 23
Ex parte Gandy,
No. WR-22,074-10, 2019 WL 2017291 (Tex. Crim. App. May 8, 2019) (per curiam)
(not designated for publication) .............................................................................. 28
Ex parte Graves,
70 S.W.3d 103 (Tex. Crim. App. 2002).................................................................... 29
Ex parte Kussmaul,
548 S.W.3d 606 (Tex. Crim. App. 2018) .................................................................. 26
Ex parte Leadon,
No. WR-93,690-01, 2022 WL 2965701 (Tex. Crim. App. July 27, 2022) (per
curiam) (not designated for publication) ................................................................ 27
Ex Parte Lewis,
No. WR-57,648-13, 2026 WL 388685 (Tex. Crim. App. Feb. 12, 2026) (per curiam)
(not designated for publication) .............................................................................. 27
Ex parte Mayhugh,
512 S.W.3d 285 (Tex. Crim. App. 2016) .................................................................. 26
Ex parte Nolley,
No. WR-46,177-03, 2018 WL 2126318 (Tex. Crim. App. May 9, 2018) (per curiam)
(not designated for publication) .............................................................................. 28
Ex parte Roark,
707 S.W.3d 157 (Tex. Crim. App. 2024) .................................................................. 26
Ex parte Robbins,
478 S.W.3d 678 (Tex. Crim. App. 2014) .................................................................. 26
Ex parte Santillan,
No. WR-49,763-02, 2023 WL 2150874 (Tex. Crim. App. Feb. 22, 2023) (per
curiam) (not designated for publication) ................................................................ 27
iv
Ex parte Sonnier,
No. WR-85,161-02, 2017 WL 4410272 (Tex. Crim. App. Oct. 4, 2017) (per curiam)
(not designated for publication) .............................................................................. 28
Ex parte Turner,
No. WR-92,964-01, 2021 WL 5917206 (Tex. Crim. App. Dec. 15, 2021) (per
curiam) (not designated for publication) ................................................................ 27
Flores v. State,
No. AP-73,463 (Tex. Crim. App. Nov. 7, 2001) (not designated for publication) .. 15
Flores v. Stephens,
577 U.S. 1121 (2016) ............................................................................................... 16
Flores v. Stephens,
794 F.3d 494 (5th Cir. 2015) ................................................................................... 16
Flores v. Stephens,
No. 3:07-CV-0413-M, 2014 WL 3534989 (N.D. Tex. July 17, 2014) ...................... 16
Flores v. Texas,
141 S. Ct. 1272 (2021) ............................................................................................. 17
Flores v. Texas,
142 S. Ct. 2818 (2022) ....................................................................................... 18, 23
Flores v. Texas,
552 U.S. 884 (2007) ................................................................................................. 16
Flores v. Texas,
535 U.S. 1039 (2002) ............................................................................................... 15
Flores v. Thaler,
No. 3-07-CV-0413-M-BD, 2011 WL 11902115 (N.D. Tex. Mar. 3, 2011) ............... 16
Ford v. Wainwright,
477 U.S. 399 (1986) ................................................................................................. 25
Foster v. Chatman,
578 U.S. 488 (2016) ................................................................................................. 22
Hughes v. Quarterman,
530 F.3d 336 (5th Cir. 2008) ............................................................................. 21, 22
McCoy v. Louisiana,
584 U.S. 414 (2018) ................................................................................................. 18
v
Murray v. Girratano,
492 U.S. 1 (1989) ..................................................................................................... 24
Pennsylvania v. Finley,
481 U.S. 551 (1989) ................................................................................................. 24
Roberson v. Texas,
604 U.S. __, 145 S. Ct. 3, 7, 220 L. Ed. 2d 162 (2024) ............................................ 29
Tercero v. Stephens,
738 F.3d 141 (5th Cir. 2013) ................................................................................... 25
Walker v. Martin,
562 U.S. 307 (2011) ................................................................................................. 22
Statutes
28 U.S.C. § 2244(b) ...................................................................................................... 20
Tex. Code Crim. Proc. Ann. art. 11.071, § 5................................................................ 20
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(a) ........................................................... 20
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(c) ................................................ 18, 20, 21
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(e) ........................................................... 21
vi
BRIEF IN OPPOSITION
In January 1998, Petitioner Charles Don Flores and his cohort, Richard Childs,
murdered 64-year-old Betty Black and the Blacks’ Doberman pinscher, Santana,
during the course of a home-invasion robbery. In April 1999, a Dallas County jury
convicted Flores of capital murder and, via Texas’s statutory special issues, sentenced
him to death. In his fourth state habeas application, Flores raised four claims,
specifically alleging: he is entitled to relief under Article 11.073 of the Texas Code of
Criminal Procedure based on new scientific evidence regarding eyewitness
identification reliability; actual innocence; official misconduct; and he was deprived
of a state-created liberty interest embodied in Article 11.073 in violation of due
process. The TCCA determined Flores’s claims did not satisfy the statutory
framework to excuse procedural default under Texas’s abuse-of-the-writ bar. Flores
now seeks certiorari review of the TCCA’s dismissal, but his petition implicates
nothing more than the state court’s application of state procedural rules for collateral
review of death sentences. Flores couches his question presented as a due process
violation, but he is effectively complaining that the TCCA misapplied the state
procedural rule to his facts. Misapplication of a state procedural rule is not a matter
for this Court. The state court’s disposition, which relied upon an adequate and
independent state-law ground, forecloses certiorari review. Nothing Flores presents
warrants this Court’s attention.
1
STATEMENT OF THE CASE
I.
The Capital Murder Trial
A. The capital murder of Betty Black
Elizabeth (“Betty”) Black lived with her husband, William (“Bill”) Francis
Black, in Farmers Branch, a suburb of Dallas, Texas. (RR34: 47-51).1 On January
29, 1998, Mr. Black left for work at approximately 6:30 a.m. (RR34: 61-62). He
returned three hours later to discover his wife lying dead beneath the dining room
table. (RR34: 63-65). An autopsy revealed Mrs. Black died from a gunshot to the
chest. (RR36: 140, 143; SX 82). Officers found a .380 caliber spent bullet on the floor
near her body and a .380 caliber shell casing on the garage floor.2 (RR35: 222, 22627, 235-36, 255-57; SX 49-50).
The Blacks’ Doberman, Santana, sustained a single gunshot. (RR34: 247;
RR35: 216; RR36: 145-47). Although no bullet or casing was recovered, a hole in the
carpet, defect in the concrete slab, and other forensic evidence showed the dog was
shot in the dining room, walked into the living room, and died. (RR35: 240, 250-55,
270-71, 274-78; RR36: 155-56; SX 52B).
Potato fragments littered the dining room floor, table, walls, and ceiling; a
hallway wall; a door; and the garage floor—indicating the shooters had placed
potatoes on the barrels of their guns as “silencers.” (RR35: 199, 206-07, 2 2 0 -2 1 ,
1 Respondent will refer to the volumes of the reporter’s record from the trial as “RR” and to exhibits
admitted at trial as “SX” for State’s exhibits and “DX” for defendant’s exhibits.
2 An interior door led from the garage into the dining room. (RR35: 237).
2
2 2 6 -2 7 , 2 3 0 -3 2 , 242-44; SX 47-48). Patterns of blood and potato spatter along with
the location of the body, bullet, shell casing, and carpet defect revealed different
gunshots killed Mrs. Black and the dog. (RR35: 237-45, 253-54, 275-77; SX 52B). The
dog’s injuries and the size of her entrance wound suggested she was killed with a
higher caliber weapon than the .380 gun used to kill Mrs. Black. (RR36: 147-50).
The intruders had knocked holes in the walls of two bathrooms and removed
the sink and medicine cabinet in the master bathroom. (RR35: 201-02, 209-10). The
master bathroom sink (now on the floor) had a whole potato in i t . (RR35: 202, 210,
225, 232-33; SX 43, 48A). Other rooms were not disturbed, and there were no signs
of forced entry or a struggle. (RR35: 202, 211-12; SX 18A).
B. Events precipitating the murder
Mrs. Black’s murder did not occur in a vacuum: it emanated from a drug deal
gone wrong (although Mrs. Black was not a participant and had no knowledge of the
drug deal) and transpired because a large amount of cash was rumored to be secreted
in the Blacks’ home. (RR34: 253-56; RR38: 61, 117-18). The Blacks’ son, Gary, was a
drug dealer incarcerated on drug charges. (RR34: 52). Gary and his common-law wife,
Jackie Roberts, had two daughters. (RR34: 53, 100-01). Jackie and the girls lived a
short distance from the Blacks’ home, and Mrs. Black frequently cared for the girls.
(RR34: 54-55, 105, 111).
The Blacks had approximately $39,000 in cash from Gary’s illegal drug trade
hidden in their master bedroom closet. (RR34: 68-69, 253; RR38: 137, 191). They
wrote a $500 check to Jackie monthly. (RR34: 70-71, 116, 259). The money had been
3
a source of dispute between Gary and Jackie, and Gary was threatening to reduce
Jackie’s allowance. (RR34: 117; RR38: 137-39, 160).
Jackie, who was on probation for possession of methamphetamine, became
romantically involved with Richard Childs about three weeks before the murder.
(RR34: 106-10; RR38: 115). Childs, a drug dealer, habitually carried a .380
semiautomatic pistol in the back of his waistband. (RR34: 265-66; RR35: 63; RR38:
141, 174). Childs drove an old Volkswagen with dark tinted windows that was
conspicuously painted multiple colors, including pink and purple. (RR34: 230-32;
RR35: 64; RR36: 247). Jackie told Childs about Gary’s money. (RR38: 136-37).
Childs and Flores were associates; like Childs, Flores used and sold drugs.
(RR34: 82-83; RR35: 62; RR36: 225, 247; RR37: 80-81). Flores was also known to own
and carry several different firearms, including a .380. (RR34: 81-82; RR36: 221-22,
224, 246, 250; RR37: 77-78, 92).
Flores lived with his girlfriend, Myra Wait, and her three children.3 (RR34: 7879; RR36: 249). Early on the morning of the murder, Flores and Childs spent three or
four hours at Flores’s home using methamphetamine and marijuana with Myra’s
brother, Jonathan Wait, and Wait’s cousin, Jamie Dodge. (RR34: 82-86, 98-99; RR36:
250-52, 257). Childs and Flores left in Childs’s Volkswagen at approximately 3:00
a.m. (RR34: 85; RR36: 258). They picked up Jackie, who had never met Flores. (RR34:
118-20). Jackie had arranged for her friend, Terry Plunk, to sell Childs and Flores a
quarter pound of methamphetamine for $3,900. (RR34: 115, 117-18).
3 Myra and Flores reportedly were married a few days after the offense. (RR37: 95-96).
4
The trio left the Volkswagen at Jackie’s house and drove Jackie’s El Camino to
an apartment in Dallas, where they met Plunk. (RR34: 121-23). During the
transaction, Flores weighed the drugs on a portable digital scale and declared the
quantity was a quarter-ounce short. (RR34: 127-28, 176-77, 214). Plunk made up the
alleged shortage. (RR34: 128-29, 214). Jackie, Childs, and Flores drove to Flores’s
home with the drugs. (RR34: 134-35). Flores re-weighed the methamphetamine and
again accused Plunk of shortchanging him, insisting the deal was for a half pound
instead of a quarter pound. (RR34: 137-39). Flores ranted about being shorted,
threatened Jackie at gunpoint with a two-barreled handgun, and asked how much
Plunk would pay for her head. (RR34: 138-40). Childs attempted to calm Flores down,
and Jackie telephoned Plunk to ask if he would cover the claimed shortage. (RR34:
140-41, 216-18). Plunk refused. (RR34: 216-17). Flores continued demanding
reimbursement in the form of additional drugs or money. (RR34: 150, 152). Jackie
agreed to pay Flores $3,900 from the money at the Blacks’ home, but she told Flores
she needed a day to get it. (RR34: 150; RR38: 153). Childs told Flores he knew the
money existed. (RR34: 150-51).
Childs, Flores, and Jackie drove to a nearby house where Childs and Flores
acquired three firearms. (RR34: 143-45). Flores was armed with a “long, blue gun”
and a handgun. (RR34: 144; RR38: 113). Childs also carried a handgun; of the two
handguns, Childs’s handgun was larger. (RR34: 144; RR38: 113). The trio made two
other stops, at an apartment complex and gas station. (RR34: 145-49). Flores
continued to threaten Jackie. (RR34: 145-49). The men dropped Jackie (and the El
5
Camino) off at her home between approximately 6:35 and 7:15 a.m. and drove away
in the Volkswagen. (RR34: 153, 238; RR35: 14-15, 21, 52). Doug Roberts was at
Jackie’s house to take their son to school, and glimpsed Childs getting into the
Volkswagen. (RR34: 233, 237-39). He was unable to see in the passenger side of the
vehicle due to the dark tinted windows. (RR34: 232, 238).
Vanessa Stovall, another girlfriend of Childs’s, testified that Childs and Flores
arrived at Childs’s grandmother’s home at around 6:30 a.m. on the morning of the
murder. (RR35: 70-71, 89). The three sat in the kitchen, and Flores and Stovall
smoked methamphetamine. (RR35: 71-74, 90). Stovall saw Childs and Flores drive
away in the Volkswagen between 6:45 and 7:00 a.m. (RR35: 75-76).
C. Flores and Childs are identified as suspects
Jill Barganier4 lived next door to the Blacks. She testified that at about 6:45
a.m., she looked out her window and saw two men exit a pink and purple Volkswagen
in the Blacks’ driveway and walk toward the front door. (RR36: 280-84). She told her
husband about the men. (RR36: 286). Ms. Barganier later reported what she had seen
to the police, and she identified Childs as the driver from a photographic lineup.
(RR36: 288-89). In the courtroom at trial, she positively identified Flores as the
vehicle’s passenger; she said he had turned to face her, and she thought they made
eye contact. (RR36: 283, 285, 294).
Neighbors Michelle Babler and her son, Nathan Taylor, who lived across the
street, testified they saw the Volkswagen at the Blacks’ home at around 7:30 to 7:35
4 Jill Barganier’s name is misspelled in the trial record as “Bargainer.”
6
a.m. (RR35: 102-04, 138-39, 144, 149). Two men got out of the car. (RR35: 108, 139).
While neither witness could positively identify either of the men, Babler testified at
trial that Flores and the passenger were similar in appearance. (RR35: 115-16). The
driver of the Volkswagen “rolled” under the slightly open garage door. (RR35: 110,
141). The passenger entered, and the garage door was shut. (RR35: 110, 141-43).
Babler was suspicious, but she saw another neighbor, Robert Barganier, and assumed
he had also seen the men. (RR35: 110-11, 125). Mr. Barganier started to walk toward
the Volkswagen, and then turned and got in his truck. (RR35: 111, 124). Since her
neighbor seemed to dismiss these happenings, Babler thought everything was fine
and drove away. (RR35: 110-11, 125-26).
Robert Barganier, Jill Barganier’s husband, testified that his wife left the
house at about 7:25 a.m., and he left within the next ten minutes. (RR35: 169-70). As
he exited his house, he heard a loud, suspicious “thud.” (RR35: 170, 188). He hollered
for Mr. Black and checked the side and back of the Blacks’ home but found nothing
amiss. (RR35: 170-73). He was planning to knock on the Blacks’ door when he noticed
the Volkswagen in the driveway. (RR35: 174-75, 179, 191). He did not see any men.
(RR35: 175). He had seen the Volkswagen previously at Jackie’s home and assumed
Jackie was dropping off her daughters. (RR35: 176-78). He went to his vehicle and
left for work. (RR35: 181-82).
Later that morning, Jackie’s mother told Doug Roberts that Mrs. Black had
been murdered. (RR34: 240-41). That evening, Doug learned neighbors had seen a
pink and purple Volkswagen in the Blacks’ driveway. (RR34: 242-43; RR35: 21). Doug
7
told Jackie her mother-in-law had been murdered and neighbors saw Childs’s
Volkswagen at the scene. (RR34: 162, 244; RR35: 23). When she learned Mrs. Black
was dead, Jackie became hysterical and collapsed. (RR34: 221, 244). Doug tried to
convince Jackie to go immediately with him to the police, but Jackie feared possible
retaliation or prosecution. (RR34: 163, 244, 284, 286-89; RR35: 22, 32). Doug dropped
Jackie off at a motel and went to the police station. (RR34: 245-46). He reported
Childs’s possible involvement in the murder, and he had a second interview with
police the next day. (RR34: 246; RR35: 36-37, 42-43; DX 2-3).5
Officers arrested Childs on January 31, 1998. (RR36: 177-79, 193). While under
police surveillance, Childs had furtively worn a friend’s hat and jacket and left his
grandmother’s home in the friend’s vehicle. (RR36: 190-93; RR38: 196-98). He had
clothing, a map, amphetamine, a partial box of the same brand of .380 ammunition
found at the murder scene, and $400. (RR36: 179-83, 194; RR38: 197-98, 200). A
search of his grandmother’s residence uncovered a Smith & Wesson .44 Magnum
revolver and other items. (RR36: 197-202; SX 53).6 Trace-evidence examiner Charles
5 On his way to the police station, Doug disposed of a map Jackie had drawn, showing the area of her
home and the Blacks’ house, that had been discovered in a backpack in her car. (RR34: 245-46; RR35:
24-25, 28; RR38: 169-70). Jackie initially told police she drew the map for Childs. (RR34: 161; RR38:
134-35). She testified at trial, however, that she drew it for Doug’s girlfriend, Elaine Dixon, who was
babysitting her daughters. (RR34: 111, 159-61; RR38: 158; RR39: 16-18, 20-21).
6 In a custodial interview, Childs inculpated himself and Flores in the offense. The interview was audio
recorded, transcribed, and provided to Flores prior to trial. (RR47: SX R101). According to Childs, he
shot the Blacks’ dog once with a .44 Magnum revolver, and Flores shot Mrs. Black. Childs also
confessed that he and Flores stuck potatoes on their gun barrels to muffle the sound of the gunfire.
Childs admitted he owned several guns, including a .38, .380, and the.44 revolver seized from his
grandmother’s house. Childs told police he had the .44 revolver with him during the offense, but he
appeared to deny using it (seemingly contradicting himself). The trial court admitted the .44 revolver
into evidence. (RR36: 201-02; SX 53). Childs was charged with capital murder. Neither party called
Childs as a witness at Flores’s trial.
8
Linch removed granular grey-black material from the grooves inside the .44 revolver
barrel that microscopic examination indicated was raw plant material containing
starch grains consistent with potato starch. (RR36: 211-13). Officers apprehended
Jackie at Doug’s apartment approximately four days after the murder. (RR34: 16566, 246-47; RR35: 48-49). Jackie participated in police interviews in which she
described the events of the early morning hours before Mrs. Black’s murder. (RR34:
160-61, 167-68; RR38: 121-22, 153).
D. Flores’s inculpatory statements and actions after the murder
The day after the murder, Flores admitted to a high school friend, Homero
Garcia, that he and Childs had gone to a house to get some money and the whole deal
had gone bad. (RR36: 217-18, 220, 237). Flores claimed he shot the dog and Childs
killed the “old lady.” (RR36: 220, 224, 229, 234).7
Two days after the murder, Flores, his girlfriend Myra Wait, and Myra’s
brother Jonathan Wait towed Childs’s Volkswagen to a parking lot behind Flores’s
father’s roofing business. (RR36: 261-64, 275). Flores spray-painted the Volkswagen
black and removed the license plates. (RR36: 264-65). They then towed the vehicle
onto the shoulder of a highway entrance ramp. (RR36: 266-67). Flores doused the
Volkswagen with gasoline, lit a piece of paper, and threw it in the Volkswagen, which
burst into flames. (RR36: 268).
7 Flores and Garcia traded guns: Flores gave Garcia a .380 in exchange for a .357. (RR36: 221-22; SX
64, 65). Flores told Garcia the .380 was not the gun used in the murder. (RR36: 228). Forensic
examination later revealed this to be true. (RR36: 235).
9
Passing motorist James Jordan saw the vehicles on the side of the road and
planned to pull over to assist when he saw Flores light the Volkswagen on fire, get in
the driver’s seat of Myra’s vehicle, and speed away. (RR36: 268-69; RR37: 13-22).
Jordan followed, intending to obtain a license plate number and report the incident.
(RR36: 269; RR37: 22). Flores evaded Jordan by speeding, running red lights, and
driving aggressively. (RR36: 270-73; RR37: 27-39). Flores fired several gunshots out
his driver’s window at Jordan’s car. (RR36: 269; RR37: 28, 30-31, 52). Authorities filed
arson charges against Flores for burning the Volkswagen. (RR37: 69-70).
A short time later, Flores fled the country to avoid apprehension. Before
leaving, he visited Jonathan Wait Sr., Myra and Jonathan’s father. (RR37: 82). Flores
was driving a black, extended-cab pickup truck, license number 0820ZX, and had
enough clothing and personal items for a vacation. (RR37: 83-84, 96). Flores told Wait
he had gotten himself into a little trouble and needed to leave the country. (RR37: 84,
86). Wait knew authorities were searching for Flores. (RR37: 82). He showed Flores
a newspaper article about the murder and said, “[Y]ou call this a little bit of trouble,
killing a 64-year-old woman,” to which Flores responded, “I only shot the dog.” (RR37:
84-85, 94). Flores told Wait that he was not going to be “taken alive.” (RR37: 86). Then
he fled to Mexico.8
8 The truck with license number 0820ZX, registered to Flores’s father, re-entered the United States
from Mexico on March 16, 1998 at Pharr, Texas. (RR37: 140-41). Caterino Flores executed a written
statement on May 5, 1998, in which he said his son had told him that he was at the Blacks’ house but
only Childs went inside. Caterino allowed Flores to take his truck to Mexico and then reported it stolen.
Caterino later delivered a Volvo to Flores in Mexico and picked up the truck. Caterino’s statement was
provided to Flores in pretrial discovery and admitted as a record-only exhibit at trial. (RR46: SX R5).
Neither party called Caterino as a witness at trial.
10
Although police did not know his true identity at the time, Flores was arrested
on April 18, 1998 in Kyle, Texas while traveling from Mexico to Dallas. (RR37: 127,
130, 143-44). Following a report of a possible intoxicated driver, two Kyle police
officers stopped a blue Volvo. (RR37: 97-106). Flores, the vehicle’s sole occupant,
presented a social security card and identified himself as Juan Jojola.9 (RR37: 10910). After Flores failed a series of field sobriety tests, the officers initiated an arrest
for Driving While Intoxicated (DWI). (RR37: 112-13, 116). Flores became violent,
attempted to push the officers into highway traffic, and injured them. (RR37: 11727). Flores bit a female officer in the arm. (RR37: 127). A sheriff’s deputy stopped and
helped handcuff Flores. (RR37: 123-24). Flores was transported to jail and charged
with DWI and two counts of assault on a peace officer. (RR37: 125-27). Officers did
not discover Flores’s outstanding federal arrest warrant, and they released him on
bond. (RR37: 111, 126-27, 134).
Federal Bureau of Investigation (“FBI”) agents finally arrested Flores for Mrs.
Black’s murder on May 1, 1998. (RR37: 148, 168-69). Flores led them on a dangerous
high-speed car chase, which ended with a head-on collision and foot race through a
residential area. (RR37: 157-69). Flores struggled violently with agents to avoid
arrest and had to be subdued by physical force. (RR37: 168-69). He suffered a broken
kneecap from the collision. (RR37: 174). While being treated at Parkland Hospital
several weeks later, Flores attempted to escape from custody by taking a deputy
sheriff’s gun and threatening to kill him. (RR37: 188-93, 208, 220-29). In the struggle,
9 Juan Jojola is Flores’s brother. (RR40: 79-80).
11
Flores sprayed the officer with mace and bit him on the wrist. (RR37: 194, 216-17,
230-31). Three or four people eventually subdued Flores. (RR37: 195, 217-19, 232).
E. Flores’s trial theories and strategies
Flores moved to exclude Jill Barganier’s in-court identification of him on the
basis that she underwent hypnosis in early February 1998, about 14 months before
trial (but after a hearing, the court held the identification was admissible). (RR36:
12-118). Flores further challenged Barganier’s identification with evidence that the
sunrise on January 29, 1998 was at 7:25 a.m., and thus the light was not sufficient
at 6:45 a.m. for her to see the passenger in the neighbor’s driveway. (RR38: 13, 1519). The charge instructed the jurors that if they believed, based on the hypnosis
session, that Barganier’s in-court identification was a false memory, resulted from
improper influence, or was untrustworthy, they must disregard it. (RR39: 32-33).
Throughout trial, Flores worked to discredit Jackie Roberts. (RR34: 180, 249,
253, 255-56, 258-63, 286-91, 294; RR35: 15-16, 30-31, 33-34; RR36: 185-86; RR38: 2428, 51-52, 55, 112-13, 117-18, 121-22, 131-37, 148-51, 166-72, 194-96, 205). He elicited
testimony from Jackie that she believed half the money at the Blacks’ house was
rightfully hers, and Mrs. Black told her immediately before the murder that Gary
wanted to reduce Jackie’s monthly allowance by half. (RR38: 137-40). Flores’s counsel
elicited testimony indicating Jackie was angry with Childs on the morning of January
29th because Childs had not returned (presumably from a burglary Jackie
spearheaded), and that Jackie was not frightened of Charles Flores. (RR34: 279-80,
290; RR38: 45-46). The jury charge included an accomplice instruction as to Jackie,
12
advising that the jury could not use Jackie’s testimony to convict Flores unless it
found her testimony was true, the testimony showed Flores was guilty, and other
evidence specifically connected Flores to the murder. (RR39: 33-34). Flores also
attacked Doug Roberts’s credibility. (RR34: 249, 253, 291-94; RR35: 32-34, 37-38, 4347, 56-57; RR38: 28, 31-32, 38-51, 53-55, 64-65, 192). He sought to emphasize the
inconsistencies in Doug’s and Jackie’s testimony. (RR38: 24-55, 111-23, 131-51, 16671).
Flores established that: forensic evidence proved the .380 weapon he gave
Homero Garcia was not the weapon used to kill Mrs. Black; the murder weapon was
never recovered; and Childs always carried a .380 firearm. (RR34: 265-67; RR36: 23137; RR38: 51, 88-90, 95, 174; DX 10). Flores also presented evidence Childs talked to
his girlfriend Deborah Howard in January 1998 about $100,000 in hidden drug
money, implying Childs was interested in the money.10 (RR38: 176-81).
F. The jury charge
The trial court’s charge instructed the jury it could find Flores guilty of capital
murder in any one of three ways, as: (a) a principal (wherein Flores intentionally
caused Black’s death in the course of committing or attempting to commit robbery or
burglary); (b) a party (wherein his co-defendant Richard Childs intentionally killed
Black in the course of committing or attempting to commit robbery or burglary, and
Flores—acting as a party with intent to promote or assist—solicited, encouraged,
10 The testimony was that Childs had asked, “What [would you] do if [you] knew where $100,000 [in
drug money] was?” (RR38: 179-80).
13
directed, aided, or attempted to aid Childs in the murder); or (c) a co-conspirator
(wherein Flores and Childs entered into a conspiracy to commit robbery or burglary
and, in carrying out the conspiracy, Childs intentionally killed Black, and Flores
should have anticipated Black’s death would occur). (RR39: 35-37, 44-45). The jury
also received instructions on the lesser-included offenses of murder and burglary.
(RR39: 37-40, 46). Flores declined, as a matter of strategy, to include lesser-includedoffense instructions on aggravated robbery or robbery. (RR39: 13).
G. The defense team’s closing arguments
Flores’s counsel argued the State had not proven Flores killed anyone. (RR39:
66). Counsel proffered that Flores’s actions after January 31st were evidence not that
he was guilty, but that he did not want to go to prison for a murder he did not commit.
(RR39: 67-68). Counsel offered a theory that Jackie Roberts believed the money at
the Blacks’ house was rightfully hers, planned the burglary, had Childs attempt to
get the money for her, fabricated a story about events with Flores after the drug deal,
and was angry at Childs that morning because he did not return. (RR39: 73-75, 8283). Counsel argued the State had not proven Flores committed capital murder as a
principal, party, or co-conspirator, and that Flores would not have reasonably
anticipated a murder would occur (including there was no evidence he knew Mrs.
Black would be home). (RR39: 80-86). During these arguments, counsel conceded
Flores was present in the home and participated in a burglary. Counsel argued Flores
told Garcia no one was supposed to be home. (RR39: 86). Counsel advocated for the
jury to find Flores guilty of a lesser-included offense to capital murder. (RR39: 86).
14
II.
Respondent Objects to the Facts Flores Presents in his Petition.
Flores asks this Court to accept as true facts that have never been established
or recognized by any court, state or federal. His efforts in the lower court in his third
and fourth habeas applications to re-write the events of this capital murder by
chipping away at the credibility of his conviction on an event-by-event, witness-bywitness basis is really a challenge to the sufficiency of the evidence supporting his
judgment and sentence. His description of the offense and events leading to it (Pet.
at 3-12) conflicts with trial and post-conviction evidence. No evidence he presents,
considered individually or collectively, proves he is innocent. Respondent asks the
Court to reject Flores’s unsupported “facts” and consider its record-bound statement
of the case instead.
III.
Flores’s Post-Conviction Proceedings
The TCCA affirmed Flores’s conviction and sentence on direct appeal, and this
Court denied his petition for a writ of certiorari. Flores v. State, No. AP-73,463 (Tex.
Crim. App. Nov. 7, 2001) (not designated for publication); Flores v. Texas,
535 U.S. 1039 (2002). Flores filed original, supplemental, and pro se applications for
writ of habeas corpus in the convicting court. In his original and supplemental
applications, he raised complaints regarding the punishment-phase jury instructions,
deprivation of qualified and certified trial counsel, ineffective assistance of trial
counsel, witness Jill Barganier’s in-court identification, Brady violations, and
prosecutorial misconduct. In his pro se pleadings, Flores raised 17 allegations of
ineffective assistance of appellate and state habeas counsel. The convicting court
15
issued findings of fact and conclusions of law recommending relief be denied. The
TCCA adopted the convicting court’s findings and denied state habeas relief, and this
Court denied Flores’s petition for a writ of certiorari. Ex parte Flores, No. WR-64,65401, 2006 WL 2706773 (Tex. Crim. App. Sept. 20, 2006) (per curiam) (not designated
for publication); Flores v. Texas, 552 U.S. 884 (2007).
Flores timely filed a skeletal federal habeas petition raising 45 potential
claims, with the promise to file a final amended petition raising no new claims. See
Flores v. Stephens, 794 F.3d 494, 500-01 (5th Cir. 2015). He filed his amended petition
on March 24, 2008, alleging the mitigation jury instructions were constitutionally
defective, the prosecutor failed to disclose impeachment evidence for trace-evidence
expert Charles Linch, the trial court improperly admitted the hypnotically-enhanced
eyewitness testimony of witness Jill Barganier, and appellate and state habeas
counsel rendered ineffective assistance by not raising several Batson-related claims.
Id. The federal magistrate judge recommended relief be denied. Flores v. Thaler, No.
3-07-CV-0413-M-BD, 2011 WL 11902115 (N.D. Tex. Mar. 3, 2011). The federal
district court denied relief and declined to grant Flores a certificate of appealability.
Flores v. Stephens, No. 3:07-CV-0413-M, 2014 WL 3534989 (N.D. Tex. July 17, 2014).
The Fifth Circuit followed suit, and this Court denied Flores’s petition for a writ of
certiorari. Flores v. Stephens, 794 F.3d 494, 496, 506 (5th Cir. 2015); Flores v.
Stephens, 577 U.S. 1121 (2016).
In 2015, the 195th Judicial District Court of Dallas County scheduled Flores’s
execution for June 2, 2016. Two weeks prior to his scheduled execution, on May 19,
16
2016, Flores filed his second state habeas application and a motion for stay of
execution, raising four grounds for relief, including that new scientific knowledge
discredited Jill Barganier’s eyewitness identification. The TCCA stayed Flores’s
execution, held his eyewitness-identification claim satisfied the requirements of
Article 11.071, Section 5 of the Texas Code of Criminal Procedure, and remanded the
claim to the trial court for consideration on the merits. Ex parte Flores, No. WR64,654-02, 2016 WL 3141662 (Tex. Crim. App. May 27, 2016) (per curiam) (not
designated for publication). The trial court held an evidentiary hearing in October
2017 and entered findings of fact and conclusions of law recommending relief be
denied. The TCCA adopted the trial court’s findings and denied relief. Ex parte Flores,
No. WR-64,654-02, 2020 WL 2188757 (Tex. Crim. App. May 6, 2020) (per curiam)
(not designated for publication). This Court denied Flores’s petition for a writ of
certiorari. Flores v. Texas, 141 S. Ct. 1272 (2021).
On February 3, 2021, Flores filed his third state habeas application raising ten
claims. Specifically, the application alleged the following: (1) witness Jill Barganier’s
initial inability to identify him in a photo lineup was exculpatory, and a new scientific
consensus in the field of eyewitness identification rendered her in-court identification
unreliable; (2) the State’s trace-evidence expert, Charles Linch, had disavowed his
own testing and trial testimony as unreliable, and contemporary forensic lab
standards showed his methodology and test results lacked basic scientific
competency; (3) newly available evidence established Flores is actually innocent; (4)
and (5) the State suppressed Brady evidence material to his conviction and death
17
sentence; (6), (7), and (8) the State presented false testimony at trial; (9) his trial
counsel violated his Sixth Amendment right to maintain his innocence pursuant to
McCoy v. Louisiana, 584 U.S. 414 (2018); and (10) the State violated his due process
rights by presenting the alleged false scientific testimony described in claims one and
two. The TCCA dismissed the third state habeas application without reviewing the
merits of the claims raised, concluding Flores did not satisfy the requirements of
Article 11.071, Section 5. Ex parte Flores, No. WR-64,654-03, 2021 WL 4566355, at
*2 (Tex. Crim. App. Oct. 6, 2021) (per curiam) (not designated for publication); see
Tex. Code Crim. Proc. Ann. art. 11.071, § 5(c). This Court denied Flores’s petition for
a writ of certiorari. Flores v. Texas, 142 S. Ct. 2818 (2022).
On June 10, 2025, Flores filed his fourth state habeas application raising the
following four claims: he is entitled to relief under Article 11.073 of the Texas Code
of Criminal Procedure based on a new scientific consensus regarding eyewitness
identification reliability; actual innocence; official misconduct; and he has been
deprived of a state-created liberty interest embodied in Article 11.073 in violation of
federal constitutional due process. The TCCA dismissed this fourth state habeas
application without reviewing the merits of the claims raised, again concluding Flores
did not satisfy the requirements of Article 11.071, Section 5. Ex parte Flores, WR64,654-04, 2025 WL 2860250 (Tex. Crim. App. Oct. 9, 2025) (per curiam) (not
designated for publication); see Tex. Code Crim. Proc. Ann. art. 11.071, § 5(c). The
present petition followed. It is Flores’s sixth petition for a writ of certiorari in his case.
18
REASONS FOR DENYING THE PETITION
The court below dismissed the claims for which Flores seeks review on an
adequate and independent state-law ground without reaching the merits of the
claims, which deprives this Court of jurisdiction to consider them. Flores’s petition
seeks review of the TCCA’s order dismissing his fourth state habeas application as
an abuse of the writ under Texas Code of Criminal Procedure Article 11.071, Section
5. Because the TCCA’s decision applied Texas’s procedural rules governing
subsequent habeas applications in death-penalty cases, it is unassailable on
certiorari, and the Court lacks jurisdiction to grant review. Even assuming
jurisdiction, Flores has not furnished a compelling reason for this Court to review his
case, and none exists. The question Flores presents for review is unworthy of the
Court’s attention.
ARGUMENT
I.
An Adequate and Independent State Procedural Bar Forecloses
Certiorari Review.
Flores’s petition seeks review of the TCCA’s order dismissing his fourth state
habeas application as an abuse of the writ under Texas Code of Criminal Procedure
Article 11.071, Section 5. Because the TCCA’s decision involved nothing more than a
proper application of Texas’s procedural rules governing subsequent habeas
applications in death-penalty cases, it is unassailable on certiorari, and the Court
lacks jurisdiction to grant review. Flores acknowledges the TCCA never reached the
merits. Although he couches his claim as a due process violation, he is effectively
19
seeking error correction of an application of state procedural law. His petition falls
far short—on jurisdictional grounds—of warranting review.
Article 11.071, Section 5 of the Texas Code of Criminal Procedure governs
subsequent applications by state applicants who have previously sought postconviction relief. Section 5 prohibits a state court from considering the merits of or
granting relief on a death-sentenced inmate’s subsequent state habeas application
unless the TCCA first determines the application contains sufficient specific facts
establishing that (1) the factual or legal basis for the claim was unavailable at the
time a previous application was filed; (2) but for a violation of the Constitution, no
rational juror could have found the applicant guilty; or (3) but for a violation of the
Constitution, no rational juror would have voted in favor of a death sentence. Tex.
Code Crim. Proc. Ann. art. 11.071, § 5(a). If the TCCA determines none of the three
statutory requirements has been satisfied, it must issue an order dismissing the
application as an abuse of the writ. Id. § 5(c).
Thus, Article 11.071, Section 5 makes it clear applicants are restricted to one
habeas review, and subsequent writ applications are prohibited except in the
delineated circumstances. See id. § 5(a). This statute, like the federal habeas “second
or successive” writ prohibition, works to limit the number of attempts an inmate may
seek to collaterally attack a conviction, subject to the exceptions. Compare Tex. Code
Crim. Proc. Ann. art. 11.071, § 5 with 28 U.S.C. § 2244(b); see also Beard v. Kindler,
558 U.S. 53, 62 (2009) (noting that federal courts should not “disregard state
20
procedural rules that are substantially similar to those to which we give full force in
our own courts”).
The Texas statute requires proof of unavailability in all prior state habeas
applications. Ex parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007). A
factual basis for a claim was unavailable within the meaning of Section 5(a) if it “was
not ascertainable through the exercise of reasonable diligence on or before” the date
the prior application was filed. Id. § 5(e).
After setting out a brief procedural history of the case and reciting the claims
presented, the TCCA’s order dismissing Flores’s application states: “Having reviewed
[Flores’s] application, we conclude that it does not satisfy the requirements of Article
11.071, Section 5. Therefore, we dismiss the application as an abuse of the writ
without reviewing the merits of the claims raised.” Ex parte Flores, 2025 WL 2860250,
at *1 (citing Tex. Code Crim. Proc. Ann. art. 11.071, § 5(c)). The TCCA’s dismissal
order reflects its regular and strict application of the Section 5 bar, which constitutes
an independent and adequate state-law ground for the court’s disposition of Flores’s
claims. See Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008) (“This court has
held that, since 1994, the Texas abuse of the writ doctrine has been consistently
applied as a procedural bar, and that it is an independent and adequate state ground
for the purpose of imposing a procedural bar.”).
This Court has consistently held it will not review a federal claim decided by a
state court if the state court’s decision rests on a state-law ground that is independent
of the merits of the federal claim and an adequate basis for the court’s decision. Foster
21
v. Chatman, 578 U.S. 488, 497 (2016); Coleman v. Thompson, 501 U.S. 722, 729
(1991). This rule applies whether the state-law ground is a substantive rule
dispositive of the case or a procedural barrier to adjudication on the merits. Walker
v. Martin, 562 U.S. 307, 315 (2011). In the context of direct review of a state-court
judgment, the rule is jurisdictional. Coleman, 501 U.S. at 729.
Because the TCCA dismissed Flores’s subsequent writ application after
determining none of his claims met the requirements of Article 11.071, Section 5, the
state court’s disposition of the claims rested on a state procedural ground that was
independent of any federal issues raised and adequate to support the judgment. See
Hughes, 530 F.3d at 342. By explicitly stating it had not considered the merits of the
claims, the TCCA left no doubt as to the independent, state-law character of its
dismissal. Although Flores characterizes the TCCA’s denial in his case as a due
process violation, he presents no valid justification to depart from the Court’s longstanding rule against reviewing state-court dismissals resting on purely state-law
grounds.
II.
Flores’s Current Petition for Writ of Certiorari Rehashes Claims
this Court Rejected in 2022.
In his third habeas application filed in 2021, Flores alleged, among other
things, that a new scientific consensus in the field of eyewitness identification
rendered Jill Barganier’s in-court identification unreliable; newly available evidence
established that he is actually innocent; and the State’s misconduct in suppressing
Brady evidence was material to his conviction and death sentence. The TCCA
dismissed the application, concluding Flores did not satisfy the requirements of
22
Article 11.071, Section 5, and this Court denied Flores’s petition for writ of certiorari.
Ex parte Flores, 2021 WL 4566355, at *2; Flores v. Texas, 142 S. Ct. 2818 (2022).
In his fourth habeas application, Flores essentially repackaged and reasserted
the same claims: a new scientific consensus regarding eyewitness identification
reliability entitles him to relief under Article 11.073 of the Texas Code of Criminal
Procedure; new evidence, specifically a new scientific consensus regarding eyewitness
reliability, establishes that he is actually innocent; and his right to a fair trial and
due process were violated by official misconduct, specifically the suppression of Brady
evidence. The TCCA dismissed this fourth state habeas application without reviewing
the merits of the claims raised, again concluding Flores did not satisfy the
requirements of Article 11.071, Section 5. Ex parte Flores, 2025 WL 2860250, at *1.
In the current petition, Flores seeks to re-litigate the same claims previously
rejected by this Court. No compelling reason exists to do so, and this Court should
again deny his petition.
III.
Flores Does Not Show that His State Habeas Proceeding Failed to
Comport with Due Process.
Flores spends very little time in his petition arguing the merits of his claims
raised in the lower court. Instead, he focuses his complaints on the procedure
employed by the TCCA, specifically challenging the adequacy of the state court’s
review of his application and the adequacy of its order explaining the dismissal. But
because state habeas proceedings are not required under the Constitution, federal
courts may upset the State’s postconviction procedure only if it was fundamentally
23
inadequate. The record here shows that the state habeas proceedings adequately
complied with due process.
The Constitution does not require state habeas proceedings at all or that such
proceedings follow any particular model. Justice O’Connor described the role of state
habeas corpus proceedings as follows:
A post-conviction proceeding is not part of the criminal process itself,
but is instead a civil action designed to overturn a presumptively valid
criminal judgment. Nothing in the Constitution requires the States to
provide such proceedings … nor does it seem to me that the Constitution
requires the States to follow any particular federal role model in these
proceedings.
Murray v. Girratano, 492 U.S. 1, 13 (1989) (O’Connor, J., concurring); see also
Pennsylvania v. Finley, 481 U.S. 551, 557 (1989) (holding states have no obligation to
provide collateral review of convictions). “State collateral proceedings are not
constitutionally required as an adjunct to the state criminal proceedings and serve a
different and more limited purpose than either the trial or appeal.” Giarratano, 492
U.S. at 10. This Court has explained that “[t]he additional safeguards imposed by the
Eighth Amendment at the trial stage of a capital case are . . . sufficient to assure the
reliability of the process by which the death penalty is imposed.” Id.
Where a state allows for post-conviction proceedings, the Federal Constitution
does not dictate the exact form such assistance must assume. Finley, 481 U.S. at 555.
A state habeas applicant’s “right to due process is not parallel to a trial right, but
rather must be analyzed in light of the fact that he has already been found guilty at
a fair trial, and has only a limited interest in postconviction relief.” Dist. Attorney's
Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 69 (2009). “Federal courts may upset
24
a State’s postconviction procedures only if they are fundamentally inadequate to
vindicate the substantive rights provided.” Id.
The fundamental requisite of due process of law is the opportunity to be heard.
Ford v. Wainwright, 477 U.S. 399, 413 (1986); Tercero v. Stephens, 738 F.3d 141, 148
(5th Cir. 2013) (noting that “states retain discretion to set gateways to full
consideration and to define the manner in which habeas petitioners may develop their
claims” and ‘“[d]ue process does not require a full trial on the merits’; instead,
petitioners are guaranteed only the ‘opportunity to be heard.’”) (footnotes and
citations omitted). Flores was afforded the opportunity to be heard.
The Texas habeas system gave Flores the means and opportunity to make
claims and offer evidence in support of those claims. His argument that he has been
barred from even presenting his evidence to a court is simply untrue. Filing a habeas
application with exhibits attached is presenting the evidence to a court, namely the
TCCA. In its order, the TCCA specifically stated that it had reviewed Flores’s
application. Flores disregards the obvious: in its review of his fourth habeas
application, the TCCA simply found the facts were previously available when he filed
his third state habeas application in 2021, his second state habeas application in
2016, and/or his original application; the law was previously available; and he did not
present any new evidence substantiating his current claims. Simply because Flores
did not prevail does not mean he was not given the opportunity to be heard.
While Article 11.073 is intended to provide a vehicle for prisoners to obtain
judicial review of a “new science” claim, it is not without limitation. As Flores
25
acknowledges, an applicant must still comply with the procedural requirements
codified in Article 11.071, Section 5, to have their claim considered. See Pet. at 23; see
also, e.g., Ex parte Escobar, 676 S.W.3d 664, 667 (Tex. Crim. App. 2023) (noting that,
in a subsequent habeas proceeding, the applicant’s Article 11.073 and other claims
must satisfy a statutory exception to the subsequent-application bar before
consideration of the merits is permitted). Thus, it was not that the TCCA arbitrarily
barred access to Flores’s Article 11.073 claim, it was that he failed to meet the
statutory procedural requirements to have his claims considered.
Contrary to Flores’s assertions that the TCCA’s arbitrary application of the
statute bars access to applicants’ new science clams, several Texas habeas applicants
have successfully used Article 11.073 as a pathway to relief in their cases. See Ex
parte Roark, 707 S.W.3d 157 (Tex. Crim. App. 2024) (habeas relief granted in injury
to a child case under Article 11.073 based on new scientific evidence regarding the
cause of the infant victim’s injuries); Ex parte Chaney, 563 S.W.3d 239 (Tex. Crim.
App. 2018) (habeas relief granted in murder case under Article 11.073 based on new
scientific evidence regarding bitemark evidence); Ex parte Kussmaul, 548 S.W.3d 606
(Tex. Crim. App. 2018) (habeas relief granted to four defendants under Article 11.073
based on new DNA evidence); Ex parte Mayhugh, 512 S.W.3d 285 (Tex. Crim. App.
2016) (habeas relief granted in four cases under Article 11.073 based on new scientific
evidence regarding hymenal injuries); Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim.
App. 2014) (habeas relief granted in capital murder case under Article 11.073 based
on medical examiner’s revised opinion on the cause and manner of the child victim’s
26
cause of death); see also, e.g., Ex parte Lewis, No. WR-57,648-13, 2026 WL 388685
(Tex. Crim. App. Feb. 12, 2026) (per curiam) (not designated for publication) (habeas
relief granted in aggravated sexual assault of a child case under Article 11.073 based
on new scientific evidence regarding sexual assault examination findings); Ex parte
Clark, No. WR-13,739-06, 2023 WL 8613823 (Tex. Crim. App. Dec. 13, 2023) (per
curiam) (not designated for publication) (habeas relief granted in capital murder case
under Article 11.073 based on results of new DNA testing); Ex parte Faircloth, No.
WR-81,450-02, 2023 WL 2669803 (Tex. Crim. App. Mar. 29, 2023) (per curiam) (not
designated for publication) (habeas relief granted in aggravated assault case under
Article 11.073 based on unreliable DNA evidence that was used to secure the
conviction); Ex parte Santillan, No. WR-49,763-02, 2023 WL 2150874 (Tex. Crim.
App. Feb. 22, 2023) (per curiam) (not designated for publication) (habeas relief
granted in capital murder case on basis of Article 11.073 and actual innocence based
on new DNA evidence); Ex parte Leadon, No. WR-93,690-01, 2022 WL 2965701 (Tex.
Crim. App. July 27, 2022) (per curiam) (not designated for publication) (habeas relief
granted in aggravated robbery case under Article 11.073 based on new scientific
evidence); Ex parte Turner, No. WR-92,964-01, 2021 WL 5917206 (Tex. Crim. App.
Dec. 15, 2021) (per curiam) (not designated for publication) (habeas relief granted in
drug possession case on basis of Article 11.073 and involuntary plea); Ex parte
Fischer, No. WR-79,039-02, 2021 WL 900679 (Tex. Crim. App. Mar. 10, 2021) (per
curiam) (not designated for publication) (habeas relief granted in murder case under
Article 11.073 based on new scientific evidence concerning cell tower location data
27
that contradicted evidence presented at trial); Ex parte Gandy, No. WR-22,074-10,
2019 WL 2017291 (Tex. Crim. App. May 8, 2019) (per curiam) (not designated for
publication) (habeas relief granted in aggravated robbery case under Article 11.073
based on new scientific evidence showing that the trial testimony of the F.B.I.
examiner was false and misleading); Ex parte Nolley, No. WR-46,177-03, 2018 WL
2126318 (Tex. Crim. App. May 9, 2018) (per curiam) (not designated for publication)
(habeas relief granted under Brady and Article 11.073 based on newly available DNA
and scientific evidence); Ex parte Sonnier, No. WR-85,161-02, 2017 WL 4410272 (Tex.
Crim. App. Oct. 4, 2017) (per curiam) (not designated for publication) (habeas relief
granted under Article 11.073 based on new mitochondrial DNA evidence); Ex parte
Adams, No. WR-29,889-04, 2016 WL 1161091 (Tex. Crim. App. Mar. 23, 2016) (per
curiam) (not designated for publication) (habeas relief granted in aggravated sexual
assault case under Article 11.073 based on newly available DNA evidence). These
cases demonstrate that the TCCA’s application of Article 11.073 does not bar access
to relief for applicants who meet their procedural and evidentiary burdens.
Flores also argues that the complete absence of analysis or explanation for the
dismissal in his case is proof of arbitrariness. Flores seems to suggest that he was
entitled to elucidation from the TCCA regarding their consideration of his claims and
the basis for their decision rather than a standardized order dismissing his
subsequent habeas application for failing to satisfy Texas’s procedural requirements
in habeas cases. However, the TCCA is not required to write an opinion explaining
the basis of its ruling. See Ex parte Graves, 70 S.W.3d 103, 120 n.3 (Tex. Crim. App.
28
2002) (Price, J., dissenting) (“we are not required to write an opinion explaining the
reason or reasons we deny relief on applications of habeas corpus”). And this Court
has stated “that it has no power to tell state courts how they must write their
opinions.” Roberson v. Texas, 604 U.S. __, 145 S. Ct. 3, 7, 220 L. Ed. 2d 162 (2024)
(citing Coleman, 501 U.S. at 739). Flores fails to establish that a state court violates
due process when it issues a summary order based on a state procedural rule.
The TCCA’s dismissal of Flores’s claims was not arbitrary and raised no due
process concerns. Flores’s assertion of a due process violation is merely an attempt to
repackage his state-law procedural complaint into a federal question. Because he fails
to allege a claim that would implicate due process, his complaint is not worthy of
certiorari review.
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CONCLUSION
Flores has presented no compelling reasons for this Court to grant review of
the TCCA’s dismissal of his fourth state habeas application. Respondent respectfully
asks this Court to deny Flores’s petition.
Respectfully submitted,
JOHN CREUZOT
Criminal District Attorney
Dallas County, Texas
/s/ Michele O’Brien Yeatts
_____________________________________________________________________________________________________
MICHELE “SHELLY” O’BRIEN YEATTS
Assistant Criminal District Attorney
Counsel of Record
JACLYN O’CONNOR LAMBERT
Assistant Criminal District Attorney
Frank Crowley Courts Bldg.
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207
(214) 653-3625
syeatts@dallascounty.org
Counsel for Respondent
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.