Texas Matters: The 'Magic Movie Theater,' Hypnosis and Death Row
Charles Don Flores has been on death row for more than two decades for a crime he says he didn’t commit. He was one of two men charged with the 1998 murder of Betty Black. The other man confessed to the murder in 2000, spent 17 years in prison and is now out on parole.
Unless Flores has a reversal of fate, he will be executed.
The murder of Betty Black
Charles Don Flores was a known criminal.
“You know, my situation, you know what I'm saying about my case. I wasn't involved in it. I'm innocent of that stuff. I did a lot of bad stuff in my life, stuff I really regret and I'm ashamed of, but I didn't do this,” Flores told TPR.
He carried out many illegal acts and admits to being an outlaw. He had prior convictions for misdemeanor theft, criminal mischief, possession of marijuana, robbery by threats and possession of cocaine.
Flores was convicted of the Jan. 29, 1998, murder of 64-year-old Betty Black — a grandmother of five who lived in Farmers Branch, Texas, with her husband and dog.
On the morning that Black was murdered, a Volkswagen Beetle with tinted windows and psychedelic paint drove up to her home. Two men got out and entered the home through the garage. One of those men was Richard Childs.
Flores and Childs knew each other well at the time and ran in the drug world together, but the night before the murder of Betty Black, the two had a falling out over a drug deal that Childs had orchestrated and Flores would finance. Childs had botched the deal, and Flores thought he had been ripped off.
For Childs to fix it and placate Flores, he needed money. Childs' girlfriend, Jackie Roberts, knew where they could find a stash of cash that could be as much as $100,000 — hidden in the home of the parents of Roberts' husband who was currently in prison.
Her husband’s parents were Betty and Bill Black.
Roberts was convinced that because this was her husband’s drug money, they could steal it and the Blacks wouldn't call the police to report it stolen.
The pair entered the home, shot Betty Black and her Doberman but left empty handed after they couldn’t find the hidden money. Bill Black returned home later and found his wife dead.
Childs was quickly identified and arrested, but soon the Farmers Branch Police Department came after Flores as the second suspect.
"A couple of days later, I got a call and they're saying, ‘Hey, man, Ric just got arrested for capital murder. And they're looking for you.’ I was like, what the hell for? I didn't have nothing to do with that," said Flores.
Flores said Childs and Jackie Roberts began to implicate him in an attempt to lessen their own involvement.
Jackie Roberts was never charged or arrested for her involvement in the death of Betty Black, even though during the police questioning of Childs, an officer said that all three were all "looking at the needle” — execution by lethal injection.
No one got a good look at the second suspect except for a next door neighbor — Jill Barganier. The 36-year-old Barganier lived next door to Black. The morning of the murder she was up early getting ready for work and getting her children ready for school.
Farmers Branch already had their eye on Charles Don Flores for the murder, but they had no evidence. This witness could change that.
They gave her a photo lineup of six mugshots. In the middle of the top row there was a mugshot of Flores, the only picture with distinctive marks. It was snapped three months before the Black murder by the Irving Police Department. In it, his hair was closely buzzcut, almost shaved. Bargainer failed to point out Flores. She was given the line up again and for the second time she did not pick out Flores.
Bargainer then asked to be hypnotized, which ended up being the sole evidence against Flores in court.
“They put me there (at the crime scene). You know, they put me there with a hypnotized witness,” Flores said.
Forensic hypnosis in Flores’ trial
In the video of the Bargainer hypnosis session, it’s clear that Bargainer’s memory of the suspected killers was sketchy. The video was recorded on Feb. 4, six days after the murder.
Texas Public Radio requested a copy of this hypnosis session under the Texas Open Records law. Farmers Branch said they didn’t have it; however, TPR obtained it through other means.
Before the hypnosis began, Officer Roen Serna, who was certified in forensic hypnosis, asked the witness questions about what he saw. This was Serna’s first forensic hypnosis session on a case, and it would also be his last.
Bargainer’s session took place in an ordinary office at the Farmers Branch police department. The witness is sitting in an office chair, and she is facing the officers. The camera is mounted high in a corner and there is a top-down view from across the room. The camera fails to show Serna and another investigator who was in the room.
Officer Serna used the induction technique known as “the movie theater.”
“What we’re going to do, once we get you into a deep state of hypnosis, we’re going to take you into a theater. It’s going to be your own private theater and basically what it is, you’re going to be seeing a documentary, you’re going to be seeing a film of the events that happened on that day, on that morning, OK?” Serna told Bargainer at the time.
The “documentary” is what Barganier saw on the morning of Jan. 29. Barganier was told she could pause the movie, fast forward, reverse it and also zoom in and enhance details and to focus in on the unidentified passenger.
Barganier first remembered seeing a Volkswagen Beetle pull into Black’s driveway and seeing two men get out. She said she distinctly remembered the passenger’s hair, which she described as long.
This is a critical detail. Another witness who saw the men that morning said they were both white and medium built. These descriptions do not fit Charles Don Flores, the man who was called “Fat Charlie.”
Despite the fact that she said the suspect had long hair, Serna asks if the hair was short or shaved, which is the way that Flores had his hair.
“Is his hair short? Is it shaved? Is it neatly cut?” asked Serna.
“It’s long. Very long,“ replied Bargainer.
This did not help Farmers Branch Police build their case against Flores. A few minutes later Serna began to bring Barganier out of her trance with some instructions.
Serna told Bargainer that her memory would improve overtime. Immediately after the session, a police artist working with Barganier produced a composite drawing of the suspect. It depicts a slim, long-haired white man.
“Well that’s not me. And that's what she saw. And so after that, they knew something was off because she's describing another white dude, another long hair guy. And now all of a sudden they got a Mexican, a big Mexican with short hair, and he's always been big,” said Flores.
Bargainer eventually identified Flores as the passenger a year after his arrest at the trial.
In that year after his arrest, the local news media ran frequent stories about the case and Flores, alongside his mugshot. Flores believes this is what changed Barganier’s testimony.
“She's reading the newspaper every time an article comes out, because she's following the case, she testified to that. She testified that she saw me on TV, too. And the news reports. So she seen photos of Charles Don Flores. And so when it comes time for trial, she goes in there and it's, oh my God, there he is. But what she's identifying is what she saw in the photos, not what she saw at the crime scene,” said Flores.
Forensic hypnosis in Texas
Nearly half of the states in the nation have banned or significantly restricted the forensic hypnosis due to the unreliability of process and research that shows the actual contamination of a witness’ memory. This is why the Texas Legislature tried to ban it in the last legislative session.
State Senator Juan “Chuy” Hinojosa introduced a bill that would end the use of uncorroborated hypnosis testimony in Texas courts. It would not have applied retroactively to Flores’ case.
Hinojosa, a Democrat from McAllen, explained his bill to the committee: “Hypnosis has been used as a forensic tool in Texas since 1980. Witnesses are often told that memory works like a video tape and that during hypnosis you’ll be able to recall certain events and suspect descriptions that normal memory would not be able to access. The popular belief that hypnosis guarantees the accuracy of recall is still to this day without established foundation; in fact, hypnosis often has no effect on memory at all.”
This isn’t the first time that Hinojosa has tried to pass a bill in Texas that would end the practice that’s been called the “junkiest of the junk sciences.” But this session things seemed different. There had been a series of Dallas Morning News articles pointing out the flaws of forensic hypnosis, and even the Texas Rangers, the state’s leading practitioner of the practice, decided to abandon it.
The Texas Rangers stopped using hypnosis in January of 2021. They deployed it as an investigative technique thousands of times over the course of the last 40 years. It was used to put hundreds of people in prison, including on death row. Four people are currently on death row in Texas after being convicted with hypnosis testimony. Eleven others have been executed.
Both the state house and senate voted unanimously to ban the use of forensic hypnosis in Texas courtrooms. But then Gov. Greg Abbott vetoed the bill.
In Abbott’s veto statement he expressed support for limiting the use of forensic hypnosis but wrote he vetoed the bill because the final version was too broad. This easement of the bill appears to be in error and the bill’s backers reject it.
The “science” of it
According to experts, forensic hypnosis is not reliable nor is it supported by science.
“The idea that hypnosis can recover supposedly inaccessible memories lacks empirical evidence and theoretical footing in contemporary science,” said Joseph Dunsmoor, a cognitive neuroscientist and an expert on human memory. He’s a professor at the Dell Medical School at UT Austin and testified before the state senate committee.
Dunsmoor told TPR three reasons for the illegitimacy of forensic hypnosis:
- Our memory does not capture everything that falls on our sensory organs like a camera or video recorder would.
- Our memory is not a literal reconstruction of past events. It is constructive and therefore prone to memory and distortion.
- Research continues to show that memory confidence is not the same as memory accuracy.
Because memories are reconstructed, they are susceptible to being manipulated with false information.
Research shows that forensic hypnosis increases witnesses’ confidence in their recollection, even when that memory is false, which is why the American Psychological Association is opposed to using hypnotized witness testimony.
“Once they hypnotize you, what you believe becomes seemingly in your head. And once that happens, they're never going to be able to change your mind on that. And that's why it's one of the evils of hypnosis. You know, in a lot of times when people are hypnotized, they want to please the person that they're working with. So they confabulate, they make stuff up, they imagine things. And that in your, in the memory, your subconscious, your imagination is putting pieces in the memory,” he said.
The only evidence in Flores’ case
One person who is opposed to banning the use of forensic hypnosis is Jason January, the former Dallas County prosecutor who was the lead prosecutor in the case against Flores.
TPR asked January multiple times for an interview about the Flores case and the hypnotized witness. He declined, but he sent TPR a copy of a 2019 letter he sent to Senator Hinojosa defending the practice and claiming there was nothing amiss with how Flores was identified.
He writes that “Flores and his supporters are erroneously stating that the entire case of the prosecution rested solely upon the testimony of only the one witness who had been hypnotized and that after hypnosis the witness changed her story.”
“The witness in question never changed any of her testimony,” January writes.
Gretchen Sween, the attorney representing Flores in his appeals, said that fact is critical: There was no other corroborating evidence.
Court documents show there is no physical evidence that he was even there. No DNA, no fiber, no fingerprints, no cell phone tracing, nothing.
“If you look at all the other evidence that is claimed to be corroborating, none of it puts him at the scene and none of it holds up to any scrutiny at all,” Sween said. “She was absolutely convinced by the time she took the stand that this was the guy.”
And that’s how Flores was convicted.
Why is Flores still on death row?
In 2013, Texas was the first state to pass a law that allowed inmates to challenge their convictions if it was based on new or discredited scientific evidence. All petitions filed under the law go to the Texas court of criminal appeals.
But in May of 2020 the Texas Court of Criminal Appeals upheld the ruling of a Dallas trial court that denied a new trial for Flores on claims the conviction and death sentence were the product of hypnotically assisted testimony.
The court ruled that Flores is unable to show by a preponderance of evidence that he would not have been convicted if the hypnotized witness’s testimony had been excluded. The U.S. Supreme Court refused to take up Flores’ case.
Richard Childs, the owner and driver of the Volkswagen Beetle, eventually confessed to Betty Black's murder.
Childs was originally charged with capital murder, but he struck a deal. He pleaded guilty to the murder and was sentenced to 35 years in prison. After 15 years, he was given probation and is now a free man.
Flores says the reason why he was the only one to get that maximum punishment is because Childs' father was a police officer and because of race.
"You think race wasn't involved and you think that he's from a police family wasn't involved? Why didn't they ever look good for anyone else? Why did they zero in on me?" Flores asked.
Flores remains on death row. His execution day has not been set. He continues to insist on his innocence.
“We’re talking about executing me, killing me, murdering me,” he said. “It’s not just oh, put him there for three or four or five years. No. We’re talking about the end of me.”