Charles Flores Is Still on Death Row. The Supreme Court Just Closed One Door. Here Is What the Law Still Gives You.
If your loved one is on Texas death row, or if you are sitting in a Texas prison cell convinced the science that convicted you is now discredited, the last week landed like a door slamming shut. The U.S. Supreme Court, without comment, declined to intervene in the case of Charles Flores, a Dallas County man convicted in 1999 of murdering 64-year-old Elizabeth ‘Betty’ Black. The man who put the witness on the stand had no training in the procedure he used. The witness’s memory was ‘refreshed’ by that procedure. The Texas Legislature has since banned the procedure outright. The Texas Court of Criminal Appeals refused to apply that new law to Mr. Flores. The Supreme Court has now refused to order the TCCA to reconsider. That is the news. It is not the end of the case. And it is not the end of the law.
What follows is a plain-English walk through what just happened, what Texas’s ‘junk science’ law actually says, why the highest court in the land declined to act, and the legal moves that remain — including a path most families in this fight never hear about until it is almost too late. This page is built for the family at the kitchen table at 2 a.m., for the prisoner writing a motion on lined paper, and for the advocate trying to make sense of a system that moves at the speed of a calendar and the pace of a watch.
If you are calling about a specific case, we will pick up. The consultation is free, there is no fee unless we win, and we serve Texas families in English and Spanish. Hablamos Español. The number is 1-888-ATTY-911.
“His conviction rests on the kind of testimony that is now barred from use in Texas courtrooms. The new science around memory tells us that the initial tests of an eyewitness’s memory are the only reliable ones — not the tainted testimony of a witness who has been hypnotized and makes an identification 13 months after a crime has occurred.” — Gretchen Sween, attorney for Charles Flores
The Flores Case in Plain English: What Happened in Farmers Branch in 1999
Elizabeth ‘Betty’ Black was 64 years old when she was murdered in her home in Farmers Branch, a residential suburb in northwest Dallas County. The investigation turned on the identification of two men seen entering her house the morning of the killing. A neighbor, Jill Barganier, told police she had seen two men enter the home. The description she originally gave: both men were white. Both had long hair. Charles Flores is Hispanic. He had short hair at the time of the crime.
Ms. Barganier also did not identify Charles Flores in a photo lineup. The record on that point is clear: before any forensic procedure was applied, the only identification procedure available to the State of Texas produced no identification of Mr. Flores. Thirteen months after the crime, Ms. Barganier took the witness stand and identified Mr. Flores as one of the two men. Between the failed photo lineup and the in-court identification, a Farmers Branch police detective — Alfredo Roen Serna — placed Ms. Barganier under investigative hypnosis to ‘refresh’ her memory. Officer Serna had no prior experience conducting hypnosis. He had no certification in forensic hypnosis. He had no training in the cognitive science of memory.
That is the conviction: an in-court identification, thirteen months after the crime, by a witness who had previously failed to identify the defendant in a photo lineup, whose pre-hypnosis description of the suspects did not match the defendant’s actual race or hairstyle, and whose memory was ‘refreshed’ by a procedure the Texas Legislature would later declare inadmissible in any Texas courtroom.
The Texas Court of Criminal Appeals granted a stay of execution in 2016, signaling that the court saw real questions about the hypnosis. The TCCA has since declined to overturn the conviction. The U.S. Supreme Court has now declined to order the TCCA to take another look. The case remains where it has been for the last several years: in the procedural hallway between the TCCA and the Texas Board of Pardons and Paroles.
What the Texas ‘Junk Science’ Law Actually Says
Texas has a law written specifically for cases like this. It is found at Article 11.073 of the Texas Code of Criminal Procedure. It is the legislative answer to a recurring problem: a person is convicted using a scientific technique that was credible in 1999 but has since been discredited, refined, or outright rejected by the relevant scientific community. The law provides a path to challenge the conviction in a writ of habeas corpus. It is, on its face, exactly the statute Mr. Flores needs.
There is a catch. The TCCA has interpreted Article 11.073 to require that the relevant scientific evidence be ‘previously unavailable’ — meaning the technique or knowledge could not have been discovered, with reasonable diligence, at the time of trial. The TCCA’s reading of that phrase is narrow. Under that reading, if the underlying science existed in some form at the time of trial, the writ can be denied on procedure without ever reaching the merits. The TCCA used that exact bar to deny Mr. Flores’ Article 11.073 claim.
Here is the practical truth about how the statute operates: a writ under Article 11.073 is a vehicle, not a verdict. It opens the courthouse door. It does not by itself reverse a conviction. The TCCA is the gatekeeper of that door, and it has spent the last several years raising the threshold for entry. The 2016 stay of execution showed the TCCA sees something troubling in the hypnosis. The subsequent denial shows the TCCA does not believe the procedure allows it to act on what it sees.
Why Investigative Hypnosis Is Now Considered Junk Science
The Texas Legislature answered the question directly in 2023. Senate Bill 402 amended the Code of Criminal Procedure to render evidence gathered through ‘investigative hypnosis performed by a law enforcement agency’ inadmissible in Texas courts. The Legislature’s finding was explicit: the technique produces unreliable testimony. That is not a defense lawyer’s argument. It is the policy declaration of the elected representatives of the State of Texas.
The cognitive science is older than the statute. The American Psychological Association has long cautioned that hypnosis can produce confident, detailed, and entirely false memories — a phenomenon the literature calls ‘memory confabulation.’ The ‘weapon focus’ effect, well-documented in eyewitness research, demonstrates that a witness under extreme stress focuses on the weapon rather than the assailant’s face, degrading the accuracy of subsequent identifications. When hypnosis is layered on top of that, the witness’s confidence in the resulting memory can increase even as the memory’s accuracy decreases — a particularly dangerous combination in a courtroom.
The 2023 Texas statute was the Legislature’s response to decades of research, to wrongful convictions across the country in which hypnosis-derived testimony played a role, and to a recognition that police-administered hypnosis fails the ‘general acceptance’ test that has governed the admissibility of expert and scientific evidence in this country since Frye v. United States in 1923. Texas courts have traditionally applied the Frye standard rather than the federal Daubert standard, and the 2023 statute is, in effect, the Legislature’s Frye finding for investigative hypnosis: it is not generally accepted, and the courts will not admit it.
What the statute does not do is reach back and reverse every prior conviction that relied on the technique. The Legislature made the new rule prospective — it governs trials going forward. Reversing a conviction is the job of the courts. The TCCA is the court with that power in Texas. The TCCA has not used Article 11.073 to reverse Mr. Flores’ conviction. The U.S. Supreme Court has now declined to order the TCCA to do so.
Why the Supreme Court Denied the Appeal
The denial was issued without comment. The Supreme Court denied the petition for a writ of certiorari, which is the procedural vehicle by which a higher court is asked to review a lower court’s decision. When the Supreme Court denies cert in a case like this, it almost always means the Court has concluded that the lower court’s decision did not involve a splittable federal question warranting the Court’s attention — not that the Court has endorsed the underlying conviction.
There are several layers to that conclusion. First, the Supreme Court gives substantial deference to state court interpretations of state law. Article 11.073 is a Texas statute. The TCCA is the final word on what that statute means in Texas. The federal courts will not lightly re-interpret a state procedural rule. Second, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a deferential standard on federal habeas review of state court decisions. Under 28 U.S.C. § 2254(d), a federal court cannot grant habeas relief on a claim adjudicated on the merits in state court unless the state court’s decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. That is a high bar. Third, the actual-innocence gateway — the route by which a credible innocence claim can overcome procedural default — is narrow and fact-intensive. The Supreme Court has not recognized a freestanding constitutional right to be released on the basis of actual innocence; actual innocence functions as a gateway allowing consideration of otherwise-defaulted constitutional claims.
The practical result: Mr. Flores remains on death row, the TCCA’s procedural bar remains in place, and the federal courts have now signaled that they will not push past the TCCA’s reading of the Texas statute. The legal landscape has not changed. What has changed is the urgency of the other legal moves that remain.
The Legal Paths That Remain
When the appellate courts close a door, the case does not end. It changes shape. For a Texas death row case in which the appellate courts have refused to apply the junk science law, the remaining legal paths fall into four broad categories: state post-conviction motions not previously raised, federal habeas corpus, executive clemency, and civil rights actions against the officers and agencies whose conduct produced the flawed conviction. Each path has its own deadline, its own burden of proof, and its own tactical pitfalls. We walk all of them with the family before recommending which to push first.
State Post-Conviction Relief Under Article 11.07
Article 11.07 of the Texas Code of Criminal Procedure governs habeas corpus applications challenging a final felony conviction. The writ is filed in the convicting court and decided by the TCCA. There is no statute of limitations on an Article 11.07 writ in the same way there is on federal habeas, but the TCCA imposes its own procedural bars. Successive writs — a second or later 11.07 application — face a higher threshold. The first task in any junk science case is to determine whether every available claim was raised in the first writ, or whether a new claim under a new statute (such as the 2023 hypnosis ban) provides a vehicle to go back in.
Federal Habeas Corpus Under 28 U.S.C. § 2254
Federal habeas is the federal courts’ mechanism to review state criminal convictions. AEDPA imposes a one-year statute of limitations under 28 U.S.C. § 2244(d), running from the latest of several triggering events: the conclusion of direct review, the removal of a state-created impediment, the recognition of a new constitutional right made retroactive, or the discovery of new factual predicates that could not have been discovered earlier. The one-year clock is jurisdictional once it expires. The deferential standard under § 2254(d) is the same high bar that the Supreme Court effectively applied in denying the Flores petition.
Executive Clemency Before the Texas Board of Pardons and Paroles
The clemency process is the most under-used lever available in a death penalty case. The Texas Board of Pardons and Paroles has the authority to recommend that the Governor commute a death sentence to life imprisonment, or to grant a full pardon. The 2023 hypnosis ban is, in practical terms, the ‘conscience of the community’ argument that has been the strongest historical basis for executive clemency: the elected representatives of Texas have now declared the evidence used to convict Mr. Flores inadmissible. A clemency application built on that fact, supported by cognitive-science expert testimony, witness statements showing the pre-hypnosis description of the suspects, and the trial record showing the failed photo lineup, is the most viable near-term path.
Civil Rights Action Under 42 U.S.C. § 1983
When a conviction is based on a deliberately or recklessly flawed identification procedure, the officers and the agency that conducted the procedure can be sued for damages in federal court under 42 U.S.C. § 1983. The legal theory: the use of an investigative hypnosis technique known to be unreliable, conducted by an officer with no training, on a witness whose prior description of the suspect did not match the defendant’s appearance, deprived the defendant of constitutional rights under the Fourteenth Amendment. Such actions face their own procedural bars, including the rule that a § 1983 action cannot challenge a conviction that has not been invalidated, but they can be filed in tandem with the post-conviction and clemency work, preserving the claim while the criminal case winds through the system.
What Evidence Still Exists — and How Fast It Is Dying
The evidence in a 1999 case is not stable. It is decaying. Every piece of evidence that could support a junk science challenge, a federal habeas petition, a clemency application, or a § 1983 action is, in some sense, on a clock. The preservation work is the most urgent thing that can be done in a case like this, and it is the work most families never know to ask for.
The Hypnosis Session Recording
If a recording exists, it is most likely on analog media — a cassette tape, a VHS tape, or a reel-to-reel. Analog media degrades. Magnetic tape loses signal, suffers from ‘print-through’ and ‘oxide shed,’ and can become unplayable within decades. The City of Farmers Branch may have the original. The Dallas County District Attorney’s Office may have a copy. The hypnosis was conducted by a Farmers Branch detective, so Farmers Branch PD is the first target for a preservation request. We send preservation demands on day one in cases like this, because waiting a single month can mean the difference between an audible tape and a box of degraded media that no longer plays back.
The Original Witness Statements
The pre-hypnosis witness statement — the one in which Ms. Barganier described the suspects as ‘white with long hair’ — is the single most powerful piece of impeachment evidence in the case. It is also the most likely to be misplaced, misfiled, or purged in a routine records-retention cycle. Statements from a 1999 murder case in Dallas County are not, as a rule, in any active case file. They are in records storage, either with the Farmers Branch Police Department, the Dallas County District Attorney’s Office, or the Texas Department of Public Safety. The records-retention schedule for witness statements in closed homicide cases varies by agency. We move to locate and copy these statements before they are destroyed.
Officer Serna’s Personnel and Training File
The single most probative fact in the case is that Officer Serna had no prior experience, no certification, and no training in forensic hypnosis. That fact is established in the petition. The personnel and training records that prove it are city records, subject to the City of Farmers Branch’s retention schedule. Personnel files are typically retained for the duration of employment plus a statutorily defined period, but ‘training records’ can be treated as a separate category with a shorter retention period. We demand production of the complete personnel and training file immediately, in writing, under threat of spoliation.
The 1999 Photo Lineup Records
The fact that Ms. Barganier did not identify Mr. Flores in the photo lineup is the centerpiece of the defense. The photo lineup itself — the array of photographs shown to the witness, the order in which they were shown, the instructions given to the witness, the witness’s documented response — is a record that must be preserved in its original form. The array composition, the spread of fillers, the administration procedure, and the witness’s contemporaneous statement are all subject to challenge. We demand the original lineup photographs, the lineup composition record, and the witness’s signed response.
The 1999 Police Reports and Prosecutor’s Notes
The complete investigative file — every report generated by the Farmers Branch Police Department, every communication between the detectives and the Dallas County District Attorney’s Office, every internal police memorandum about the hypnosis, and any prosecutor’s notes from meetings with the witness or the hypnotist — is the raw material of a post-conviction challenge. The Brady obligation requires the prosecution to disclose favorable evidence. The post-conviction record often reveals what the trial record did not show. We demand the complete file in any post-conviction investigation.
The Prosecutorial Playbook: What the State Will Do — and How We Counter It
In a personal injury case, the insurance adjuster has a playbook. In a wrongful conviction case, the prosecutor and the Court of Criminal Appeals have their own. The playbook is designed to make the wrongfully convicted person give up. Knowing the playbook is the first step in countering it.
Play One: The Procedural Default
The TCCA’s ‘previously available’ bar under Article 11.073 is the most common procedural move. The argument is that the relevant scientific evidence was available at trial, so the writ cannot proceed. Our counter: the 2023 Texas statute banning investigative hypnosis is, in itself, evidence that the science and the law have changed. The legislative finding that the technique is unreliable is a matter of state policy that the TCCA is supposed to honor. A procedurally defaulted claim can be excused if the petitioner can show ’cause and prejudice’ for the default, or if a ‘fundamental miscarriage of justice’ would result. We build the cause-and-prejudice showing around the 2023 statute and the cognitive science on which it was based.
Play Two: AEDPA Deference
Federal habeas review of state court decisions is heavily deferential under 28 U.S.C. § 2254(d). The state court’s reading of state law is not subject to federal re-interpretation; only clearly established federal constitutional principles are. Our counter: the federal claim is not that the TCCA misread Texas law. The federal claim is that the conviction was obtained in violation of the Fourteenth Amendment’s Due Process Clause, through the use of a suggestive identification procedure known to be unreliable. The federal court cannot grant relief on a state-law claim, but it can — and must — consider whether the underlying conviction violated federal due process. We frame every claim in federal terms from the outset, so that the deferential standard does not swallow the merits.
Play Three: The Credibility Attack
In post-conviction proceedings, the State will attack the petitioner’s credibility. The argument runs: the petitioner is a convicted murderer with every incentive to lie; the post-conviction claim is a fabrication; the witness’s identification, even if imperfect, is more credible than the defendant’s self-interest. Our counter: we do not put the petitioner’s credibility at the center of the case. The case stands or falls on the documentary record — the witness’s own pre-hypnosis statement, the officer’s own training record, the lineup records, the legislative finding of unreliability. We build the case from documents the State cannot attack as self-serving.
Play Four: The Brady Compliance Charade
Brady v. Maryland requires the prosecution to disclose favorable evidence. In practice, Brady compliance in a 1999 case is impossible to verify. Evidence that should have been disclosed may have been lost, may have been withheld in good faith, or may have been withheld deliberately. Our counter: we demand the complete prosecution file in post-conviction discovery, and we compare it line by line with the trial record. Inconsistencies — evidence that the prosecution had but did not disclose, evidence that was destroyed, evidence that was created after the fact — are the seeds of a § 1983 civil rights action and a bar-discipline complaint against the prosecutors involved.
Play Five: Finality Over Truth
The State’s most powerful argument, repeated in every brief, is that convictions cannot be retried forever, that society has an interest in finality, and that the system would collapse if every old conviction were re-litigated. Our counter: finality is a value, but it is not the highest value in the law. The Supreme Court has held that the execution of an innocent person violates the Eighth and Fourteenth Amendments. When the question is whether the State is about to execute a man whose conviction rests on testimony that the Texas Legislature has now declared inadmissible, the interest in finality is at its weakest, and the interest in not executing an innocent person is at its strongest. We make that argument on the page, in the brief, and to the Board of Pardons and Paroles.
The Tim Cole Act: What Compensation Looks Like If the Conviction Is Vacated
Texas has a wrongful imprisonment compensation statute. It is named the Tim Cole Act, after a Texas Tech student who died in prison in 1999 after being wrongfully convicted of rape. The statute is found at Texas Civil Practice and Remedies Code § 103.001 et seq. The compensation it provides is real, and it is significant.
An exoneree who is granted a writ of habeas corpus on the basis of ‘actual innocence’ is entitled to:
- $80,000 per year of wrongful imprisonment, including time spent on parole or under supervised release, but not including time on appeal bond.
- A lump-sum annuity in lieu of the annual payment, calculated using an actuarial formula.
- Tuition at a state-funded institution of higher education, sufficient to obtain a bachelor’s degree.
- Healthcare through a state-administered program comparable to Medicaid.
- Expungement of the arrest and conviction records associated with the wrongful imprisonment.
For a person who has spent twenty-five years on Texas death row, the cash value of the Tim Cole Act compensation alone is approximately $2,000,000, before the annuity, tuition, healthcare, and expungement are added. The total value of the statutory package can exceed $2,500,000.
The honest framing: the Tim Cole Act compensation is what the law provides if we win. The thing we are fighting for is not the money. The thing we are fighting for is the life. The money is what Texas owes the person whose life was taken by a flawed conviction, and it is the law’s recognition that the wrong cannot be fully repaired. Past results depend on the facts of each case and do not guarantee future outcomes; the actual amount of compensation in any case depends on the length of the wrongful imprisonment and the specific facts of the case.
Dallas County’s Exoneration Record: The Local Resource You May Not Know About
Dallas County is unique in Texas, and unusual in the country. The Dallas County District Attorney’s Office operates a Conviction Integrity Unit — a dedicated team within the prosecutor’s office that reviews claims of actual innocence. The CIU has reviewed hundreds of cases and has produced dozens of exonerations over the last decade. It is one of the most active conviction-review units in the United States.
The CIU is not the only path. The CIU’s review is discretionary. The CIU’s recommendations are not binding on the TCCA. But the CIU is a resource that exists, that has real power, and that has produced real exonerations in Dallas County. For a case with credible junk science evidence, the CIU is a path worth walking alongside the appellate and habeas work.
The key practical point: a CIU review is not a substitute for a full post-conviction investigation. We never tell a family to wait for the CIU. We tell a family to build the strongest possible case, then bring it to every available forum — the trial court for state habeas, the federal court for federal habeas, the TCCA for an Article 11.073 challenge, the Board of Pardons and Paroles for clemency, the federal district court for a § 1983 action, and the CIU for review. The strongest case wins the day, in whatever forum it lands first.
What We Can Do for Wrongfully Convicted Texans
Our firm is built around one principle: people in a legal emergency deserve someone who picks up the phone. A wrongful conviction case is a legal emergency. The clock is always running — toward an execution date, toward a habeas deadline, toward the loss of evidence, toward the death of a witness. We pick up.
Our senior trial team is led by Ralph Manginello, a 27-plus-year trial lawyer licensed by the State Bar of Texas since 1998 and admitted to the U.S. District Court for the Southern District of Texas. Ralph was a journalist before he was a trial lawyer, which means he knows how to find the story inside the record — and the story inside the record is where every wrongful conviction case is won. Ralph has been part of the BP Texas City refinery explosion litigation, and he has been a courtroom advocate across more than two decades of federal and state practice. He is a member of the Cheshire Academy Athletic Hall of Fame (2021), a starting point guard on the 1989 New England Prep School championship team, and the kind of lawyer who goes into a hearing prepared to try the case if it has to be tried.
Working alongside Ralph is Lupe Peña, a former insurance-defense attorney who spent years inside a national defense firm, in the rooms where claims were priced and denials were built. Lupe understands how the other side builds its file. In a wrongful conviction case, the ‘other side’ is the prosecution and the TCCA, and Lupe’s understanding of how institutions defend themselves against credible claims is exactly the kind of insight that turns a defense file inside out. Lupe is fluent in Spanish and serves Texas families completamente en español.
What we can do for wrongfully convicted Texans and their families:
- Investigate the conviction. We pull the hypnosis session recording if it exists. We obtain the witness statements, the photo lineup records, the officer’s training file, the complete prosecution file, and the complete police investigative file. We retain the cognitive-science experts who can explain to a court why hypnotically refreshed testimony is unreliable.
- File the post-conviction writ. We prepare and file the Article 11.073 junk science writ, the Article 11.07 habeas application, the federal habeas petition under 28 U.S.C. § 2254, and any other post-conviction motion the case requires.
- Build the clemency application. We prepare a complete application to the Texas Board of Pardons and Paroles, supported by expert declarations, witness statements, the documentary record, and a clear statement of the legislative finding that the evidence used to convict is now inadmissible.
- Pursue the civil rights action. When the evidence supports it, we file a 42 U.S.C. § 1983 action against the officers and the agency whose conduct produced the flawed conviction, seeking damages under the Tim Cole Act and federal civil rights law.
- Protect the evidence. We send preservation demands on day one — to the police department, to the prosecutor’s office, to the city, to the records-archive contractor. We do not wait for the evidence to degrade.
- Walk the family through every step. We explain what is happening in plain English. We answer the phone. We tell you when we do not know an answer, and we tell you when we find it.
The consultation is free. There is no fee unless we win. We serve Texas families in English and Spanish.
Frequently Asked Questions
What is the Texas ‘junk science’ law?
Article 11.073 of the Texas Code of Criminal Procedure allows a person convicted of a criminal offense to challenge the conviction on the ground that the scientific evidence used against them has been discredited, refined, or rejected by the relevant scientific community since the time of trial. The writ is decided by the Texas Court of Criminal Appeals, which is the court of last resort in Texas criminal matters. The statute is the Legislature’s response to a recurring problem: convictions based on once-credible forensic methods that have since been exposed as unreliable.
Can hypnosis testimony be challenged in Texas?
Yes. Senate Bill 402, passed by the Texas Legislature in 2023, amended the Code of Criminal Procedure to render evidence gathered through investigative hypnosis performed by a law enforcement agency inadmissible in Texas courts. The statute applies prospectively to trials going forward. The challenge for convictions obtained before 2023 is procedural — the Texas Court of Criminal Appeals has used its ‘previously available’ reading of Article 11.073 to deny hearings on the merits in cases involving older convictions.
Why did the U.S. Supreme Court deny Charles Flores’ appeal?
The Supreme Court denied the petition for a writ of certiorari without comment. In cases of this kind, the denial typically means the Court did not find a splittable federal question warranting its review. The Court gives substantial deference to state court interpretations of state law under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and Article 11.073 is a Texas statute interpreted by the TCCA. The denial does not mean the Court endorsed the conviction; it means the Court declined to order the TCCA to reconsider under the procedure Mr. Flores invoked.
What is the Tim Cole Act and how much compensation does it provide?
The Tim Cole Act, found at Texas Civil Practice and Remedies Code § 103.001 et seq., provides compensation to a person who has been granted a writ of habeas corpus on the basis of actual innocence. The compensation includes $80,000 per year of wrongful imprisonment, a lump-sum annuity in lieu of the annual payment, tuition at a state-funded institution of higher education, healthcare through a state-administered program, and expungement of the arrest and conviction records. For a person who has spent twenty-five years in prison, the cash value of the Act alone is approximately $2,000,000, with the total statutory package capable of exceeding $2,500,000.
What is the difference between habeas corpus and an appeal?
A direct appeal challenges legal errors in the original trial — improper jury instructions, erroneous rulings on evidence, ineffective assistance of trial counsel. A habeas corpus petition is a separate proceeding that challenges the constitutional validity of the conviction itself, often on the basis of facts that were not part of the trial record. In Texas, an Article 11.07 habeas is filed in the convicting court and decided by the TCCA. A federal habeas under 28 U.S.C. § 2254 is filed in federal district court and is subject to the deferential standard imposed by AEDPA.
What is the statute of limitations on a federal habeas petition?
Under 28 U.S.C. § 2244(d), a federal habeas petition must generally be filed within one year of the date the state conviction became final. The one-year clock can be reset or extended under limited circumstances, including the discovery of new factual predicates that could not have been discovered earlier, and the recognition of a new constitutional right made retroactive. The clock is jurisdictional once it expires.
Can a death row sentence be reduced to life without parole?
Yes. The Texas Board of Pardons and Paroles has the authority to recommend that the Governor commute a death sentence to life imprisonment. The Board is appointed, not elected. Its recommendations are not bound by the TCCA’s procedural rulings. A clemency application is, in many death penalty cases, the most viable path when the appellate courts have closed the courthouse door. The 2023 legislative finding that investigative hypnosis is inadmissible is a powerful argument in a clemency application, because it represents the conscience of the community.
What is the Dallas County Conviction Integrity Unit?
The Dallas County Conviction Integrity Unit is a division of the Dallas County District Attorney’s Office that reviews claims of actual innocence. The CIU has reviewed hundreds of cases and has produced dozens of exonerations. The CIU’s review is discretionary and its recommendations are not binding on the TCCA. The CIU is a resource that exists, but a family should not wait for the CIU to act. We build the strongest possible case and bring it to every available forum.
Can I sue the police department for using junk science to convict me?
Yes, in many cases. A civil rights action under 42 U.S.C. § 1983 can be filed against the officers and the agency whose conduct produced the flawed conviction. The legal theory is that the use of a suggestive identification procedure known to be unreliable, conducted by an officer with no training, on a witness whose prior description of the suspect did not match the defendant’s appearance, deprived the defendant of constitutional rights under the Fourteenth Amendment. The Heck doctrine requires that a § 1983 action challenging a conviction must wait until the conviction is invalidated, but the action can be filed in tandem with the post-conviction and clemency work.
What is the most important thing to do first if I believe I have been wrongfully convicted in Texas?
Preserve the evidence. Send a written preservation demand to the police department, the prosecutor’s office, the city, and any other agency that may hold records related to the conviction. The clock on the evidence is the most dangerous clock in a wrongful conviction case. Analog recordings degrade. Paper records are purged. Witnesses die. The preservation demand is the first document we prepare in any post-conviction investigation, and we send it the day you call.
How long do I have to file a wrongful conviction claim in Texas?
There is no statute of limitations on a writ of habeas corpus under Texas law in the way there is under federal law, but the TCCA imposes its own procedural bars on successive writs. A federal habeas petition under 28 U.S.C. § 2244(d) is generally subject to a one-year statute of limitations running from the date the state conviction became final. The one-year clock can be reset or extended under limited circumstances. A § 1983 civil rights action is subject to a two-year statute of limitations under Texas law. The honest answer is that the deadlines vary by the type of claim, and the most important thing is to act quickly because the evidence and the witnesses are on a clock of their own.
What if I cannot afford a lawyer for a wrongful conviction case?
Some post-conviction work is done by nonprofit innocence organizations, including the Innocence Project of Texas and the Texas Defender Service. For a civil rights action under 42 U.S.C. § 1983, the contingency fee model we use in our personal injury practice may apply — meaning there is no fee unless we win. The consultation is always free, and we will tell you honestly whether we are the right fit for the case. If we are not the right fit, we will tell you that, too, and we will help you find an organization that is.
If Your Loved One Is on Texas Death Row, Call Us Today
Charles Flores’ case is in the news this week because the U.S. Supreme Court denied his petition. The denial is a procedural setback, not a final ruling on innocence. The Texas Legislature has banned the technique used to convict him. The Texas Court of Criminal Appeals has seen the question and declined to act. The next move is the Texas Board of Pardons and Paroles, the federal habeas courts, and the civil rights action that protects the compensation claim when the conviction is vacated. The clock is real. The evidence is degrading. The most important thing you can do today is preserve the evidence and call a lawyer.
Our senior trial team is led by Ralph Manginello, a 27-plus-year Texas trial lawyer, and Lupe Peña, a former insurance-defense attorney who understands how the other side builds its file. We serve Texas families in English and Spanish. The consultation is free. There is no fee unless we win. The number is 1-888-ATTY-911.
You can also reach us through our contact page, learn more about Ralph Manginello’s background, and read about Lupe Peña’s path from the defense side to the family side. Our full criminal defense practice is built around cases exactly like this one. The attorney team is here to walk the case with you from the first call to the final resolution.
Past results depend on the facts of each case and do not guarantee future outcomes. The content of this page is legal information, not legal advice for a specific case. Calling our firm is free and confidential. Hablamos Español. 1-888-ATTY-911.