In 1999, a Dallas County jury sentenced Charles Flores to death for capital murder after a burglary turned deadly in Farmers Branch. He had been placed at the scene of the crime by an eyewitness who identified him in court—but this was after an officer from the Farmers Branch Police Department hypnotized that witness during the investigation. (The Texas Observer recently released a six-part podcast about the case—The Unforgotten: “Riding Shotgun”—in partnership with Free Range Productions.)

As of 2023, evidence based on hypnosis is no longer admissible in Texas criminal courts. For decades before, though, law enforcement agencies, including the statewide Department of Public Safety, used hypnosis as an investigative tool in thousands of cases. 

Based on changing attitudes about hypnosis and a growing understanding of its flaws as a memory retrieval technique, Flores has attempted to use a 2013 law—Article 11.073 of the state’s Code of Criminal Procedure, often referred to as the “junk science law”—that offers an appeals avenue for people convicted because of faulty or outdated science. Three times, he’s asked the Court of Criminal Appeals (CCA) to take another look at his case in this context, to determine whether he should get a new trial.

But, like every other death-sentenced prisoner who has ever tried to use the law, Flores has been unsuccessful. 

The Unforgotten: “Riding Shotgun”

Texas legislators enacted the measure to address the evolution of forensics and the existing statutes’ inability to deal with changing science. But since then, no one on death row has been granted a new trial under the law, and many people who try to appeal based on it are shot down before a court even considers the facts or arguments.

In February, Flores’ attorney appealed to the U.S. Supreme Court to address whether—in consistently denying claims like his, which are ostensibly what the 2013 law was meant to address—the Texas court system is following the state’s own laws, or potentially violating people’s federal right to due process. The Supreme Court has not yet decided whether to take up the case, but the decision could have massive implications for both Flores’ case and future appeals in Texas. If the highest court renders a decision in favor of Flores and other potentially wrongfully convicted people, it will likely force the CCA to relax its extremely strict handling of these junk science appeals. If not, relief based on the first law of its kind passed in the United States would remain a pipe dream for most who try to use it. 

More than a thousand people have been exonerated in the United States since 1989 after being convicted based on false or misleading forensic evidence, according to the National Registry of Exonerations. The Death Penalty Information Center reports that about a third of death row exonerations were in cases tainted by some type of junk science. 

Flores’ petition drew support from criminal justice experts, psychology leaders, and even renowned magicians Penn Jillette and Teller, who argue that, as experts in toying with perception, they see the hallmarks of manipulation in the case. 

This isn’t the first time the measure’s effectiveness has been scrutinized. A 2024 report by the Texas Defender Service (TDS) found that the junk science law “is not working to provide relief to innocent people convicted based on false or unreliable forensic evidence.” 

Estelle Hebron-Jones, director of special projects with TDS, told the Observer that when the bill was passed, “It was seen as having the potential to be such a strong tool for people who had claims that were difficult to present in the existing post-conviction landscape.” In reality, cases that seem perfect for the legal pathway are meeting significant roadblocks. 

Flores’ petition to the Supreme Court argues that “copious evidence” in the case—including “junk science, false testimony, official misconduct, and, most critically, actual innocence”—should have been enough to earn him a new trial. But, attorney Gretchen Sween writes, “Texas’s highest criminal court, the sole arbiter of post-conviction relief in death-penalty cases, has dismissed those claims without considering the merits, an act that cannot be squared with the state law.” 

The report by TDS indicates this is a trend. Researchers analyzed appeals filed in the 10 years after the law took effect. In that time, just 15 people received relief based on shoddy forensic evidence—about 20 percent of those who tried. The report’s authors found that the CCA was holding applicants to a much higher standard than the junk science measure dictated. Under the statute, someone has to show that the science used at the time of their trial is suspect, either because new or previously unavailable evidence or science contradicts it. Then, they have to show that the new science or evidence would be admissible and likely would’ve affected the jury’s decision. 

“Instead, [the CCA] usually only grants relief if a person can show evidence strong enough to eliminate any rational basis for their conviction, such as exonerating DNA evidence or an alternate perpetrator,” the report’s authors wrote. This is a nearly impossible bar to surpass, and poses a particular problem when someone doesn’t have an attorney, or there’s no DNA evidence in the case.

Flores is among many on death row who have tried unsuccessfully to argue for a new trial based on shoddy forensic evidence, but he’s one of only seven who have had their cases actually reviewed on the merits. 

Even the case that helped inspire the 2013 law nearly didn’t pass muster with the CCA.

In 1999, the same year of Flores’ conviction, Neal Hampton Robbins was convicted by a Montgomery County jury of capital murder in the case that would be cited as the inspiration for Texas’ junk science law. 

Robbins was found guilty of killing his girlfriend’s 17-month-old daughter after the child was found unresponsive in her crib, for which he was sentenced to life in prison. In the following years, the associate medical examiner who’d determined the toddler’s cause of death had reevaluated the case and changed the cause to “undetermined,” but Robbins remained in prison. The CCA considered Robbins’ case before the junk science law was enacted, and judges pointed out that existing laws lacked a remedy for a case like this, where new scientific knowledge called the evidence used in trial into question. 

Robbins filed another appeal just days after the law took effect, but some of the judges seemed to resent the new statute: Judge Larry Meyers reportedly referred to it as “a clear attempt at a power grab” by legislators. Robbins was ultimately granted a new trial and, rather than re-try the case, prosecutors dropped the charges for lack of evidence. He was released in 2016. 

In a more recent Texas case, Robert Roberson’s conviction and death sentence based on the largely discredited “shaken baby syndrome” diagnosis drew international and legislative attention. Scheduled to be executed in October 2024, Roberson was spared at the eleventh hour when a bipartisan group of legislators found an unprecedented loophole. Some members of the Texas House of Representatives subpoenaed Roberson to testify in front of a legislative committee about the application of the junk science law at a hearing set for after his execution date.

That fall, members of the Texas House Committee on Criminal Jurisprudence held multiple hearings about the state’s junk science law and Roberson’s case. “Although our focus is Robert Roberson, we’re here because his case has shined a light on our new [junk] science writ law,” said Democratic state Representative Joe Moody at one hearing.

Kate Judson, executive director of the Center for Integrity in Forensic Sciences, said at the time that Roberson’s case is “one of the most egregious examples” of unreliable forensics being used to wrongly convict someone. Still, he faced another execution date in 2025, which was stopped when the CCA finally sent the case to a lower court to consider the arguments that the method used to determine shaken baby syndrome diagnoses has been debunked. The case is now pending in an Anderson County court.

A third Texas case that got further than most was that of Areli Escobar. Escobar, who was convicted of murdering his neighbor Bianca Maldonado Hernandez in 2011, maintained his innocence, and the forensics lab that conducted the testing in his case was so problematic that it was shut down in 2016—five years after he was sentenced to death. His lawyers argued the forensics from the case, including DNA findings and fingerprint analysis, were invalid. 

The CCA sent the case down to a trial court, and in a rare move, attorneys for the state actually agreed with the defense, saying Escobar deserved a new trial. Even with both sides’ support, his appeal was denied by the CCA. They said he hadn’t proved that the challenges to the DNA evidence would’ve changed the verdict.  

“When the law came into effect, people were hopeful,” said Daniel Woofter, one of Escobar’s attorneys. “It turned out to not actually provide relief to very meritorious cases like Areli’s. We’re still hopeful that … there may be fresh eyes taking a look at this law and the text of this law once more.”

Although today’s Supreme Court is somewhat unpredictable when it comes to matters of criminal justice reform, Flores’ attorney is hoping that the justices can provide their own fresh eyes on appeals that the Texas courts have barely bothered to justify denying.

There was a moment, nearly a decade ago, when it seemed like Flores might succeed in his appeal fight. After he argued that the prosecution’s reliance on a witness who’d been hypnotized had undermined the trial, the CCA agreed the matter was worth considering and sent the issue back to a lower court to further flesh out the evidence before the state’s top criminal court would rule. Remanding the case, Judge David Newell wrote that the CCA owed “a clear explanation for our decision to the citizens of Texas.” 

A Dallas district court held an evidentiary hearing in October of that year. Some of the key players from Flores’ 1999 trial again took the stand, including the witness who’d been hypnotized and the officer who conducted the session. Each side called scientific experts to opine on memory and hypnosis. Sween, Flores’ attorney, argued that the witness’ identification was so important to the state “because there had been so many inconsistencies among their other witnesses.” 

But after all of that, the CCA ultimately denied Flores a new trial without stating the reason—without the “clear explanation” Judge Newell promised. 

The post Texas’ Top Criminal Court Has Stymied the State’s ‘Junk Science’ Law. Will SCOTUS Intervene? appeared first on The Texas Observer.

As President Donald Trump’s second administration rushes to wall off the Texas border, landowners along the Rio Grande are being pushed to let construction begin on their property before the federal government purchases or condemns it.

Owners of real estate on the border are receiving letters from U.S. Customs and Border Protection (CBP) offering a signing bonus of up to $5,000 to let government contractors survey their property and begin wall construction. In copies of the letters obtained by the Texas Observer, CBP promises to negotiate with landowners to purchase their real estate at a later date. They include a warning that if property owners don’t agree to the signing bonus or quickly sell, the government will file a lawsuit to condemn their property.

It’s a new tactic. Past administrations, including Trump’s first, simply sought to survey land as the initial step, according to documents reviewed by the Observer and multiple attorneys, with the government taking landowners to court who refused access. Property owners often received only $100 at this step. Negotiations over and possible condemnation of the land itself, using eminent domain, would come later and take place before construction began. In property condemnation proceedings, construction may still begin partway through the process thanks to the feds’ “quick take” power, but a court ultimately decides appropriate compensation.

The letters being sent to landowners this year are “very different” than before, said Carlos E. Flores, a Laredo attorney who has represented landowners facing condemnation lawsuits for the border wall.

“These actually give permission by the landowner to allow for construction operations on the property,” he said. “Theoretically if a person were to sign one of these [agreements], the government could come in, do measurements and build the wall.”

The border wall and a Border Patrol pickup in Hidalgo County in 2018 (Gus Bova)

The famed Big Bend national and state parks aside, nearly all the land along the Texas-Mexico border is privately owned. This has slowed down past presidential administrations’ wall-building efforts in the state, and most of the Texas border remains unfenced—though the Rio Grande Valley in deep South Texas hosts significant wall stretches and could soon see itself entirely divorced from its river.

Last year, Congress appropriated an unprecedented $46.5 billion for border barrier construction, including both 30-foot-tall steel fencing and river buoys, and the Trump administration has already awarded contracts for wall construction in Texas, despite having purchased very little property. Lawyers and border wall opponents say allowing construction before condemnation proceedings begin is risky. CBP is likely rushing to get construction underway before a Democratic Congress can claw back border wall funds or a new president puts a stop to the project, like former President Joe Biden partially did after Trump’s first term, said Martin Castro, the watershed science director for the Rio Grande International Study Center, a Laredo-based organization that has advocated against the border wall.

“Landowners are quite scared when they receive these [letters],” Castro said. CBP is moving with “a level of urgency that is probably being done to threaten landowners into submission.”

Generations of informal inheritance in communities along the Texas border has delayed condemnation suits in the past, as the federal government struggled to satisfy courts that they had identified the owners of property where wall construction was planned.

“I think South Texas poses that kind of challenge to them,” Flores said. “So maybe they’re looking for a way to create a shortcut, which is to have people sign this type of right of entry which permits them to start construction at the outset.”

The right-of-entry letters reviewed by the Observer offer three options: Landowners can make an “agreement … wherein CBP can access the property, complete surveys, appraise the property, and complete construction.” Or they can “negotiate a purchase or easement agreement … quickly enough that CBP’s construction timelines are not impacted.” If the landowner doesn’t meet the timeline, the letters say, there will be a “referral to the U.S. Department of Justice to initiate the eminent domain/condemnation process.”

The letters, which are signed by CBP Infrastructure Portfolio Director Paul Enriquez, describe the first option as the agency’s “preferred and ideal route” as this allows it to “complete construction as quickly as possible.”

The agreements being sent to landowners along the Rio Grande are unusual not just for border wall construction, but for eminent domain in general, said Roy Brandys, an Austin-based attorney who represents clients facing eminent domain.

For example, when the State of Texas wants to begin construction on land it plans to condemn for a new highway, it will offer property owners 75 to 100 percent of what officials think their real estate is worth along with a signing bonus, Brandys said. The $1,000 to $5,000 his clients along the border have been offered amounts to a much smaller percentage of the value. And the state’s agreements usually require the government to file a condemnation lawsuit in court if an agreement on the property’s final value can’t be reached. The letters CBP is sending out have no such requirement, making it unclear what will happen if a landowner allows the government to start construction but the parties are later unable to agree on a price, Brandys said.

Brandys said he isn’t advising his clients to sign the agreements.

“[CBP] might be very well intentioned; however, there’s no obligation on the part of the government to ultimately file the eminent domain case,” Brandys said. “You could have the situation whereby the landowner grants the right of entry for construction, they build the wall on the property, but then never get around to filing the condemnation case, or they take a very long time before filing the condemnation case, and in that situation the landowner would be stuck with the wall on their property without being paid adequate compensation, without a lawsuit even being filed.”

Yolanda Alvarado, whose family lives and ranches cattle on the Rio Grande in Far West Texas, said the process has been confusing. “It seems like a rush job. And these guys don’t really know what they’re doing,” said Alvarado, 38.

She said many landowners feel pressured to sign the agreements.

“It’s basically like: Either work with them, or they’re going to do it anyway. I know a lot of landowners down here don’t really have the means to fight back in court, or the means to get legal representation, or even know that process.”

The letters’ language threatening to refer landowners to the Justice Department is also potentially confusing, said Brandys, the Austin attorney. Landowners may believe that’s the worst outcome for them, but it’s common for infrastructure projects to result in land condemnation proceedings. As loathed as they are, eminent domain lawsuits offer certain protections, including requiring the government to deposit what it thinks is the fair market value for the property with the court, money that the landowner can withdraw while the proceedings are ongoing. Landowners may also be entitled to a jury trial. The right of entry agreements CBP is asking property owners to sign don’t offer those same protections. 

If no price agreement is reached and the Justice Department does fail to condemn, it may fall to the landowners to seek redress in the Court of Federal Claims in Washington. “I just don’t think that is a very good option for any landowner in this situation,” Brandys said.

CBP did not respond to requests for comment for this article.

The post Trump’s New Tool to Speed Up Wall Construction May Be a Trap for Texas Landowners appeared first on The Texas Observer.

Curtis Riser had some concerns about the problem of wrongful convictions. He wasn’t the only potential juror to raise this point ahead of the 2009 capital murder trial of James Broadnax, in which the Dallas County District Attorney’s Office was seeking death, but attorneys for the state used one of their limited peremptory strikes to keep Riser off the jury. 

Prosecutors for the state have said they struck him from the jury pool because of his stated concerns, but their notes tell a different story. “Only concern … age + race,” an attorney for the state wrote on his jury questionnaire.

Aqwana Long said her feelings about capital punishment were mixed, but she clarified she meant it should only be applied in some cases. Rating her approval of the death penalty on a scale of one to 10, she chose seven. Still, the state rejected her. 

Dedric Morrison, who said he believed the death penalty was appropriate in “some murder cases,” seemed to prosecutors like he might be sympathetic to a defendant who was intoxicated at the time of the crime. This, according to the state, was enough to exclude him from the jury pool.

Riser, Long, and Morrison are all Black. They had similar answers and beliefs to potential jurors who were white, yet they were struck while their white counterparts were not. Attorneys built an all-white jury to try Broadnax, a Black teenager, until the trial judge defied protocol and reinstated one of the other previously struck Black jurors. The judge didn’t go so far as to imply that the prosecution was racially profiling, but stepped in after prosecutors had used almost half of their allowed challenges to cull all seven of the potential Black jurors from the pool. 

James Broadnax (Broadnax legal team)

In front of what ended up as a nearly all-white jury, prosecutors would argue that Broadnax and his cousin had robbed two white men—26-year-old Stephen Swan and 28-year-old Matthew Butler, both producers of Christian music—and that Broadnax had shot and killed the pair outside of a recording studio in Garland on June 19, 2008. 

Broadnax had confessed to shooting the men, and the jury returned a guilty verdict. One juror recently stated, “It seemed to be an open and shut case.”

During the punishment phase, where jurors in capital murder cases are asked to determine whether the defendant should get the death penalty or life in prison, prosecutors presented photos and spiral notebooks containing Broadnax’s handwritten rap lyrics. They included references to murder and robberies, and the prosecution held them up as yet another confession—and a sign that Broadnax was a dangerous man who would continue to pose a threat to society if allowed to live. The jury opted for death. 

Broadnax, 37, is scheduled to be executed by the State of Texas on April 30. His lawyers are still fighting to save his life, arguing things like the racial imbalance of the jury and prosecutors’ presentation of the rap lyrics constitute major problems with the trial and conviction. 

“The troubling aspects of the rap lyrics issue are magnified by the way that the jury selection was handled,” said Jim Marcus, a capital appeals expert with the University of Texas Capital Punishment Clinic, who has consulted on Broadnax’s case.

Then, last month, those longstanding issues were joined by another. Broadnax’s cousin, who is serving a life sentence without the possibility of parole for his role in the armed robbery, confessed that he was actually the shooter.

On June 19, 2008, a bicyclist on his way home from work at around 1 a.m. spotted two men lying on the ground outside of a recording studio. He reported what he saw to firefighters at a nearby station, who discovered the two men were dead from gunshot wounds.

Later that day, in Dallas, Broadnax and his cousin Demarius Cummings were telling people about a robbery they’d committed. When one of these people, a family friend, saw on the news that there had been a double murder, she made the connection and called the police, according to court documents. Officers pulled over Broadnax, who had driven a car belonging to one of the dead men to Texarkana. 

Broadnax was arrested and taken to jail in Dallas County, as was Cummings. There, they both told reporters that Broadnax had shot and killed the men.

The state opted to try the men separately. They would both face capital murder charges: Broadnax as the shooter and Cummings under the state’s Law of Parties, which can hold responsible anyone involved in a felony if it leads to murder. The state was seeking death for Broadnax, and life without parole for Cummings. Broadnax faced trial first.

At trial, the jury saw recordings of Broadnax confessing his involvement to reporters on TV. His lawyers contend he was high on PCP when he made these statements. But they were enough for the jury. 

There was some forensic evidence in the case, but it contradicted Broadnax’s story. On the gun and one of the victims’ bodies was Cummings’ DNA. But Broadnax’s wasn’t on the weapon or either of the victims, despite the fact that he allegedly pulled the trigger.

It would be nearly two decades before Cummings would explain the discrepancy: The reason the forensic evidence tied him to the gun and not Broadnax is because he was, in fact, the one who planned the robbery and shot the two men. 

On March 11, 2026, Cummings signed a written confession. He said he’d convinced his cousin to take the blame for the shooting, since Cummings had a significant criminal history, while Broadnax didn’t. The one blemish on the latter’s record was for marijuana possession. Cummings said he decided to come clean after he found out his cousin had an execution date.

“The fact that James received a death sentence for these crimes, while I was the one who shot the victims, has been weighing on my conscience, particularly as I have become more spiritual during my years in prison,” he wrote in the statement, which was first reported by the Dallas Morning News in March. 

Given the news, Broadnax’s lawyers once again asked the Court of Criminal Appeals (CCA) to consider the case. 

The victims’ mothers have come out in support of Broadnax’s execution moving forward, despite the new confession. Theresa Butler posted on social media that the new evidence was a “Hail Mary Pass” and wasn’t true. 

“Don’t believe that the latest fake confession, after 17 years, is going to change the cold blooded killer’s planned execution date,” she wrote.

The CCA, too, was unmoved. Earlier this month, the state’s top criminal court dismissed Broadnax’s application without reviewing the merits. 

But an open question remains. Prosecutors explicitly did not try Broadnax under Texas’s Law of Parties. The jury convicted him of being the actual killer, and it didn’t deliberate on whether he bore responsibility as a party to the crime. 

In situations like this, the U.S. Supreme Court has ruled that a jury must determine a non-killer showed reckless indifference to human life in order to impose a death sentence. On April 20,, Broadnax’s lawyers asked the Supreme Court to consider whether the jury’s lack of such a finding should halt Broadnax’s execution.

“Mr. Broadnax did not kill anyone, and no jury has determined whether he had the mental state this Court has determined is required to sentence a nontriggerman to death,” they wrote.  

James Broadnax was not a famous rapper when police picked him up in 2008, but his case has now caught the attention of some major artists. 

In March, major rappers including Travis Scott and Killer Mike filed briefs in support of Broadnax with the U.S. Supreme Court. They—along with more than three-dozen more artists, arts organizations, and scholars—took issue with the prosecution’s use of lyrics as evidence of a crime or a legally defined state of mind. 

In one brief, supporters wrote that hip-hop is “one of the most important forms of cultural expression in American history,” but still rap lyrics get mischaracterized in trial as “literal rather than metaphoric expressions,” as in Broadnax’s case.

Broadnax’s own attorneys wrote to the Supreme Court that using rap lyrics in criminal trials amplifies racial bias and transforms “artistic expression into a death warrant.” 

Genres of rap that feature aggressive lyrics, scholars say in one of the petitions, reflect young Black artists seeking a sense of control in an environment of economic hardship and police violence.

“The desire to project a sense of authority, even if fictional, helped explain the rise of gangsta and other subgenres of rap that featured violence and criminal behavior: they allowed young men of color to create a poetic world in which they were masters of their environments,” wrote the scholars. “Equally important, audiences understand rap music is—like gangster films, western movies, horror novels, or even pro wrestling—a type of entertainment.”

The Dallas prosecutors who brought forward Broadnax’s drafted lyrics were part of a larger trend. Rap lyrics have been used in hundreds of trials since the 1980s, according to research led by professors Erik Nielson and Andrea Dennis.

This has attracted a wave of dissenters: those who say rap lyrics should be prohibited from being used as evidence in court cases for various reasons, including risks of racial bias and threats to free expression. 

Young Thug is among the rappers who have had their lyrics used against them in court. (Shutterstock)

Broadnax’s legal team also took this issue to the Supreme Court. They asked the justices to consider whether, by presenting rap lyrics as evidence that a Black defendant is dangerous and violent, prosecutors violated the due process and equal protection clauses of the U.S. Constitution.

This issue has come up in Texas before. In 2024, the CCA ruled on the case of Larry Hart. Judges determined that a trial court should not have let prosecutors show jurors rap videos or bring up the defendant’s lyrics, saying it was prejudicial. 

At one point during Hart’s trial, while being questioned about his lyrics on the stand, he replied to the prosecutor, “It’s—it’s just a song, ma’am.”

Broadnax’s attorneys attempted to leverage this decision to get the Supreme Court to reconsider the use of rap lyrics in Broadnax’s case, but they were unsuccessful. 

As of April 22, there are still some doors open for Broadnax. Three petitions are pending before the U.S. Supreme Court, related respectively to his cousin’s confession, to the race-based jury selection, and again to the use of his lyrics. The Texas Board of Pardons and Paroles is also considering a clemency petition, which asks for Broadnax’s sentence to be commuted or for a 180-day reprieve from the threat of execution. 

Edith Clements, one of the jurors who sentenced Broadnax to death, wrote a letter to the parole board. In it, she said she wouldn’t have chosen the death penalty if she had known Cummings was the shooter. She writes that she has visited Broadnax on death row and apologized for her role in sealing his fate. Broadnax told her he wasn’t angry. “He is better not bitter,” she wrote.

The post A Looming Execution Raises Questions of Race, Responsibility, and Rap appeared first on The Texas Observer.