November 29, 2023 608 PM
NEW ORLEANS — The case of Hector Flores Jr. — a Fort Stockton man charged last September with child endangerment after disappearing with his daughter from Big Bend National Park — will return to the courts Tuesday morning for oral arguments before the 5th Circuit Court of Appeals in New Orleans.
In two separate appeals — filed April and July of this year — Flores’ legal counsel requested that the court dismiss the indictment against him or order a new trial based on a lack of evidence and “reverse and vacate” a sentence handed down after Flores violated the terms of his probation.
In February 2022, Flores and his daughter were the subjects of a nine-day multiagency search in Big Bend National Park. A park ranger found an abandoned truck along the rugged Old Ore Road, launching a seven-month-long legal saga that would eventually leave Flores facing five years of probation for child endangerment.
Flores and his daughter were eventually found on the Mexican side of the border outside of Boquillas del Carmen, Coahuila. Further investigation revealed that Flores had been interested in pursuing off-grid living in Mexico and had made preparations before their trip to Big Bend by pulling his daughter out of school, disconnecting his phone and quitting his job at a supermarket.
Federal prosecutor Scott Greenbaum argued that Flores had intentionally put his child in danger by depriving her of adequate food, water and shelter on their journey through the park.
Though she had been found alive, Greenbaum implored the jury to consider all she had experienced on her odyssey through the wilderness. “Would an ordinary person go and feed their kid berries for 14 days [or] drink out of puddles for 14 days?” he asked the jury in his closing argument. “An ordinary person would not do that — expose their child to harm.”
The jury found Flores guilty of child endangerment, and District Judge David Counts added psychological treatment and parenting classes as a condition of release.
Shane O’Neal, representing Flores, told The Big Bend Sentinel last year that he intended to file an appeal. He argued that federal prosecution did not have enough evidence to convict on a child endangerment charge, given that Flores’ daughter was found “uninjured and did not require medical treatment or an examination,” per court filings.
O’Neal’s efforts to appeal Flores’ conviction got more complicated just a few weeks after the conviction. Flores violated his probation by possessing and using cocaine — as well as possessing a firearm, an accusation that federal prosecution eventually dropped. Flores appeared before Judge Counts a second time, where he was sentenced to two years imprisonment and a year of supervised release.
In the initial appeal filed in April, O’Neal honed in on a key part of the child endangerment charge: deprivation of food. He felt that — despite the prosecution’s dramatic invocation of “feeding your kid berries” and “drink[ing] out of puddles” — they did not have sufficient evidence to prove that Flores had intentionally starved his child, “leading to an imminent danger of bodily injury or impairment.”
The defense argued that Flores had made his best effort to provide for his daughter, given the extraordinary circumstances — including asking hikers and kayakers for food en route to Mexico. “Every time they found food, he prepared it, he shared it with her,” O’Neal said in his closing statement. “There was no selfishness here. There was no criminal attempt to deprive her of food.”
In court filings from July, O’Neal addressed his client’s probation violations, justifying his appeal by questioning “whether or not a district court may impose a term of supervised release.”
In the aftermath of his violation of probation, Flores was sentenced to two years in prison followed by a year of supervised release, rather than the original five years. The conditions of probation and supervised release are essentially the same, but the former happens in lieu of incarceration and the latter happens after.
O’Neal argued that state law cannot require the additional year of supervised release and that tacking on an additional year of “restrained liberty” was beyond the bounds of the court’s power.
Because Flores was convicted of endangering his child inside of a national park, deciding whether to lean on state or federal sentencing guidelines has been considerably more complicated.
O’Neal invoked the Assimilated Crimes Act, which “permits the government to prosecute people who commit crimes on federal property using the laws of the surrounding territory.” The law specifies that the punishment handed down by the federal government must be “like,” but not necessarily identical to, the equivalent state crime.
In Flores’ case, the state of Texas would have capped its sentence for probation violations at two years of incarceration and not included the year of supervised release required by the court. O’Neal felt that the additional year of “restrained liberty” would make it more difficult for his client to smoothly transition back into society.
In the federal government’s response, U.S. Attorney Jaime Esparza and Assistant U.S. Attorney Mark Stelmach argue that the year of supervised release is “distinct from incarceration” and that following federal sentencing guidelines would in fact “aid in the defendant’s transition into the community.”
They argued that oral arguments would not “sufficiently aid the decisional process” and asked that Flores’ original conviction be upheld.
O’Neal explained that — no matter how the appeals court rules — Flores would likely benefit from a system of credits that detracts time already served, which would include the months he spent in jail awaiting his original child endangerment sentence.
Flores’ two appeals will remain separate but have been consolidated for oral argument, allowing O’Neal to present both to the court in consecutive installments. Chief Judge Priscilla Richman, Judge Carl Stewart and North Texas District Judge Karen Scholer will hear the arguments and one of the three will be selected to write the final judgment.
O’Neal felt that Flores had a shot at success. “I think we have a really strong argument that the conviction should be vacated,” he said.
Oral arguments for the Flores case will take place in New Orleans on Tuesday, December 5, at 9 a.m. and may be viewed online. Esparza did not respond to a request for comment.