Full Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOs. WR-79,186-03; WR-96,031-01; & WR-96,032-01 EX PARTE JAMES WESLEY SHERRILL; EX PARTE HOWARD MARK HUFFMAN; EX PARTE DUSTIN MATTHEW HUFFMAN, Applicants ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOs. 30046-C, 30043-A, & 30044-A IN THE 3rd DISTRICT COURT ANDERSON COUNTY Finley, J., filed a concurring and dissenting opinion. CONCURRING & DISSENTING OPINION Applicants were tried separately and convicted of aggravated sexual and aggravated kidnapping. Years later, the victim recanted her testimony from all SHERRILL/HUFFMAN CO&DO — 2 three trials. Applicants filed habeas applications raising four claims for relief: false testimony, actual innocence, Brady,1 and ineffective assistance of counsel. I. Factual Background Stacy Branch was a methamphetamine and prescription pill user whose parents cared for her two children. She alleged that in the early morning hours of September 7, 2009, following a dispute over money that she believed Dustin Huffman and her boyfriend James Wesley Sherrill had taken from her child support card, Sherrill dragged her by the hair into a camper trailer on Mark Huffman’s property, pinned her down, and tried to inject her with a syringe she described as a “hot shot,” after which Dustin Huffman and Victor “Wade” Davis raped her, James “Beaver” Henderson began to do so but stopped, and Mark Huffman guarded the door. The kidnapping counts rest on her being forced into and held inside the trailer. Branch’s testimony supplied the only direct evidence of the offenses. The State corroborated it with her outcry to Kelly Henry—the first person she encountered after running from the scene and the person who called 9-1-1 on her behalf—the sequence of emergency calls, emergency room findings of bruising 1 Brady v. Maryland, 373 U.S. 83, 87 (1963). SHERRILL/HUFFMAN CO&DO — 3 and a puncture wound, positive toxicology for benzodiazepines, opiates, and amphetamines, and SANE testimony from Stacy Hamilton describing bruising and skin shearing or abrasions to the labia minora. The defense at each trial was that Branch fabricated the allegations, and counsel impeached her with her shifting accounts, with jailhouse and family witnesses who testified she admitted the allegations were false, and with the absence of semen. Branch told Hamilton, however, that all three men wore condoms. Hamilton found no genital injury apart from the labial shearing, which she conceded was consistent with Branch’s reported recent consensual sex with Sherrill and which she described as non- specific for sexual assault. Separate Anderson County juries convicted the three applicants in 2011, sentencing Dustin Huffman to life and James Sherrill and Mark Huffman to 99 years (each applicant on each of two counts). The charges against Davis and Henderson were later dismissed on the State’s motion. II. Discussion I agree with the Court’s decision to grant relief on Applicants’ Brady claims. Taken together, the suppressed evidence would have shown the jury that Branch had asked in writing before trial that the charges against all five original defendants be dropped, that the lead investigator assigned to the accusations was in a sexual SHERRILL/HUFFMAN CO&DO — 4 relationship with Branch, that a prosecutor had a capias recalled so she would not be jailed on the eve of testifying, and that a deputy had documented Branch’s bruises as days old a week before the offense. Branch’s testimony was the only direct evidence in each case, and the State’s case rested on the jury finding her credible. The suppressed Brady evidence could have been used by each applicant to effectively undermine the whole of the State’s case against them. Thus, I agree with the Court’s decision to grant Brady relief in each case. We are correct to defer to the habeas court’s recommendation when it is supported by the habeas record. But the Court also grants relief on Applicants’ false testimony claims. It is undisputed that the State unknowingly used testimony that we now know is false. I have previously expressed doubts over this Court’s continued recognition of unknowing use of false testimony claims in habeas. See, e.g., Ex parte Warner, 721 S.W.3d 436, 437, 448 (Tex. Crim. App. 2025) (Finley, J., concurring). The Supreme Court of the United States has never held that the State’s unknowing use of false evidence violates due process. Id. at 443; see also Cash v. Maxwell, 565 U.S. 1138, 1145 (2012) (Scalia, J., dissenting to refusal to grant certiorari) (“To make matters worse, having stretched the facts, the Ninth Circuit also stretched the Constitution, holding that the use of Storch’s false testimony violated the Fourteenth Amendment’s Due Process Clause, whether or not the prosecution SHERRILL/HUFFMAN CO&DO — 5 knew of its falsity. We have never held that, and are unlikely ever to do so.”); Ex parte Weinstein, 421 S.W.3d 656, 673 (Tex. Crim. App. 2014) (Keller, P.J., concurring); Ex parte Broadnax, 735 S.W.3d 1, 2 (Tex. Crim. App. 2026) (Parker, J., concurring). And yet, this Court continues to recognize such claims. Two questions left unanswered in Warner remain applicable here. First, should this Court continue to recognize an unknowing use of false evidence claim in habeas? And, if so, should the standard for materiality for an unknowing use of false evidence claim differ from the materiality standard for a knowing use of false evidence claim? Several jurisdictions outside of Texas do not recognize unknowing use of false evidence claims in habeas. United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980) (“[F]or perjury by a witness to constitute grounds for relief appellant would have to show that the Government knowingly used the perjured testimony.”); Schaff v. Snyder, 190 F.3d 513, 529–30 (7th Cir. 1999); United States v. McNair, 605 F.3d 1152, 1209 (11th Cir. 2010) (citing United States v. Brown, 634 F.2d 819, 827 (5th Cir. 1981) (“[D]ue process is not implicated by the prosecution’s introduction or allowance of false or perjured testimony unless the prosecution actually knows or believes the testimony to be false or perjured.”); People v. Brown, SHERRILL/HUFFMAN CO&DO — 6 660 N.E.2d 964, 970 (Ill. 1995) (“In the absence of an allegation of the knowing use of false testimony, or at least some lack of diligence on the part of the State, there has been no involvement by the State in the false testimony to establish a violation of due process. . . . Without such involvement, the action of a witness falsely testifying is an action of a private individual for which there is no remedy under the due process clause.”); State v. Lotter, 771 N.W.2d 466, 562, 563 (Neb. 2009) (“[T]he presence of perjury by a key witness does not, in and of itself, present a constitutional violation.”). Others recognize a higher standard of materiality for unknowing use claims. See, e.g., Quezada v. Smith, 624 F.3d 514, 521 (2d Cir. 2010) (citing Sanders v. Sullivan, 863 F.2d 218, 222 (2d Cir. 1988) (“[D]ue process is violated if a state leaves in place a criminal conviction after a credible recantation of material testimony and the recantation would ‘most likely’ have changed the outcome.”); Lewis v. Erickson, 946 F.2d 1361, 1362 (8th Cir. 1991) (new evidence “would probably produce an acquittal on retrial”); Commonwealth v. Crumes, 630 S.W.3d 630, 647 n.30 (Ky. 2021) (citing Commonwealth v. Spaulding, 991 S.W.2d 651, 657 & n.1 (Ky. 1999) (“[T]he burden remains on the defendant to show both that a reasonable certainty exists as to the falsity of the testimony and that the conviction probably would not have resulted had the truth been known . . . .”). SHERRILL/HUFFMAN CO&DO — 7 As I noted in Warner, we have twice filed and set cases to decide “whether the ‘knowing use’ and ‘unknowing use’ of false testimony should be subject to different materiality standards.” 721 S.W.3d at 447 (Finley, J., concurring) (first citing Ex parte Thomas, No. WR-94,420-01, 2023 WL 7382706, at *1 (Tex. Crim. App. Nov. 8, 2023), then citing Weinstein, 421 S.W.3d at 669 (Keller, P.J., concurring) (“We filed and set this case to determine whether the State’s unknowing use of false testimony calls for the same standard of materiality as the State’s knowing use of false testimony. The Court appears to sidestep this issue, but to the extent the Court’s opinion can be construed as weighing in on the issue, it comes to the wrong conclusion.”). These cases provide the Court yet another opportunity to answer this question before granting relief on Applicants’ false evidence claims. For the reasons espoused above, I am compelled to dissent from the Court’s grant of relief based on Applicants’ false testimony claims without first filing and setting these habeas applications to answer the questions that this Court left unanswered in Warner. Consequently, while I agree with the Court that Applicants are entitled to new trials on their Brady claims, I disagree with granting Applicants relief on their false evidence claims without first addressing whether this Court should continue to recognize unknowing use of false testimony claims SHERRILL/HUFFMAN CO&DO — 8 in habeas. See Warner, 721 S.W.3d at 437, 448 (Finley, J., concurring). I respectfully dissent to the Court’s grant of relief on Applicants’ false evidence claims in each case. Filed: September 17, 2026 Publish