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
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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).
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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 nonspecific 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
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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
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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,
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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 . . . .”).
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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
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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
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