EX PARTE JAMES GARFIELD BROADNAX v. << (2026)

CONCURRING OPINION

In front of a friend of the family and to and the media, Applicant confessed to killing two people during a robbery. After 16 years and three prior habeas applications, Applicant now contends that those confessions were lies. But Applicant has not recanted his own confessions; he relies solely on a recent statement from his co-defendant (Demarius Cummings) claiming responsibility as the triggerman (for personally killing the victims). I am unwilling to hold that Applicant's confessions were false when Applicant hasn't bothered to recant them. And even if he had recanted, I find problematic the notion that he caused his own due-process violation by making voluntary inculpatory statements. If he could show that he was actually innocent, or that he was “innocent of the death penalty” (conclusively did not possess the culpability required for a death sentence), then I could find a due-process violation. But even if the co-defendant's statements were accepted, Applicant was guilty at least as a party, and a rational jury could find that he had the requisite culpability (anticipating that a human life would be taken). Moreover, if Applicant's confessions were lies, he knew that at the time he made his confessions, and he has had 16 years and 3 prior applications in which he could have recanted those confessions and argued that they were false. Consequently, I agree that Applicant's claims are barred as subsequent by Article 11.071, Section 5.

1. False Evidence Claim

In his first ground, Applicant claims that admission at trial of his confessions violated due process because those confessions were false evidence. To raise this claim in a subsequent habeas application, he must satisfy an exception to the general subsequent-application prohibition.¹ He argues that he satisfies the “new facts,” “innocence gateway,” and “punishment gateway” (innocence of the death penalty) exceptions.

The United States Supreme Court has recognized that a due process violation occurs if the State knowingly solicits false evidence or knowingly allows false evidence to go uncorrected when it appears.² However, “[t]he Supreme Court has never held that [the State's] unknowing use of false evidence violates due process.”³ This Court, however, has “expanded” federal due-process protections to encompass “unknowing use” claims.⁴ But I am unaware of a prior case raising an “unknowing use of false evidence” claim based on the defendant's own false statements. There is a point at which an envisioned expansion of due process goes too far.

For starters, the only evidence Applicant offers to prove that his confessions were false is Cummings's recent claim of responsibility as the triggerman. But Applicant has not recanted his own statements, and he has not shown any legitimate impediment to executing an affidavit doing so. If Applicant is unwilling, under the penalty of perjury, to recant his confessions, we should not be willing to countenance a challenge to their truth.

And significantly, he made numerous damning statements inculpating himself as the shooter: A friend of his aunt testified that, after coming back from the robbery, Cummings had the “big gun” and Applicant had a “pistol.” The friend also testified about Applicant that,“the last thing he said was that if it comes out, he did it.”

In an interview with the local Channel 4, Applicant described the shootings, essentially bragging about his conduct. In describing one of the shootings, he said that he was sure the victim would've died, but he “shot his bitch ass again” just to make sure. When asked whether he was worried about getting caught later, Applicant said, “I got nothin’ to live for.” He also said he “kinda” regretted what he did. When asked what he would like to say to the families, Applicant looked directly into the camera and said, “Fuck ’em․Straight up.” When the interviewer asked what was going through Applicant's head “right now,” Applicant hung up the phone and walked away. As he was walking away, he said, “tell ’em I said fuck ’em.”

In an interview with the local Channel 5, Applicant gave the exact story he told Channel 4 and added that he wanted the death penalty. He further said that if he gets life, he will go crazy and kill someone else. And when asked what he would say to the people who find his conduct reprehensible, he said “Fuck em, fuck em, fuck em, even if they celibate.” Applicant also made the following statements:

I pulled the trigger, he was just there.

We robbed them. I killed them.

I popped they bitch ass, you know what I'm sayin’.

Fuck his family too. Both of them.

Applicant's confessions were not half-hearted. They were detailed and showed a lack of remorse. And he has not recanted any of them.

Cummings's recent claim of responsibility as the triggerman would be relevant to a false-testimony claim that involved Cummings's testimony. But Cummings did not testify at Applicant's trial, nor were any hearsay statements by Cummings used against Applicant.

Moreover, it seems problematic to claim that Applicant violated his own due-process rights by making false inculpatory statements. Had Applicant testified at trial that he was the shooter, would anyone seriously claim that his due-process rights would be violated if the testimony were false? Obviously not. The only difference here is that the State introduced hearsay statements by Applicant. But those statements were unquestionably voluntary. They were not the result of custodial interrogation and were made to a family friend and to the media. Applicant did not have to confess. He chose to. If the State knew that Applicant confessed falsely at the time it introduced the evidence, there would be a due process violation. But if only Applicant knew, he has suffered no due-process violation. He has just suffered the consequences of his own voluntary conduct.

If Applicant could meet the standard for establishing “actual innocence” —based partly on a conclusion that his confessions were false—I could see a due-process violation. But as I will address later, he doesn't establish a prima facie case of “actual innocence.” And as I will also address later, although the innocence inquiries are not identical, his reasons for failing to meet the substantive standard of “actual innocence” also means that he fails to satisfy the innocence-gateway or punishment-gateway standards as well.

And Applicant does not meet the “new factual basis” for filing a subsquent application.⁵ He has had three prior habeas applications in which he could have presented his claim that his own confessions were false. He could easily have executed an affidavit recanting his confessions. He did not and still has not.

It is true that Cummings's statement that he was the triggerman would be significant evidence buttressing a claim that Applicant's confessions were false. But “new facts” excuse the failure to file a previous application only if “the factual basis was not ascertainable through the exercise of reasonable diligence on or before” the date of a prior habeas application.⁶ Even if we assume that Cummings's conscience was awakened only on the eve of execution—a highly questionable proposition given that Applicant's third habeas application was filed in 2025—it might still have been true that Cummings's conscience would have been awakened earlier if Applicant had recanted his confessions much earlier and made known that he did not want to be put to death on the basis of them. Applicant has not shown diligence.

2. Actual Innocence and Innocence Gateway

In his second ground, Applicant alleges that he is actually innocent. He argues that he meets the “new facts” and “innocence gateway” exceptions to the subsequent-application prohibition.

To make a substantive showing of actual innocence, a habeas applicant must show “by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence.”⁷ The habeas applicant must also show that this standard is met as a result of newly discovered or newly available evidence.⁸ The innocence-gateway exception does not require newly-discovered or newly-available evidence, but it does require a showing that “by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.”⁹

I would observe that the “but for a violation of the United States Constitution” language in the innocence-gateway provision suggests that there must be a constitutional violation in addition to the alleged innocence. When “actual innocence” is the substantive constitutional claim, such an additional constitutional claim is absent. In fact, in dealing with the federal doctrines on which our subsequent-application prohibition is based, the Supreme Court explicitly said that a freestanding claim of innocence cannot meet the innocence-gateway standard:

For he does not seek excusal of a procedural error so that he may bring an independent constitutional claim challenging his conviction or sentence, but rather argues that he is entitled to habeas relief because newly discovered evidence shows that his conviction is factually incorrect. The fundamental miscarriage of justice exception is available “only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence.” We have never held that it extends to freestanding claims of actual innocence. Therefore, the exception is inapplicable here.10

I recognize that this Court has held in Ex parte Blue that a claim of intellectual disability can, without an additional constitutional violation, satisfy the punishment-gateway (“innocence of the death penalty”) exception ¹¹ and that a concurring opinion disagreed, claiming that this amounted to improperly allowing a freestanding “innocence” claim to satisfy a gateway exception.¹² But I would limit Blue to claims that a person, by status of being intellectually disabled or under age 18, is automatically exempt from the death penalty. I would not extend this holding to “innocence” inquiries that depend on what a juror would believe about the actions of the defendant or his culpable mental state at the time of the offense.

And Applicant does not meet the “new facts” exception for the reasons stated in connection with ground 1. He hasn't shown diligence in trying to elicit Cummings's statement of responsibility by at least his third habeas application, filed in 2025.

But even if we conceive that he has shown new facts, or that a substantive showing of actual innocence can meet the innocence gateway exception, he fails to make a prima facie case for his substantive claim of innocence or for meeting the innocence gateway. The substantive standard for an actual innocence claim differs in some respects from the procedural innocence-gateway standard, but both standards focus on whether a rational juror could still find the defendant guilty in light of the new evidence. Ultimately, Applicant cannot show that no rational juror could find him guilty in light of the new evidence (Cummings's claim of responsibility) because Applicant's confessions, which have not been recanted, are enough to rationally support a finding of guilt. A rational jury would not have to believe Cummings's claim of responsibility. And without a recantation of Applicant's own confessions, there is absolutely no basis for discounting them.

But even if one did discount Applicant's confessions, he still could not prevail on actual innocence. No one disputes that Applicant participated in a robbery with Cummings. Under the law of parties, a person can be liable as a conspirator:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. In this subsection, “conspiracy” means an agreement between two or more persons to commit a felony.13

Certainly, a rational juror could infer that Applicant was part of a conspiracy to commit robbery, that the murder of Swan (the indictment victim) was committed in furtherance of the robbery, and that the murder at least “should have been anticipated” by Applicant.

It is true that Applicant's jury charge did not contain the law of parties. But our substantive actual-innocence jurisprudence is “fact- and conduct-centric” and requires a showing of “factual” innocence rather than “legal” innocence.¹⁴ And we have pointed to the “traditional hallmarks of actual innocence claims” as showing “that the defendant is being wrongfully imprisoned for a crime that he did not commit.”¹⁵ And even in the procedural innocence-gateway context, we have held that innocence means “factual innocence, not mere legal insufficiency.”¹⁶

And we should keep in mind that the absence of the law of parties in the jury charge was largely Applicant's fault. Submitting the law of parties at the guilt stage of trial came with a cost: an anti-parties punishment issue would also have to be submitted at the punishment stage.¹⁷ Applicant's confessions gave the State a strong incentive to avoid that cost. It was a perfectly legitimate strategy for the State to decide to pursue only primary-actor liability to ensure that all necessary findings of death-eligible participation and culpability for the charged offense were made at the guilt stage of trial. But if Applicant had not confessed, the State almost certainly would have included the law of parties in the jury charge. It would distort our jurisprudence to allow this actually guilty defendant to prevail on a claim of actual innocence based solely on the absence of a theory of party liability that his own conduct helped bring about.¹⁸

3. Innocence of the Death Penalty and Punishment Gateway

In his third and fourth grounds, Applicant alleges innocence of the death penalty. His third ground claims that no juror could rationally find against Applicant on the anti-parties and future dangerousness special issues. In passing, Applicant also points out that the anti-parties special issue was not submitted. His fourth ground focuses on Supreme Court precedent regarding the kind of participation and culpability needed to support the death penalty.¹⁹ The anti-parties special issue satisfies this Supreme Court precedent,²⁰ so his fourth ground really collapses into his third ground, with the anti-parties special issue posing the question of “whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken.”²¹ Applicant claims that these grounds meet the “new facts” and “punishment gateway” exceptions.

For reasons addressed earlier, these claims fail to satisfy an exception to the subsequent-application prohibition. He does not meet the “new facts” exception for the reasons stated in connection with ground one because he hasn't shown diligence in trying to elicit Cummings's statement of responsibility. He also fails to meet the punishment-gateway exception because his freestanding claim of innocence of the death penalty does not satisfy the requirement that the showing of “innocence” supplement a separate constitutional claim. The punishment-gateway provision parallels the innocence-gateway provision in requiring a separate constitutional violation: “by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071.”²²

But even if he overcame those hurdles, he would still fail to establish that “no rational juror” could or would answer one or more of the special issues in the State's favor. Again, because he has not recanted his confession, we should not discount it, which means he cannot show that no rational jury would believe he was the shooter. But even if we could discount his confession, his claim would still fail. Given the evidence at trial that each conspirator carried a firearm to the robbery, a rational juror could believe that Applicant at least “anticipated that a human life would be taken.” And as for future dangerousness, the Federal District Court for the Northern District of Texas outlined evidence of numerous instances in which Applicant committed bad acts in jail, including:

• During a jailhouse phone call, Applicant said he had been in a fight with a Special Response Team during a shakedown of his cell.

• During a shakedown, officers found a blade from a disassembled razor hidden in his cell.

• Applicant refused directives from an officer supervising a shakedown, spoke aggressively to her, and had to be taken down by multiple officers.

• A detention officer broke up a fight between Applicant and another inmate. When the two were separated, Applicant was still trying to get to the other inmate. State's Exhibits 574 and 575 showed wounds from the fight.

• During a phone call with his mother, Applicant said his hand was swollen from a fight.

• A detention officer escorted Applicant and another inmate to court when Applicant suddenly turned around and struck the other inmate. The assault was unprovoked, and Applicant never explained his motive.

• That same inmate testified that Applicant and another inmate often yelled at each all night long. This inmate would not go to recreation out of fear of Applicant assaulting him for not giving up his prescription medication. He called Applicant the “baddest” person in the area of the jail.

• Applicant used gang-related slang in jailhouse phone calls.23

Applicant also claims that he should obtain relief because an anti-parties issue was not submitted. He does not provide a legal basis for his claim. He was not entitled to the submission of an anti-parties special issue because the law of parties was not submitted at the guilt stage,²⁴ and the evidence was, at the time of trial, sufficient to convict him as the primary actor. Moreover, to the extent his own voluntary conduct caused him to lose the submission of the law of parties, and hence, the anti-parties special issue, he should not be heard to complain.²⁵

4. Conclusion

Applicant's claim that he lied when he confessed must fail. He hasn't recanted his confessions, his own lies—if that's what they are—do not give rise to a due-process violation, he is not actually innocent or innocent of the death penalty, and his claims are barred because they do not fall within an exception to the subsequent-application prohibition. I concur in the Court's decision to dismiss his application under Section 5.

FOOTNOTES

1.   Tex. Code Crim. Proc. art. 11.071, § 5.

2.   Glossip v. Oklahoma, 604 U.S. 226, 246 (2025).

3.   Ex parte Warner, 721 S.W.3d 436, 443 (Tex. Crim. App. 2025) (Finley, J., concurring); 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 knew of its falsity. We have never held that, and are unlikely ever to do so.”).

4.   Ex parte Carter, 721 S.W.3d 341, 360 (Tex. Crim. App. 2025).

5.   See Tex. Code Crim. Proc. art. 11.071, § 5(a)(1) (requiring the application to “contain[ ] sufficient facts establishing that ․ the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application ․ because the factual ․ basis for the claim was unavailable on the date the applicant filed the previous application.”).

6.   Tex. Code Crim. Proc. art. 11.071, § 5(e).

7.   Ex parte Kussmaul, 548 S.W.3d 606, 636 (Tex. Crim. App. 2018) (quoting Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006)).

8.   Brown, supra.

9.   Tex. Code Crim. Proc. art. 11.071, § 5(a)(2).

10.   Herrera v. Collins, 506 U.S. 390, 404-405 (1993) (emphasis in Herrera) (citations omitted).

11.   230 S.W.3d 151, 161 (Tex. Crim. App. 2007).

12.   See id. at 168-70 (Keller, P.J., concurring).

13.   Tex. Penal Code § 7.02(b).

14.   Ex parte Fournier, 473 S.W.3d 789, 792 (Tex. Crim. App. 2015).

15.   Id. (quoting Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App. 2006)).

16.   Ex parte Reed, 670 S.W.3d 689, 745 (Tex. Crim. App. 2023).

17.   See Tex. Code Crim. Proc. art. 37.071, § 2(b)(2) (“in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code,” specifying the anti-parties special issue to be submitted).

18.   Cf. Prystash v. State, 3 S.W.3d 522, 529-32 (Tex. Crim. App. 1999) (The defendant was barred from complaining about omission of the anti-parties special issue because trial defense counsel invited error by requesting that the issue be omitted.).

19.   See Tison v. Arizona, 481 U.S. 137, 157 (1987); Enmund v. Florida, 458 U.S. 782, 798 (1982).

20.   Ladd v. State, 3 S.W.3d 547, 573 (Tex. Crim. App. 1999).

21.   See Tex. Code Crim. Proc. art. 37.071, § 2(b)(2).

22.   Tex. Code Crim. Proc. art. 37.071, § 5(a)(3) (emphasis added).

23.   Broadnax v. Davis, Civil Action No. 3:15-CV-1758-N, 2019 U.S. Dist. LEXIS 122312, at *173-81 (N.D. Tex., Dallas Div. July 23, 2019) (not designated for publication).

24.   See supra at n.17.

25.   Cf. supra at n.18.