Opposition Brief — James Garfield Broadnax, Petitioner v. Texas
Supreme Court briefMar 9, 2026
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No. 25-939
In the
Supreme Court of the United States
JAMES GARFIELD BROADNAX,
Petitioner,
v.
TEXAS,
Respondent.
On Petition for a Writ of Certiorari to the
Court of Criminal A ppeals of Texas
BRIEF IN OPPOSITION
John Creuzot
Criminal District Attorney
Dallas County, Texas
Michele O’Brien Yeatts
Assistant District Attorney
Counsel of Record
Frank Crowley Courts Building
133 North Riverfront Boulevard,
LB-19
Dallas, TX 75207
(214) 653-3625
syeatts@dallascounty.org
Counsel for Respondent
390800
A
(800) 274-3321 • (800) 359-6859
i
CAPITAL CASE
QUESTIONS PRESENTED
1. Whether the state court’s dismissal of two habeas
claims, based on state-law procedural grounds and
explicitly not reaching the merits of the claims, relied on
an adequate and independent state procedural ground
that forecloses certiorari review?
2. W hether the punishment-phase admission of
Broadnax’s written rap lyrics during his capital murder
trial—including a rap lyric admitting to the capital murder—violated the Eighth and Fourteenth Amendments
under Hart v. State, 688 S.W.3d 883 (Tex. Crim. App.
2024) and warrants this court’s review?
3. Whether the admission—without objection by
Broadnax—of a serologist’s findings and report during a
DNA analyst’s testimony violated his confrontation rights
under Smith v. Arizona, 602 U.S. 779 (2024) and warrants
this court’s review?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v
BRIEF IN OPPOSITION . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 2
I.
The Capital Murder . . . . . . . . . . . . . . . . . . . . . . . . 2
II. The Punishment Evidence . . . . . . . . . . . . . . . . . . 4
III. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 7
REASONS FOR DENYING THE PETITION . . . . . . 9
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I.
A n Adequate and Independent State
Procedural Bar Forecloses Certiorari
Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. The state-law grounds for denying
review were adequate and independent . . . 10
B. Review of Broadnax’s rap-evidence
claim was barred below on state-law
procedural grounds without the lower
court reaching the merits . . . . . . . . . . . . . . 16
iii
Table of Contents
Page
1.
Background Facts: The Rap-Lyrics . . 16
2. The rap-lyrics claim was subject
to dismissal by the TCCA on
the adequate and independent
state-law grounds of procedural
default and availability . . . . . . . . . . . . . 19
C. Review of Broadnax’s serology-evidence
claim was barred below on state-law
procedural grounds without the lower
court reaching the merits . . . . . . . . . . . . . . 22
1.
Background Facts: The Serology
Evidence . . . . . . . . . . . . . . . . . . . . . . . . . 23
2. The serology-evidence claim was
subject to dismissal by the TCCA
on the adequate and independent
state-law grounds of procedural
default and availability . . . . . . . . . . . . . 25
II. There Is No Compelling Reason for
Further Review of Broadnax’s RapEvidence Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
III. There Is No Compelling Reason for
Further Review of Broadnax’s SerologyEvidence Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iv
Table of Contents
Page
A. Non-retroactivity principles bar relief . . . 33
B. Broadnax’s serology-evidence claim
lacks merit . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
v
TABLE OF CITED AUTHORITIES
Page
Cases
Andrew v. White,
604 U.S. 86 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Balentine v. Thaler,
626 F.3d 842 (5th Cir. 2010) . . . . . . . . . . . . . . . . . . . . 12
Beard v. Kindler,
558 U.S. 53 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13
Benjamin v. Gipson,
640 F. App’x 656 (9th Cir. 2016) . . . . . . . . . . . . . . . . . 27
Broadnax v. Davis,
No. 3:15-CV-1758-N, 2019 WL 3302840
(N.D. Tex. July 23, 2019) . . . . . . . . . . . . . . . . . . . . . . . 7
Broadnax v. Lumpkin,
142 S. Ct. 859 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Broadnax v. Lumpkin,
987 F.3d 400 (5th Cir. 2021) . . . . . . . . . . . . . . . . . . 8, 30
Broadnax v. Texas,
144 S. Ct. 2700 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Broadnax v. Texas,
568 U.S. 828 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vi
Cited Authorities
Page
Broadnax v. Texas,
577 U.S. 842 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Broadnax v. State,
No. AP-76,207, 2011 WL 6225399
(Tex. Crim. App. Dec. 14, 2011) . . . . . . . . . . . . . 4, 7, 32
Bullcoming v. New Mexico,
564 U.S. 647 (2011) . . . . . . . . . . . . . . . . . . . . . 23, 26, 33
Buntion v. Lumpkin,
31 F.4th 952 (5th Cir. 2022) . . . . . . . . . . . . . . . . . 14, 15
Burch v. State,
401 S.W.3d 634 (Tex. Crim. App. 2013) . . . . . . . . . . 27
Butler v. McKeller,
494 U.S. 407 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Coleman v. Thompson,
501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Coy v. Iowa,
487 U.S. 1012 (1988) . . . . . . . . . . . . . . . . . . . . . . . 35-36
Cuadros-Fernandez v. State,
316 S.W.3d 645 (Tex. App.—Dallas 2009, no pet.) . . . . 27
Edwards v. Vannoy,
593 U.S. 255 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
vii
Cited Authorities
Page
Ex parte Barbee,
616 S.W.3d 836 (Tex. Crim. App. 2021) . . . . . . . . . . . 21
Ex parte Broadnax,
No. WR-81,573-01, 2015 WL 2452758
(Tex. Crim. App. May 20, 2015) . . . . . . . . . . . . . . . . . . 7
Ex parte Broadnax,
No. WR-81,573-02, 2023 WL 3855947
(Tex. Crim. App. June 7, 2023) . . . . . . . . . . . . . . . . . . 8
Ex parte Broadnax,
No. WR-81,573-03, 2025 WL 3095921
(Tex. Crim. App. Nov. 6, 2025) . . . . . . . . . . . . . . . . 8, 9
Ex parte Campbell,
226 S.W.3d 418 (Tex. Crim. App. 2007) . . . . 10, 11, 13, 14, 21
Ex parte Crispin,
777 S.W.2d 103 (Tex. Crim. App. 1989) . . . . . . . . . . 26
Ex parte Dutchover,
779 S.W.2d 76 (Tex. Crim. App. 1989) . . . . . . . . . . . 26
Ex parte Gardner,
959 S.W.2d 189 (Tex. Crim. App. 1998) . . . . . . . . . . 20
Ex parte Goodman,
816 S.W.2d 383 (Tex. Crim. App. 1991) . . . . . . . . . . . 20
viii
Cited Authorities
Page
Ex parte Townsend,
137 S.W.3d 79 (Tex. Crim. App. 2004) . . . . . . . . . . . 20
Foster v. Chatman,
578 U.S. 488 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Garza v. State,
435 S.W.3d 258 (Tex. Crim. App. 2014) . . . . . . . . . . 25
Hart v. State,
688 S.W.3d 883 (Tex. Crim. App. 2024) . . . . 16, 20, 21
Hughes v. Quarterman,
530 F.3d 336 (5th Cir. 2008) . . . . . . . . . . . . . . . . . 14, 15
James v. Kentucky,
466 U.S. 341 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Lambrix v. Singletary,
520 U.S. 518 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Langham v. State,
305 S.W.3d 568 (Tex. Crim. App. 2010) . . . . . . . . . . 36
Lee v. Kemna,
534 U.S. 362 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
Matchett v. Dretke,
380 F.3d 844 (5th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 12
ix
Cited Authorities
Page
McDade v. State,
613 S.W.3d 349 (Tex. App.—Dallas 2020, no pet.) . . . . 22, 30
Melendez-Diaz v. Massachusetts,
557 U.S. 305 (2009) . . . . . . . . . . . . . . . . . . 23, 26, 27, 33
Moore v. Texas,
122 S. Ct. 2350 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 12
Paredes v. State,
462 S.W.3d 510 (Tex. Crim. App. 2015) . . . . . . . . 27, 28
Rocha v. Thaler,
626 F.3d 815 (5th Cir. 2010) . . . . . . . . . . . . . . . . . 14, 15
Saffle v. Parks,
494 U.S. 484 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Saldano v. State,
70 S.W.3d 873 (Tex. Crim. App. 2002) . . . . . . . . 19, 25
Schriro v. Summerlin,
542 U.S. 348 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Slack v. McDaniel,
529 U.S. 473 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Smith v. Arizona,
602 U.S. 779 (2024) . . . . . . . 1, 22, 26, 27, 28, 29, 34, 35
x
Cited Authorities
Page
Stewart v. Smith,
536 U.S. 856 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Stewart v. State,
995 S.W.2d 251 (Tex. App.—Houston [14th Dist.]
1999, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Teague v. Lane,
489 U.S. 288 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 33, 34
United States v. Gamory,
635 F.3d 480 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . . 21
United States v. Price,
418 F.3d 771 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 22
United States v. Recio,
884 F.3d 230 (4th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 21
United States v. Stuckey,
253 F. App’x 468 (6th Cir. 2007) . . . . . . . . . . . . . 21-22
Washington v. Griffin,
876 F.3d 395 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 27
Williams v. Illinois,
567 U.S. 50 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
xi
Cited Authorities
Page
Constitutional Provisions
U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13
U.S. Const. amend. VIII . . . . . . . . . . . . . . . . . . . . 1, 13, 20
U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . 1, 13, 16, 20
Statutes and Other Authorities
28 U.S.C. § 2244(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sup. Ct. R. 10(a)-(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Tex. Code Crim. Proc. art. 11.071, § 5 . . . 8-12, 14, 20, 26
Tex. Code Crim. Proc. art. 11.071, § 5(a)(1) . . 10, 11, 13, 14
Tex. Code Crim. Proc. art. 11.071, § 5(c) . . . . . . . . . 11, 12
Tex. Code Crim. Proc. art. 11.071, § 5(d) . . . . . . . . . 11, 21
Tex. Code Crim. Proc. art. 11.071, § 5(e) . . . . . . . . . . . . 11
Tex. Code Crim. Proc. art. 37.07, § 3(a) . . . . . . . . . . . . . 30
Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) . . . . . . . . . . . 30
Tex. Code Crim. Proc. art. 38.23 . . . . . . . . . . . . . . . . . . 17
Tex. R. App. P. 33.1(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 35
xii
Cited Authorities
Page
Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Tex. R. App. P. 44.2(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Texas Rules of Evidence 401 . . . . . . . . . . . . . . . . . . . . . . 17
Texas Rules of Evidence 403 . . . . . . . . . . . . 16, 17, 20, 21
1
BRIEF IN OPPOSITION
Petitioner James Garfield Broadnax is scheduled to
be executed on April 30, 2026. Broadnax was found guilty
of capital murder for the shooting deaths of Stephen
Swan and Matthew Butler in the course of a robbery.
Broadnax now seeks certiorari review of the Texas Court
of Criminal Appeals’s (TCCA’s) dismissal of his latest
subsequent application. Broadnax’s second subsequent
state habeas application included claims that (1) the
punishment-phase admission of his rap lyrics violated
his Eighth and Fourteenth Amendment due process,
fundamental fairness, and equal protection rights and (2)
the guilt-phase admission of a non-testifying serologist’s
findings and written report violated his Sixth Amendment
Confrontation Clause rights under Smith v. Arizona, 602
U.S. 779 (2024).
The TCCA determined Broadnax’s claims did not
satisfy the statutory framework to excuse procedural
default under Texas’s abuse-of-the-writ bar and dismissed
the application without considering the merits of the
claims. Broadnax now seeks certiorari review of the
TCCA’s dismissal, but his petition only implicates the
state court’s application of state procedural rules for
collateral review of death sentences. The state court’s
boilerplate dismissal of Broadnax’s claims on the basis of
an independent and adequate state-law ground forecloses
certiorari review. Moreover, nothing Broadnax presents
warrants this Court’s review.
2
STATEMENT OF THE CASE
I.
The Capital Murder
The TCCA summarized the facts of Broadnax’s
murder and robbery of Swan and Butler on direct appeal:
A man riding his bicycle home from work saw
the bodies of Stephen Swan and Matthew Butler
in the street outside their recording studio in
Garland shortly after 1:00 a.m. on June 19,
2008. The man alerted Garland firefighters
at a nearby fire station. Upon arriving at the
scene, the firefighters quickly determined
that both Swan and Butler were recently
deceased. At [Broadnax’s] trial, the medical
examiner testified that Swan had suffered an
intermediate-range gunshot wound to the head,
in addition to a gunshot wound to the left chest.
Later that day, [Broadnax] and his cousin,
Demarius Cummings, arrived at the Southeast
Dallas apartment where [Broadnax] had been
staying with family members. While there,
[Broadnax] boasted of “hit[ting] a lick”—street
slang for committing a robbery—and displayed
Swan’s driver’s license. [Broadna x] and
Cummings left the apartment in Swan’s Ford
Crown Victoria, after telling those present
that they planned to sell the vehicle. Fifteen
minutes after [Broadnax] and Cummings left,
[Broadnax’s] aunt’s friend who had been present
in the apartment saw news reports of the double
homicide. She realized that [Broadnax] and
3
Cummings were likely involved, and she called
the Garland Police.
That evening, police officers in Texarkana
(which is about 150 miles from Garland) saw
Swan’s car in a high-crime area. After a check
of the license plates returned information for a
Cadillac, rather than a Ford, officers pulled the
vehicle over. [Broadnax] gave the officers his
name, and after they learned that there were
warrants for [his] arrest, the officers placed
[him] in custody. The arresting officer testified
that [Broadnax] did not appear to be intoxicated
when he was pulled over.
After being returned to Dallas, [Broadnax] gave
multiple interviews to television broadcasters
in the Dallas area. These interviews became
the crux of the State’s case at trial. In them,
[Broadna x] confessed to murdering and
robbing Swan and Butler, and he provided
explicit details of the crimes. He said that he
and Cummings had traveled to Garland that
day with the specific intent of committing a
robbery. [Broadnax] said that while Cummings
had participated in the robberies, [he], alone,
had murdered the victims. [Broadnax] told
reporters that he had no remorse for his actions,
and that he hoped a jury would sentence him
to death.
At trial, the defense conceded that [Broadnax]
had shot Swan and Butler, but argued that [he]
was under the influence of marijuana and PCP
4
at the time of the murders. The defense further
posited that [Broadnax] was still intoxicated at
the time of his multiple television interviews
and confessions four days after his arrest.
Several of the State’s witnesses were skeptical
of [Broadnax’s] theory. In addition to the
arresting officer’s testimony that [Broadnax]
was lucid at the time of his arrest, the reporters
who interviewed him described [Broadnax] as
intelligent and rational. The jail nurse, too,
testified that [Broadnax] did not appear to be
under the influence of alcohol or drugs.
Broadnax v. State, No. AP-76,207, 2011 WL 6225399, at
*1 (Tex. Crim. App. Dec. 14, 2011) (not designated for
publication).
II. The Punishment Evidence
The federal district court summarized the punishment
evidence as follows:
The punishment phase of Broadnax’s capital
murder trial commenced on August 13, 2009.
The prosecution presented (1) victim impact
testimony from Butler’s mother and Swan’s
mother, (2) testimony concerning the results
of Butler’s autopsy, (3) the custodian of Dallas
County Jail inmate telephone records, (4) a
pair of investigators for the Dallas County
District Attorney’s Office, (5) a Dallas County
Jail Special Response Team officer who helped
supervise a shakedown of Broadnax’s cell
during which Broadnax became agitated and
5
had to be restrained physically, (6) a Dallas
County Jail detention officer who broke up a
fight between Broadnax and another inmate in
the jail’s recreational area, (7) a Dallas County
Jail detention officer who witnessed Broadnax
strike a different inmate in an unprovoked
assault only weeks before the start of Broadnax’s
capital murder trial and the inmate Broadnax
assaulted, (8) a member of the Dallas Police
Department’s gang unit, who identified various
symbols and phrases Broadnax employed in his
drawings and writings as indicating Broadnax’s
gang membership, and (9) the assistant Warden
of a Texas Department of Criminal Justice
(“TDCJ”) unit, who explained the TDCJ’s
system for classifying prisoners, the TDCJ’s
prison disciplinary procedures, and other
aspects of prison life in Texas.
Broadnax’s defense team called (1) a research
psychologist who testified regarding the
processes of brain development in humans, (2)
a psychiatrist who treated Broadnax at the
Dallas County Jail and diagnosed Broadnax
with substance abuse-induced psychosis,
(3) a professor and researcher in clinical
pharmacology who opined that Broadnax was
under the influence of marijuana and PCP at
the time of his offense and during his interviews
several days later, (4) a cousin of Broadnax’s
mother, who testified to Broadnax’s good
character as a child, (5) a trio of Broadnax’s
maternal aunts, concerning Broadna x’s
abusive childhood, (6) Broadnax’s mother,
6
who testified extensively regarding her own
difficulties growing up, Broadnax’s family
background, her many unstable relationships
with men, and Broadnax’s extremely unstable,
difficult, childhood, (7) Broadnax’s brother-inlaw, who testified regarding Broadnax’s good
character traits and responsible behavior as
a baby sitter, (8) two of Broadnax’s cousins,
who testified to Broadnax’s good character,
(9) the Dallas County Jail inmate with whom
Broadnax fought in the recreational area, who
testified he started the fight between them
because he felt Broadnax had disrespected
him, (10) two persons who knew Broadnax’s
family, who testified via deposition about the
difficult challenges Broadnax faced growing
up, (11) Broadnax’s sister, who testified about
Broadnax’s unstable abusive childhood, her
own experiences growing up with their abusive
mother, and Broadnax’s difficult teenage
years, and (12) one of Broadnax’s mother’s
ex-husbands, who testified that he ended their
relationship and threw Broadnax’s mother out
of his house after she beat Broadnax so badly
his back was bloody.
After the defense rested at the punishment
phase of trial, in rebuttal the prosecution (1)
introduced Broadnax’s Dallas County Jail
commissary account records and a series of
recordings of telephone calls Broadnax made
from the Dallas County Jail on the same day the
jury returned its verdict at the guilt-innocence
phase of trial, (2) presented the testimony of
7
a forensic psychologist, who read a list of the
characteristics of a psychopathic personality,
explained in layman’s terms what each of the
terms in the list meant, but also admitted
that he had not interviewed Broadnax and
expressly declined to offer an opinion as to
whether Broadnax possessed any of the traits
of a psychopathic personality he identified and
defined for the jury, and (3) presented more
victim impact testimony from Swan’s younger
sister and brother.
Broadnax v. Davis, No. 3:15-CV-1758-N, 2019 WL 3302840,
at *2-3 (N.D. Tex. July 23, 2019) (footnotes omitted).
III. Procedural History
The TCCA affirmed Broadnax’s conviction and
sentence on direct appeal. Broadnax, 2011 WL 6225399,
at *1, 20. Broadnax sought certiorari review, and this
Court denied his petition. Broadnax v. Texas, 568 U.S.
828 (2012).
Broadnax filed an original state habeas application.
The TCCA denied relief, and this Court denied review. Ex
parte Broadnax, No. WR-81,573-01, 2015 WL 2452758,
at *1 (Tex. Crim. App. May 20, 2015) (per curiam) (not
designated for publication); Broadnax v. Texas, 577 U.S.
842 (2015).
Broadnax filed an amended habeas petition in federal
district court. Broadnax, 2019 WL 3302840, at *5. The
federal district court denied all relief and denied a
certificate of appealability. Id. at *55. The Fifth Circuit
8
granted a certificate of appealability on one issue but
ultimately denied all relief. Broadnax v. Lumpkin, 987
F.3d 400, 404, 416 (5th Cir. 2021). This Court then denied
Broadnax’s petition for writ of certiorari. Broadnax v.
Lumpkin, 142 S. Ct. 859 (2022).
In 2023, Broadnax filed a first subsequent state habeas
application under Article 11.071 of the Texas Code of
Criminal Procedure, raising two claims, including a Batson
claim. The TCCA dismissed the first subsequent habeas
application without reviewing the merits of the claims,
concluding Broadnax failed to satisfy the requirements
of Article 11.071, Section 5. Ex parte Broadnax, No. WR81,573-02, 2023 WL 3855947, at *1 (Tex. Crim. App. June
7, 2023) (per curiam) (not designated for publication). On
June 24, 2024, this Court denied Broadnax’s petition for
writ of certiorari on his Batson claim.1 Broadnax v. Texas,
144 S. Ct. 2700 (2024).
In 2025, Broadnax filed two pleadings in the TCCA:
(1) a second subsequent state habeas application and (2)
a “suggestion the TCCA reconsider on its own motion”
his first subsequent state habeas application (see Tex.
R. App. P. 79.2(d)). The TCCA dismissed the second
subsequent habeas application without reviewing the
merits of the claims raised, concluding Broadnax failed to
satisfy the requirements of Article 11.071, Section 5. Ex
parte Broadnax, No. WR-81,573-03, 2025 WL 3095921,
at *1 (Tex. Crim. App. Nov. 6, 2025) (per curiam) (not
designated for publication). (Pet. at 4a). On the same day,
the TCCA denied without a written order Broadnax’s
1
The decision stated in full: “Petition for writ of certiorari to
the Court of Criminal Appeals of Texas denied. Justice Sotomayor
and Justice Jackson would reverse the judgment.”
9
request for reconsideration of his first subsequent state
habeas application. 2 Ex parte Broadnax, No. WR-81,57302 (Tex. Crim. App. Nov. 6, 2025) (docket entry denying
suggestion to reconsider on court’s own motion).
On December 17, 2025, the state trial court scheduled
Broadnax’s execution for April 30, 2026. (Pet. at 5a–7a).
Broadnax filed his instant petition for writ of certiorari
along with a corresponding Application for Stay of
Execution, No. 25A900.
REASONS FOR DENYING THE PETITION
The court below dismissed the claims for which
Broadnax seeks review on an adequate and independent
state-law ground without reaching the merits of the claims
(Pet. at 3a–4a), which deprives this Court of jurisdiction
to consider them. Broadnax’s petition seeks review of the
TCCA’s order dismissing his second subsequent state
habeas application as an abuse of the writ under Texas
Code of Criminal Procedure Article 11.071, Section 5.
Because the TCCA’s decision applied Texas’s procedural
rules governing subsequent habeas applications in deathpenalty cases, it is unassailable on certiorari, and the
Court lacks jurisdiction to grant review. Even assuming
jurisdiction, Broadnax has not furnished a compelling
reason for this Court to review his case, and none exists.
The questions Broadnax presents for review are unworthy
of this Court’s attention.
2
Broadnax has a petition for writ of certiorari pending on the
TCCA’s denial of his motion for rehearing of his state first subsequent
habeas application, along with a motion for stay of execution, in Nos.
25-938 and 25A899.
10
ARGUMENT
I.
An Adequate and Independent State Procedural
Bar Forecloses Certiorari Review
Broadnax seeks review of the lower court’s dismissal
of his rap-lyrics and serology-evidence claims. Despite the
TCCA’s explicit statement that it did not reach the federal
questions presented, Broadnax alleges it did, rejecting the
TCCA’s state-law procedural determinations and relying
on a misinterpretation of Ex parte Campbell, 226 S.W.3d
418 (Tex. Crim. App. 2007) that has already been soundly
rejected by the federal courts. This is a straightforward
case: the TCCA’s dismissal on adequate and independent
state-law grounds strips this Court of jurisdiction.
A.
The state-law grounds for denying review were
adequate and independent.
Article 11.071, Section 5 of the Texas Code of Criminal
Procedure governs subsequent habeas applications
by state applicants who have previously sought postconviction relief. To receive review of his subsequent
application, Broadnax needed to establish that his claims
could not have been presented previously in a habeas
application because the factual or legal bases for the claims
were unavailable at the time a previous application was
filed. See Tex. Code Crim. Proc. art. 11.071, § 5(a)(1). The
Texas statute restricts applicants to one habeas review,
and subsequent applications are prohibited except in the
delineated circumstances. See id. § 5(a). This statute, like
the federal habeas “second or successive” writ prohibition,
works to limit the number of attempts an inmate may
seek to collaterally attack a conviction, subject to the
11
exceptions. Compare Tex. Code Crim. Proc. art. 11.071,
§ 5 with 28 U.S.C. § 2244(b); see also Beard v. Kindler, 558
U.S. 53, 62 (2009) (noting that federal courts should not
“disregard state procedural rules that are substantially
similar to those to which we give full force in our own
courts”).
At this stage in the lower court proceeding, the TCCA
determines whether a subsequent habeas applicant meets
the state statutory procedural hurdles of Section 5 and can
litigate his claim further in the trial court. If the TCCA
determines an applicant meets Section 5’s requirements,
it remands the case to the trial court—the fact-finder in
the state habeas proceeding. If the TCCA determines the
statutory requirements for bypassing the procedural bar
have not been satisfied, it must issue an order dismissing
the application as an abuse of the writ. Tex. Code Crim.
Proc. art. 11.071, § 5(c).
The Texas statute requires proof of unavailability in
all prior state habeas applications. Campbell, 226 S.W.3d
at 421. A legal basis for a claim was unavailable within
the meaning of Section 5(a)(1) if the legal basis was not
recognized by or could not have reasonably been formulated
from a decision of this Court, a federal appellate court,
or a Texas appellate court. Tex. Code Crim. Proc. art.
11.071, § 5(d). 3 In the court below, Broadnax argued that
both claims were based on newly-available legal grounds.
The lower cour t’s Section 5(a) dismissal was
independent of the federal issues raised and adequate to
3
There is no dispute about the factual availability of Broadnax’s
trial-record based claims. See Tex. Code Crim. Proc. art. 11.071, § 5(e).
12
support the judgment. The TCCA dismissed Broadnax’s
application “as an abuse of the writ without considering
the merits of the claims.” (Pet. at 4a). See Tex. Code
Crim. Proc. art. 11.071, § 5(c). By explicitly indicating
it had not considered the merits, the TCCA left no
doubt as to the independent, state-law character of its
dismissal. Broadnax’s claims are therefore unequivocally
procedurally barred because the state court’s disposition
of the claims relies upon an adequate and independent
state-law ground—the Texas abuse-of-the-writ statute.
See, e.g., Moore v. Texas, 122 S. Ct. 2350, 2352–53 (2002)
(Scalia, J., dissenting); Balentine v. Thaler, 626 F.3d 842,
857 (5th Cir. 2010) (recognizing that Article 11.701, Section
5 is an adequate state-law ground for rejecting a claim);
Matchett v. Dretke, 380 F.3d 844, 848 (5th Cir. 2004)
(“Texas’ abuse-of-the-writ rule is ordinarily an ‘adequate
and independent’ procedural ground on which to base a
procedural default ruling”).
This Court has held numerous times it will not review
a federal claim decided by a state court if the state court’s
decision rests on a state-law ground that is independent
of the merits of the federal claim and an adequate basis
for the court’s decision. Foster v. Chatman, 578 U.S.
488, 497 (2016); Lambrix v. Singletary, 520 U.S. 518, 523
(1997). The state-law ground barring federal review may
be “substantive or procedural.” Coleman v. Thompson,
501 U.S. 722, 729 (1991).
To be adequate, a state-law ground must be “firmly
established and regularly followed.” Lee v. Kemna, 534
U.S. 362, 376 (2002) (quoting James v. Kentucky, 466 U.S.
341, 348 (1984)). Discretion does not deprive a state-law
ground of its adequacy because “a discretionary rule can
13
be ‘firmly established’ and ‘regularly followed’—even
if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not
others.” Kindler, 558 U.S. at 60–61. Ultimately, situations
where a state-law ground is found inadequate are but a
“small category of cases.” Kemna, 534 U.S. at 381.
A state-law ground is “independent of federal law
[when it] do[es] not depend upon a federal constitutional
ruling on the merits.” Stewart v. Smith, 536 U.S. 856,
860 (2002). Broadnax wholly disregards the TCCA’s
explicit statement it did not consider the merits of his
claims, contending the decision below was in fact based
on the TCCA’s interpretation of federal-law questions
of Broadnax’s rights to due process, fundamental
fairness, and equal protection under the Eighth and
Fourteenth Amendments (his rap-evidence claim) and
his confrontation rights under the Sixth Amendment (his
serology-evidence claim). (Pet. at 30). Instead of accepting
the TCCA’s unambiguous ruling that it dismissed his
claims without merits review, Broadnax argues the twostep process described in Campbell means that, in every
Texas subsequent habeas proceeding, the TCCA reaches
the merits by examining two elements: first, the prior
factual and/or legal availability of the claim; and second,
whether the facts alleged establish a prima face showing
of a constitutional violation. (Pet. at 30–31). See Campbell,
226 S.W.3d at 421–22. Because Broadnax flatly disagrees
with the TCCA’s determination that his two claims were
previously available and could have been asserted when
he filed his earlier habeas applications (and thus he failed
to meet Section 5(a)’s “new-legal-basis” requirement for
this application), he reasons the TCCA must have decided
he failed to establish a prima facie showing of his federal
14
constitutional claims, thereby reaching the merits. (Pet.
at 31–32).
Broadnax’s interpretation of Campbell is erroneous.
It is well-settled that the TCCA can dismiss a subsequent
habeas application on Section 5(a)’s previously-available
legal-or-factual basis alone, without reaching Campbell’s
prima facie prong. In the federal habeas context, the Fifth
Circuit has rejected Broadnax’s exact contention—that
the TCCA’s decisions under Section 5 are not independent
of federal law due to Campbell. See Buntion v. Lumpkin,
31 F.4th 952, 962 (5th Cir. 2022) (indicating the argument
“undebatably fails” and “misreads Campbell” because a
Texas court may dismiss a claim on Campbell’s first ground
alone—that the factual or legal basis for the current claims
must have been unavailable as to all previous state habeas
applications—without ever reaching the constitutional
issue). The Fifth Circuit held it is “undebatable that an
unelaborated dismissal under article 11.071, § 5 is based
on an adequate and independent state ground.” Id. at 963
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000) and
Hughes v. Quarterman, 530 F.3d 336, 342 (5th Cir. 2008)).
In Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010), the
Fifth Circuit considered the independent nature of Texas’s
Section 5 bar in the federal habeas context. There, the court
rejected Rocha’s contention “that § 5(a)(1) is dependent on
federal law in all cases.” Id. at 835. Instead, whether a
Section 5(a)(1) dismissal is independent of federal law turns
on case-specific factors. Id. As the court held,
If the CCA’s decision rests on availability, the
procedural bar is intact. If the CCA determines
that the claim was unavailable but that the
15
application does not make a prima facie showing
of merit, a federal court can review that
determination under the deferential standards
of AEDPA.
Id. at 835. The TCCA’s decision in this case is unmistakable:
it dismissed the application “as an abuse of the writ
without considering the merits of the claims.” (Pet. at
4a). The TCCA conducts the availability and prima facie
inquiries sequentially, and there is no indication the TCCA
proceeded to a prima-facie merit analysis instead of
resting its decision on availability. See Buntion, 31 F.4th
at 962; Rocha, 626 F.3d at 834.
It is undebatable that the TCCA’s dismissal of
Broadnax’s second subsequent writ application rested
on state procedural grounds that were independent
of any federal issues raised and adequate to support
the judgment. See Rocha, 626 F.3d at 837 (“A [T]CCA
decision fairly appears to rest on state law if it dismisses
a subsequent habeas application under § 5(a)(1) because
the application does not raise a claim that was factually
or legally unavailable.”); Hughes, 530 F.3d at 342 (“This
court has held that, since 1994, the Texas abuse of the writ
doctrine has been consistently applied as a procedural bar,
and that it is an independent and adequate state ground for
the purpose of imposing a procedural bar.”). Accordingly,
an adequate and independent state law barred Broadnax’s
rap-lyrics and serology-evidence claims in state court and
divests this Court of jurisdiction.
16
B. Review of Broadnax’s rap-evidence claim was
barred below on state-law procedural grounds
without the lower court reaching the merits.
Review of Broadnax’s rap-lyrics claim was barred in
the lower court on state-law procedural grounds because:
Broadnax failed to raise the claim on direct appeal; the
Texas case he relies on, Hart v. State, is not a new legal
basis for his constitutional claim; and the claim could have
been raised in Broadnax’s prior habeas applications from
existing law.
1.
Background Facts: The Rap-Lyrics
In the court below, Broadnax complained about
the punishment-phase admission4 of written rap lyrics
contained in two spiral notebooks found after his arrest
in his suitcase in the victim’s stolen vehicle. (RR46: 142,
148–49; RR49: 104, 106–08, 118; SX 131-I, 131-J). The trial
court overruled Broadnax’s Texas Rule of Evidence 403
objection to the spiral notebooks. (RR49: 104).
The trial court also admitted photographs taken of
two pages of handwritten lyrics from Broadnax’s county
jail cell. (RR49: 36–41, 49–52; SX 474–75). The trial
court overruled Broadnax’s objections to admission of all
photographs from his cell. The objections were grounded
in search-and-seizure and evidentiary issues, particularly
the Fourth and Fourteenth Amendments; Article I,
The jury knew Broadnax was a rapper because he had
explained in a recorded media interview, admitted into evidence
during the guilt phase of trial, that he had engaged the two victims
in a conversation about their music recording studio because he
“raps.” (RR45: 276; SX 18, 405).
4
17
Sections 9, 13, and 19 of the Texas Constitution; Texas
Code of Criminal Procedure Article 38.23; and Texas
Rules of Evidence 401 and 403. (RR49: 8, 12, 38–39, 41). A
portion of one lyric, titled “free-style [writing],” refers to
the robbery, murders, and trial in this case and murking,
or killing, the judge:
. . . Send da press, send da paper. Hold up. Stop
N rewind[] [t]hat shit[.] I’m about [to] tell a little
story [why] I’m in this b****[.]
[] Yeah, I hit the lick, but the reason I got caught
cuz the n**** snitching [] [s]hit. Now this b****
[illegible] me, I got two counts of murder. I
might go to trial and tell the Judge I’m going to
[murk] [m] because I’m JB, b****. Do you know
who you f***ing wit? 5
(RR49: 50–51; see SX 474). Notably, Broadnax has not
acknowledged in his petition or his application in the
lower court that the lyrics in State’s Exhibit 474 contain
an admission to the capital murder and a reference to the
judge presiding over his case.
At trial, the State used the complained-of spiral
notebooks, along with Broadnax’s other writings and
drawings, to show his association with and use of gang
Murk means “kill.” See State’s Exhibit 403, Broadnax’s
recorded interview with a Channel 11 reporter, where he at first
repeatedly denied murdering Swan and Butler, and he said in
context, “I [didn’t] murk nobody though. I ain’t got no reason to. I
don’t want nobody killing me.”
5
18
terminology and symbols.6 A Dallas Police Department
gang unit officer testified about evidence from Broadnax’s
recorded media interviews, an audio-recorded jail call,
items in his Dallas County jail cell, and the spiral notebooks
and identified language and symbols referencing the Folk
Nation and Gangster Disciples. (RR49: 83–123). Based on
Broadnax’s multiple instances of self-identification and
admissions, the officer concluded Broadnax was a member
of the Gangster Disciples gang. (See RR49: 89–91, 95–96,
100, 104, 109–11, 122, 131).
The two spiral notebooks also contain drawings,
phone numbers, notes about drugs and ways to make
money, job research from the internet, and a letter. (RR49:
125–33; SX 131-I, 131-J). Nelson testified the rap lyrics
in the notebooks reference themes of murder, robbery,
and drug sales. (RR49: 108, 116, 118–19, 123–24). The
prosecutor read some of the lyrics to the jury. (RR49:
118–121, 123–24).
The State mentioned Broadnax’s rap lyrics (from
his suitcase in the victim’s car) in its punishment-phase
closing arguments:
He told you what he was going to do in his
writings before he even did it. He talked about
the murder and the robbery of people. And you
know what? Maybe if he never got out and did
it, maybe he’d just be another gangster rapper.
But then he went out and did it. Counsel says
we want you to kill him because of what he says
6
Broadnax had announced his gang affiliation in his first media
interview, saying, “I’m a Folk.” (SX 403).
19
he’s going to do, but you’ve got evidence right
here that told you what he was going to do, and
then he went out and did it.
(RR53: 79). This discussion was 9 lines, or 1.02 percent, of
the State’s closing arguments in this case. (RR53: 10–31,
65–81). The State also briefly repeated Broadnax’s postoffense free-style rap in which he admitted to the murders
and referenced “murking” the judge. (RR53: 79; see SX
474).
2.
The rap-lyrics claim was subject to
dismissal by the TCCA on the adequate
and independent state-law grounds of
procedural default and availability.
First, Broadnax’s rap-lyrics claim was procedurally
barred below, and the TCCA correctly dismissed it on this
basis. Although Broadnax objected at trial to admission
of the rap-lyrics evidence on constitutional search-andseizure and evidentiary grounds (RR49: 8, 12, 38–39,
41, 104), he did not raise the due process, fundamental
fairness, and equal protection constitutional grounds
asserted in his second subsequent habeas application and
thus waived the claims. See Saldano v. State, 70 S.W.3d
873, 889 (Tex. Crim. App. 2002) (recognizing a defendant’s
failure to object at trial “forfeits complaints about the
admissibility of evidence” “even though the error may
concern a constitutional right of the defendant”).
Nor did Broadnax assert the due process, fundamental
fairness, and equal protection constitutional challenges to
the evidence on direct appeal. “It is well-settled ‘that the
writ of habeas corpus should not be used to litigate matters
20
which should have been raised on direct appeal.’” Ex parte
Gardner, 959 S.W.2d 189, 199 (Tex. Crim. App. 1998) (op.
on reh’g) (quoting Ex parte Goodman, 816 S.W.2d 383,
385 (Tex. Crim. App. 1991)). The writ of habeas corpus
“is an extraordinary remedy that is available only when
there is no other adequate remedy at law,” and therefore
even constitutional claims are forfeited if they could have
been raised on appeal. Ex parte Townsend, 137 S.W.3d
79, 81 (Tex. Crim. App. 2004). Because Broadnax did not
challenge the rap-lyrics evidence on the complained-of
constitutional bases at trial or on direct appeal, his claim
was procedurally defaulted—for this threshold reason
alone—for purposes of his prior habeas applications and
this third state habeas application.
Second, the TCCA correctly dismissed Broadnax’s
rap-lyrics claim as barred because he failed to meet
Section 5’s new-legal-basis requirement. In the court below,
Broadnax alleged admission of the rap-lyrics evidence
violated the Eighth and Fourteenth Amendments, relying
on Hart v. State, 688 S.W.3d 883 (Tex. Crim. App. 2024)
as new law meeting Section 5’s requirements. Broadnax’s
insurmountable problem was that Hart did not create
a new legal basis for a constitutional challenge to the
admission of rap lyrics. See Hart, 688 S.W.3d at 891–97
(applying the prejudice-versus-probative balancing test of
Texas Rule of Evidence 403). Hart merely applied state
evidentiary rules to the case’s unique set of facts. There
was no constitutional error in Hart. Hart, 688 S.W.3d at
897 (characterizing the error as “an abuse of discretion
in admitting certain evidence” and applying the harm
standard for non-constitutional error); see Tex. R. App.
P. 44.2(b).
21
Because Broadnax formulated his constitutional
claims from Hart, a Texas-Rules-of-Evidence case, he
could have reasonably formulated or rationally fashioned
his claim from countless state and federal cases over the
last several decades. See Tex. Code Crim. Proc. art. 11.071,
§ 5(d) (indicating a legal basis is previously available
if it was recognized by, or could have been reasonably
formulated from, a final decision by the Supreme Court,
a federal appeals court, or a state appellate court); Ex
parte Barbee, 616 S.W.3d 836, 839 (Tex. Crim. App. 2021)
(holding a legal basis was previously available if it could
have been rationally fashioned from or is founded on
familiar principles in precedent from the relevant courts).
In the court below, Broadnax needed to demonstrate the
new legal basis was unavailable as to all his previous
habeas applications, see Campbell, 226 S.W.3d at 421, but
in light of the extensive prior rap-related jurisprudence,
he soundly failed, and the TCCA correctly dismissed his
claim without reaching the merits.
Many federal circuit and Texas appellate court
decisions have addressed the admissibility and prejudicial
impact of rap evidence well before Broadnax filed his
original and first subsequent habeas applications in 2011
and 2023, respectively. See United States v. Gamory,
635 F.3d 480, 493 (11th Cir. 2011) (holding that the guiltphase admission during Gamory’s drug-distribution
and money-laundering trial of a rap video produced by
his music-recording business was error under Federal
Rule of Evidence 403 and “heavily prejudicial”);
United States v. Recio, 884 F.3d 230, 236 (4th Cir. 2018)
(rejecting claim but acknowledging that some courts have
excluded lyrics because they describe violent, criminal,
or distasteful conduct); United States v. Stuckey, 253
22
F. App’x 468, 482–83 (6th Cir. 2007) (recognizing that
violent rap lyrics involve the danger of unfair prejudice
but rejecting Stuckey’s guilt-phase claims because the
rap lyrics described the charged offense); United States
v. Price, 418 F.3d 771, 782–83 (7th Cir. 2005) (holding
guilt-phase admission of rap lyrics was more prejudicial
than probative); McDade v. State, 613 S.W.3d 349, 353,
358 (Tex. App.—Dallas 2020, no pet.)7 (upholding the
punishment-phase admission of defendant singing rap
lyrics threatening violence and featuring drugs, firearms,
stalking, sex, and gang references); Stewart v. State, 995
S.W.2d 251, 255–56 (Tex. App.—Houston [14th Dist.] 1999,
no pet.). Undoubtedly, Broadnax could have reasonably
formulated or rationally fashioned his claim from prior
precedent in an earlier habeas application.
C.
Review of Broadnax’s serology-evidence claim
was barred below on state-law procedural
grounds without the lower court reaching the
merits.
In his second claim in the court below, Broadnax
alleged that DNA analyst James Nichols’s testimony
about serology test results, along with the admission of
the non-testifying serologist’s report, violated Crawford
pursuant to new law in Smith, 602 U.S. 779. Review of
Broadnax’s serology-evidence claim was barred below
on state-law procedural grounds without the lower court
reviewing the merits because, first, Broadnax did not
object to the serology evidence at trial and, second, Smith
7
The McDade case involved the same police-officer gang witness
who testified during Broadnax’s punishment phase and provided a
literal road map for Broadnax to raise his claim at the latest in his
2023 first subsequent habeas application.
23
is not new law, and the legal basis for his claim could
have been reasonably formulated or rationally fashioned
from existing precedent, including Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009) and Bullcoming v.
New Mexico, 564 U.S. 647 (2011), when he filed his 2011
original habeas application or his 2023 first subsequent
habeas application.
1.
Background Facts: The Serology Evidence
During the guilt-phase of trial, the State called James
Nichols, a forensic scientist with the Texas Department
of Public Safety (DPS) Crime Laboratory in Garland,
Texas, to testify about the DNA testing and analysis he
personally performed in Broadnax’s case. (RR46: 184–85).
Nichols defined DNA, described factors affecting whether
DNA is present on an item, and described the process
of performing DNA testing on crime-scene evidence.
(RR46: 186–91, 199–200). Nichols testified about the
DNA results he obtained from several items: a pistol
(that the co-defendant, Cummings, had turned over to
the police), one victim’s pants-pocket liner, and a pair of
Cummings’s Nike tennis shoes. (RR46: 196–97, 200–01,
204). Nichols performed the DNA testing, analyzed the
results, performed statistical analyses to determine
the rarity of the resulting DNA profiles, and prepared
a report which the trial court admitted into evidence.
(RR46: 194–95, 202–03; SX 391). For the Nike shoes and
Swan’s pants-pocket liner, Nichols also testified about the
statistical probability of finding a particular DNA profile
within the population. (RR46: 198, 201).
Interspersed throughout his testimony and without
Broadnax objecting, Nichols reported the serologist’s test
24
results on some of these same items. (RR46: 191–197).
Nichols explained that Kimberlee Mack is a “screener”
in the serology section of the DPS crime lab in Garland.
(RR46: 191). Mack examines items of evidence and
performs presumptive tests for possible blood or semen
for the purpose of targeting which items can then be
DNA tested. (RR46: 191; see SX 392, pp. 2–3). Nichols
testified that he “relied on” Mack’s serology report while
preparing his own DNA report. (RR46: 192). During
Nichols’s testimony, Mack’s serology report was admitted
into evidence. (RR46: 192–93; SX 392). Regarding the
serology report, Broadnax’s counsel stated affirmatively,
“[W]e have no objection. No objection.” (RR46: 193).
Mack’s report reflects a list of items of evidence
submitted to the lab; the items are identified by number.
(SX 392, pp. 1–2). Nichols’s report also identifies the items
of evidence by their item numbers; therefore, Mack’s
report is not necessary to identify the items Nichols
tested. (See SX 391). Nichols’s report stands alone,
independent of Mack’s report.
Broadnax claims the serology and DNA test results
were especially damning because they linked him to the
crime scene (Pet. at 4, 10, 12, 27, 29) and “were central
to [his] conviction” (Pet. at 12, 29). To the contrary,
Broadnax’s DNA was excluded from every item that
was DNA tested, which trial counsel made clear during
Nichols’s cross-examination. (RR46: 204–208 (reviewing
all DNA test results in the case and pointing out Broadnax
was excluded from the DNA results, including DNA on
the pistol)). Cummings had led police to the apartment
where the pistol was hidden. (RR46: 41–43). Cummings’s
DNA and one victim’s DNA were on the pistol; Broadnax’s
25
was not. (RR46: 195–96, 204–06). Cummings’s DNA
was inside Swan’s pants pocket; Broadnax’s was not.
(RR46: 200–01, 204). And Butler’s DNA was in the blood
splatter on Cummings’s Nike tennis shoes. 8 (RR46:
197, 204). In a case where otherwise the evidence was
overwhelmingly inculpatory as to Broadnax, the forensic
physical evidence was in fact favorable to him. Counsel
used the fact Broadnax’s DNA was not on the murder
weapon (and Cummings’s DNA was) in closing arguments,
in an attempt to refute both Evelyn Barg’s testimony
and Broadnax’s own admissions in his media interviews.
(RR47: 189).
2.
The serology-evidence claim was subject
to dismissal by the TCCA on the adequate
and independent state-law grounds of
procedural default and availability.
First, Broadnax did not object at trial that admission
of the serology-related testimony or the serology report
violated his constitutional right to confrontation, or on any
other basis. (RR46: 184–208). When the State moved to
admit the serologist’s report, Broadnax stated he had “no
objection.” (RR46: 193). Because Broadnax did not object
to the alleged confrontation violation at trial, the TCCA
correctly determined Broadnax was procedurally barred
from raising the claim for the first time on state habeas
review. See Saldano, 70 S.W.3d at 889; Garza v. State, 435
S.W.3d 258, 261–62 (Tex. Crim. App. 2014). Specifically,
8
The white, size 10½ Nike tennis shoes were collected from a
red and black backpack in the trunk of the stolen vehicle. (RR46:
121; SX 129, 268, 283). A different suitcase in the trunk contained
Broadnax’s personal effects, including size 13 gray Fila tennis shoes.
(RR46: xiii, 122, 141, 143; SX 139, 131-A, 131-B, 183, 392).
26
the failure to make a contemporaneous objection at trial
based on the Confrontation Clause bars habeas review. See
Ex parte Dutchover, 779 S.W.2d 76, 77 (Tex. Crim. App.
1989) (citing Ex parte Crispin, 777 S.W.2d 103, 106 (Tex.
Crim. App. 1989)). Moreover, it is a reasonable conclusion
from the record that counsel strategically elected not
to object to any of Nichols’s testimony, including the
serology findings and report, because the DNA results
were exculpatory as to Broadnax personally—where little
else in the guilt phase of this case was.
Second, the TCCA correctly applied a state-law
procedural bar and dismissed Broadnax’s Crawford claim
because Smith v. Arizona is not a new legal basis for the
claim. Smith acknowledges as such on its face when it
recognizes that its decision “follow[ed] from all this Court
has held about the Confrontation Clause’s application to
forensic evidence.” 602 U.S. at 802. Because Broadnax’s
Crawford claim did not meet the new-law requirement of
Section 5, the TCCA correctly dismissed it as procedurally
barred.
Melendez-Diaz and Bullcoming were decided on June
25, 2009 and June 23, 2011 respectively, before Broadnax
filed his original state habeas application on December
20, 2011. These two cases provided a foundation for
Broadnax to raise his Crawford claim in his original or
first subsequent habeas application. See Melendez-Diaz,
57 U.S. at 309–11, 329 (holding admission into evidence of
notarized “certificates of analysis” by state lab analysts
for the seized cocaine—without the analysts’ testimony—
violated the Confrontation Clause); Bullcoming, 564 U.S.
at 651–63 (finding a Confrontation Clause violation where
a surrogate analyst, who had not performed or observed
27
the blood-alcohol testing in the case, sponsored the testing
analyst’s report at trial). Because Broadnax did not
raise his claim in his original or first subsequent habeas
application, the TCCA correctly decided he did not meet
Texas’s subsequent-writ-bar exception.
Likewise, Broadnax could have reasonably formulated
or rationally fashioned his Crawford claim from the parade
of federal and state decisions following Melendez-Diaz
and Bullcoming. See, e.g., Washington v. Griffin, 876
F.3d 395, 400–02 (2d Cir. 2017) (where appellant raised a
confrontation violation based on introduction of lab case
file containing non-testifying analysts’ work including
appellant’s buccal-swab DNA test results, and analyst
testified the buccal-swab results matched the DNA found
on crime-scene evidence); Benjamin v. Gipson, 640 F.
App’x 656, 659 (9th Cir. 2016); Paredes v. State, 462 S.W.3d
510 (Tex. Crim. App. 2015) (analyzing prior caselaw to
mean that admission of a lab report created solely by a
non-testifying analyst, without calling that analyst to
sponsor it, violates the Confrontation Clause); Burch v.
State, 401 S.W.3d 634 (Tex. Crim. App. 2013) (concluding
drug lab report was erroneously admitted where witness
signed the report as a supervisor but had not participated
in the testing); Cuadros-Fernandez v. State, 316 S.W.3d
645, 654–58 (Tex. App.—Dallas 2009, no pet.) (holding
admission of non-testifying DNA analyst’s report and
notes violated the Confrontation Clause).
Broadnax points out that in abrogating the plurality
opinion in Williams v. Illinois, 567 U.S. 50 (2012), Smith
corrected jurisdictions across the country that were
allowing an absent lab analyst’s test results to be admitted
through another expert’s testimony as facts underlying
28
the testifying expert’s opinions. (Pet. at 14–15, 31). See
Smith, 602 U.S. at 783. But Texas was not one of those
jurisdictions. See Paredes, 462 S.W.3d at 517–18. The
TCCA’s Paredes decision encompassed the later holding
in Smith when it acknowledged that a testifying expert
could rely on another analyst’s work but cannot act as a
surrogate to introduce the absent analyst’s results. See id.
In short, based on then-existing caselaw, Broadnax
could have asserted a Crawford claim during the DNA
analyst’s testimony at trial, in his direct appeal, in his
original state habeas proceeding, in his federal habeas
proceeding (where he was represented by current counsel),
or in his first subsequent state habeas proceeding.
Moreover, the facts of Smith are suff iciently
distinguishable that Broadnax’s claim would not hinge
on it. In Smith, authorities found a large quantity of
drugs and drug-related paraphernalia while executing
a search warrant. Smith, 602 U.S. at 789. A lab analyst
tested the items and prepared a report detailing her
findings on the identities and quantities of drugs. Id.
The prosecution presented the information through a
substitute analyst who had reviewed the case and drawn
the same conclusions regarding the drugs and their
quantities, reaching an “independent opinion.” Id. at 791.
The state court affirmed the conviction, reasoning the
underlying facts were used only to show the basis for
the testifying witness’s opinion. Id. This Court held the
restated factual conclusions of the absent lab analyst, even
if they were the basis of the testifying expert’s opinion,
were inadmissible. Id. at 783, 791, 800.
29
Unlike in Smith, the absent serologist’s testing and
report here did not provide the substantive, scientific
basis for the testifying expert’s conclusions (i.e., his DNA
opinions). Mack performed the serology examination,
which was preliminary and separate from the later DNA
testing. Nichols’s DNA results were independent of Mack’s
serology results and could have stood alone.
Because Smith did not provide a previously unavailable
legal basis for Broadnax’s Crawford claim, the TCCA
correctly concluded it was barred under state procedural
law.
II. There Is No Compelling Reason for Further Review
of Broadnax’s Rap-Evidence Claim
There is no reason for this Court to expend its limited
resources on this case. Broadnax appeals the state court’s
decision denying litigation of a claim he could have raised
many years ago. It is worth noting the dilatoriness of
this trial-record claim. Although Broadnax argues the
claim was not available until 2022, the claim has obviously
existed for over two decades.
Importantly, a procedurally-barred claim that has
not been litigated on the merits is not in the appropriate
stance for this Court’s review, and certiorari should be
denied on that basis alone. This situation lacks any of
the usual compelling reasons for review. See Sup. Ct. R.
10(a)-(c). There is no circuit or state-court-of-last-resort
conflict; there is no reason for this Court to exercise
its supervisory power; and the state court did not even
reach the federal question alleged, much less decide it in
a conflicting manner. See id.
30
Moreover, the rap claim plainly lacks mer it.
Regardless of the state-court procedural bar, admission
of the evidence neither violated Broadnax’s constitutional
rights nor rendered his trial unduly prejudicial. No
federal or state court has held that rap evidence violates
a defendant’s constitutional rights. In citing cases in
which the admission of character and extraneous-offense
evidence was found to violate due process, Broadnax
primarily relies on inapposite guilt-phase evidence cases.
(Pet. at 18–20). Furthermore, the rap evidence here lacks
the irrelevant and prejudicial character of the evidence
about the defendant’s sexual relationships, extramarital
affairs, provocative clothing, and failings as a parent and
wife in Andrew v. White, 604 U.S. 86, 87–89, 96 (2025).
Article 37.07, Section 3(a) of the Texas Code of
Criminal Procedure allows punishment-phase admission
of any matter the court deems relevant to sentencing,
including the defendant’s reputation and character. See
Tex. Code Crim. Proc. art. 37.07, § 3(a)(1); McDade, 613
S.W.3d at 353–54. It is well-established generally that rap
lyrics are admissible punishment evidence. See supra at
21-22 (citing federal and state cases admitting rap lyrics
into evidence).
Broadnax’s equal protection claim, alleging the State’s
use of his rap lyrics was part and parcel of its race-based
practices, falls equally flat. (Pet. at 3, 20–22). Broadnax
references the State’s strikes of black jurors (Pet. at 5),
but every state and federal court, including this Court,
has reviewed those strikes and denied Batson relief. See,
e.g., Broadnax, 987 F.3d at 411–12 (noting that, with the
exception of one juror who was struck for a unique answer
about an offender’s drug use, every Batson-challenged
31
venireperson indicated they opposed the death penalty or
it should not be invoked, and the State struck every juror,
regardless of race, who answered this way). Extensive
evidence—including a recorded media interview, phone
call, drawings, letters, rap lyrics, and other writings—
showed Broadnax associated with the Gangster Disciples
(also known as the “Folk Nation”). (RR49: 83–133; SX 6,
7, 9, 18, 131-I, 131-J, 504–505, 553). Broadnax implies the
State derogatorily referred to the gang as a “black gang.”
(Pet. at 21). In fact, discussions occurred at trial about
the distinction between and references to the “Gangster
Disciples” versus the “Black Gangster Disciples,” an
associated group. (RR49: 90–93, 97). References in closing
arguments to Broadnax “chomping at the bit” or being a
predator had to do with his extreme and unwarranted
violent acts, including the fact he shot two men in the head
who were already down—not his race. The prosecutor’s
references to a “new breed” and “monster” were to the
life-without-parole inmates in Texas who do not have the
incentive of parole to quell their behavior. (RR53: 26–27).
Finally, the prosecutor’s reference in opening arguments
to Broadnax going to “where the rich white folks live”
was merely a reference to Broadnax’s own words the jury
would later hear in a recorded media interview. (RR45: 50
(stating “they started their manhunt, and what you will
hear is they wound up [in] downtown Dallas, they got on
a DART train and headed toward Garland. And from the
defendant’s own words, they went to Garland because
that’s where the rich white folks live”)). Broadnax’s
complaints, considered in context of the whole record, do
not reveal any race-based strategy.
Broadnax mischaracterizes the rap evidence as the
State’s primary evidence he was a future danger. (Pet. at 3,
32
5, 7). But when the TCCA reviewed Broadnax’s challenge
to the sufficiency of the evidence supporting the jury’s
affirmative answer to the future-danger special issue,
the court did not mention the rap lyrics, relying instead
on the egregious facts of the capital murder, evidence
of Broadnax’s extreme lack of remorse, and Broadnax’s
threat to kill again. See Broadnax, 2011 WL 6225399, at
*17.
Evidence of Broadnax’s use of violence, threats, and ire
and evidence showing him to be callous, unremorseful, and
relishing in his notoriety would have strongly outweighed
any impact of his written, artistic expressions. (RR45:
227; SX 405 (Broadnax admitting to shooting the victims
in the head when they tried to stand); RR48: 96–99; SX
544–45 (blatantly bragging about altercations with an
inmate and a jail staff member); RR48: 98; RR52: 195–99;
SX 544, 552 (threatening his defense attorney and a jail
maintenance employee); RR48: 98; SX 544 (boasting he
did not need a “shank” to commit future violence because
he could use his hands); RR48: 97–98; SX 544–45 (saying
he did not regret the murders and “f*** [the victims’]
family”); RR45: 227; SX 405 (threatening to kill again if
given a life sentence)).
Broadnax cites the jury’s requests to see the rap
lyrics “twice” during its deliberations as evidence they
were overly inflammatory. (Pet. at 3, 6–7, 21–22). The
jury asked to see the lyric found in Broadnax’s jail cell
admitting the murders (CR3: 645; see SX 474) and then to
receive the journals from the car (CR3: 648; see SX 131I, 131-J), containing lyrics and other evidence. First, the
spiral notebooks contain evidence in addition to the rap
lyrics, and nothing in the record indicates the jury was
33
particularly focused on the rap-lyrics portions. (CR3: 644–
46, 648; see RR49: 125–33; SX 131-I, 131-J). Second, the
jury requested access to numerous items from both phases
of trial. (CR3: 644–46, 648 (referencing two demonstrative
exhibits, the “[p]hoto titled Free styling found in jail,”
a letter given to one victim’s father, recordings and
transcripts of jail phone conversations, Broadnax’s school
records, the spiral notebooks, Broadnax’s Channel 5
interview, and crime scene photos)).
In short, Broadnax is unable to present a valid or
compelling reason for certiorari review.
III. There Is No Compelling Reason for Further Review
of Broadnax’s Serology-Evidence Claim
Broadnax appeals the decision below denying him
further development and litigation of a Confrontation
Clause claim that he did not see fit to raise at trial or
in the many years of litigation since. In fact, it appears
Broadnax strategically chose not to raise it at trial. At a
minimum, the claim is plainly dilatory because Broadnax
could have raised it during his state and federal habeas
proceedings in light of Melendez-Diaz and Bullcoming.
Broadnax’s serology-evidence claim is not worthy of this
Court’s time, and nothing about the claim casts doubt on
the jury’s verdict.
A.
Non-retroactivity principles bar relief.
Habeas is generally not an appropriate avenue for
the recognition of new constitutional rules. Teague v.
Lane, 489 U.S. 288, 310 (1989) (plurality op.). Thus, for
the most part, new constitutional rules do not apply to
34
convictions final before the new rule was announced.
Id. This facilitates federal- and state-court comity by
“validat[ing] reasonable, good-faith interpretations of
existing precedents made by state courts even though
they are shown to be contrary to later decisions.” Butler
v. McKeller, 494 U.S. 407, 414 (1990).
Broadnax seeks retroactive application of this Court’s
opinion in Smith. But Smith was issued years after
Broadnax’s conviction and sentence became final. See
Teague, 489 U.S. at 301 (“[A] case announces a new rule
if the result was not dictated by precedent existing at
the time the defendant’s conviction became final.”). The
inquiry then turns on whether the rule Broadnax proposes
is substantive or a watershed rule of criminal procedure.
It is neither.
The rule in Smith is not substantive—it does not
“prohibit the imposition of capital punishment on a
particular class of persons.” Saffle v. Parks, 494 U.S. 484,
495 (1990). Rather, it is clearly procedural. Cf. Schriro
v. Summerlin, 542 U.S. 348, 353 (2004) (“[R]ules that
regulate only the manner of determining the defendant’s
culpability are procedural.”). And because the “watershed”
exception is “moribund,” Edwards v. Vannoy, 593 U.S.
255, 272 (2021), Smith does not qualify for retroactive
application. As such, Teague’s non-retroactivity bar
applies, and Broadnax’s petition should be denied.
B. Broadnax’s serology-evidence claim lacks
merit.
This is a straight-forward Confrontation Clause claim
that Broadnax elected not to raise at trial. Broadnax
did not object at trial to the admission of the serologist’s
35
findings or report on either evidentiary or Confrontation
Clause grounds. (RR46: 191–200). Because an objection
could have been made at trial on then-existing precedent,
Broadnax did not preserve his Confrontation Clause
complaint to the testimony’s or report’s admission, and
the claim is barred. See Tex. R. App. P. 33.1(a)(1)(A).
Broadnax complains the TCCA erred in failing to
follow Smith (Pet. at 23–24), even though the court did
not reach the federal question or touch the merits of the
claim. Regardless, the claim is not compelling and does
not warrant this Court’s review.
The serologist in this case was a screener: she did
not conduct DNA testing. (See RR46: 191; SX 392). She
performed the preliminary steps to prepare evidence
for subsequent DNA testing by examining the evidence
for presumptive fluids like blood. (See RR46: 191). Her
preliminary decisions and opinions did not impact the
final outcome of the case. Unlike the non-testifying drug
analyst in Smith who made a substantive determination
impacting the outcome of the case (i.e., by drawing
conclusions about the drugs and their quantities), the
serologist’s work here was merely a preliminary step in
the testing process. (See RR46: 191–92).
A comparison of the serology and DNA-related evidence
shows the serology screenings were merely preliminary—
literally “presumptive”—and not outcome determinative.
(RR46: 196–97, 200–01, 204–08). Particularly, none of the
serology or DNA testing further inculpated Broadnax.
But even if there were confrontation error, it was
harmless because there is no compelling factual dispute
about the serological evidence. See Coy v. Iowa, 487 U.S.
36
1012, 1021 (1988) (confrontation error subject to harmless
error analysis); Langham v. State, 305 S.W.3d 568, 582
(Tex. Crim. App. 2010) (same). Serological evidence does
not inculpate a particular individual; and while the DNA
evidence directly inculpated Cummings, none inculpated
Broadnax. The record indicates Broadnax’s counsel
strategically asked the analyst about each item tested,
to show the jury Broadnax’s DNA was not found on the
crime-scene evidence. (RR46: 204–208; see also RR46:
155, 158–60 (asking witnesses about testing victim’s
pocket liners for DNA and swabbing the gun)). He then
used the fact Broadnax’s DNA was not on the murder
weapon in his closing arguments. (RR47: 189).
For these reasons, the claim is meritless, and this
Court should deny certiorari review.
37
CONCLUSION
Respondent respectfully asks this Court to deny
Broadnax’s petition.
Respectfully submitted,
John Creuzot
Michele O’Brien Yeatts
Criminal District Attorney Assistant District Attorney
Dallas County, Texas
Counsel of Record
Frank Crowley Courts Building
133 North Riverfront Boulevard,
LB-19
Dallas, TX 75207
(214) 653-3625
syeatts@dallascounty.org
Counsel for Respondent
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