TEXAS COURT OF CR|IV||NAL APPEALS’
WR-76, 991-09 _
WR-76, 991-10
WR-76, 991-11
BR|EF IN SUPPORT OF ACTUAL lNNOCENCE
REcElvED m
c”ouRT oFchMmALAPPEALs s l '
NOV 02 2615
AbezAcosra,clerk " _, `
Co||ins O._ Nyabwa
Petitione`r (Pro se)
1341 W. 43"1l street, #163
' Houston,Tx 77018 * }_:`;_f*:j
ACTUAL lNNOCENCE
On 10/18/2015 this court granted habeas relief in Ex Parte Curt/s Fournier (WR-82, 102-01) and
Ex Parte Christopher Dowden (WR-82, 103-01), defendants who had previously been convicted
under the now defunct Online So|icitation of a l\/linor Statutel. This court however denied the '
defendants’ Actual innocence claims. .
On 3/9/2015 petitioner filed an Artic|e 11.07 Post Conviction Habeas Corpus (WR-76,
991-09, 10 and 11) making a similar Actua|lnnocence claim. At the time of filing (3/9/2015) the '
Texas Court of Crimina| Appea|s had not spoken definitively on how the state should handle "
Actual innocence claims by criminal defendants convicted based on unconstitutional statutes.
Without any Texas precedent, petitioner’s arguments for Actual innocence relied solely on »
federal |aw. Now that the court has set a Texas standard for Actual lnnocence, petitioner is: - '- v '- * :': "
forced to make his Texas State claim. For the following reasons, petitioner will demonstrate n
that even under the new standard, he is still entitled to Actual lnnocence,
1. LEGALLY BARRED TO PROSECUTE
lt is easy to lump all criminal convictions based on unconstitutional statutes together. However' : " '
as this court is fully aware, every criminal conviction comes with its own unique set of
circumstances Even though petitioner’s Actual innocence claim appears strikingly similar to §_)_<
Parte Fournier and Ex Parte Dowden, there is a night-and-day difference between them.
Texas law provides a mechanism for criminal defendants to terminate their criminal
prosecution if their statute of conviction is unconstitutiona|. The proper mechanism is a Pre-
Tria| Writ of Habeas Corpus. Neither Dowden nor Fournier invoked this readily available
1 Texas Penal Code § 33.021(b)
remedy. instead they went through with their criminal |:_irosecutionl ended up getting
convicted and then years later made an actual innocence claim` based on their'wron_gM
conviction. Petitioner's case is a stark contrast. The record is clear that petitioner did indeed file j _
a facial invalidity Pretrial Writ in Harris County 248th District Court on February 2, 201i. (case #s t
1294335, 1294336 and 1294337). The trial court judge denied petition,er's pretrial writs on
3/9/2011. Consequent|y unlike Dowden and Fournier who a_re basing their Actual innocence
claim on a wrongful conviction, petitioner's'argument is that because the Texas Court -of
Criminal Appeals invalidated his statute of conviction2 on 9/17/20143 his Pretrial`writ L)Led
. the state from prosecuting him beyond 3/9/2011. Un|ike Dowden and Fournier, petitioner did
not have to defend his conduct in criminal court, did not have to`enter a guilty plea,'and is as ' '
100% percent innocent as any Texan who has never been criminally prosecuted. Petitioner's
case is therefore the quintessential Actual innocence case because 'the state of Texas did
indeed convict and imprison the wrong man-a man who did not belong in criminal court; a _
man who by law they were banned from prosecuting There is a big difference between '_
someone arguing their innocence post-conviction and someone who has never been
prosecuted. Absent a criminal prosecution the law assumes everybody to be 100%_ innocent.
_Because the state of Texas subjected petitioner to a needless prosecution, petitioner is as n
innocent today as he was prior to his criminal prosecution. The state of Texas must therefore -`
compensate petitioner for the 1 year it illegally deprived him of his right to earn a living.
2 Texas Penal Code 21.15(b)(1)
3 Ex Parte Rona|d Thompson
2. EQUAL PROTECT|ON UNDER THE LAW
Both the Texas and U.S. Con-stitution have guarantees for equal protection under the law. in a
nutshell the law should apply equally to everybody. Petitioner's facial invalidity-i?retrial Writ
lwas filed and denied in trial court in 2011. However since then several other defendants have
applied the same procedure and avoided prosecution entirely. ln Ex Parte Rona/d Thompson,
where this court-invalidated the Texas improper Photography law, the defendant was facinga_. '
26 count indictment yet thanks to his facial invalidity Pretrial Writ, walked away without facing
prosecution. if his Pretrial Writ saved him from criminal prosecution this court should explain to
petitioner why his exactly similar 2011 Writ should not have spared him from criminal
prosecution.
.N abwa
W_E ‘“/p“
Petl lone_r(Pro se) ° l k
1341 W. 43rd Street, #163
Houston, TX 77018