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TEXAS COURT OF CR||VIINAL APPEALS`

WR-76, 991-09 _
WR-76, 991-10
WR-76, 991-11

BR|EF IN SUPPORT OF ACTUAL INNOCENCE

REcElvEDlN ;
c"ouRToFcR¢MlNALAPPEALs ` `

NUV 02 2015

Abemcosta,clerk ' ¥_ '

Collins O._ Nyabwa

Petitionér(Pro se) _
1341 w.43'dstreet,#163 _- _,

Houston, Tx 77018 .~ 4 * l_ ~;.-'1:-_

 

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 Solicitation of a i\/iinor Statutel. This court however denied thel d
defendants' Actual innocence claims_. v
On 3/9/2015 petitioner filed an Articie 11.07 Post Conviction Habeas Corpus (WR-76,
991-09, 10 and 11) making a similar Actual innocence claim. At the time of filing (3/9/2015) the '
Texas Court of Crimina| Appeals 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 iaw. Now that the court has set a Texas standard for Actual innocence, petitioner is: - '- - ' " "

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 innocence,

1. LEGALLY BARRED To PRosEcuTE

lt is easy to lump all criminal convictions based on unconstitutional statutes together. However' : n

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 L:'_)g'
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-

Trial Writ of Habeas Corpus. Neither Dowden nor Fournier invoked this readily available

 

1 Texas Penai Code § 33.021(b)

 

remedv. instead they went through with their criminal prosecution, ended yuLgetting
convicted and then years later made an actual innocence claim based on their`wror!g@
conviction. Petitioner’s case is a stark contrast. The record is clear that petitioner did indeed fi|e` -' '
a facial invalidity Pretria| Writ in Harris County 248th District Court on February 2, ZOii. (case #s x

l ,
1294335, 1294336 and 1294337). The trial court judge denied petitioner’s pretrial writs on

3/9/2011. Consequently unlike Dowden and Fournier who are basing their Actual innocence ` _ v v

claim on a wrongful conviction, petitioner's'argument is that because the Texas Court of-
Criminai Appeals invalidated his statute of conviction2 on 9/17/20143 his Pretrial`writ _b_aLed
. the state from prosecuting him beyond 3/9/2011. Unlike 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
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 iiving.

 

2 Texas Penai Code 21.15(b)(1)
3 Ex Parte Ronaid 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 l/l/rit
was filed and denied in trial court in 2011. However since then several other defendants have
applied the same procedure and avoided prosecution entireiy. in Ex Parte Rona/d Thompsoni
where this courtinvalidated the Texas improper Photography law, the defendant was facing_a_ '
26 count indictment yet thanks to his facial invalidity Pretriai Writ, walked away without facing
prosecution. if his Pretriai 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

Petl lone_r(Pro se) ' " `

   

1341 w. 43rd street, #163
Houston, TX 77018 -

