Ex Parte Nyabwa
2012 Tex. Crim. App. LEXIS 499
| Tex. Crim. App. | 2012Background
- Nyabwa, charged with three counts of improper photography, challenged Penal Code § 21.15(b)(1) as facially unconstitutional.
- The Houston (14th Dist.) Court of Appeals initially ruled no constitutional violation and issued a December 13, 2011 opinion.
- Nyabwa petitioned for discretionary review on January 13, 2012; the Court of Appeals subsequently issued a February 7, 2012 opinion replacing the prior one.
- Rule 50 was abolished and Rule 68.7 requires appellate records to be sent to this Court within 15 days of discretionary-review notice; after the period elapses, the appellate court loses authority to issue an opinion.
- The Court of Appeals’ February 7, 2012 opinion was untimely and unauthorized under Rule 68.7; the Court of Criminal Appeals withdrew that opinion and reinstated the December 13, 2011 judgment and opinion.
- The Court of Criminal Appeals refused Nyabwa’s petitions for discretionary review and took no action on a later petition addressing the now-withdrawn opinion; a dissent (Keller, P.J.) would have granted review on the First Amendment issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness and authority of the Feb. 7, 2012 opinion | Nyabwa argues the Feb. 7 opinion was untimely and unauthorized. | State contends the opinion failed to comply with Rule 68.7 and thus the court lacked jurisdiction to issue it. | Feb. 7, 2012 opinion withdrawn; original Dec. 13, 2011 opinion reinstated. |
| Discretionary-review petitions outcome | Nyabwa seeks review of the court of appeals’ decision, including the constitutional challenge. | State urges no review or action on subsequent petition addressing the withdrawn opinion. | The petitions for discretionary review are refused; no action on the March 2 petition. |
| Constitutional challenge to § 21.15(b)(1) on First Amendment grounds | Nyabwa contends the statute is facially unconstitutional as applied to First Amendment interests. | State defends the statute as constitutionally permissible; the appellate court did not determine the merits. | Texas Court of Criminal Appeals did not resolve the merits; it dismissed/reinstated on procedural grounds; dissents indicate potential First Amendment concerns. |
Key Cases Cited
- Nyabwa v. State, 2012 Tex.App. LEXIS 974 (Tex. App.-Houston [14th Dist.] 2012), 2012 WL 378220 (Tex.App.-Houston [14th Dist.] 2012) (procedural Rule 68.7 timeliness and authority; withdrawal of opinion)
- Garza v. State, 896 S.W.2d 192 (Tex.Crim.App.1995) (Rule 68.7 discretionary-review timing)
- Wooley v. Maynard, 430 U.S. 705 (U.S. 1977) (First Amendment freedom of thought)
- Stanley v. Georgia, 394 U.S. 557 (U.S. 1969) (privacy and thought; limits on obscenity regulation)
- Osborne v. Ohio, 495 U.S. 103 (U.S. 1990) (limits on government control of moral content of thoughts)
- United States v. Stevens, 130 S. Ct. 1577 (U.S. 2010) (statute restricting depictions; First Amendment considerations)
- Regan v. Time, Inc., 468 U.S. 641 (U.S. 1984) (casting of visual images; First Amendment relevance)