                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-18-00066-CR
                            ____________________


                     EX PARTE ADNAN ASGAR SHROFF

_______________________________________________________              ______________

                    On Appeal from the 221st District Court
                         Montgomery County, Texas
                       Trial Cause No. 15-04-04199-CR
________________________________________________________              _____________

                                     OPINION

      In an appeal from the denial of an article 11.072 application seeking a writ of

habeas corpus, Adnan Asgar Shroff contends that, because it is unclear if his

conviction rested on an overly broad interpretation of the online solicitation statute,

the trial court should have awarded him a new trial.1 Because Shroff pleaded guilty

      1
        Tex. Code Crim. Proc. Ann. art 11.072 (West 2015) (establishing procedure
when the applicant seeks relief from an order or judgment of conviction ordering
community supervision); Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § l, 2005
Tex. Gen. Laws 4049, 4050; amended by Act of May 21, 2007, 80th Leg., R.S., ch.
610, § 2, 2007 Tex. Gen. Laws 1167, 1168 (amended 2015) (current version at Tex.
Penal Code Ann. § 33.021(c) (West 2016)).

                                          1
to the offense prohibiting the solicitation of a minor for sexual purposes by using the

internet before he was tried, his conviction rests on his judicial confession and not

on any evidence that was introduced during a trial. Thus, Shroff cannot establish that

his conviction rests on evidence based on conduct falling outside the interpretation

of the online solicitation statute adopted by the Court of Criminal Appeals in Ex

parte Ingram.2 We overrule the sole issue that Shroff raises in his appeal and affirm

the trial court’s order denying Shroff’s amended application for habeas relief.

                                         Background

      In April 2015, the State charged Shroff with soliciting a minor with the intent

to engage in sexual contact by using electronic mail. 3 In part, the indictment against

Shroff alleged that

      on or about April 22, 2015, and before the presentment of this
      indictment, in the County and State aforesaid, [Shroff] did then and
      there, knowingly solicit over the internet or by text message or by



      2
        See Ex parte Ingram, 533 S.W.3d 887, 896-97 (West 2017) (deciding that
persons “represent” themselves “to be under the age [of] 17 if, in view of the totality
of the speaker’s statements, (1) the speaker intended to state [their] age as a matter
of fact, to be accepted as true and (2) a reasonable person in the listener’s shoes
would perceive the speaker to be stating [their] age as a fact, to be accepted as true”).
      3
       Before the grand jury indicted Shroff, the State charged him by filing an
information for the same alleged conduct; a grand jury indicted him about three
months later based on the same conduct that is described in the information.

                                           2
      electronic mail or by a commercial online service J. Nichols 4, a minor,
      to meet the defendant, with the intent that J. Nichols would engage in
      sexual contact or sexual intercourse or deviate sexual intercourse with
      the defendant[.]

      Before Shroff pleaded guilty to the indictment, Shroff moved to quash it.

Shroff’s motion challenged the constitutionality of the pre-2015 version of section

33.021(c) of the Penal Code. 5 After the trial court denied the motion, Shroff pleaded

guilty without the benefit of a plea bargain. Thus, Shroff could have elected to appeal

from the trial court’s ruling on his motion to quash, but he did not do so. In June

2016, Shroff pleaded guilty, the trial court deferred rendering a finding of guilt, and

placed Shroff on community supervision for ten years.

      After the trial court ordered Shroff placed on deferred adjudication,

community supervision, Shroff did not appeal. Instead, around eight months after he

pleaded guilty, Shroff filed an application for habeas relief under article 11.072 of




      4
        “J. Nichols” refers to Jeff Nichols, an undercover detective who adopted an
online persona and corresponded with Shroff in a series of emails. Nichols’ affidavit,
attached to the State’s response to Shroff’s application for habeas relief, reveals that
Nichols is the police officer who investigated Shroff’s case.
      5
       Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § l, 2005 Tex. Gen. Laws
4049, 4050; amended by Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007
Tex. Gen. Laws 1167, 1168 (amended 2015) (current version at Tex. Penal Code
Ann. § 33.021(c) (West 2016)).

                                           3
the Texas Code of Criminal Procedure.6 After the trial court denied his application,

Shroff appealed.7

      In resolving his appeal, this Court held that because no court had declared

section 33.021(c) of the Penal Code to be constitutionally invalid, the habeas court

did not err by denying Shroff’s request for habeas relief.8 Nonetheless, we also held

that further proceedings were required to allow Shroff to further develop his claim

alleging that his plea was involuntary since we could not decide that issue on a record

that consisted solely of the allegations that were in Shroff’s application seeking

habeas relief.9 Thus, we vacated the habeas court’s ruling denying Shroff’s

application and remanded the case to the habeas court to allow Shroff the opportunity

to develop that claim. 10




      6
          See Tex. Code Crim. Proc. Ann. art. 11.072.
      7
        Ex parte Shroff, No. 09-17-00082-CR, 2017 WL 4171366, at *1 (Tex.
App.—Beaumont Sept. 20, 2017, pet. ref’d) (mem. op., not designated for
publication).
      8
          Id.
      9
          Id. at *2.
      10
           Id.

                                          4
      Several months before we decided Shroff’s appeal in his habeas case, the

Court of Criminal Appeals addressed a defendant’s challenge to the constitutionality

of the pre-2015 version of the online solicitation statute. 11 In Ingram, the defendant

argued that the pre-2015 version of section 33.021 created an overbreadth problem

by allowing the criminal provisions of the online solicitation statute to apply to

protected speech between adults.12 The version of the statute that applied to Ingram

(and Shroff) defines “minor” as:

      (A) an individual who represents himself or herself to be younger than
         17 years of age; or

      (B) an individual whom the actor believes to be younger than 17 years
         of age. 13

In construing the meaning of the above paragraph (A) of this section narrowly, the

Court of Criminal Appeals decided that the Legislature intended that “represents”

means “in view of the totality of the speaker’s statements, (1) the speaker intended

to state his or her age as a matter of fact, to be accepted as true and (2) a reasonable

person in the listener’s shoes would perceive the speaker to be stating his or her age




      11
           See Ex parte Ingram, 533 S.W.3d at 895-96.
      12
           Id.
      13
           Id. (citing the pre-2015 version of § 33.021(a)(1)).

                                            5
as a fact, to be accepted as true.” 14 The Court explained that “solicitation still

qualifies as an ‘integral part of conduct in violation of a valid criminal statute’ if the

actor is mentally culpable with respect to the solicited person’s age, even if the

solicited person turns out to be an adult.”15

      On remand to the habeas court, Shroff amended his application, alleging that

the narrow interpretation Ingram gave to the online solicitation statute to avoid the

overbreadth challenge to it entitled him to a new trial. Citing Shuttlesworth v. City

of Birmingham, 382 U.S. 87 (1965), Shroff alleged that “[a] criminal conviction

cannot be sustained when the defendant was tried under a construction of the law

that was subsequently narrowed on appeal.” While Shroff also reasserted his claim

in the habeas court on remand that his attorney had not fully informed him about a

possible defense to his indictment, Shroff provided the trial court with nothing upon

remand proving that claim. On remand, the habeas court denied Shroff’s amended

application for habeas relief.

      Shroff then asked that the habeas court reduce its findings and conclusions to

writing. The habeas court complied, but the findings that it made are not relevant to


      14
           Id. at 897.
      15
       Id. at 898-99 (quoting United States v. Stevens, 559 U.S. 460, 471 (2010);
Giboney v. Empire Storage, 336 U.S. 490, 498 (1949)).

                                            6
our disposition of Shroff’s current appeal. Shroff then appealed from the habeas

court’s ruling denying his amended application for habeas relief.

                                 Standard of Review

       An applicant seeking post-conviction habeas corpus relief must establish, by

a preponderance of the evidence, that the facts entitle him to relief. 16 In reviewing a

habeas court’s ruling on a habeas application, the reviewing court gives the habeas

court almost total deference on its factual findings when they are supported by the

record.17 In contrast, a de novo standard of review is applied in reviewing mixed

questions of law and fact that do not turn on credibility determinations and in

reviewing the habeas court’s resolution of any legal questions that did not depend

on a finding of fact. 18

                                          Analysis

       In the brief that Shroff filed to support his appeal, Shroff advances no claims

alleging that his plea was involuntary, that he received ineffective assistance of

counsel, or that he is innocent of the offense based on the application of a statutory


       16
        Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte
Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002).
       17
         See Ex parte Garcia, 353 S.W.3d 785, 787-88 (Tex. Crim. App. 2011)
(citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).
       18
            See Ex parte Beck, 541 S.W.3d 846, 852 (Tex. Crim. App. 2017).
                                           7
defense. Instead, in one issue, Shroff argues that because it is not clear that his

conviction rests on “an overbroad interpretation or a subsequent constitutional

interpretation of a statute,” he is entitled to a new trial. Shroff concludes that because

“it is not clear that [he] was not convicted under the later-narrowed ‘represented’

portion of [the online solicitation statute, he] is entitled to a new trial.”

       Shroff relies on Shuttlesworth and on Osborne v. Ohio, 495 U.S. 103 (1990)

to support his claim that the habeas court should have granted his application, set

aside his conviction, and ordered a new trial. But the procedural history pertinent to

those appeals is much different from the situation that faces us here. Unlike Shroff,

neither Osborne nor Shuttlesworth pleaded guilty to the crimes the State charged

them with committing.19 Because the appeals in Osborne and Shuttlesworth were

based on fully developed records, the Supreme Court, when reviewing the

convictions, could determine whether the evidence supported the factfinder’s




       19
          See Ohio v. Young, 525 N.E.2d 1363, 1373 (Ohio 1988) (considering
Osborne’s appeal in a proceeding the Ohio Supreme Court consolidated with another
appeal filed by Denis Young, which shows that Osborne was convicted following a
jury trial), reversed and remanded, Osborne, 495 U.S. 125-26; Shuttlesworth, 382
U.S. at 88 (disclosing that Shuttlesworth was tried in a bench trial).

                                            8
respective findings based on an interpretation of the relevant penal statutes as

“construed rather than as written.” 20

      Because Shroff pleaded guilty, he never tested the evidence the State might

have used in a trial to gain his conviction. Instead, Shroff’s conviction rests on a

judicial confession admitting that he committed the crime of soliciting a minor

online. Given that Shroff pleaded guilty before his trial, he cannot currently show

that the conviction rests on an interpretation of the online solicitation statute that fell

outside the interpretation adopted in Ingram. 21 In Ex parte McClellan,22 the Court of

Criminal Appeals considered a situation like Shroff’s in deciding the outcome of

McClellan’s post-conviction application seeking a writ of habeas corpus.23

Ordinarily, the defendant in a post-conviction habeas proceeding cannot raise an

issue in his habeas proceedings that he could have raised at trial and appealed. 24




      20
           Osborne, 495 U.S. at 118 (citing Shuttlesworth, 382 U.S. at 91-92).
      21
           See Ex parte Ingram, 533 S.W.3d at 895.
      22
           Ex parte McClellan, 542 S.W.3d 558, 560 (Tex. Crim. App. 2017).
      23
        McClellan’s writ was filed under the provisions in article 11.07 of the Code
of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 (West 2015).
      24
           Ex parte McClellan, 542 S.W.3d at 560.

                                            9
       When Shroff’s case was before the trial court, he could have refused to plead

guilty and tested the State’s evidence in a trial. Had he done so, both the habeas court

and any court reviewing the habeas court’s ruling could have determined whether

the State relied on evidence that would not have supported a conviction under

Ingram. 25 Because Shroff pleaded guilty before the State presented any evidence, he

is not entitled to develop new evidence in a post-conviction habeas proceeding to

show what evidence the State might have presented had he pleaded not guilty and

gone to trial.26

       Like Shroff, McClellan pleaded guilty before he went to trial. In McClellan,

the Court of Criminal Appeals noted “that supplementing the record under these

circumstances would amount to a futile exercise in speculation because there is no

way to know how a trial-type proceeding would have unfolded.” 27 Likewise, it is

impossible now to know in Shroff’s case whether the State, had Shroff been tried,

would have asked the factfinder to consider evidence of conduct inconsistent with

the narrowed definition of the term “represents” adopted in Ingram.28


       25
            See Ex parte Ingram, 533 S.W.3d at 895.
       26
            See Ex parte McClellan, 542 S.W.3d at 560.
       27
            Id.
       28
            See Ex parte Ingram, 533 S.W.3d at 896-97.
                                          10
      We conclude that Shroff failed to establish that he is entitled to relief. We

overrule his sole issue and affirm the trial court’s order denying his application for

habeas relief.

      AFFIRMED.


                                              ________________________________
                                                     HOLLIS HORTON
                                                          Justice


Submitted on July 18, 2018
Opinion Delivered August 29, 2018
Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




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