 
 




                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                                NO. 09-17-00082-CR
                            ____________________


                     EX PARTE ADNAN ASGAR SHROFF

________________________________________________________________________

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

                           MEMORANDUM OPINION

      Adnan Asgar Shroff appeals the denial of his application for a writ of habeas

corpus seeking relief from an order of deferred adjudication community supervision.

See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015). Shroff raised four grounds

for relief in his habeas application. The first ground challenged the constitutionality

of the statute under which Shroff was prosecuted, and the remaining grounds related

to a defense to the offense charged. Shroff contends the trial court erred in finding

that he is manifestly entitled to no relief. We review de novo a trial court’s

determination from the face of the application that the applicant is manifestly entitled

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to no relief and that the application for a writ of habeas corpus is therefore frivolous.

Ex parte Baldez, 510 S.W.3d 492, 495 (Tex. App.—San Antonio 2014, no pet.).

                                                               Constitutional Challenge

              Shroff’s habeas application alleged:

              Texas Penal Code Section 33.021(c) violates the First Amendment to
              the United States Constitution, and is unconstitutional. This issue is
              currently before the Court of Criminal Appeals in at least three cases
              — Leax v. State, No. PD-0517-16; Ex Parte Ingram, No. PD-0578-16;
              and Ex Parte McClellan, No. WR-83,943-01. All three cases have been
              submitted, and we await opinions.

              In the event that the Texas Court of Criminal Appeals holds section
              33.021(c) unconstitutional in one of those three cases, Mr. Shroff will
              be entitled to immediate relief, for an unconstitutional statute cannot
              support a conviction.

              Shroff’s argument that he is entitled to habeas relief depends upon section

33.021(c) first being declared unconstitutional by the Texas Court of Criminal

Appeals.1 Because section 33.021(c) has not been declared constitutionally invalid,

Shroff is manifestly not entitled to habeas relief on that ground.2 The trial court did

                                                            
              1
         The trial court’s denial of a pre-trial habeas application in Ingram was
affirmed after the trial court denied Shroff’s application in this case. See Ex parte
Ingram, No. PD-0578-16, 2017 WL 2799980, at *4, 12 (Tex. Crim. App. June 28,
2017).
      2
         We note that, because the issue could have been brought on appeal, a
challenge to the facial constitutionality of section 33.021 is not cognizable in habeas
unless the statute has already been declared to be constitutionally invalid. See Tex.
Code Crim. Proc. Ann. art. 11.072, § 3(a) (West 2015); compare Ex parte Fournier,
473 S.W.3d 789, 796 (Tex. Crim. App. 2015), and Ex parte Chance, 439 S.W.3d
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not err by denying as frivolous a claim for relief that was based on a precondition

that had not occurred.

                                                               Summary Denial of Claims

              Shroff’s habeas application also alleged that he is actually innocent because

he is not more than three years older than the minor in this case, his trial counsel was

ineffective because he did not inform Shroff that the defense applied, and his guilty

plea was involuntary because trial counsel did not inform him that he had a defense

based on age. See generally Tex. Penal Code Ann. § 33.021(e)(2) (West Supp. 2016).

In his appeal, Shroff argues that the allegations, if true, would entitle him to relief.

See generally Hill v. Lockhart, 474 U.S. 52, 58–59 (1985); Ex parte Imoudu, 284

S.W.3d 866, 871 (Tex. Crim. App. 2009).

              The State concedes that it is not possible to determine the merits of Shroff’s

claims based solely upon the allegations contained in the application for a writ of

habeas corpus. “An appellate court may remand a habeas proceeding to the trial court

if the factual record has not been sufficiently developed.” Ex parte Arjona, 402

S.W.3d 312, 319 (Tex. App.—Beaumont 2013, no pet.). Accordingly, we sustain

issue one in part, set aside the trial court’s order denying the habeas application, and

                                                            
918, 918 (Tex. Crim. App. 2014), with Ex parte Nelson, 137 S.W.3d 666, 667 (Tex.
Crim. App. 2004).

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remand the case to the trial court for a determination of the merits of the application

for a writ of habeas corpus. See id.; see also Tex. R. App. P. 31.3.

      VACATED AND REMANDED.



                                              ________________________________
                                                      CHARLES KREGER
                                                            Justice

Submitted on August 22, 2017
Opinion Delivered September 20, 2017
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




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