Ex Parte Adnan Asgar Shroff

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00082-CR
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EX PARTE ADNAN ASGAR SHROFF
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On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 15-04-04199-CR
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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
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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).
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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.
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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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