DO NOT PUBLISH. Tex.R.App.P. 47.2(b)

MEMORANDUM OPINION1

SUE WALKER, Justice.

I. INTRODUCTION

Appellant Dennis Glenn Janssen appeals the trial court's denial of his application for writ of habeas corpus in which he argued that the statute under which he was placed on deferred-adjudication community supervision was facially unconstitutional. See Tex. Code Crim. Proc. Ann. art. 11.072 (West 2015). Because the trial court did not abuse its discretion by finding that Janssen had forfeited the constitutional challenges raised in his application for writ of habeas corpus, we will affirm.

II. PROCEDURAL BACKGROUND

In 2008, Janssen entered an open plea of guilt to the offense of online solicitation of a minor under age fourteen. The trial court deferred a finding of guilt, placed Janssen on ten years' deferred-adjudication community supervision, and assessed a $3,000 fine. Janssen did not appeal from the judgment placing him on deferred-adjudication community supervision.

In 2016, Janssen filed an application for writ of habeas corpus in which he argued that his deferred-adjudication community supervision is illegal because the statute under which he was charged — Texas Penal Code section 33.021(c) — is unconstitutionally overbroad such that it violates the First Amendment and is also unconstitutionally vague such that it violates the Fourteenth Amendment. See Tex. Penal Code Ann. § 33.021(c) (West Supp. 2016). In response, the State filed a memorandum, arguing that Janssen had forfeited his constitutional challenges and that section 33.021(c) is not facially unconstitutionally overbroad or facially unconstitutionally vague, and included proposed findings of fact and conclusions of law. The trial court adopted the State's memorandum and proposed findings of fact and conclusions of law as its own and denied Janssen's application. Janssen now appeals from the denial of his application for writ of habeas corpus.

III. STANDARD OF REVIEW

We generally review a trial court's decision to deny an article 11.072 habeas application for an abuse of discretion. Ex parte Houston, No. 02-16-00359-CR, 2016 WL 6277408, at *1 (Tex. App.-Fort Worth Oct. 27, 2016, no pet.) (mem. op., not designated for publication); Ex parte Jessep, 281 S.W.3d 675, 678 (Tex. App.-Amarillo 2009, pet. ref'd). We will uphold the habeas court's order as long as it is correct on any theory of law applicable to the case. Ex parte Obi, 446 S.W.3d 590, 596 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd) (op. on reh'g).

In his application for writ of habeas corpus,2 Janssen argued that Texas Penal Code section 33.021(c) is facially unconstitutionally overbroad in violation of the First Amendment and is also facially unconstitutionally vague in violation of the Fourteenth Amendment.

A defendant forfeits his right to assert facial or as-applied challenges to a statute's constitutionality if he does not raise such challenges in the trial court; such challenges cannot be asserted for the first time on appeal. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009).3 A defendant who did not raise a claim based on a forfeitable right in the trial court in the underlying prosecution or on direct appeal cannot do so for the first time on habeas corpus. See Ex parte Pena, 71 S.W.3d 336, 338 (Tex. Crim. App. 2002); Ex parte Bagley, 509 S.W.2d 332, 334 (Tex. Crim. App. 1974) (stating that an applicant's failure "to object at the trial, and to pursue vindication of a constitutional right of which he was put on notice on appeal, constitutes a waiver of the position he now asserts" on habeas corpus). Moreover, a reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

Here, it is undisputed that Janssen did not raise his facial constitutional challenges in the trial court. Nothing in the record establishes that the bases of Janssen's constitutional challenges to section 33.021(c) were not reasonably available at the time of trial. Janssen, however, failed to raise his constitutional challenges to section 33.021(c) in the trial court and thus cannot do so now for the first time by application for writ of habeas corpus. See Pena, 71 S.W.3d at 338; Bagley, 509 S.W.2d at 333-34; Ex parte Jennings, No. 14-09-00817-CR, 2010 WL 2968043, at *5 (Tex. App.-Houston [14th Dist.] July 29, 2010, pet. ref'd) (mem. op., not designated for publication) (holding applicant forfeited constitutional challenges to section 33.021). Because Janssen forfeited his constitutional challenges by not raising them prior to his guilty plea, the trial court did not abuse its discretion by denying Janssen's application for writ of habeas corpus.

V. CONCLUSION

We affirm the trial court's order denying Janssen's application for writ of habeas corpus.