                                ____




AFFIRMED; Opinion Filed February 13, 2013




                                                  In The
                                         Qlourt of 1ppeat
                               I ittli itrtrt of Ixa at aUa
                                           No. 05-12-01234-CR

                              EX PARTE CARMEN LETICIA CHAVEZ

                           On Appeal from the 296th Judicial District Court
                                        Collin County, Texas
                             Trial Court Cause No. W219-80915-08-HC

                                               OPINION

                                Before Justices Moseley, Francis, and Lang
                                         Opinion by Justice Lang

       Carmen Leticia Chavez appeals the trial court’s order denying her application for writ of

habeas corpus. In a single issue, appellant asserts the trial court erred in denying relief upon her

application because she received ineffective assistance of counsel in connection with her guilty

plea. We affirm the trial court’s order.

                                           BAcKGRouND

       Appellant was charged with fraudulent use or possession of identifying information. On

March 19, 2009, appellant entered a guilty plea as part of a plea bargain agreement with the

State. During the plea hearing, the trial court orally admonished appellant that she “could be

deported” as a result of her plea. The trial court confirmed with counsel that counsel had “gone

over with [appellant] the various ramifications of her plea with regard to the immigration and


                                               —1—
naturalization people.” Appellant also signed written admonishments informing her that her plea

“may result in deportation, exclusion from admission to this country, or the denial of

naturalization under federal law.” Pursuant to the agreement, the trial court deferred a finding of

guilt and placed appellant on deferred adjudication community supervision for a period of two

years. Appellant was discharged from community supervision and the case was dismissed on

March 27, 2011.

       In 2012, appellant filed an application for writ of habeas coipus asserting she is restrained

because she is not a citizen of the United States and faces deportation as a result of her plea of

guilty and placement on deferred adjudication.         Among other complaints about counsel’s

performance, appellant asserted counsel failed to inform her of the certainty of deportation as a

result of her guilty plea. The trial court conducted a short hearing during which the parties

agreed to submit evidence in the form of affidavits.

       In her affidavit, appellant averred she is a Mexican citizen and not a legal resident of the

United States. She came to the United States in 2000 on a tourist visa and remained after her

visa expired. Appellant alleged counsel told her she would receive two years’ probation if she

pleaded guilty and otherwise would receive two years’ imprisonment. Appellant swore counsel

never discussed the deportation consequences of her plea, she could not read the plea papers

because they were in English, and counsel did not read them to her. Counsel translated the plea

proceeding to her in Spanish and told her how to answer the trial court’s questions, but she

remembers nothing about being told she would be deported because of her plea. Appellant

related that she learned she was subject to deportation from an immigration attorney she

consulted when she decided to file a petition to become a naturalized citizen.




                                               —2—
       In his affidavit, counsel stated that all of his communications with appellant were

conducted in Spanish.     Counsel averred that he reviewed with appellant and translated into

Spanish for her all of the plea papers including the trial court’s written deportation

admonishment. Counsel swore that he advised appellant in Spanish that her plea of guilty “may

result” in her deportation.   Counsel recollected that during a January 20, 2009 trial setting,

appellant “continued to express concern about the possibility of incarceration, despite my advise

[sic] that, if she w[asj found guilty, there was a good chance that she would be given probation;

(given her prior clean record).” During a February 20, 2009 trial setting, appellant “made the

decision not want to risk incarceration and accept the deferred adjudication plea [sici.”

       After receiving the evidence, the trial court denied relief. In its order, the trial court

found counsel was credible while appellant was not credible. The trial court found appellant had

not shown that fraudulent use or possession of identifying information was a crime involving

moral turpitude under federal law. The trial court further found appellant chose to plead guilty

because she feared incarceration and not because of counsel’s immigration advice. The trial

court concluded the immigration consequences of appellant’s plea were not certain, appellant

received the proper advice about the risk of immigration consequences, and appellant “would

have pleaded guilty without regard to the specificity of immigration advice she received.”

                                        APPLICABLE LAW

       An applicant for habeas corpus relief must prove her claim by a preponderance of the

evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte Scott, 190

S.W.3d 672, 673 (Tex. Crim. App. 2006) (per curiam). In reviewing the trial court’s order

denying habeas corpus relief, we view the facts in the light most favorable to the trial court’s

ruling. See Ex porte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam),



                                                —3—
overruled on other grounds by Exparte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007). We will

uphold the trial court’s ruling absent an abuse of discretion. See id. We afford almost total

deference to the trial court’s determination of the historical facts that the record supports. See id.

We likewise defer to the trial court’s application of the law to the facts, if the resolution of the

ultimate question turns on an evaluation of credibility and demeanor. See id. If the resolution of

the ultimate question turns on an application of legal standards, we review the determination de

novo. See id.

        To obtain habeas corpus relief on the ground of ineffective assistance of counsel,

appellant must show (1) counsel’s performance fell below an objective standard of

reasonableness; and (2) a reasonable probability exists that, but for counsel’s errors, the result

would have been different. See Padilla v. Kentucky, 130 S.Ct. 1473, 1482 (2010); Strickland v.

Washington, 466 U.S. 668, 687—88, 694 (1984). In the context of a complaint about counsel’s

plea advice, appellant must show (I) counsel’s plea advice did not fall within the wide range of

competence demanded of attorneys in criminal cases and (2) there is a reasonable probability

that, but for counsel’s deficient performance, appellant would have insisted on going to trial

rather than accepting the offer and pleading guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Ex

parte Moussazadeh, 361 S.W.3d 684, 691 (Tex. Crim. App. 2012); Ex parte Harrington, 310

S.W.3d 452, 458 (Tex. Crim. App. 2010).

        To satisfy her burden under the first prong of the test, appellant must overcome a strong

presumption that counsel’s performance fell within the wide range of reasonable professional

assistance and might be considered sound trial strategy. Strickland, 466 U.S. at 689; Harrington,

310 S.W.3d at 458.       Appellant bears the burden of proving counsel was ineffective by a

preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.



                                                 -4-
1999). The reasonableness of counsel’s performance is judged under prevailing professional

norms. Strickland, 466 U.S. at 688. Our review must be highly deferential to trial counsel and

avoid the deleterious effects of hindsight. Strickland, 466 U.S. at 689: Thompson, 9 S.W.3d at

813. Under the second prong of the test, a reasonable probability is a probability sufficient to

undermine confidence in the outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

       Inaccurate advice regarding a non-citizen client’s potential deportation may constitute

ineffective assistance. See Padilla, 130 S,Ct. at 1482. When the consequences are “not succinct

and straightforward,” counsel’s duty is to advise the defendant of the possibility that the plea

may carry a risk of adverse immigration consequences. Id. at 1483; Moussazadeh, 361 S.W.3d

at 691. When, however, federal immigration law clearly specifies that the defendant will be

deported, counsel must affirmatively and correctly advise the defendant about immigration

consequences of the plea. See Padilla, 130 S.Ct. at 1483; Moussazadeh, 361 S.W.3d at 691.

Although the parties disputed whether Padilla applies retroactively to this appeal and the trial

court concluded it does not, this Court applies Padilia retroactively. See Ex parte Olvera, 2012

WL 2336240, *4 (Tex. App.—Dallas June 20, 2012, no pet.). See also Aguilar v. State, 375

S.W.3d 518, 524 (Tex. App.—Houston [14th Dist.] 2012, pet. filed) (applying Padilla

retroactively).

        Under federal immigration law, deferred adjudication is considered to be a conviction if

the defendant entered a guilty or no-contest plea and punishment was assessed. See 8 U.S.C.A.                   §
1 101(a)(48)(A) (2005). Among other provisions immaterial to this case, federal immigration law

provides an alien is automatically deportable if convicted within five years of admission to the

United States of “a crime involving moral turpitude               .   .   .   for which a sentence of one year or

longer may be imposed    .   .   .   .“   See id. at   § 1227(a)(2)(A)(i). The Immigration and Nationality


                                                          —5—
Act does not define which crimes involve moral turpitude, but leaves the designation of

particular offenses to the Bureau of Immigration Appeals and the federal courts. FuentesCruz v.

Gonzales, 489 F,3d 724, 726 (5th Cir. 2007). The Bureau of Immigration Appeals has defined

moral turpitude as:

       conduct that shocks the public conscience as being inherently base, vile, or
       depraved, and contrary to the appreciated rules of morality and the duties owed
       between persons or to society in general. Moral turpitude has been defined as an
       act which is per se morally reprehensible and intrinsically wrong, or malum in se,
       so it is the nature of the act itself and not the statutory prohibition of it which
       renders a crime one of moral turpitude. Among the tests to determine if a crime
       involves moral turpitude is whether the act is accompanied by a vicious motive or
       a corrupt mind.”

Id. quoting Hamdan v, INS, 98 F.3d 183, 186 (5th Cir. 1996).

                                           ANALYSIS

       Appellant contends her conviction for fraudulent use of identifying information

constitutes a crime of moral turpitude and thus triggered counsel’s duty to advise her that she

faced mandatory deportation consistent with Padilla. Appellant contends her affidavit shows she

would not have pleaded guilty and would have demanded a trial if counsel had advised her

properly that she faced mandatory deportation if she entered a guilty plea. The State responds

that appellant cannot meet either prong of the standard for showing ineffective assistance

because the immigration consequences of appellant’s offense are not truly clear so as to trigger

Padilla and she suffered no harm because her guilty plea was motivated by her fear of prison

rather than trial counsel’s immigration advice. We agree with the State.

        Appellant has not cited any judicial opinions holding fraudulent use or possession of

identifying information constitutes a crime of moral turpitude.     Appellant’s contention rests

entirely upon one law review article which suggests it is “likely” a crime of moral turpitude but

admits it is difficult to predict how it might be treated. See Mario K. Castillo, Immigration

                                               -6-
Consequences: A Primer for Texas Criminal Defense Attorneys in Light        f Padilla v, Kentucky,
63 Baylor L. Rev. 587, 665, 717 n. 286 (201 1).

       On the authority presented, we cannot agree with appellant that fraudulent use or

possession of identifying information constitutes the type of offense for which the immigration

consequences of a conviction are succinct and straightforward so as to trigger a duty for counsel

to advise a client that a plea of guilty would result in certain deportation. See Padilla, 130 S.Ct.

at 1483. Because it was unclear how this offense would be treated under federal immigration

law, it was sufficient for counsel to advise appellant that her plea of guilty might result in

deportation.   See id.    We cannot conclude appellant met her burden to show counsel’s

performance fell below an objective standard of reasonableness or that his plea advice fell

outside the range of competence demanded of attorneys in criminal cases. See Strickland, 466

U.S. at 687—88 Jzlarrington, 310 S.W.3d at 458.

       We also conclude appellant did not meet her burden of proof under the second prong of

Strickland. In the context of a Padilla claim, a defendant proves there is a reasonable probability

that but for counsel’s errors, she would not have pleaded guilty if she shows a decision to reject

the plea bargain was rational under the circumstances. See Padilla, 130 S.Ct. at 1485.

       The record contains no evidence to evaluate the strength of the State’s case and appellant

does not offer any evidence showing she had any defenses. The evidence does contain counsel’s

representation that appellant was concerned about the prospect that she might be incarcerated if

she rejected the plea bargain and proceeded to trial. We defer to the trial court’s assessment of

the credibility of the evidence. See Peterson, 117 S.W.3d at 819; see also Manzi v. State, 88

S.W.3d 240, 242—44 (Tex. Crim. App. 2002) (concluding a reviewing court should defer to the

trial court’s credibility determinations of historical facts even when the evidence was presented



                                                  —7—
in affidavits).   The trial court found trial counsel credible and appellant not credible. Trial

counsel averred that appellant’s motivation to enter her guilty plea was fear of imprisonment.

Appellant brought up her fear of prison at two trial settings scheduled a month apart and chose to

enter a guilty plea even though counsel advised her that she would likely receive probation in

light of her clean record.

        Without evidence that appellant had reasons to believe she might prevail at trial, she

would face the same deportation consequences after serving a term of imprisonment as she

would face if she accepted the plea bargain and received deferred adjudication community

supervision. We conclude appellant has failed to show prejudice under the second prong of

Strickland, See Hill, 474 U.S. at 59—60; Strickland, 466 U.S. at 694; Harrington, 310 S.W.3d at

458. See also Ex porte Murillo, No. 14-12M0090-CR, 2013 WL 80159, at *8 (Tex. App.—

Houston [14th Dist.i Jan. 8, 2013, no pet. h.) (concluding the applicant did not show prejudice

where the evidence showed his guilt, lack of defenses, repeated warnings that he might be

deported, failure to express concern about his immigration status, and no difference in

immigration consequences arising from his plea bargain as opposed to conviction at trial); Ex

parte Moreno, 382 S.W.3d 523, 529 (Tex. App.—Fort Worth 2012, no pet.) (concluding the

applicant failed to show prejudice when the trial court found his affidavit not credible and no

other evidence showed immigration consequences were his primary concern).

        Because appellant has not shown she received ineffective assistance of counsel with

regard to the immigration consequences of her guilty plea, we cannot conclude the trial court

abused its discretion in denying her application for writ of habeas corpus. See Peterson, 117

S.W.3d at 819.




                                               —8—
       We affirm the trial court’s order denying relief on appellant’s application for writ of

habeas corpus.




                                                                     S.


Do Not Publish
TEx. R. APP. P. 47
121234F.U05




                                             —9—
                                        nf Appiah
                                    Qnurt

                         FiftIi istrirt nf ixa at 1a11wi
                                          JUDGMENT

EX PARTE CARMEN LETICIA CHAVEZ                       On Appeal from the 296th judicial District
                                                     Court, Collin County, Texas
No. 05-12-01234-CR                                   Trial Court Cause No. W219-80915-08-HC.
                                                     Opinion delivered by .Justice Lang, Justices
                                                     Mosel ey and Francis participating.

       Based on the Court’s opinion of this date, the order of the trial court denying relief on
appellants application for writ of habeas corpus is AFFIRMED.


Judgment entered this 13th day of February, 2013.




                                                           d


                                                    DOUGLA. LANG
                                                    JUSTIC’
                                                            j
                                                           1’
