                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-14-00128-CR
                           ____________________


                   EX PARTE LUIS CASTILLO AGUILAR

_______________________________________________________           ______________

                 On Appeal from the Criminal District Court
                         Jefferson County, Texas
                       Trial Cause No. 13-16279-A
________________________________________________________           _____________

                         MEMORANDUM OPINION

      Luis Castillo Aguilar, a lawful permanent resident, appeals the trial court’s

decision to deny his application asking the court to issue a writ of habeas corpus.

Aguilar argues that his attorney failed to properly advise him that should he plead

guilty, he faced almost certain deportation. See Padilla v. Kentucky, 559 U.S. 356

(2010). According to Aguilar, had he received effective assistance, he would have

chosen to reject the plea bargain agreement the State offered him. We conclude

that the trial court could have reasonably decided that Aguilar did not receive

ineffective assistance given the unsettled question regarding whether the crime he


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committed, evading arrest or detention through the use of a vehicle, is a crime of

moral turpitude. We affirm the trial court’s order.

                                      Background

      In 2011, Aguilar, a Mexican citizen, became a lawful permanent resident of

the United States. In 2013, Aguilar was charged with evading arrest or detention

through the use of a vehicle, a third degree felony. See Tex. Penal Code Ann. §

38.04(b)(2)(A) (West Supp. 2014).1 In carrying out his plea bargain agreement

with the State, Aguilar pled guilty to evading arrest or detention using a vehicle.

The record before the trial court indicates that before Aguilar pled guilty, he signed

a written plea admonishment advising him that “[i]f you are not a U.S. citizen, a

plea of guilty or nolo contendere may result in your deportation, exclusion from

admission to the country or denial of naturalization under federal law.” See Tex.

Code Crim. Proc. Ann. art. 26.13(a)(4) (West Supp. 2014) (providing that prior to

accepting a plea of guilty or nolo contendere the court shall admonish the

defendant of “the fact that if the defendant is not a citizen of the United States of

America, a plea of guilty or nolo contendere for the offense charged may result in

deportation, the exclusion from admission to this country, or the denial of

naturalization under federal law”).

      1
       At the time Aguilar was arrested for evading arrest or detention using a
vehicle, Aguilar was also arrested for driving while intoxicated. See Tex. Penal
Code Ann. § 49.04(d) (West Supp. 2014).
                                          2
      The record before the trial court also indicates that during Aguilar’s plea

hearing, Aguilar informed the court that he spoke a “little bit[]” of English and that

he had an interpreter at the hearing to translate for him. Upon learning that Aguilar

was not a U.S. citizen, and in addition to the written admonishments that he signed,

the transcript of the hearing on Aguilar’s plea reflects that the trial court orally

admonished Aguilar that “a plea of guilty may result in your deportation, exclusion

from admission to the United States or denial of naturalization under United States

federal law.” Aguilar responded to the trial court’s statement by stating: “Yes, I

understand.” After Aguilar pled guilty, the trial court placed Aguilar on deferred

adjudication for five years.

      Approximately six weeks after he was found guilty, and based on the request

of officials of the United States who asserted Aguilar’s conviction for evading

arrest subjected him to deportation proceedings as a deportable alien, Aguilar was

arrested. See 8 U.S.C.S. § 1227(a)(2)(A)(i) (Lexis 2014) (providing that any alien

is deportable if convicted within five years after the date of admission of a crime

involving moral turpitude and a sentence of one year or longer may be imposed);

see also id. § 1101(a)(48)(A) (Lexis 2014) (defining the term “‘conviction’” to

include a deferred adjudication). Seeking to avoid the effect of his plea on his

status as a lawful permanent resident, Aguilar asked the trial court to revoke his

conviction for evading arrest in his application seeking a writ of habeas corpus. In
                                          3
his application, Aguilar challenged the validity of his plea by claiming he received

ineffective assistance of counsel because he was not properly advised about the

immigration consequences he would face by choosing to plead guilty. See Tex.

Code Crim. Proc. Ann. art. 11.072 § 1 (West Supp. 2014) (establishing procedures

for an application for a writ of habeas corpus in which an applicant seeks relief

from an order or judgment of conviction ordering community supervision).

      In support of his application, Aguilar filed three affidavits—one he signed,

one signed by the person who served as his interpreter during the plea proceeding,

and one signed by his cousin. In Aguilar’s affidavit, Aguilar states that before

pleading guilty, he asked his attorney several times if pleading guilty would cause

him to be deported. According to Aguilar’s affidavit, his attorney told him that

pleading guilty would not affect his immigration status. And, Aguilar’s affidavit

indicates that had he known that his conviction would cause him to be deported, he

would not have pled guilty.

      The affidavit signed by Aguilar’s interpreter acknowledges that the trial

court mentioned the possibility that Aguilar might be deported when Aguilar told

the trial court that he was not a U.S. citizen. However, according to the interpreter,

he and Aguilar both understood that as long as Aguilar followed the rules

regarding his probation, Aguilar would not be deported. The interpreter’s affidavit


                                          4
indicates that had Aguilar known he was going to be deported, Aguilar would not

have pled guilty.

      The affidavit signed by Aguilar’s cousin states that she had attended school

with Aguilar, and that although she tried to help Aguilar learn English, he had

trouble learning the language and dropped out of school. The affidavit signed by

Aguilar’s cousin indicates that Aguilar did not know English well enough to

understand it. Her affidavit further indicates that Aguilar understood that he would

probably be deported if his probation were to be revoked; however, her affidavit

then states that he did not understand he would be deported if he just pled guilty.

The application Aguilar filed in support of his writ does not include an affidavit

from the attorney who represented him when he decided to plead guilty to using a

vehicle to evade being arrested.

      The trial court considered Aguilar’s application, the affidavits that

accompanied it, and it took judicial notice of its file. Based on the evidence, the

trial court denied Aguilar’s application and made written findings to explain its

ruling. According to the trial court, Aguilar, his interpreter, and his cousin are

interested witnesses, and the affidavits of Aguilar’s interpreter and cousin

established no facts of consequence because they did not demonstrate they had

knowledge about what Aguilar’s attorney told him. Additionally, the trial court


                                         5
found Aguilar’s claim that he was entirely unaware of the deportation

consequences of his plea to be “incredible[.]”

      With respect to whether a conviction for evading arrest is a crime of moral

turpitude, a ground that allows an alien to be deported, the trial court concluded

that the federal statute authorizing a legal permanent resident’s deportation for

crimes of moral turpitude did not contain “‘succinct, clear, and explicit’” wording

as to what risk, if any, Aguilar faced of being deported by pleading guilty to using

a vehicle to evade arrest. Based on its conclusion that it was not clear whether the

federal statute properly applied where the defendant’s conviction was for evading

arrest, the trial court held that Aguilar was sufficiently advised about the

consequences of his plea. Based on the evidence and its legal conclusions, the trial

court rejected Aguilar’s claim that he received ineffective assistance before

choosing to plead guilty.

                                Standard of Review

      Aguilar is authorized to pursue an appeal from the trial court’s ruling on his

application seeking a writ of habeas corpus. See id. art. 11.072 § 8 (West Supp.

2014). During the hearing on an application seeking post-conviction habeas corpus

relief, the applicant has the burden of proving by a preponderance of the evidence

that he is entitled to relief. State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim.

App. 2013). We use an abuse-of-discretion standard when reviewing decisions
                                         6
denying habeas corpus relief. See Ex parte Garcia, 353 S.W.3d 785, 787 (Tex.

Crim. App. 2011). The evidence the trial court reviewed in making its decision on

the writ is reviewed, on appeal, in the light most favorable to the trial court’s

ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). The trial

judge is the sole finder of fact with respect to the habeas hearing; therefore, we

afford almost total deference to the trial judge’s factual findings where they are

supported by the record, particularly when the trial court’s findings are based on

the resolution of questions of credibility and demeanor. Guerrero, 400 S.W.3d at

583. We follow this same standard where the evidence the trial court reviewed was

all submitted by affidavits. Id. On the other hand, if the ultimate question under

review turns on the application of legal standards, the trial court’s resolution of the

legal question is reviewed using a de novo standard. Ex parte Peterson, 117

S.W.3d 804, 819 (Tex. Crim. App. 2003) (per curiam), overruled on other grounds

by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).

                                      Analysis

      Aguilar contends that he was given ineffective assistance because his

attorney failed to advise him that by pleading guilty to the charge of evading arrest

he faced certain deportation. The State argues that because the federal deportation

statute does not clearly specify whether crimes like evading arrest are considered

crimes of moral turpitude, the immigration consequences of Aguilar’s plea at the
                                          7
time he chose to plead guilty were unclear. Based on the uncertainty about whether

using a vehicle to evade arrest qualifies as a crime of moral turpitude, the State

contends that Aguilar was properly advised, as he was essentially told that his plea

might cause federal officials to seek to have him deported.

      The test for determining the validity of a guilty plea is whether it represents

a “voluntary and intelligent choice among the alternative courses of action open to

the defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). “A guilty plea is

not knowing or voluntary if made as a result of ineffective assistance of counsel.”

Ex parte Moussazadeh, 361 S.W.3d 684, 689 (Tex. Crim. App. 2012). The two-

pronged Strickland test applies when a habeas applicant challenges a guilty plea

based on ineffective assistance. Hill v. Lockhart, 474 U.S. 52, 58 (1985);

Strickland v. Washington, 466 U.S. 668, 687 (1984). In the context of a complaint

about counsel’s plea advice, the applicant must show by a preponderance of the

evidence that (1) counsel’s plea advice did not fall within the range of competence

demanded by attorneys in criminal cases, and (2) there is a reasonable probability

that, but for counsel’s deficient performance, the applicant would have insisted on

going to trial rather than accepting the offer and pleading guilty. Moussazadeh, 361

S.W.3d at 691; see also Hill, 474 U.S. at 56, 58-59.

      In Padilla, the Supreme Court of the United States held that counsel must

inform his client whether his plea carries a risk of deportation. Padilla, 559 U.S. at
                                          8
374. Where the immigration consequences of pleading guilty to a specific crime

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 369. When federal immigration law clearly specifies that a defendant will be

deported based on a conviction of a crime, counsel must affirmatively and

correctly advise the defendant about the immigration consequences of the plea. Id.

at 368-69. Thus, to prove a violation of Strickland’s first prong, Aguilar was

required to demonstrate to the trial court that the deportation consequences of

pleading guilty to a charge of evading arrest were truly clear. See id. at 369. To

meet his burden under the second Strickland prong, Aguilar was required to show

the trial court that he would have rationally chosen to reject the plea he was

offered, and that he would have chosen instead to go to trial. See Hill, 474 U.S. at

59; Johnson v. State, 169 S.W.3d 223, 231 (Tex. Crim. App. 2005).

      The record reflects that Aguilar is a lawful permanent resident and that the

removal proceedings commenced against him were based on his conviction for

evading arrest. Under federal immigration law, an alien is automatically deportable

if within five years after the date of being admitted, the alien is convicted of a

crime involving moral turpitude that subjects the alien to a sentence of one year or

longer. See 8 U.S.C.S. § 1227(a)(2)(A)(i). However, federal law does not define

the crimes that qualify as crimes of moral turpitude; that question was left to the
                                         9
Board of Immigration Appeals and to federal courts. Fuentes-Cruz v. Gonzales,

489 F.3d 724, 726 (5th Cir. 2007).

      The Board of Immigration Appeals in Fuentes-Cruz defines moral turpitude

as follows:

      Moral turpitude refers generally to 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.
      (internal citations omitted)

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

a crime of moral turpitude is a legal question. Garcia-Maldonado v. Gonzales, 491

F.3d 284, 287 (5th Cir. 2007). We review the trial court’s resolution of whether the

consequences of pleading guilty to evading arrest were certain as a legal issue,

using a de novo standard. See Peterson, 117 S.W.3d at 819.

      The trial court found that when Aguilar decided to plead guilty, the law, as

related to the crime of evading arrest and the question of moral turpitude, was

unsettled. The trial court also found that Aguilar failed to provide it with any

federal cases or statutes that identified the crime of evading arrest as a crime of

moral turpitude. Without any evidence or legal authority showing that the

                                        10
consequences of pleading guilty to the crime of evading arrest were clear, the trial

court rejected Aguilar’s claim that his counsel was ineffective, finding that Aguilar

failed to establish, by a preponderance of the evidence, that his counsel’s

performance was objectively unreasonable under professional norms. See

Strickland, 466 U.S. at 687-88.

      In his brief, Aguilar has not provided us with any authority showing that for

purposes of deportation of aliens, a conviction for evading arrest would be treated

by the federal courts as a crime of moral turpitude. However, there are two

unpublished opinions that appear to reach opposite conclusions regarding whether

evading arrest is a crime of moral turpitude. In Dominguez v. State, the Amarillo

Court of Appeals held that a prior conviction for evading arrest could not be used

for the purpose of impeachment because it is not a crime of moral turpitude. No.

07-02-0264-CR, 2003 Tex. App. LEXIS 2002, at **5-6 (Tex. App.—Amarillo

Mar. 4, 2003, pet. ref’d) (not designated for publication). The trial court cited the

Dominguez case in its findings. The Fifth Circuit Court of Appeals also addressed

whether using a vehicle to evade arrest is a crime of moral turpitude in a

deportation case in Pulido-Alatorre v. Holder, 381 F. App’x 355, 358-59 (5th Cir.

2010). In concluding that evading arrest using a vehicle can be a crime of moral

turpitude, the Fifth Circuit held that the Board of Immigration Appeals acted

reasonably by determining that the alien’s conviction for evading arrest using a
                                         11
vehicle qualified as a crime of moral turpitude. Id. However, the Fifth Circuit’s

opinion in Pulido-Alatorre has no precedential value and is not binding precedent

except under certain circumstances that do not apply here. See 5TH CIR. R. 47.5.4

(determining that unpublished opinions “are not precedent, except under the

doctrine of res judicata, collateral estoppel or law of the case (or similarly to show

double jeopardy, notice, sanctionable conduct, entitlement to attorney’s fees, or the

like”)). The fact that only two non-published opinions address whether evading

arrest with a vehicle is a crime of moral turpitude shows the matter is not one that

can be considered well-settled.

      We agree with the trial court’s conclusion that whether the United States

would treat a conviction for evading arrest as a crime of moral turpitude in

immigration cases remains an unsettled area of the law. We hold that Aguilar

failed to show that his attorney was ineffective during his plea proceedings based

on the advice the record shows he received. See generally Ex parte Smith, 296

S.W.3d 78, 81 (Tex. Crim. App. 2009) (noting that where the proper construction

of a statute was unresolved and remains unclear, “counsel usually may not be held

to have rendered ineffective assistance”); Ex parte Chandler, 182 S.W.3d 350, 359

(Tex. Crim. App. 2005) (explaining that “legal advice which only later proves to

be incorrect does not normally fall below the objective standard of


                                         12
reasonableness”). Because the trial court did not abuse its discretion by denying

Aguilar’s application, we affirm the trial court’s order.

      AFFIRMED.



                                               ________________________________
                                                        HOLLIS HORTON
                                                             Justice



Submitted on August 21, 2014
Opinion Delivered September 24, 2014
Do Not Publish

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




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