            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. PD-1198-13



                         AGHAEGBUNA ODELUGO, Appellant

                                                v.

                                  THE STATE OF TEXAS



            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

        P RICE, J., delivered the opinion of the Court in which K ELLER, P.J., and
W OMACK, J OHNSON, K EASLER, H ERVEY, C OCHRAN, and A LCALA, JJ., joined. K ELLER,
P.J., filed a concurring opinion. M EYERS, J., filed a dissenting opinion.

                                         OPINION

       After pleading guilty to the offense of engaging in organized criminal activity on the

advice of his retained trial counsel, the appellant filed a motion for new trial alleging a

conflict of interest on counsel’s part. At the trial court’s hearing on the motion, trial counsel,

accused of having misappropriated certain funds entrusted to him by his client, invoked his
                                                                              ODELUGO — 2

Fifth Amendment right to refuse “to be a witness against himself.” 1 In response, the

appellant argued to the trial court that “[a]n inference can be taken from that” that trial

counsel had misappropriated the funds. The trial court declined to adopt that inference and

denied the motion.

       In a published opinion, the First Court of Appeals, noting that the entirety of the

evidence offered by the appellant in support of his motion for new trial was “uncontroverted

due to [trial counsel]’s invocation of his Fifth Amendment right not to incriminate himself,”

held that the trial court had abused its discretion in denying the motion.2 It reversed the trial

court’s judgment (thereby effectively vacating the appellant’s conviction) and remanded the

matter back to that court for a new trial.3 The State has petitioned this Court for discretionary

review of the court of appeals’s opinion. We will reverse and remand.

                      I. FACTS AND PROCEDURAL POSTURE

                                            A. Plea

       The appellant retained trial counsel in the summer of 2008 to defend him against

charges of engaging in organized criminal activity by committing, along with several co-




       1

        U.S. CONST . amend. V.
       2

        Odelugo v. State, 410 S.W.3d 422, 426-27 (Tex. App.—Houston [1st Dist.] 2013).
       3

        Id. at 427.
                                                                                  ODELUGO — 3

conspirators, aggregate theft in an amount over two hundred thousand dollars.4 On the

advice of trial counsel, and without an agreed recommendation on punishment from the State,

the appellant entered a plea of guilty to that offense on February 1, 2010. Pursuant to his

plea, the appellant agreed to pay $600,000 in restitution by April 30, 2010, the originally

scheduled sentencing date. Over the next two years, however, the appellant filed several

successful motions to reset the sentencing date as he attempted to resolve a related federal

proceeding. During that time, he also filed a motion to withdraw his plea “because he was

not apprised of the mandatory immigration consequences of his plea[,]” 5 but the trial court

denied this motion.6 Finally, on March 5, 2012, the trial court entered a judgment of

conviction and sentenced the appellant to an eighteen-year term of imprisonment.

                                   B. Motion for New Trial

       On March 22, 2012, the appellant, now represented by appellate counsel, filed a



       4

        See TEX . PENAL CODE § 71.02(a)(1); id. §§ 31.03(b)(1), (e)(7). In fact, the appellant and
his cohort were accused of defrauding the Texas Health and Human Services Commission and the
Centers for Medicare and Medicaid Services out of at least $1,695,000.
       5

        Emphasis in original. See Padilla v. Kentucky, 559 U.S. 356 (2010).
       6

         See George E. Dix & John M. Schmolesky, 43 TEXAS PRACTICE : CRIMINAL PRACTICE AND
PROCEDURE § 40:59, at 571-72 (3d ed. 2011) (“A defendant has a right to withdraw a plea of guilty
or nolo contendere in a jury-waived proceeding ‘without assigning reason until [the] judgment has
been pronounced or the case has been taken under advisement.’ . . . If the trial court accepts a plea
of guilty or nolo contendere and recesses the proceedings for a presentence investigation report, the
case has been taken under advisement when recessed. An attempt by the defendant to withdraw the
plea when court reconvenes for sentencing comes too late and is addressed to the discretion of the
trial court.”) (quoting Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979)).
                                                                              ODELUGO — 4

motion for new trial in which he alleged that he had “received ineffective assistance of

counsel . . . because trial counsel had an actual conflict of interest[.]” According to the

appellant, trial counsel “transferred to himself, without Defendant’s permission, a pecuniary

interest in funds Defendant provided [to counsel] for restitution payments[.]” Attached to

this motion was an affidavit, signed by the appellant, wherein he stated the following:

               [Trial counsel] . . . informed me that if I plead guilty and paid $600,000
       in restitution I would receive deferred adjudication on the state case. I
       delivered to [trial counsel] a check for $160,000 on January 27, 2010. On
       February 1, 2010, I entered a plea of guilty to the first degree felony charge.
       * * * My sentencing was postponed repeatedly so that the federal charges
       could be resolved. No restitution was paid to the State. During the summer
       of 2010, I delivered to [trial counsel] an additional $125,000 to be used for
       restitution. The funds were to be held in trust to be paid to the State of Texas
       pursuant to the original plea agreement.

               During the summer of 2011, I asked for the return of the funds since no
       restitution had been paid. * * * I received between $60,000 and $80,000 from
       [trial counsel]. He told me that he sent the money to Colombia and the money
       was gone. * * * I was concerned that he spent all of the money that I had
       given him for restitution. I was told the money that I had given him that was
       earmarked for restitution was spent. He has given me no accounting of how
       or when he spent my money. * * * During the three years that he represented
       me, he never asked me for money nor did he tell me that he was applying the
       money being held in trust for restitution to his fees.

The appellant went on to assert in his affidavit that when he retained “new counsel”—that

is, appellate counsel—he was “immediately” able to pay $200,000 in restitution and that he

“could have paid the $600,000” were it not for trial counsel’s malfeasance.

       The trial court held a hearing on the motion for new trial, at which time the appellant

offered into evidence “copies of three checks that were delivered to [trial counsel] from Mr.
                                                                                  ODELUGO — 5

Odelugo totaling $285,000.” The appellant also took the witness stand to testify in support

of his motion and reasserted many of the claims he had made in his affidavit. Near the end

of the hearing, the State acceded to an oral stipulation that “[trial counsel] . . . did receive a

substantial amount of money from Mr. Odelugo that was placed in trust[.]” 7

       However, when appellate counsel sought to call trial counsel as a witness “and

question him about the deposit in the IOLTA account and expenditures[,]” trial counsel’s

attorney informed the trial court that trial counsel “would be invoking” his Fifth Amendment

right to refuse to provide incriminating testimony against himself. Thus unable to question

trial counsel as to why the funds placed in trust had not been applied toward the appellant’s

restitution, appellate counsel could only argue that “[a]n inference can be taken from” trial

counsel’s invocation of his Fifth Amendment right “that . . . an actual conflict” existed

between trial counsel’s interests and those of the appellant. The trial court disagreed,

observing that “[s]ilence is not evidence of guilt,” and ultimately denied the appellant’s

motion for new trial. Appeal was taken to the First Court of Appeals.

                                          C. On Appeal

       Starting from the premise that “[a] lawyer’s self-interest can constitute an ‘actual

       7

         The State declined to stipulate to the exact amount of money placed in trial counsel’s trust,
conceding only that, in a prior ex parte conversation with the prosecutor, trial counsel had
“admit[ted] he did receive a substantial amount of money from Mr. Odelugo.” In a similar fashion,
the State emphasized to the trial court that its stipulation did not include a concession “that the
substantial amount of money that went to [trial counsel] was for restitution.” Rather, the prosecutor
claimed ignorance as to the purpose of the appellant’s monetary remittance to trial counsel: “Where
it went, I don’t know. I just know at one point he had money in the account from Mr. Odelugo. I
don’t know if it was for State restitution, I don’t know if it was for Federal restitution.”
                                                                                 ODELUGO — 6

conflict of interest’ when trial counsel makes a choice between advancing his own interest

and ‘advancing his client’s interest in a fair trial,’” the court of appeals reasoned that, “if

[trial counsel] used the money given to him by appellant for his own interests rather than

paying appellant’s restitution, as alleged by appellant, he would be advancing his own

interests ahead of appellant’s constituting an actual conflict of interest.”8 In this regard, the

court of appeals found it crucially significant that “appellant’s testimony . . . was

uncontroverted due to [trial counsel]’s invocation of his Fifth Amendment right not to

incriminate himself.”9 Thus, while acknowledging that “a trial court may choose to believe

or disbelieve all or any part of the witnesses’ testimony,”10 the court of appeals seemed to

fault the trial court for failing to credit the appellant’s assertions that trial counsel “misuse[d]

. . . funds deposited in [trial counsel’s] trust fund account for payment of restitution.”11 The

court of appeals also alternatively ruled that “[trial counsel]’s invocation of his own Fifth

Amendment right in connection with appellant’s new trial hearing . . . was itself an

advancement of [trial counsel]’s interests above appellant’s interests.” 12


       8

       Odelugo, 410 S.W.3d at 426-27 (citing Acosta v. State, 233 S.W.3d 349, 354-55 (Tex. Crim.
App. 2007)).
       9

        Id. at 426.
       10

        Id.
       11

        Id.
       12

        Id. at 427 (emphasis added).
                                                                                ODELUGO — 7

       Conducting a harm analysis, the court of appeals determined that trial counsel’s

“uncontroverted” misconduct hindered the appellant’s ability to pay the agreed-upon

$600,000 in restitution and that “the payment of such a significant amount of restitution

would have constituted a serious factor [for the trial court] to consider in sentencing.” 13 The

court therefore concluded that the appellant had, to its satisfaction, “established . . . that his

counsel’s actual conflict of interest adversely affected him at trial.” 14 On this basis, the court

of appeals held that “the trial court erred in denying appellant’s new-trial motion on the

ground that his trial counsel had a conflict of interest,” and accordingly reversed the

judgment of the trial court and remanded the case for a new trial.15

       In its petition for discretionary review, the State contends that “[t]he court of appeals

erred in finding an actual conflict of interest based on the ‘appellant’s uncontroverted

testimony and affidavit,’ when the trial court could have resolved the underlying factual

issues against the appellant.”16 Specifically, the State points out that, apart from his own

potentially self-serving affidavit and testimony, the appellant’s claim “that he gave money

to [trial counsel] earmarked for restitution, but . . . [trial counsel] used it for other purposes



       13

        Id.
       14

        Id.
       15

        Id.
       16

        State’s Petition for Discretionary Review at 3.
                                                                                 ODELUGO — 8

without authorization[,]” is “simply not supported by the record.”17 The trial court being “in

a much better position than the appellate court to judge the credibility and believability of the

appellant’s claims,” the court of appeals should not have overturned “the implicit findings

by the trial court [that] the appellant failed in his burden to show an actual conflict of

interest.”18 The State accordingly calls upon this Court to “reverse the lower court’s opinion”

and “affirm the judgment of the trial court.” 19

                                         II. THE LAW

       “[T]he proper standard by which to analyze claims of ineffective assistance of counsel

due to a conflict of interest is the rule set out in Cuyler v. Sullivan, that is, the appellant must

show that his trial counsel had an actual conflict of interest, and that the conflict actually

colored counsel’s actions during trial.”20 We have said that “[a]n ‘actual conflict of interest’

exists if counsel is required to make a choice between advancing his client’s interest in a fair

trial or advancing other interests (perhaps counsel’s own) to the detriment of his client.” 21

The appellant bears the burden of proof by a preponderance of the evidence on a claim of



       17

        Id. at 13.
       18

        Id. at 15-16.
       19

        Id. at 16.
       20

        Acosta, 233 S.W.3d at 356 (citing Cuyler v. Sullivan, 446 U.S. 335 (1980)).
       21

        Id. at 355 (citing Monreal v. State, 947 S.W.3d 559, 564 (Tex. Crim. App. 1997)).
                                                                                   ODELUGO — 9

conflict-of-interest ineffective assistance,22 which is to say that if “no evidence has been

presented on the issue” or in the event that “the evidence relevant to that issue is in perfect

equipoise,” the appellant’s claim will fail.23

       By virtue of the fact that the trial court is charged with initially ruling on an

appellant’s motion for new trial,24 that court will decide, in the first instance, whether the

appellant has carried his burden with respect to the elements of his claim of conflict-of-

interest ineffective assistance. In doing so, the trial court “has the right to accept or reject

any part of a witness’s testimony[.]”25 Indeed, as “the sole factfinder and judge” of the

credibility and weight of each piece of evidence, whether presented “during live testimony”

or “in affidavits,”26 the trial court is “within its right to disbelieve” any of the “assertions

upon which [the] appellant’s claims of ineffective assistance of counsel are based,” so long


       22

        E.g., Banda v. State, 890 S.W.2d 42, 59-60 (Tex. Crim. App. 1994).
       23

         Broxton v. State, 909 S.W.2d 912, 920 (Tex. Crim. App. 1995) (Clinton, J., dissenting) (“It
is the function of a burden of proof to determine which party should prevail on a particular issue in
the event the evidence relevant to that issue is in perfect equipoise.”).
       24

        TEX . R. APP . P. 21.6, 21.8 (“The defendant must present the motion for new trial to the trial
court within 10 days of filing it[.] * * * The trial court must rule on a motion for new trial within
75 days after imposing or suspending sentence in open court.”).
       25

       Charles v. State, 146 S.W.3d 204, 208 & n.7 (Tex. Crim. App. 2004) (citing Beck v. State,
573 S.W.2d 786, 791 (Tex. Crim. App. 1978)) (discussing the role of the trial judge as factfinder on
motion for new trial).
       26

         Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App. 2012) (also discussing the role of the
trial judge as factfinder on motion for new trial).
                                                                                 ODELUGO — 10

as the basis for that disbelief is supported by at least one “reasonable view of the record.” 27

This is true even when the State does not deign to controvert the evidence, affidavit or

otherwise, that the appellant presents.28 Finally, because claims of ineffective assistance of

counsel involve “mixed questions of law and fact” that often “contain[] ‘subsidiary questions

of historical fact, some of which may turn upon the credibility and demeanor of witnesses,’” 29

an appellate court should review the trial court’s rulings on the matter “for an abuse of

discretion, reversing only if the trial judge’s ruling was clearly erroneous and arbitrary[,]”

such as when “no reasonable view of the record could support the trial court’s ruling.” 30

                                        III. ANALYSIS

          A. Did the trial court err by failing to find that trial counsel had
          misappropriated the appellant’s funds, given that the appellant’s evidence
          was “uncontroverted”?

          In this case, in holding that the trial court abused its discretion by denying the



          27

          Charles, 146 S.W.3d at 208, 212.
          28

         Id. at 210. After all, the State does not bear the burden of proof on a claim of ineffective
assistance of counsel, and its failure to present evidence—or even to undermine the evidence
introduced by the appellant—does not necessarily mean that the appellant has presented sufficient
evidence to meet the preponderance standard. Indeed, an appellant’s presentation of
sufficient evidence to support a factfinder’s determination does not entitle him to a favorable ruling
from the factfinder so much as it effectively insulates an initial favorable determination from
subsequent appellate scrutiny.
          29

          Riley, 378 S.W.3d at 458 (quoting Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App.
1999)).
          30

          Id. at 457.
                                                                             ODELUGO — 11

appellant’s motion for new trial, the court of appeals apparently reasoned that, because the

appellant’s signed checks, affidavits, and live testimony were all “uncontroverted,” the trial

court erred by failing to find that “[trial counsel] used the money given to him by appellant

for his own interests rather than paying appellant’s restitution.”31 The court of appeals also

found it significant that “the State stipulated that [trial counsel] had in fact received a

‘substantial amount of money’ from appellant that was placed into a trust account[.]” 32 In

his reply brief to the State’s petition for discretionary review, the appellant adds that because

“a person may invoke the right against self incrimination” only when “the invocation [is]

based on the reasonable belief that a truthful answer could be used against the person in a

criminal prosecution[,]” the trial court should have weighed counsel’s invocation of his Fifth

Amendment right as evidence tending strongly to support the claim that trial counsel had

used the appellant’s money in some untoward (indeed, criminal) fashion.33

       First, we do not necessarily disagree with the court of appeals that, because the

appellant’s evidence was uncontested, the trial court would have acted reasonably to believe

the appellant’s claims and find that he had met the preponderance standard; that is

undoubtedly one reasonable view of the record.           But the trial court’s ruling should



       31

        Odelugo, 410 S.W.3d at 426-27.
       32

        Id. at 426.
       33

        See Appellant’s Brief at 5-8.
                                                                               ODELUGO — 12

not—indeed, cannot, consistent with our case law—be exhaustively scrutinized from a single

vantage. It must be inspected from every reasonable vantage in the light most favorable to

the trial court’s ruling, and found to have been deficient in each, before it may be overturned

as an abuse of discretion. And in this case, there is at least one reasonable view of the record

that would support the trial court’s denial of the appellant’s motion for new trial,

notwithstanding the “uncontroverted” nature of the appellant’s evidence.

       As mentioned, the trial court, as the finder of fact on a motion for new trial, retains

the prerogative to believe or disbelieve any evidence the probativeness of which depends on

the credibility of its source—regardless of whether that evidence was “controverted” by the

opposing party.34 In this case, this includes all of the assertions made by the appellant

regarding whether, how, and when he instructed trial counsel to apply the funds placed in

counsel’s trust. If the trial court did not accept the appellant’s account of the events leading

up to his failure to make the promised restitution payment as credible, it would have acted

within its discretion to find that the appellant failed to carry his burden to establish that trial

counsel had placed his own interests above the appellant’s. Indeed, if the trial court rejected

as incredible even one of the appellant’s factual assertions—that he had provided the funds

to trial counsel for the sole purpose of making state restitution payments—there would be

precious little evidence in the record from which the trial court might draw the inference that

trial counsel ever went against the wishes of his client. And the trial court would have acted


       34

        Charles, 146 S.W.3d at 210.
                                                                            ODELUGO — 13

within its discretion to decide that whatever evidence remained after discounting the

appellant’s testimonial evidence would not suffice to meet the preponderance standard.

       One such piece of evidence—that is, one for which the probativeness in no way

depended on the trial court’s assessment of the credibility of the appellant—is the State’s

stipulation that “[trial counsel] . . . did receive a substantial amount of money from Mr.

Odelugo that was placed in trust[.]” While the appellant might argue that the State’s

stipulation alone should suffice to support his claim, again, the operative question is whether

the record can reasonably support the trial court’s implicit determination that this evidence

failed to show, by a preponderance of the evidence, that trial counsel actually served

conflicting interests. And the State’s stipulation, standing alone, does not necessarily compel

the conclusion that counsel spent the money inconsistently with the appellant’s wishes; under

a reasonable view of the record, the trial court might reasonably have believed both that trial

counsel received a “substantial amount of money from” the appellant and that counsel never

went against the appellant’s expressed wishes in his disposition of the funds. Furthermore,

even if the trial court deemed the State’s stipulation to be some probative evidence that

counsel did advance his own interests before the appellant’s, the trial court retained the

prerogative to determine what weight to assign to this evidence and would not have acted

unreasonably to determine that, probative though it may be, this evidence did not meet the

preponderance standard—did not make it “more likely than not” that trial counsel had, in

fact, acted against the appellant’s wishes.
                                                                                   ODELUGO — 14

       Another piece of evidence for which the appellant contends the probativeness is

independent of the trial court’s opinion of the appellant’s credibility, and that demonstrates

counsel’s conflict of interest, is counsel’s invocation of his own Fifth Amendment right. If

counsel had acted with good faith in his handling of the appellant’s money, the appellant

argues, he would have had no reason to invoke his right to refuse to testify. Here again,

however, even assuming arguendo that it would be permissible for the trial court to weigh

trial counsel’s invocation of his Fifth Amendment right as some evidence that counsel had

acted criminally in his handling of the appellant’s funds,35 it still could not necessarily be

said, if evidenced only by trial counsel’s invocation, that trial counsel used the funds in a

manner inconsistent with the appellant’s wishes. The record would reasonably support a

determination by the trial court either that trial counsel’s pleading his Fifth Amendment right

was not indicative of whether he disobeyed the client’s expressed wishes (as the trial court


       35

         In its petition for discretionary review, the State cites the Supreme Court case Spevack v.
Klein to argue that trial counsel would have been justified in asserting his Fifth Amendment right
simply to avoid “[t]he threat of disbarment and the loss of professional standing, professional
reputation, and . . . livelihood[.]” State’s Petition for Discretionary Review at 11 (citing Spevack v.
Klein, 385 U.S. 511, 516 (1967)). In this regard, the State seems to suggest that the trial court need
not necessarily have drawn from his invocation of the Fifth Amendment an inference that trial
counsel engaged in criminal activity. The appellant responds that for this Court to indulge in this
line of reasoning would be to “expand the Fifth Amendment privilege far beyond what any other
Court has held,” and accordingly urges us to reaffirm the principle that the invocation of the Fifth
Amendment “must be based on the reasonable belief that a truthful answer could be used against the
person in a criminal prosecution or lead to evidence to be used in a criminal prosecution.”
Appellant’s Reply Brief at 5-6 (citing Zani v. State, 701 S.W.2d 249, 252 (Tex. Crim. App. 1985)).
Because we assume, without deciding, that it would be permissible for the trial court to draw an
inference of criminal activity on trial counsel’s part based solely on counsel’s invocation of his Fifth
Amendment right, and because we nevertheless decide the underlying conflict-of-interest issue
against the appellant, we need not weigh in on this particular point of contention between the parties.
                                                                                ODELUGO — 15

put it, “Silence is not evidence of guilt”), or that, while somewhat probative as to this point,

it ultimately could not satisfy the preponderance standard. Without some indisputable

showing—one for which the only reasonable interpretation of the evidence is—that counsel

“was required to make a choice between advancing other interests . . . to the detriment of his

client’s interests[,]”36 it cannot be said that the trial court erred when it found that no conflict

of interest existed.

       To be sure, there is no question that the trial court would have acted within its

discretion to find that counsel misappropriated his client’s funds in precisely the way that the

appellant alleged. And we do not take lightly the charge that a legal representative acted

against his client’s wishes in the handling of the client’s property—especially when that

property was entrusted to counsel for the purpose of making amends for the client’s admitted

wrongdoing. But it is not the role of this Court to second-guess the determinations of the

trial court on matters of credibility and historical fact merely because we might have decided

those matters differently. When, as in this case, the trial court’s ruling on a motion for new

trial is supported by at least one reasonable view of the record, the ruling may not be

disturbed. The court of appeals erred to circumvent this rule.

       B. Was the appellant’s right to effective, conflict-free counsel violated per
       se by trial counsel’s invocation of his Fifth Amendment right?

       The court of appeals also concluded that, apart from any probative value trial



       36

        Acosta, 233 S.W.3d at 355.
                                                                            ODELUGO — 16

counsel’s invocation had in demonstrating that trial counsel misappropriated the appellant’s

funds, “[trial counsel]’s invocation of his own Fifth Amendment right . . . was itself an

advancement of [trial counsel]’s interests above appellant’s interests.” 37 The court of

appeals’s reasoning in this regard seems to be that, because counsel was, by virtue of the fact

that he had been accused of misappropriating his client’s funds, “required to make a choice

between advancing his client’s interest in a fair trial”—by testifying truthfully about his use

of the funds—“or advancing other interests (perhaps counsel’s own)”—by invoking his own

Fifth Amendment right—under Acosta, this case presents an actual conflict of interest.38 The

State has responded that, “far from choosing his own interests over those of the appellant,

[trial counsel]’s invocation may have had the effect of protecting both of them.” 39 In this

regard, the State essentially conjectures that both “the appellant and [trial counsel] were

involved in” some sort of unspecified, illegal “side business transactions,” such that trial

counsel’s invocation would not only shield himself, but also the appellant, from potential

exposure to criminal liability.40

       We need not indulge in any of the State’s vague theories that trial counsel potentially



       37

        Odelugo, 410 S.W.3d at 427 (emphasis added).
       38

        Acosta, 233 S.W.3d at 355.
       39

        State’s Petition for Discretionary Review at 12.
       40

        Id.
                                                                             ODELUGO — 17

engaged in a criminal conspiracy with his client to nevertheless conclude that the court of

appeals erred to afford the appellant a new trial on the basis of trial counsel’s invocation of

his Fifth Amendment right. Instead, we need only observe that if trial counsel’s refusal to

testify at the hearing on the appellant’s motion for new trial adversely affected the adequacy

of the appellant’s representation, that adverse effect would be limited to the appellant’s

motion for new trial, and could not, in any event, have affected the quality of the appellant’s

representation as to the plea and sentencing proceedings that preceded the motion. After all,

counsel’s invocation came only after the appellant was convicted and sentenced. Thus, given

our determination that the trial court reasonably found that trial counsel had not rendered

ineffective assistance pre-conviction (that is, in the events leading up the trial court’s entry

of a judgment of conviction, including the appellant’s failure to make the promised

restitution payments),41 counsel’s conduct after that point in time (i.e., his assertion of his

Fifth Amendment right) could only have affected what occurred post-conviction (i.e., at the

hearing on the motion for new trial). Were we even inclined to afford the appellant any relief

on the basis of trial counsel’s refusal to testify, it would be to grant him a new hearing on his

motion for new trial—not summarily to grant him a new trial outright—so that he might

obtain more meaningful legal representation in that setting.

       But, of course, this discussion only serves to highlight a more fundamental problem

with the court of appeals’s reasoning in this regard: Trial counsel did not represent the


       41

        See text at Part III-A, ante.
                                                                              ODELUGO — 18

appellant in filing or arguing the motion for new trial. Rather, the appellant was represented

by appellate counsel on his motion for new trial. In order for the appellant to obtain a new

hearing on his motion on the merits of an ineffective-assistance claim, then, he would have

to demonstrate that appellate counsel rendered ineffective assistance in his handling of the

appellant’s motion for new trial. And the appellant does not contend (indeed, the record

would not support the conclusion) that, because trial counsel refused to testify, appellate

counsel’s representation of the appellant was constitutionally ineffective.

       Trial counsel was perhaps the only party at the hearing on the motion with first-hand

knowledge of the ultimate disposition of the appellant’s funds. He knew what the appellant

had asked him to do with the money, when the appellant asked him to do it, and for what

purpose the request was made. But he was no longer tasked with advancing the appellant’s

interests on the motion for new trial—appellate counsel was. In this sense, at least with

regard to the merits of the appellant’s motion for new trial, trial counsel’s role was essentially

relegated to that of a witness, albeit a crucial one. That being the case, it cannot be said that

trial counsel’s decision deprived the appellant of his right to effective representation—which

is, after all, the basis of a Sixth Amendment right-to-counsel claim, whether based on conflict

of interest or not—on the motion for new trial. Accordingly, the court of appeals’s

conclusion that “[trial counsel]’s invocation of his own Fifth Amendment right . . . was itself

an advancement of [trial counsel]’s interests above appellant’s interests,” even if true, does

not ultimately avail the appellant as to the underlying conflict-of-interest claim.
                                                                                  ODELUGO — 19

                                         CONCLUSION

       The trial court did not abuse its discretion “in denying appellant’s new-trial motion

on the ground that his trial counsel had a conflict of interest,”42 and the court of appeals erred

to conclude otherwise. The judgment of the court of appeals is therefore reversed. Because

the court of appeals sustained the appellant’s first and second issues on appeal, it did not

reach the appellant’s “third and fourth issues, in which he argue[d] that the trial court erred

in denying his new-trial motion on the ground that his trial counsel failed to adequately

inform him of the immigration consequences of his guilty plea.”43 Accordingly, the cause

is remanded to the court of appeals for that court to address the remaining issues “necessary

to the final disposition” of the appellant’s appeal from the judgment of conviction.44




DELIVERED:             SEPTEMBER 17, 2014
PUBLISH




       42

        Odelugo, 410 S.W.3d at 427.
       43

        Id.
       44

         See TEX . R. APP . P. 47.1 (“The court of appeals must hand down a written opinion that is
as brief as practicable but that addresses every issue raised and necessary to final disposition of the
appeal.”).
