            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

              M EYERS, J., filed a dissenting opinion.

                           DISSENTING OPINION


       I agree with the court of appeals that the trial court abused its discretion in denying

Appellant’s motion for new trial and, therefore, I respectfully dissent.

       Appellant proved by a preponderance of the evidence that trial counsel had a conflict

of interest and that it affected counsel’s representation. The trial court had a right to

disbelieve assertions in live testimony and affidavits only when supported by a reasonable

view of the record. Here, the checks, the missing money, Appellant’s testimony, and trial
                                                                       Odelugo dissent - Page 2

counsel’s invocation of his Fifth Amendment right, all made it unreasonable for the court to

find that Appellant had not shown conflict of interest by a preponderance of the evidence and

deny his motion for new trial. This was a unique situation that did not involve the typical

balancing of the testimony of both parties. Appellant’s trial counsel had every opportunity

to contradict the allegations and he chose not to. As this was not the conventional case, where

the judge would weigh the evidence from each side, there was not much discretion available

to him, and he should have granted a new trial. However, the judge was viewing the appellant

as a convicted felon, who had paid no restitution, and Appellant’s opportunity to demonstrate

that he was telling the truth was hampered by his former lawyer’s failure to cooperate. The

judge could also have had reason to deny the motion for new trial simply because he had

successfully disposed of a case with a plea agreement that otherwise would have required a

lengthy trial.

       I disagree with the majority’s decision that the trial court did not abuse its discretion

in denying Appellant’s motion for new trial. Because I would affirm the ruling of the court

of appeals, I respectfully dissent.

                                                   Meyers, J.

Filed: September 17, 2014

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