             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

                K ELLER, P.J., filed a concurring opinion.


        It looks bad when defense counsel asserts his Fifth Amendment right against self-

incrimination when asked about how he handled his client’s money. That does not mean counsel

had a conflict of interest with his client. It is possible that counsel and his client were acting jointly

to dispose of the money in an improper manner. It is also possible that counsel is innocent of

wrongdoing and is exercising his Fifth Amendment right to avoid being wrongfully prosecuted, or

simply to avoid being harassed. The record in the present case does not tell us what happened, and

absent some evidence of a conflict of interest, we cannot find that a conflict existed.

        But there is a method by which information about counsel’s activities could be obtained. In
                                                              ODELUGO CONCURRENCE — 2

a future habeas proceeding, an evidentiary hearing could be held, and the State could grant defense

counsel immunity, which would override any asserted Fifth Amendment privilege.1 If the State is

not interested in initiating a criminal investigation of counsel, then it ought to grant counsel

immunity, so that counsel can be required to testify. If immunity is granted, counsel’s statements

could not be used against him in any future criminal proceedings, but his statements could still be

used in a future civil lawsuit or in disciplinary proceedings by the State Bar.2

       On the other hand, if the State is contemplating initiating a criminal prosecution against

counsel, then it likely has other means of ascertaining what happened to the funds, and it can turn

over any evidence of potential exculpatory value to appellant or his new counsel if such evidence

is discovered.

       With these comments, I join the Court’s opinion.

Filed: September 17, 2014
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       1
         United States v. Calandra, 414 U.S. 338, 346 (1974); Dansby v. State, 398 S.W.3d 233,
239-40 (Tex. Crim. App. 2013).
       2
          See Allen v. Illinois, 478 U.S. 364 (1986) (privilege against self-incrimination does not
apply when the information sought would be used only in a non-criminal proceeding); In re Daley,
549 F.2d 469, 476-77 (7th Cir. 1977) (“the Fifth Amendment privilege against self-incrimination does
not proscribe the introduction in state bar disciplinary proceedings of testimony compelled under a
grant of immunity”).
