Opinion issued August 6, 2013




                                  In The

                           Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                           NO. 01-12-00521-CR
                         ———————————
                  AGHAEGBUNA ODELUGO, Appellant
                                    V.
                    THE STATE OF TEXAS, Appellee



                  On Appeal from the 248th District Court
                          Harris County, Texas
                      Trial Court Case No. 1249652



                                OPINION

     Appellant,   Aghaegbuna    Odelugo,    without   an   agreed   punishment

recommendation from the State, pleaded guilty to the offense of engaging in
organized criminal activity, namely, aggregate theft of over $200,000,1 and the

trial court assessed his punishment at confinement for eighteen years. In four

issues, appellant contends that he received ineffective assistance of counsel, his

guilty plea was involuntary, and the trial court erred in denying his motion for new

trial.

         We reverse and remand.

                                     Background

         In regard to his plea of guilty to the offense of engaging in organized

criminal activity, appellant stipulated to conspiring with Kodigbo Odelugo and

Chukwuma Odelugo to appropriate over $200,000 owned by Sharon Thompson,

Mark Porter, the Texas Health and Human Services Commission, and The Centers

for Medicare and Medicaid Services. During the plea proceedings, the trial court

asked appellant’s trial counsel, Erik Sunde,

         [H]ave you talked with your client and is it your feeling that he is
         competent to stand trial and understands the nature and consequences
         of his plea and signed this paperwork freely and voluntarily?

Sunde responded, “Yes, Your Honor.”                Appellant also signed written

admonishments, one of which states, “If you are not a United States citizen,

pleading guilty or no contest to a criminal charge may result in removal, denial of



1
         See TEX. PENAL CODE ANN. § 71.02(a)(1) (Vernon 2011).
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naturalization or exclusion from admission into this country.” Appellant agreed to

pay $600,000 in restitution at his sentencing hearing, which was set for a later date.

      Before the trial court concluded the subsequently-held sentencing hearing,

appellant, a non-citizen, filed a motion to withdraw his guilty plea, arguing that his

plea was involuntary because his counsel did not apprise him of the mandatory

immigration consequences of his plea.2 Later, at a hearing on appellant’s motion

to withdraw his plea, Sunde stated to the court,

      I have previously represented to the Court that I read the
      admonishment to him but we had no further discussions beyond that
      at that time. We subsequently had discussions but not at that time.
      Our discussions focused more on the Federal case that was
      pending. . . .

      I would also suggest that as a legal proposition his testimony is not
      necessary to assess legally whether or not the old admonishment that
      this Court read to him, that I read to him is legally sufficient under
      Padilla. So we would not call any witnesses, Your Honor.

The trial court denied appellant’s motion to withdraw his guilty plea, and, later,

after it had concluded the sentencing hearing, assessed appellant’s punishment at

confinement for eighteen years.

      In his new-trial motion, appellant argued that he had received ineffective

assistance of counsel because Sunde “had an actual conflict of interest” and “did

not advise him of . . . certain immigration consequences of his guilty plea.” He

asserted that he had delivered $285,000 to Sunde to pay the $600,000 in restitution

2
      See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010).
                                          3
he was to pay the court pursuant to his guilty plea. However, Sunde did not use the

money to pay the required restitution and instead told appellant that the money was

“gone and unavailable.” Appellant asserted that Sunde “misappropriated the funds

making payment to the State impossible.”

      Appellant attached to his motion his affidavit, in which he testified,

      [Sunde] eventually 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 Mr. Sunde a check for $160,000 on January
      27, 2010. . . . Sentencing was scheduled for April 30, 2010. On the
      plea papers, it was noted that $600,000 in restitution was to be paid by
      that date. 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 Mr. Sunde 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. . . . He told me that he sent the money to
      Colombia and the money was gone. He told me that he would try to
      get it back. . . .

      [Sunde] has given me no accounting of how or when he spent my
      money. He never asked permission to spend my money until after I
      contacted another attorney to represent me on appeal. Mr. Sunde
      came to visit me in the Harris County courthouse holdover one
      morning about one week before I was sentenced. Mr. Sunde told me
      that he had spoken to Stanley Schneider, and lied about the funds,
      asserting to Mr. Schneider that he had applied them toward my legal
      fees. Mr. Sunde stated that he knew that it was not true but asked me
      to go along with the lie and he would get me the money in 30
      days. . . . During the three years that he represented me, [Sunde]
      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.

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      At the hearing on his new-trial motion, the trial court took judicial notice

that it had held a prior evidentiary hearing on appellant’s motion to withdraw his

guilty plea and denied the motion. Appellant then testified that he retained Sunde

for $25,000 to represent him in the underlying case and a related federal

prosecution against him. When he hired Sunde, appellant was concerned about his

immigration status, and Sunde told appellant that if he paid $600,000 in restitution,

adjudication of his guilt would be deferred in the underlying case and it would be

dismissed.

      Appellant offered into evidence a check that he had written to Chase Bank

for $160,000, which he used to obtain a cashier’s check to give to Sunde “to pay in

his trust account towards my restitution.” On the “memo” line of the check,

appellant had written, “Erik Sunde for Court/Arena theater.”         Appellant also

offered into evidence a second check that he had written to “Erik Sunde Attorney

at Law IOLTA” for $85,000. On the memo line of the second check, appellant had

written, “State Restitution - $275,000.” And he offered into evidence a third check

that he had written for $40,000 to Chase Bank to purchase a cashier’s check to give

to Sunde, with the notation, “Erik Sunde – Restitution.”

      Appellant testified that in September 2011, he asked Sunde to return the

money, but Sunde returned only a check for $20,000 and “maybe” $5,000 to

$10,000 in cash. Appellant explained that he had not authorized Sunde to use his

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money for his attorney’s fees, expenses, or any purpose other than paying his

restitution. He noted that before pleading guilty in both the state and federal cases,

Sunde had not discussed the immigration consequences of his plea. And appellant

noted that he did not “want a trial,” but wanted to “pay off the restitution.”

      Sunde asserted his Fifth Amendment right against self-incrimination in

connection with appellant’s new-trial hearing, and refused to testify.

      At the conclusion of the hearing, the State agreed to the following oral

stipulation, which the trial court accepted:

      [B]ased on the conversation that Mr. Clark and Mr. Sunde had, . . .
      Sunde did admit he did receive a substantial amount of money from
      [appellant] that was placed in trust, he did not have a contract with
      [appellant], he didn’t know the exact amount of the money that he
      received but it was a substantial amount of money.

The trial court noted that it did not make any guarantees that if appellant paid

$600,000 in restitution by the sentencing hearing, it would have deferred

adjudication of his guilt and placed him on community supervision. The trial court

then denied appellant’s new-trial motion.

                                Standard of Review

      In order to establish his ineffective-assistance-of-counsel claim based on a

conflict of interest, appellant must show that (1) his counsel had an actual conflict

of interest and (2) the conflict adversely affected counsel’s performance at trial.

Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007). An actual conflict

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

interest in a fair trial or advancing other interests to the detriment of his client’s

interest. Id.; James v. State, 763 S.W.2d 776, 778–79 (Tex. Crim. App. 1989) (en

banc). A defendant must identify specific instances in the record that reflect a

choice that counsel made between possible alternative courses of action. Ramirez

v. State, 13 S.W.3d 482, 488 (Tex. App.—Corpus Christi 2000, pet. dism’d)

(quoting Perillo v. Johnson, 79 F.3d 441, 447–48 (5th Cir. 1996)).

      We review a trial court’s ruling on a motion for new trial under an abuse-of-

discretion standard. Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston

[1st Dist.] 2006 pet. ref’d). Where, as here, the motion for new trial alleges

ineffective assistance of counsel, we must determine whether the trial court’s

determination of the ineffective-assistance claim and denial of the motion for new

trial were clearly wrong and outside the zone of reasonable disagreement. Id. We

note that trial courts remain in the best position to “evaluate the credibility” of

witnesses and resolve conflicts in evidence. See Koher v. State, 988 S.W.2d 230,

233 (Tex. Crim. App. 1999). And a trial court may choose to believe or disbelieve

all or any part of the witnesses’ testimony. See id.

                                Conflict of Interest

      In his first and second issues, appellant argues that the trial court abused its

discretion in denying his new-trial motion because Sunde’s “misuse of funds

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deposited in [his attorney] trust account for payment of restitution” constituted a

conflict of interest.

       Here, appellant offered into evidence three checks, totaling $285,000, which

he gave to Sunde to place in his trust account for payment of restitution. In

appellant’s testimony, which was uncontroverted due to Sunde’s invocation of his

Fifth Amendment right not to incriminate himself, 3 appellant noted that he had

written a check for $160,000 made payable to Sunde. Appellant also wrote a

check for $40,000 and another for $85,000, for which he received cashier’s checks,

which he then gave to Sunde to place in his trust account to pay appellant’s

restitution. Appellant explained that he did not give Sunde permission to use the

money for anything other than to pay his restitution. And Sunde advised him not

to report the money on any “financial information sheets.” Appellant intended to

use the $285,000 to pay towards the $600,000 in restitution that the State requested

be paid by the date of the sentencing hearing. And, although appellant was led to

believe that if he paid the $600,000 in restitution by his sentencing date, the trial

court would defer adjudication of his guilt, Sunde informed appellant before the

sentencing hearing that the money was not available.

       Furthermore, in appellant’s affidavit attached to his new-trial motion, and

which was also uncontroverted, he testified that Sunde had informed him that


3
       See U.S. CONST. amend. V.
                                         8
Sunde had “sent the money to Colombia.” One week before appellant’s sentencing

hearing, Sunde told appellant that he had lied to others and told them that he had

applied the money to payment of his legal fees. Sunde “asked [appellant] to go

along with the lie” so that he could “get [] the money in 30 days.” And the State

stipulated that Sunde had in fact received a “substantial amount of money” from

appellant that was placed into a trust account, although Sunde could not remember

the total amount.

      Thus, appellant’s uncontroverted testimony and affidavit established that he

gave Sunde $285,000 to pay towards restitution, which Sunde did not pay. Indeed,

rather than explain what happened to the money, Sunde invoked his right not to

incriminate himself. See U.S. CONST. amend. V. A lawyer’s self-interest can

constitute an “actual conflict of interest” when trial counsel makes a choice

between advancing his own interest and “advancing his client’s interest in a fair

trial.” See Acosta, 233 S.W.3d at 354–55 (holding that standard that defendant

must show actual conflict of interest extends to conflicts pertaining to lawyer’s

self-interest); Monreal v. State, 947 S.W.2d 559, 565 (Tex. Crim. App. 1997) (en

banc) (rejecting allegation of conflict of interest between lawyer’s self-interest and

defendant’s interest where “trial counsel was not required to make a choice

between advancing her client’s interest” and her own); Adams v. State, No. 14-08-

01048-CR, 2010 WL 724311, at *2–3 (Tex. App.—Houston [14th Dist.] Mar. 4,

                                          9
2010, pet. ref’d) (mem. op., not designated for publication). Here, if Sunde 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.   See

Acosta, 233 S.W.3d at 355. And Sunde’s invocation of his own Fifth Amendment

right in connection with appellant’s new-trial hearing about matters concerning

Sunde’s legal representation of appellant in connection with the plea agreement

and payment of restitution was itself an advancement of Sunde’s interests above

appellent’s interests.

      Appellant must also show that the conflict of interest adversely affected him

at trial. He testified that because the money was not available, he was not able to

pay $600,000 in restitution by the date of his sentencing hearing. Although the

trial court stated that it would not have held its sentencing hearing with the

understanding that adjudication of appellant’s guilt would be deferred if he paid

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

would have constituted a serious factor to consider in sentencing.   And the trial

court noted that the $600,000 in restitution was a condition added into the plea

papers by the State. It is apparent that the State would have sought a lesser

punishment for appellant had he been able to pay the restitution. Thus, appellant

has established, through his uncontroverted testimony and evidence, that his

                                        10
counsel’s actual conflict of interest adversely affected him at trial. See Acosta, 233

S.W.3d at 355.

         Accordingly, we hold that the trial court erred in denying appellant’s new-

trial motion on the ground that his trial counsel had a conflict of interest.

         We sustain appellant’s first and second issues.

         Having sustained appellant’s first and second issues, we need not reach his

third and fourth issues, in which he argues 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.

                                      Conclusion

         We reverse the judgment of the trial court and remand the case for a new

trial.




                                                Terry Jennings
                                                Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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