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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