Lead Opinion
OPINION
delivered the opinion of the Court
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 Fifth Amendment right to refuse “to be a witness against himself.”
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 “un-controverted due to [trial counsels invocation of his Fifth Amendment right not to incriminate himself,” held that the trial court had abused its discretion in denying the motion.
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-conspirators, aggregate theft in an amount over two hundred thousand dollars.
B. Motion for New Trial
On March 22, 2012, the appellant, now represented by appellate counsel, filed a 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[J” 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.
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]ilenee 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 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.”
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.”
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 uncon-troverted testimony and affidavit,’ when the trial court could have resolved the underlying factual issues against the appellant.”
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.”
By virtue of the fact that the trial court is charged with initially ruling on an appellant’s motion for new trial,
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 “uncontro-verted”?
In this case, in holding that the trial court abused its discretion by denying the 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 “uncon-troverted,” the trial court erred by failing to find that “[trial counsel] used the money
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 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 “un-controverted” 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.
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
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,
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 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.”
We need not indulge in any of the State’s vague theories that trial counsel potentially 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
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 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 firsthand 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 counsell’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.
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,”
KELLER, P.J., filed a concurring opinion.
. U.S. Const, amend. V.
. Odelugo v. State, 410 S.W.3d 422, 426-27 (Tex.App.-Houston [1st Dist.] 2013).
. Id. at 427.
. 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.
. Emphasis in original. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
. 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)).
.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 "admitted] 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, 410 S.W.3d at 426-27 (citing Acosta v. State, 233 S.W.3d 349, 354-55 (Tex.Crim.App.2007)).
. Id. at 426.
. Id.
. Id.
. Id. at 427 (emphasis added).
. Id.
. Id.
. Id.
. State's Petition for Discretionary Review at 3.
. Id. at 13.
. Id. at 15-16.
. Id. at 16.
. Acosta, 233 S.W.3d at 356 (citing Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).
. Id. at 355 (citing Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997)).
. E.g., Banda v. State, 890 S.W.2d 42, 59-60 (Tex.Crim.App.1994).
. 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.”).
. 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.”).
. 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 fact-finder on motion for new trial).
. 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).
. Charles, 146 S.W.3d at 208, 212.
. 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.
. Riley, 378 S.W.3d at 458 (quoting Kober v. State, 988 S.W.2d 230, 233 (Tex.Crim.App.1999)).
.Id. at 457.
. Odelugo, 410 S.W.3d at 426-27.
. Id. at 426.
. See Appellant’s Brief at 5-8.
. Charles, 146 S.W.3d at 210.
. 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 disbarmént 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, 87 S.Ct. 625, 17 L.Ed.2d 574 (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.
. Acosta, 233 S.W.3d at 355.
. Odelugo, 410 S.W.3d at 427 (emphasis added).
. Acosta, 233 S.W.3d at 355.
. State’s Petition for Discretionary Review at 12.
. Id.
. See text at Part I1I-A, ante.
. Odelugo, 410 S.W.3d at 427.
. Id.
. 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.”).
Dissenting Opinion
filed a 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
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.
Dissenting Opinion
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 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.
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.
. United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); Dansby v. State, 398 S.W.3d 233, 239-40 (Tex.Crim.App.2013).
. See Allen v. Illinois, 478 U.S. 364, 106 S.Ct. 2988, 92 L.Ed.2d 296 (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”).