                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-06-298-CR


EX PARTE




THEODORE WILKINSON

                                    ------------

         FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

                                    ------------

                                   OPINION

                                    ------------

      Appellant Theodore Wilkinson appeals from the trial court’s denial of his

application for writ of habeas corpus filed pursuant to article 11.072 of the

Texas Code of Criminal Procedure. See T EX. C ODE C RIM. P ROC. A NN. art. 11.072

(Vernon 2005). In two issues, Appellant argues (1) he was incompetent to

stand trial when he pleaded guilty to attempted burglary and (2) his appointed

counsel at the time of the plea hearing rendered ineffective assistance by failing
to request a competency hearing. We grant his requested relief and reverse and

remand.

                                  Background

      Appellant has a long history of mental illness. He has been under the care

of Denton County MHMR for fourteen years, has been diagnosed with “bipolar

disorder, delusional disorder—paranoid, grandiose and persecutory ideation,

polysubstance abuse, [schizoaffective] disorder, and narcissistic personality

disorder,” has been hospitalized for mental illness several times, and has a

history of failing or refusing to take his medications.

      In late November 2003, Denton police officer Brandon Rana was

dispatched in response to a suspicious-person call when a witness reported a

man with a briefcase—Appellant—repeatedly attempting to break into an

apartment.   Appellant told witnesses that he was attempting to retrieve a

computer hard drive from the apartment and that he had been authorized by the

district attorney to do so. Appellant left the scene before Officer Rana arrived.

      The Attempted Burglary

      Later that night, Officer Rana saw Appellant attempting to remove a

window screen from the same apartment with a tool that was later determined

to be a butter knife. Appellant had also tied two spoons to the apartment’s

door with red and black speaker wire. When Officer Rana approached Appellant

                                        2
and identified himself, Appellant walked briskly over to him and said in a loud

voice, “I am a CIA agent. Sergeant, you need to disarm yourself.”         When

Officer Rana reached for his pepper spray, Appellant fled through an open

window into another apartment. Officer Rana entered the apartment, found

Appellant lying on a mattress in the middle of the apartment’s living room, and

arrested him.

       The Plea of Guilty

       Appellant was indicted for attempted burglary of a habitation, a third

degree felony. The trial court appointed attorney Ronald Vanzura to represent

him.   Vanzura did not request a competency hearing.        On April 8, 2004,

pursuant to a plea bargain, Appellant pleaded guilty to the charge. At the

sentencing hearing, the trial court placed him on four years’ deferred

adjudication community supervision. The community supervision order recites

that “it plainly appear[ed] to the Court that the said defendant is mentally

competent . . . .” However, the presentence investigation report completed on

April 29, 2004, states that “[Appellant] appears to be a poor candidate for

probation. He suffers from mental illness and often forgets or refuses to take

his prescribed medications.”    The presentence report further observed that

Appellant suffers from “delusional thinking” and appears not to be in touch with




                                       3
reality and recommended that he have a complete psychiatric workup and be

added to the MHMR caseload.1

      Motion to Proceed to Adjudication

      On October 29, 2004, the State filed a motion to proceed to adjudication,

alleging several violations of the conditions of community supervision, including

an allegation that Appellant threatened to “blow up everyone” in the apartment

complex where he lived.

      Appellant Adjudicated Incompetent

      The trial court appointed new counsel to represent Appellant in the

adjudication proceedings, and counsel immediately filed a motion requesting a

competency examination.       The trial court ordered Dr. Grace Graham, a

psychologist, to conduct the examination. On February 24, 2005, based on Dr.

Graham’s report, the trial court determined that Appellant was indeed

incompetent and ordered him committed for 120 days to the North Texas State

Hospital at Wichita Falls.    On June 5, 2005, a sixty-day extension was

recommended by his treating psychiatrist on the ground that he remained

incompetent to stand trial.




      1
      … The trial court included in the conditions of community supervision
that Appellant be placed on the MHMR caseload and undergo a psychiatric
examination.

                                       4
      Appellant’s Incompetency Continues

      In July 2005, the trial court ordered a civil commitment of Appellant for

one year based on a treating psychiatrist’s certification that Appellant suffered

from severe mental illness, that he remained incompetent, and that he was

likely to continue to remain so for more than ninety days. In December 2005,

the trial court appointed a psychiatrist to examine Appellant again.        That

psychiatrist concluded on January 30, 2006, that Appellant continued to suffer

from severe mental illness and remained incompetent to stand trial. The trial

court ordered another 120-day civil commitment for Appellant, which was later

extended for another sixty days. 2

      Application for Writ of Habeas Corpus in Trial Court

      In the meantime, after the trial court had declared Appellant incompetent

to proceed to adjudication based on Dr. Graham’s report, Appellant’s retained



…
      2
       On March 29, 2006, a psychiatrist at Big Spring Hospital, where
Appellant had been transferred, reported to the trial court that Appellant had
regained competency. No additional materials in the file reveal whether the trial
court has adjudicated Appellant competent to stand trial. We will presume that
Appellant continues to be incompetent, absent such an adjudication. See
Johnson v. State, No. 02-05-00205-CR, 2006 WL 2578033, at *4 (Tex.
App.—Fort Worth June 22, 2006) (order not designated for publication) (noting
presumption of continuing incompetency that attaches after an accused has
been determined to be incompetent until the trial court actually adjudicates the
accused to be competent).


                                       5
counsel filed an application for writ of habeas corpus in the trial court in

September 2005, challenging the original deferred adjudication order and

alleging that (1) Appellant was incompetent to stand trial when he pleaded

guilty and (2) he had been deprived of his right to effective assistance of

counsel when his previous counsel, Vanzura, failed to request a competency

hearing.   At the request of Appellant’s counsel, Dr. Graham performed a

retrospective competency determination and concluded that Appellant had been

incompetent to stand trial when he pleaded guilty. The trial court conducted

a hearing on Appellant’s application for writ of habeas corpus on July 28,

2006.3 Three witnesses testified: Dr. Graham, Appellant’s father, and Vanzura.

      Dr. Graham’s Testimony

      Dr. Graham testified that, to perform her retrospective competency

examination, she interviewed Appellant and reviewed his mental health records,

police records, emails to his father, and jail records. Appellant told her that he

had been recruited by the CIA while he was in jail. He accused his parents of

being crazy and said that the President and Secretary of State were conspiring


      3
       … The judge who made the determinations that Appellant was
incompetent to proceed to adjudication and who conducted the hearing on the
application for writ of habeas corpus was not the judge who received
Appellant’s guilty plea; the plea was received by a visiting judge. Why the
hearing on Appellant’s application for writ of habeas corpus was not held for
ten months is not revealed in the record.

                                        6
against him. Dr. Graham said that Appellant’s email from the time of his guilty

plea showed Appellant “was not of sound mind at all. He was thick into his

delusion and very ill mentally[.]” In email to his father shortly before the guilty

plea, Appellant insisted that he worked for the CIA and that the President

wanted to have him killed out of envy for his political ability. He claimed to be

deployed on an operation code-named “Zebra Nile”; that he had raided the city

police, the county sheriff, the jail guard, the bailiffs, and the judges; that he had

been recruited in his cell by a CIA agent; and that he had received forty-five CIA

directives “from the jail cells.” He made similar claims in letters to his father

and Vanzura sent a few weeks after he entered his guilty plea.

      Dr. Graham testified that Appellant was “more clear” when he was taking

his medications, but even then, he was “very, very deep into his delusion.” In

Dr. Graham’s opinion, Appellant had not been in any position to assist his

defense attorney in preparing for his trial, he had not been able to understand

the charges brought against him, he was not able to comprehend the

consequence of his plea, and he was not able to help his defense counsel

prepare for his defense.

      Appellant’s Father’s Testimony

      Appellant’s father testified that Appellant, who was forty-five years old

at the time of the hearing, began to exhibit mental health problems when he

                                         7
was still in school in 1985, when he asked a neighbor for a knife so he could

sacrifice himself to Jesus. Mr. Wilkinson stated Appellant was treated first at

Timberlawn when the family had good insurance, but he has been under the

care of MHMR in Denton County since then. He testified that communications

he received from Appellant around the time of his guilty plea were delusional

about being employed by the CIA.4 He testified that he called Vanzura several

times and wrote a letter to him expressing concern over Appellant’s

competency, but Vanzura never replied.

      Trial Counsel’s Testimony

      Vanzura admitted that he had no recollection of Appellant’s mental status

when he first visited him in jail in December 2003 after his appointment to

represent him.   Nor did Vanzura recall the judge they appeared before at

Appellant’s plea hearing. Vanzura conducted no investigation other than to

review the probable cause affidavit and talk to the prosecutor about the case.

He did not file a suggestion of incompetency, nor did he request the court to

have Appellant examined by a psychologist. He did not recall the officer’s

description in the probable cause affidavit of Appellant’s statement that



…
      4
      Appellant’s father confirmed that Appellant was never employed by the
CIA nor any similar organization.


                                      8
Appellant thought he was employed by the CIA. But he did remember receiving

several letters from Appellant while he was in jail, claiming that he was a CIA

agent.

      Vanzura testified that he knew that Appellant was an “MHMR client . . .

from Judge Windle’s court [the Denton County Probate Court]” and that he was

“very knowledgeable of the fact that [Appellant] had an extensive mental health

history.” At his initial interview with Appellant, Appellant told him that he had

been taking his medication, and Vanzura felt like he understood the nature of

the charge. Vanzura testified that he “could tell by the changes of the tones

of the letter[s] that he was sending me that he was getting more and more

lucid.” After a court appearance with Appellant on March 19, 2004, Vanzura

wrote in his statement of services, “He is lucid and accepts the [plea bargain]

offer.” Vanzura testified that on the day of the plea, he “was very concerned

that [Appellant] had capacity . . . to understand.” He asked Appellant if he

understood what he was doing, and Appellant said “yes,” so Vanzura felt that

Appellant understood. Vanzura testified that Appellant told him he had been

taking his medication “and under the Strickland standards, I felt Appellant

understood the nature of the charge” and was able to confer with him.5 At the


      5
      … Vanzura referred to the “Strickland standards” twice when describing
Appellant as being competent.       However, he acknowledged on cross-

                                       9
conclusion of the hearing, the trial court denied Appellant’s application.6

Appellant then perfected this appeal.

                              Standard of Review

      To prevail on a writ of habeas corpus, the proponent must prove his

allegations by a preponderance of the evidence. See Ex parte Thomas, 906

S.W.2d 22, 24 (Tex. Crim. App. 1995), cert. denied, 518 U.S. 1021 (1996).

When reviewing a trial court’s decision to grant or deny relief on a writ of

habeas corpus, we should review the facts in the light most favorable to the

trial court’s ruling and should uphold it absent an abuse of discretion. Ex parte

Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). Reviewing courts

should afford almost total deference to a trial judge’s determination of the

historical facts supported by the record, especially when the fact findings are

based on an evaluation of credibility and demeanor. Id. at 819 n.67.




examination that he was referring to Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984). As Appellant’s current counsel pointed out to
Vanzura at the hearing, that case established the standards for ineffectiveness
of counsel, not competency of an accused to stand trial.
      6
        … The record does not show that the trial court made the findings of fact
and conclusions of law required by article 11.072, section 7(a). See T EX. C ODE
C RIM. P ROC. A NN. art. 11.072, § 7(a) (“[T]he court shall enter a written order
including findings of fact and conclusions of law.”).

                                        10
      The determination of competency is not solely a factual issue but rather

is a mixed question of law and fact.        Drope v. Missouri, 420 U.S. 162,

174–75, 95 S. Ct. 896, 905–06 (1975). When dealing with mixed questions

of law and fact, the reviewing court should give the same level of deference if

the resolution of those questions turns on an evaluation of credibility and

demeanor.    Peterson, 117 S.W.3d at 819; see also Torres v. State, 182

S.W.3d 899, 902 (Tex. Crim. App. 2005). Unless reviewing courts are unable

to determine from the record what the trial court’s implicit factual findings are,

they should grant deference to implicit factual findings that support the trial

court’s ruling. Peterson, 117 S.W.3d at 819.

      But we review de novo the application of law to fact and those questions

of law and fact that do not depend upon credibility and demeanor.              Id.

Application of the test for incompetency is a legal question. Drope, 420 U.S.

at 174–75, 95 S. Ct. at 905–06; United States v. Makris, 535 F.2d 899, 908

(5th Cir. 1976) (stating even if medical expert’s opinion is credited, trial court

must independently decide if defendant was capable of reasonable consultation

with counsel and comprehended proceedings), cert. denied, 430 U.S. 954

(1977).

                                   Discussion




                                       11
      In his first issue, Appellant argues that the trial court abused its discretion

when it denied his application for writ of habeas corpus because the evidence

showed that Appellant was incompetent when he entered his plea. We agree.

      Comptency

      A defendant’s constitutional due process right to a fair trial prevents the

State from subjecting him to trial when his “mental condition is such that he

lacks the capacity to understand the nature and object of the proceedings

against him, to consult with counsel, and to assist in preparing his defense.”

Drope, 420 U.S. at 171, 95 S. Ct. at 903; Pate v. Robinson, 383 U.S. 375,

378, 86 S. Ct. 836, 838 (1966). A person is incompetent to stand trial if he

does not have sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding or a rational, as well as factual,

understanding of the proceedings against him. T EX. C ODE C RIM. P ROC. A NN. art.

46B.003(a) (Vernon 2006). A defendant is presumed competent to stand trial

and shall be found competent to stand trial unless proved incompetent by a

preponderance of the evidence. Id. art. 46B.003(b).7 Lack of competency can


      7
       … If a prior, unvacated determination of incompetency is shown, the
presumption is that the incompetency continues, and the burden shifts to the
State to prove the accused’s competency to stand trial beyond a reasonable
doubt. Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim. App. 1987).
Appellant was determined by the trial court to be incompetent for the motion
to proceed to adjudication for a time that post-dated his plea of guilty. Thus

                                        12
be raised for the first time by post-trial writ of habeas corpus.    Ex parte

Yarborough, 607 S.W.2d 565, 566 (Tex. Crim. App. 1980).

      Retrospective Determination of Compentency

      A retrospective determination of competency is allowed if there is

sufficient evidence available to assure that a reliable determination of

competency can be made. Bolius v. Wainwright, 597 F.2d 986, 988 (5th Cir.

1979) (citing Makris, 535 F.2d at 904–05).        “‘If the court finds that a

meaningful competency hearing cannot be conducted, then of course, the writ

must issue.’” Bouchillon v. Collins, 907 F.2d 589, 594 n.14 (5th Cir. 1990)

(quoting Martin v. Estelle, 583 F.2d 1373 ,1374 (5th Cir. 1978)).

      The State suggests that there are “inherent problems” with making a

retrospective determination of Appellant’s competency at the time of his plea

hearing, noting that fourteen months had elapsed between his plea hearing and

the hearing on his application for writ of habeas corpus.      However, the

difficulties inherent in making a retrospective determination of a defendant’s

competency have been recognized and addressed by the United States Supreme

Court as well as the Texas Court of Criminal Appeals. See Brandon v. State,

599 S.W.2d 567, 573 (Tex. Crim. App. 1979) (citing Dusky v. United States,



the presumption of continuing incompetency does not aid Appellant in this
proceeding.

                                     13
362 U.S. 402, 80 S. Ct. 788 (1960), Pate, 383 U.S. 375, 86 S. Ct. 836, and

Drope, 420 U.S. 162, 95 S. Ct. 896 as spelling out some of the difficulties

involved in making retrospective competency determinations, including passage

of time, present recollection of expert witnesses, and ability of the judge and

jury to observe the subject of their inquiry)), vacated on other grounds, 953

U.S. 902 (1981).

      However, as the court of criminal appeals observed in Brandon, “[t]here

is . . . ample authority that the requirements of due process may be fully met

as it concerns [an appellant] if he were now granted a trial to determine, after

the fact, whether he was competent at the time he was tried and convicted,”

and concluded: “[r]etrospecive determinations are possible depending upon the

facts of each case and the quality and quantity of evidence available.” Id. at

573 (collecting cases). The length of time after trial in which it has been held

feasible to determine whether a defendant was competent when he was tried

ranges up to twenty-four years. Id. at 573–74 (citing Lee v. Alabama, 406

F.2d 466, 471–72 (5th Cir.), cert. denied, 395 U.S. 927 (1969)). Passage of

time is only one factor to be considered. Id. at 574.

      Evidence of Incompetency

      The question of competency “is often a difficult one in which a wide

range of manifestations and subtle nuances are implicated.” Drope, 420 U.S.

                                      14
at 180, 95 S. Ct. at 908.     Not all people who have a mental problem are

rendered by it legally incompetent. Bouchillon, 907 F.2d at 593. But “[o]ne

need not be catatonic, raving or frothing to be [legally incompetent].” Lokos

v. Capps, 625 F.2d 1258, 1267 (5th Cir. 1980). Demeanor is not dispositive.

Pate, 383 U.S. at 386, 86 S. Ct. at 842.      The existence of even a severe

psychiatric defect is not always apparent to a layperson. Bruce v. Estelle, 536

F.2d 1051, 1059 (5th Cir.1976), cert. denied, 429 U.S. 1053 (1977). Nor—in

the case of a person who experiences intervals of competency and

incompetency—is an episode of diminished capacity necessarily obvious to the

layperson. Bouchillon, 907 F.2d at 593. But a layperson’s observation of

abnormal acts by an accused may be of great value as evidence. United States

v. Gray, 421 F.2d 316, 318 (5th Cir. 1970).

      Because it is difficult for a layperson to detect and assess competency,

expert opinion plays an especially important role in competency determinations.

When an expert witness, such as a psychologist, testifies at a competency

hearing, the court is not free to disregard the expert’s testimony unless “there

is sufficient evidence to justify doing so.” Bouchillon, 907 F.2d at 594 n.15

(emphasis in original) (citing Maggio v. Fulford, 462 U.S. 111, 117–18, 103 S.

Ct. 2261, 2264 (1983)). In Maggio, the Supreme Court held that the trial court

was justified in discounting unimpeached testimony of a psychiatrist who

                                      15
opined that the defendant was incompetent because the defendant had no

history of mental illness, the trial judge noted that he was “thoroughly

convinced” that the defendant was competent based on his own observations

during and after trial, and the basis of the psychologist’s opinion— that the

defendant suffered from paranoid delusions because he refused to identify two

alibi witnesses for fear they would be arrested—was unfounded because the

same two witnesses actually testified at trial. Maggio, 462 U.S. at 113–15,

117–18, 103 S. Ct. 2262–63, 2264.

       By contrast, in Bouchillon, as in this case, the only witness called by the

State was defendant’s trial counsel, who testified that defendant was “lucid”

and able to assist in his defense and therefore competent when he pleaded

guilty. The appellate court held that testimony and evidence concerning his

demeanor at the plea hearing were insufficient to override a psychologist’s

expert opinion—given after he conducted a retrospective competency

assessment—that the defendant was incompetent. Bouchillon, 907 F.2d at

594.

       Where expert testimony clearly and overwhelmingly points to a conclusion

of incompetency, the fact-finder cannot arbitrarily ignore the expert in favor of

lay testimony. Id. at 594 n.15; Strickland v. Francis, 738 F.2d 1542, 1552

(11th Cir. 1984) (citing Brock v. United States, 387 F.2d 254, 257 (5th Cir.

                                       16
1967)).   In Brock, the fifth circuit listed four factors that an appellate court

should consider when assessing a fact-finder’s decision to disregard an expert’s

opinion that a defendant was incompetent:

      (1) the correctness or adequacy of the factual assumptions on
      which the expert opinion is based;

      (2) possible bias in the expert’s appraisal of the defendant's
      condition;

      (3) inconsistencies in the expert’s testimony, or material variations
      between experts; and

      (4) the relevance and strength of the contrary lay testimony.

Brock, 387 F.2d at 258 (quoting Mims v. United States, 375 F.2d 135,

143–44 (5th Cir. 1967)).

      Additionally, when a defendant’s trial attorney testifies at a retrospective

competency hearing that the defendant was competent when he pleaded guilty,

the attorney’s testimony must be discounted because of the potential for a

conflict of interest. Bolius, 597 F.2d at 989. In Bolius, the defendant’s counsel

at the time he pleaded guilty testified that the defendant was able to relate

facts to him coherently, had his senses under control, and was in command of

the situation. Id. at 989 n.6. The court of appeals expressed doubt about the

value of counsel’s testimony:

      [T]he testimony of trial counsel cannot be treated as evidence
      coming from a totally disinterested witness. Had counsel testified

                                       17
      to anything other than Bolius’s competency to plead guilty, he
      would have placed himself in an awkward ethical position by
      revealing that he had allowed his client to plead guilty at a time
      when he personally believed Bolius to be incompetent.

Id. at 989; see also Bouchillon, 907 F.2d at 594 & n.9 (reiterating observation

in Bolius that “the testimony of trial counsel cannot be treated as coming from

a totally disinterested witness”).

      In this case, the trial court was presented with testimony from three

witnesses: Dr. Graham, the court-appointed psychologist; Appellant’s father;

and Vanzura, Appellant’s trial counsel.     Dr. Graham concluded from her

retrospective competency analysis that Appellant was incompetent when he

entered his guilty plea. Appellant’s father testified that Appellant has a long

history of mental illness and that communications from Appellant at the time

of the plea hearing were delusional. Vanzura testified that Appellant appeared

to be taking his medications and was “lucid” and able to consult with him and,

therefore, competent.

      Because the trial court implicitly disregarded Dr. Graham’s expert

testimony in favor of Vanzura’s lay testimony in failing to find Appellant

incompetent at the time of his plea, we must determine whether there is a

sufficient basis in the record to justify so doing. See Bouchillon, 907 F.2d at

594 n.15. None of the four Brock factors weighs in favor of disregarding Dr.


                                      18
Graham’s opinion.      See Brock, 387 F.2d at 258.             Her testimony is

uncontradicted and unimpeached.       Nothing in the record suggests that her

factual assumptions were incorrect or inadequate; nor is there any suggestion

of bias. Her opinion is internally consistent, and because she was the only

expert witness, there is no material variation between her opinion and other

expert opinions.

      In contrast, the lay testimony that Appellant was improving and mentally

competent—that of attorney Vanzura—was purely conclusory. His testimony

was based on what Appellant told him—that Appellant was taking his

medication, and Appellant’s “yes” answer that he understood what they were

doing.   Vanzura’s assumption that this information was correct was only

speculation because it was based upon no personal knowledge of any

underlying facts that Appellant was, indeed, medicated or improving. Opinion

testimony based on speculation or conjecture has no probative value. See, e.g.,

Turro v. State, 950 S.W.2d 390, 403 (Tex. App.—Fort Worth 1997, pet. ref’d);

United Way of San Antonio, Inc. v. Helping Hands Lifeline Found., Inc., 949

S.W.2d 707, 712 (Tex. App.—San Antonio 1997, writ denied) (op. on reh’g).

      Specifically, opinion testimony of a lay witness as to an individual’s sanity

or competency must be based on underlying personal observations or

experiences of the witness. See Bigby v. State, 892 S.W.2d 864, 888–89

                                       19
(Tex. Crim. App. 1994) (holding lay opinion that defendant was insane based

on information from others not properly admitted), cert. denied, 515 U.S. 1162

(1995); Pacheco v. State, 757 S.W.2d 729, 734 (Tex. Crim. App. 1988)

(holding that to be “competent” evidence lay opinion must be based on personal

knowledge or experience). Rule 701 of the Texas Rules of Evidence limits

opinion testimony of a lay witness to that which is rationally based on

perception of the witness.    T EX. R. E VID. 701.   The requirement that the

testimony be based on the witness’s “perception” presumes the witness

personally observed or experienced the underlying facts. Bigby, 892 S.W.2d

at 889. Other than what Appellant told him, Vanzura merely assumed that

Appellant was taking his medication because he appeared to Vanzura to be

improving and “lucid.” 8

      But, as observed by the fifth circuit, where a condition—such as mental

incompetency—may not be visible to a layman, “counsel cannot depend on his

or her own evaluation of someone’s sanity once he has reason to believe an




      8
       … A lay witness’s observation that an accused seems “normal” is of no
value unless the witness has had “intimate and prolonged contact with the
accused.” Gray, 421 F.2d at 318 (quoting Carter v. United States, 252 F.2d
608, 618 (D.C. Cir. 1957)); see also Makris, 535 F.2d at 908. Vanzura had
some unspecified contact with Appellant in the past, a face-to-face meeting
with him in jail, and two meetings in the basement of the courthouse. This
does not equate to intimate and prolonged contact.

                                     20
investigation is warranted [] because, where such a condition exists, the

defendant’s attorney is the sole hope that it will be brought to the attention of

the court.” Bouchillon, 907 F.2d at 597 (emphasis in original). And it “must

be a very rare circumstance indeed where a decision not to investigate would

be ‘reasonable’ after counsel has notice of the client’s history of mental

problems.”   Id. Counsel cannot rely upon his own naked evaluation of his

client’s competency under those circumstances, and neither can we.

      In addition to Dr. Graham’s testimony, the evidence was also undisputed

by the State that Appellant—unlike the defendant in Maggio—has a long and

well-documented history of mental illness. See Maggio, 462 U.S. at 113–15,

117–18, 103 S. Ct. 2262–63, 2264. Further—and again unlike Maggio—the

judge who conducted the retrospective competency hearing did not conduct the

plea hearing and thus did not personally observe Appellant’s demeanor and

behavior at the plea hearing. See id. Finally, Appellant’s father’s testimony

that Appellant’s communications from around the time of the plea hearing were

delusional—a “lay witness’s observation of abnormal acts by [the] accused”—is

evidence of considerable value, unlike the testimony of Appellant’s trial counsel.

See Gray, 421 F.2d at 318.

      Under these circumstances, we hold that the trial court abused its

discretion by disregarding Dr. Graham’s expert testimony and implicitly finding

                                       21
that Appellant was competent at the time of his plea hearing. We further hold

that Dr. Graham’s testimony established by a preponderance of the evidence

that Appellant was incompetent at the time of his plea hearing. We sustain

Appellant’s first issue.

                                   Conclusion

      Having sustained Appellant’s first issue, we reverse the trial court’s order

denying Appellant’s petition for writ of habeas corpus, vacate the trial court’s

order placing Appellant on deferred adjudication community supervision, and

order that Appellant be released when he is adjudicated to be competent,

subject to the State’s right to a new plea hearing and trial of Appellant within

a reasonable time. Because of our resolution of Appellant’s first issue, we will

not consider his second issue, in which he complains that trial counsel rendered

ineffective assistance. See T EX. R. A PP. P. 47.1.




                                            ANNE GARDNER
                                            JUSTICE

PANEL A:     CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 15, 2008




                                       22
