                            NUMBER 13-08-00280-CR

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                          Appellant,

                                            v.

ERIC WOJCIECHOWSKI,                                                          Appellee.


                    On appeal from the 28th District Court
                          of Nueces County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
             Memorandum Opinion by Justice Rodriguez

       Appellant, the State of Texas, appeals the trial court's order granting appellee Eric

Wojciechowski's motion for new trial. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(3)

(Vernon Supp. 2009) (allowing the State to appeal the granting of a defendant's motion for

new trial). By two issues, the State complains that the trial court abused its discretion in
granting the motion for new trial: (1) based on allegedly undisclosed exculpatory evidence,

see generally Brady v. Maryland, 373 U.S. 83 (1963); and (2) because Wojciechowski was

competent to make a voluntary, knowing, and intelligent decision regarding the State's plea

offer and was provided effective assistance by defense counsel in making that decision.

We affirm.

                                     BACKGROUND

       In August 2007, Wojciechowski entered the apartment of Jasmine Felix while she

was asleep in her bed and removed his clothes. When Felix awoke, Wojciechowski was

sitting on her bed completely naked. Felix screamed for help, and Wojciechowski left her

apartment. Wojciechowski was subsequently indicted for burglary of a habitation with the

intent to commit sexual assault. See TEX . PENAL CODE ANN . § 30.02 (Vernon 2003).

Wojciechowski has maintained throughout the proceedings that "voices in his head" told

him to enter the apartment because Felix wished to have consensual sex with him.

       Prior to trial, the State offered Wojciechowski a plea bargain—in exchange for

pleading guilty, Wojciechowski would be sentenced to only ten years' confinement. It is

undisputed that Wojciechowski's trial counsel communicated this offer to Wojciechowski.

However, there is conflicting evidence regarding whether Wojciechowski understood that

he could receive more than ten years if he went to trial. In any event, Wojciechowski

rejected the plea bargain and proceeded to trial. In January 2008, Wojciechowski was

convicted by a jury of the indicted offense. The trial court sentenced Wojciechowski to

twenty-two years' confinement in the Institutional Division of the Texas Department of

Correctional Justice.



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       Wojciechowski's trial counsel filed a motion for new trial in early February 2008,

alleging that the State failed to disclose material exculpatory evidence. Wojciechowski

then hired new counsel, who filed a second motion for new trial in late February that

adopted the grounds of the first motion and also argued that Wojciechowski did not make

a voluntary, knowing, and intelligent decision to reject the State's plea-bargain offer

because he was mentally incompetent at the time.

       In late March 2008, the trial court held a hearing on Wojciechowski's motion for new

trial. At the hearing, the court heard evidence regarding both the allegedly withheld

exculpatory evidence and Wojciechowski's competence to make a decision on the State's

plea bargain offer. In April 2008, the trial court granted Wojciechowski's motion for new

trial.1 This appeal ensued. See TEX . CODE CRIM . PROC . ANN . art. 44.01(a)(3).

                       STANDARD OF REVIEW and APPLICABLE LAW

       Whether to grant or deny a motion for new trial is a decision within the sound

discretion of the trial court. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App.

1993). We review the trial court's decision for an abuse of discretion, examining the record

to determine whether the court granted the motion for new trial arbitrarily or unreasonably

or without reference to any guiding rules or principles. State v. Trevino, 930 S.W.2d 713,

716 (Tex. App.–Corpus Christi 1996, pet. ref'd). We affirm the trial court's action if it is

correct on any theory of law applicable to the case and supported by the record. State v.

Read, 965 S.W.2d 74, 77 (Tex. App.–Austin 1998, no pet.); see also State v. Herndon, No.

13-02-00518-CR; 2008 WL 2514811, at *1 (Tex. App.–Corpus Christi June 25, 2008, pet.

dism'd) (mem. op., not designated for publication).

       1
           The trial court did not state the grounds on which it granted W ojciechowski's m otion for new trial.
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        A defendant's competency to stand trial can be challenged in a motion for new trial.

Purchase v. State, 84 S.W.3d 696, 699 (Tex. App.–Houston [1st Dist.] 2002, pet. ref'd)

(citations omitted). When a trial court hears a defendant's motion for new trial based on

competency, it should apply the normal standard used in deciding a motion for new trial,

under which the trial court considers all the evidence presented, judges the credibility of

witnesses, and resolves conflicts in the evidence.2 See id.; see also Dominguez v. State,

No. 02-08-00056-CR, 2009 WL 579294, at *1 (Tex. App.–Fort Worth Mar. 5, 2009, no pet.)

(per curiam) (mem. op., not designated for publication).

                                                DISCUSSION

        By its second issue, the State argues that the trial court erred in granting

Wojciechowski's motion for new trial on the basis that he was incompetent to make a

knowing, voluntary, and intelligent plea decision. We disagree.

        Under the Texas Code of Criminal Procedure, "[a] person is incompetent to stand

trial if the person does not have: (1) sufficient present ability to consult with the person's

lawyer with a reasonable degree of rational understanding; or (2) a rational as well as

factual understanding of the proceedings against the person." TEX. CODE CRIM . PROC . ANN .

art. 46B.003(a) (Vernon 2006). The law on competency applies, in addition to an actual



        2
            W e note that the Beaum ont Court of Appeals recently held that the traditional m otion for new trial
standard of review should not apply when the issue of com petency is raised. Lasiter v. State, 283 S.W .3d
909, 925-26 (Tex. App.–Beaum ont 2009, pet. ref'd). Rather, the Beaum ont court concluded that trial courts
should "apply a bona fide doubt standard to com petency issues raised in m otions for new trial," the sam e
standard used by trial courts to determ ine whether a defendant is entitled to a com petency hearing. Id. at 926.
The issue on appeal in Lasiter, however, is not the sam e as the issues raised here by the State. The
defendant in Lasiter, whose m otion for new trial was denied, com plained of the trial court's failure to conduct
an evidentiary hearing on his claim that he was incom petent during his plea and punishm ent proceedings.
Id. at 925. In this case, W ojciechowski's m otion for new trial was granted by the trial court after an evidentiary
hearing, and the State challenges the court's decision to grant the m otion, not its decision to hold a hearing.
As a result, we conclude the holding in Lassiter is inapposite to this appeal.



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trial on the merits, to plea bargaining—in other words, a defendant's decision regarding a

plea bargain offer is not voluntary, knowing, and intelligent unless he is legally competent.

See Edwards v. State, 993 S.W.2d 171, 175 (Tex. App.–El Paso 1999, pet. ref'd)

(addressing appellant's contention that his guilty plea was involuntary, in part, as an issue

of competency); see also TEX . CODE CRIM . PROC . ANN . art. 26.13(b) (Vernon Supp. 2009)

(providing that a plea of guilty should not be accepted by the trial court unless the

defendant appears mentally competent and enters the plea voluntarily); Ceasar v. State,

Nos. 01-07-00769-CR, 01-07-01028-CR, 2008 WL 2611927, at *3 (Tex. App.–Houston [1st

Dist.] July 3, 2008, no pet.) (mem. op., not designated for publication).

       At the hearing on Wojciechowski's motion for new trial, the trial court heard

testimony from Wojciechowski and his trial counsel. Wojciechowski's trial counsel testified

that Wojciechowski "didn't really acknowledge" the plea bargain offer when counsel

communicated it to him. Instead, counsel stated, "what [Wojciechowski] said and kept

saying throughout the time I represented him is, I don't think I did anything wrong." When

asked whether Wojciechowski was capable of making a voluntary, knowing, and intelligent

decision regarding the plea bargain offer, Wojciechowski's trial counsel stated, "I can't tell

you that. I mean he said the right words. When I would talk to him he made sense. But

that doesn't mean the mental illness wasn't in there and I didn't see it." However, when

questioned by the prosecutor about whether Wojciechowski was able to aid in the

preparation of his defense, counsel stated, "Yes, he was."

       Wojciechowski testified that he has severe mental health issues that have gone

untreated his entire life. He testified that he hears voices and that the voices advise him



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in making life decisions. With regard to the plea bargain offer, Wojciechowski stated that

he never understood that he could receive more than ten years' confinement if the case

went to trial. He believed that he was eligible for probation and that, even if he went to trial,

the most he could receive was ten years. When questioned about whether the voices

guided him in making his decision regarding the State's plea bargain offer, Wojciechowski

testified as follows:

       Usually [the voices] are helpful. This time I thought they were being helpful
       but they weren't being exactly helpful because if they would have been
       helpful, they would have told me that I would have got worse. But it was
       never under the impression from anybody that it was going to get worse than
       ten.

       The court also took judicial notice of and considered the report of Joel Kutnick, M.D.,

a psychiatrist who had examined Wojciechowski prior to trial in connection with a possible

insanity defense. Dr. Kutnick's exam took place close in time to when Wojciechowski

made his decision regarding the plea offer. His report included the following conclusions:

              The defendant is an alert white male. . . . His conversation is logical
       and goal directed. His associations are good. He is able to explain himself.
       At times, he laughs inappropriately.            He does have psychotic
       symptomatology. He has auditory hallucinations. According to his mother,
       he also has paranoid ideation and is somewhat delusional about people
       spying on him. He is oriented to person, time, and place. His recent and
       remote memory appear to be intact. His attention and concentration span
       are adequate enough to carry on a coherent conversation. His intelligence
       is judged to be in at least the average range. He has absolutely no insight
       into himself. Basically, he does not understand he is quite mentally ill. . . .

              ....

              As I was interviewing the defendant, I felt he was definitely mentally
       ill. The mother's history confirms this. He has the typical symptoms of
       Schizoaffective Disorder. He is paranoid and delusional. He has periods of
       depression and mania. He does hallucinate.



                                               6
         Although Wojciechowski's trial counsel testified that he believed Wojciechowski was

able to aid him in preparation of his defense, he also stated in his testimony that he had

doubts as to whether Wojciechowski understood the plea-bargain offer. Wojciechowski

asserted by his testimony that he never understood the plea bargain offer or the

ramifications of rejecting it, i.e. that he could receive more prison time if he went to trial.

Furthermore, it also appears based on Wojciechowski's testimony that his decision

regarding the plea offer was guided by the "voices in his head." The report of Dr. Kutnick

confirmed that Wojciechowski has schizoaffective disorder and suffers from hallucinations

and paranoid delusions. However, Dr. Kutnick's report also indicated that Wojciechowski

is able to carry on a coherent conversation and appears oriented to person, time, and

place.

         "Faced with conflicting testimony regarding [a defendant]'s mental condition, the trial

court, as finder of fact at the hearing, [is] entitled to assess the credibility of witnesses and

believe or disbelieve any testimony presented." Purchase, 84 S.W.3d at 700. The trial

court here was confronted with just such a conflicting state of evidence. Therefore, faced

with the conflicting evidence and testimony regarding Wojciechowski's mental state and

understanding of the plea bargain, we cannot conclude that the trial court abused its

discretion in granting Wojciechowski's motion for new trial. See Trevino, 930 S.W.2d at

716. There was evidence presented at the hearing that Wojciechowski did not have a

rational or factual understanding of the plea bargain offered by the State, see TEX . CODE

CRIM . PROC . ANN . art. 46B.003(a), the trial court was entitled to credit that evidence, and




                                                7
it did not err in granting Wojciechowski's motion for new trial on that basis. See Purchase,

84 S.W.3d at 699.

       Having overruled the State's second issue on competency grounds, we need not

reach the State's remaining issue regarding the alleged Brady violation. See TEX . R. APP.

P. 47.1; see also Read, 965 S.W.2d at 77 (holding that the court of appeals can affirm the

trial court's action if it is correct on any theory of law applicable to the case and supported

by the record).

                                       CONCLUSION

       The order of the trial court granting Wojciechowski's motion for new trial is affirmed.



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 17th
day of December, 2009.




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