AFFIRM; and Opinion Filed October 8, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00331-CR
No. 05-14-00332-CR
No. 05-14-00333-CR
No. 05-14-00334-CR
NEKO EARSY BOYKIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F13-12601-J, F13-58095-J, F13-58096-J, F13-58097-J
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Lang-Miers
A jury convicted appellant Neko Earsy Boykin on four charges of aggravated robbery
and assessed his punishment in each case at 30 years’ imprisonment and no fine. Appellant
raises three issues on appeal, all related to whether the trial court followed the proper procedures
in determining whether he was competent to stand trial. For the reasons that follow, we affirm
the trial court’s judgments.
BACKGROUND
In mid-July 2013, appellant embarked on a late night string of four aggravated robberies
and the burglary of a vehicle. In approximately a three-hour time span, appellant and an
accomplice robbed at gun point the employees of three gas station/convenience stores and a cab
driver and burglarized a vehicle belonging to a security guard at a local business. The security
guard saw appellant and the accomplice on video surveillance and was able to detain the
accomplice until police arrived. The police investigation connected appellant to all of the
crimes, and he was arrested and indicted on four charges of aggravated robbery with a deadly
weapon.
Appellant filed a motion for a competency examination stating that he “has no memory of
the offenses in which he has been accused and his attorney cannot adequately prepare for trial.”
At a pretrial hearing, the trial court asked appellant several questions, such as to confirm his
name, whether he understood the charges against him and the punishment range, whether he
understood what the pretrial hearing was about, and whether he understood the State’s plea
recommendation. Appellant said he understood all those things. Then the court discussed other
pretrial matters before finally addressing the motion for a competency examination. Appellant’s
counsel told the trial court that appellant “couldn’t talk to me about the circumstances and the
events that took place that night” and that “even up until today, he’s not had any memory of it
and couldn’t discuss it with me; and, so, he wasn’t able to assist me.” Counsel told the trial court
that appellant did not have a history of mental illness, but that he “was in the resource classes at
school, not in the regular classes.” The court said, “All right. Well, we’ll have him evaluated for
competency and go from there.”
Five days after this pretrial hearing, the court signed an order to have appellant examined
regarding his competency “to stand trial and/or if [appellant] is a person with a mental illness in
accordance with Chapter 46B of the Code of Criminal Procedure.” However, between the time
the court signed the order and the beginning of trial about a week later, the court canceled the
competency examination.
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Nothing was mentioned about the competency examination when the trial began, and the
jury found appellant guilty of all charges. Before the punishment phase began, however, defense
counsel told the court that she had “something else for the record.” She appeared to have just
learned that the court canceled the competency examination of appellant:
[DEFENSE COUNSEL]: During the pretrial, you signed an order for a
psychiatric exam with Dr. Pittman, and when I went to check on the status of it –
THE COURT: They didn’t do it.
[DEFENSE COUNSEL]: They didn’t do it, and it was canceled.
THE COURT: They didn’t do it because the issue – my understanding of the
issue – well, the evaluation that was ordered with Dr. Pittman was a competency
evaluation. It’s my understanding competency is not an issue.
[DEFENSE COUNSEL]: Well, I’m not certain of that, Judge.
THE COURT: Well, then that should have been brought up before the trial
started because I don’t think that the issue is competency. I mean, at least the
representation made to me was not that it was competency. He was saying he
didn’t remember something.
[DEFENSE COUNSEL]: Yes, ma’am.
THE COURT: Not remembering is not an issue of competency that may be an
issue having to do with insanity or something like that, but it’s not a competency
issue.
[DEFENSE COUNSEL]: It was my understanding that he would evaluate him
for competency as well, and so that’s why I didn’t – I didn’t bring it up. I just
thought that he would get a chance to be evaluated and just some things that –
THE COURT: Well, the standard regarding competency is whether your client
understands the proceedings and is able to help your [sic] during the trial.
[DEFENSE COUNSEL]: Well, that has been some of my issues and so –
THE COURT: But he’s saying he can’t help you in trial not because –
incompetency goes to where he is right now.
[DEFENSE COUNSEL]: Yes, ma’am.
THE COURT: It does not go to where he was on the date of the offense.
[DEFENSE COUNSEL]: Yes, ma’am but since –
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THE COURT: – so unless you’re indicating that today he is unable to understand
what’s going on and unable to help you, not due to his being drunk at the time of
the offense, but because of his mental disease or defect that he’s unable to help
you in trial today.
[DEFENSE COUNSEL]: My issue last week was that sort of issue that he
understood the process and what was going on, and the things that he’s been
saying to me last week, and I was under the, you know, understanding that he was
gonna be evaluated and that he had already been evaluated, and when she said he
[sic] was canceled, I went, oh, goodness, okay.
THE COURT: No. He’s not been evaluated, and based upon the representations
that were made to me, I canceled the evaluation because I did not feel like it was
an issue of competency.
[DEFENSE COUNSEL]: Yes, ma’am.
THE COURT: Voluntary intoxication does not make you incompetent.
[DEFENSE COUNSEL]: Yes, ma’am.
After this exchange, the punishment phase of trial began. Appellant testified during the
punishment phase and told the jury that he did not remember committing any of the crimes
because he was “on Xanax bars and alcohol.” He said he got the Xanax bars from a drug dealer
and the bars make “you feel sluggish and memory kind of makes you forget.”
On appeal, appellant does not challenge the sufficiency of the evidence to support his
convictions. In three “points of error” argued together, appellant contends that the trial court
erred when it (1) canceled a previously ordered competency examination, (2) did not stay the
proceedings so that he could be examined by an expert regarding his competency, and (3) did not
conduct another inquiry into his competency before the punishment phase of trial.
APPLICABLE LAW & STANDARD OF REVIEW
“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.” TEX. CODE CRIM. PROC.
ANN. art. 46B.003(b) (West 2006). A defendant is incompetent to stand trial if he lacks
(1) sufficient present ability to consult with his lawyer with a reasonable degree of rational
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understanding or (2) a rational as well as factual understanding of the proceedings against him.
Id. art. 46B.003(a). Any party or the court on its own may suggest that the defendant is
incompetent to stand trial. Id. art. 46B.004(a) (West Supp. 2014). “A suggestion of
incompetency is the threshold requirement for an informal inquiry . . . and may consist solely of
a representation from any credible source that the defendant may be incompetent.” Id. art.
46B.004(c–1). “Evidence suggesting the need for an informal inquiry may be based on
observations made in relation to one or more of the factors described by Article 46B.024 or on
any other indication that the defendant is incompetent within the meaning of Article 46B.003.”
Id. The article 46B.024 factors include whether a defendant can
• understand the charges against him and the potential consequences of the proceeding;
• disclose to counsel pertinent facts, events, and states of mind;
• engage in a reasoned choice of legal strategies and options;
• understand the adversarial nature of criminal proceedings;
• exhibit appropriate courtroom behavior; and
• testify.
Id. art. 46B.024(1).
In deciding whether to conduct an informal inquiry, a trial court must consider only the
evidence tending to show incompetency and determine whether that evidence rises to the level of
some evidence, that is, “a quantity more than none or a scintilla.” See Ex parte LaHood, 401
S.W.3d 45, 52 (Tex. Crim. App. 2013). If the court determines there is some evidence to support
a finding of incompetency, the court must “stay all other proceedings in the case” and order an
examination of the defendant. TEX. CODE CRIM. PROC. ANN. arts. 46B.004(d), .005(a).
We review a trial court’s determination under Chapter 46B for an abuse of discretion, and
we will not disturb the ruling absent a showing that the decision was arbitrary and unreasonable.
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See Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App. 2009), superseded by statute, TEX.
CODE CRIM. PROC. ANN. art. 46B.004, on other grounds as recognized in Turner v. State, 422
S.W.3d 676, 692 (Tex. Crim. App. 2013).
DISCUSSION
A trial court’s order for a competency examination under Chapter 46B should be based
on some evidence to support a finding that the defendant is incompetent. See TEX. CODE CRIM.
PROC. ANN. art. 46B.004(d); see also Ex parte LaHood, 401 S.W.3d at 52. But appellant
presented no evidence with his motion or at the pretrial hearing suggesting that the lack of
memory, which prevented him from assisting counsel, was because he did not have “sufficient
present ability to consult with [his] lawyer with a reasonable degree of rational understanding”
or lacked “a rational as well as factual understanding of the proceedings against [him].” See
TEX. CODE CRIM. PROC. ANN. art. 46B.003(a) (emphasis added). Without some evidence to
support a finding under 46B.003(a)(1) or (2), the law did not require the trial court to order a
competency examination. See TEX. CODE CRIM. PROC. ANN. art. 46B.004.
Additionally, the trial court alluded to appellant’s intoxication as the cause of his lack of
memory, and defense counsel did not offer a different explanation for appellant’s inability to
remember the events of that night. Without more, amnesia or being “too drunk at the time of the
incident to remember what happened . . . does not render an individual incompetent to stand
trial.” Gonzales v. State, 313 S.W.3d 840, 842 & n.8 (Tex. Crim. App. 2010); see also Morris v.
State, 301 S.W.3d 281, 293 (Tex. Crim. App. 2009) (comparing defendant’s amnesia to
“missing” evidence or witnesses confronted by all defendants). One court has said that “the only
instance in which amnesia could potentially constitute incompetence would be the ‘extraordinary
situation . . . where the amnesia compromises the defendant’s ability to think rationally.’”
Iniquez v. State, 374 S.W.3d 611, 616 (Tex. App.—Austin 2012, no pet.) (quoting Gonzales, 313
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S.W.3d at 842). Appellant did not offer evidence that his lack of memory compromised his
ability to think rationally.
Appellant also states that he could “find no authority allowing the trial court to vacate an
existing order to examine a defendant for competency.” But a trial court retains authority to
reconsider its rulings until a final judgment is rendered. See Kirk v. State, 454 S.W.3d 511, 512–
15 & n.13 (Tex. Crim. App. 2015) (citing Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.
1993) (trial court retains continuing control over interlocutory orders and has power to set those
orders aside any time before final judgment)). We conclude that the trial court did not abuse its
discretion by canceling the previously ordered competency examination because there was no
evidence to support a finding of incompetency and, consequently, no examination was required.
See id. arts. 46B.004(c–1), .005(a). And because there was no evidence of incompetency, the
trial court did not abuse its discretion when it did not stay the proceedings to have appellant
examined for competency. See id. art. 46B.004(d).
Appellant also contends that the issue of his competency arose again during trial on the
merits and that the trial court erred by not conducting another inquiry and ordering a competency
examination at that time. We disagree.
Defense counsel, when addressing the trial court about the cancelation of the competency
examination, said, “My issue last week was that sort of issue that he understood the process and
what was going on, and the things that he’s been saying to me last week, and I was under the,
you know, understanding that he was gonna be evaluated and that he had already been evaluated,
and when she said he [sic] was canceled, I went, oh, goodness, okay.” Counsel’s statement does
not support a finding that appellant was incompetent; in fact, the statement shows the opposite
was true (“he understood the process and what was going on”). See TEX. CODE CRIM. PROC.
ANN. arts. 46B.003(a)(2). And appellant did not present other argument or evidence raising the
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issue of his competency during trial on the merits. Consequently, we conclude that no error
occurred when the trial court did not inquire about appellant’s competency or order a
competency examination during trial on the merits.
We resolve appellant’s three issues against him.
CONCLUSION
We affirm the trial court’s judgments.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do not publish
TEX. R. APP. P. 47.2(b)
140331F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEKO EARSY BOYKIN, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-14-00331-CR V. Trial Court Cause No. F13-12601-J.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Brown and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of October, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEKO EARSY BOYKIN, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-14-00332-CR V. Trial Court Cause No. F13-58095-J.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Brown and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of October, 2015.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEKO EARSY BOYKIN, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-14-00333-CR V. Trial Court Cause No. F13-58096-J.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Brown and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of October, 2015.
–11–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NEKO EARSY BOYKIN, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-14-00334-CR V. Trial Court Cause No. F13-58097-J.
Opinion delivered by Justice Lang-Miers.
THE STATE OF TEXAS, Appellee Justices Brown and Schenck participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 8th day of October, 2015.
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