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.




                                                –2–
       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 –

                                              –3–
       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

                                              –4–
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.

                                                –5–
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

                                               –6–
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

                                                –7–
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




                                                –8–
                                       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.




                                             –9–
                                       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.




                                             –10–
                                       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.




                                             –12–
