BRIAN MONTEZ BOOKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 2, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01184-CR
 
No. 05-06-01185-CR
............................
 
BRIAN MONTEZ BOOKER, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the Criminal District Court 5
Dallas County, Texas
Trial Court Cause Nos. F05-40150-L and F05-57821-L
.............................................................
 
MEMORANDUM OPINION
 
Before Justices Richter, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
 
 
        A jury convicted Brian Montez Booker of murder   See Footnote 1  and aggravated kidnapping   See Footnote 2  and assessed his punishment at life and thirty years confinement, respectively, and a $10,000 fine in each case. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgments.
        The record shows appellant was indicted on November 2, 2005, for the murder of his stepson, Joshua Henry, and the aggravated kidnapping of his wife, Yolanda Booker. He was evaluated for competency twice in the next two months. Each time, the doctor concluded appellant was incompetent to stand trial but that he would regain competency within the foreseeable future. On January 20, 2006, the trial court ordered appellant confined in the North Texas State Hospital, Vernon Campus, for a period not to exceed 120 days. On March 15, Dr. Joseph Black, chief psychiatrist for the competency program at Vernon, certified in a letter and final report that appellant was mentally competent to stand trial. On March 20, the trial court issued a bench warrant for appellant. No other action appears to have been taken with regard to appellant's competency before trial began on August 20. The jury convicted appellant of murder and aggravated kidnapping, and appellant filed a notice of appeal in each case on August 25. On December 5, the trial court made a docket entry in the record of each case that appellant's “competency restored.”
        In his first issue, appellant contends the trial court erred by proceeding to trial without making a judicial determination that he had regained competency. He contends the trial court's docket sheet entries are not proper judicial determinations of his competency because they do not state when his competency was restored. Appellant asks us to abate these appeals and remand to the trial court for a judicial determination of his competency at the time of trial. The State argues appellant did not preserve this issue for our review because he did not raise it below. Appellant contends he did not have to raise the issue because it was the State's burden to show he had regained competency. Assuming, without deciding, this issue is properly before us, we find no reversible error.
        When a defendant has been found incompetent to stand trial, he may be committed to a state hospital for treatment. Tex. Code Crim. Proc. Ann. art. 46B.071, .073 (Vernon 2006). If the defendant becomes competent to stand trial, the head of the facility must send a report to the committing court. Id. art. 46B.080(b). When the defendant is returned to the trial court, the court shall make a determination of the defendant's competence to stand trial. Id. art. 46B.084(a). Unless the State or defendant objects within fifteen days after the report is served, the court is authorized to make the determination based solely on the medical report. Id. The records in these cases reflect that neither the State nor appellant objected to the report.
        We agree the statute requires the trial court to make a judicial determination of competency prior to resuming criminal proceedings. See id. art. 46B.084(d); Schaffer v. State, 583 S.W.2d 627, 630 (Tex. Crim. App. [Panel Op.] 1979). This determination may be evidenced by a recitation in a judgment, an order, a docket sheet entry, or any “other evidence that the court ever made a determination of competency after the appellant's return from the State hospital.” Schaffer, 583 S.W.2d at 631 (op. on reh'g); Bradford v. State, 172 S.W.3d 1, 5 (Tex. App.-Fort Worth 2005, no pet.) (same); Fuller v. State, 11 S.W.3d 393, 395 (Tex. App.-Texarkana 2000, no pet.) (same). When the trial court does not make this determination prior to trial, a retrospective determination is required. See Schaffer, 583 S.W.2d at 631; Bradford, 172 S.W.3d at 5; Fuller, 11 S.W.3d at 395.
        In this case, the trial court made a retrospective determination of competency by noting in the docket sheets that appellant's “competency restored.” We reject appellant's argument that the docket sheet entries are somehow defective because they do not state when appellant's competency was restored.
        In Bell v. State, 814 S.W.2d 229 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd), appellant moved to quash the enhancement paragraphs of his indictment because, at the time of those prior convictions, he previously had been found incompetent and there was no judicial determination of his competency after his return from the hospital. Id. at 230. The court reviewed the prior convictions and found that the judgments in two of those cases contained a recital of “competent.” Id. at 233. The court concluded the State could properly use those two convictions for enhancement because the recitation of “competent” in the judgment was sufficient to show the appellant had regained competency. Id.         We do not see any valid distinction between an entry of “competent” in a judgment entered after conviction and an entry of “competency restored” on the docket sheet after trial. Because the trial court in this case made a retrospective finding of appellant's competency by his docket sheet entries, we cannot grant appellant any more relief than he has already received. See Schaffer, 583 S.W.2d at 631 (abating appeal for retrospective determination of competency at time of trial); Byrd v. State, 719 S.W.2d 237, 238 (Tex. App.-Dallas 1986, no pet.) (same).
        We resolve appellant's first issue against him.
        In his second issue, appellant argues the trial court should have sua sponte conducted an informal inquiry into his competency pursuant to article 46B.004 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 46B.004. To trigger a competency hearing, there must be evidence suggesting the defendant meets the test of legal competence. See id. art. 46B.004(b), (c); McDaniel v. State, 98 S.W.3d 704, 710 (Tex. Crim. App. 2003) (applying predecessor statute). We review a trial court's decision not to conduct a competency inquiry for an abuse of discretion. Moore v. State, 999 S.W.2d 385, 395 (Tex. Crim. App. 1999).
        To resolve this issue, appellant initially argues we must apply the lower evidentiary standard enunciated by the San Antonio court of appeals in Greene v. State. See Greene v. State, 225 S.W.3d 324, 328 n.3 (Tex. App.-San Antonio 2007, no pet.) (op. on reh'g). In that case, the court held the change in language to “evidence suggesting” incompetence under article 46B.004 is a lower standard than evidence raising a “bona fide doubt” about defendant's competence under the former statute. See id.; McDaniel, 98 S.W.3d at 710. However, we conclude we do not need to decide this issue because, under either standard, there is no evidence appellant was incompetent to stand trial.
        A defendant 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 does not have a rational and factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46B.003. Appellant contends evidence suggesting he was incompetent to stand trial included his own “bizarre,” irrational testimony about the murder and kidnapping; his admission that he took his wife at gunpoint against her will despite having pleaded not guilty to aggravated kidnapping; the fact that the medical report stating he was competent was prepared five months before trial; and the fact that the medical report warned that if appellant failed to follow the recommendations contained in the report, his trial incompetence could return.
“Bizarre” testimony
        Appellant testified in his own defense and explained how Joshua was murdered. He argues his explanation was so “bizarre” and “not rational” that it shows he was incompetent. We do not agree.
         The evidence showed that Yolanda Booker met appellant in 2000 through a family acquaintance. At that time, appellant lived in Denver with his wife and three children. Later that year, Yolanda moved to Denver with her youngest son, Joshua, and began seeing appellant. Yolanda and Joshua lived with appellant's mother. Joshua returned to Dallas after three months to live with relatives. At some point, appellant divorced his wife. He married Yolanda in December 2002. Two years later, the couple moved to Lancaster, a suburb of Dallas, with appellant's youngest daughter. Yolanda testified the marriage was in trouble when they moved to Lancaster, and, in October 2004, she told appellant to leave. He moved back to Denver, but returned to Lancaster in February 2005 to try to work things out. The couple attempted to save their marriage, but in September of that year, Yolanda told appellant “it was over.” Appellant continued to live with Yolanda until he could make arrangements to go back to Denver.
        On Monday, September 26, 2005, appellant went to a police supply shop to purchase a handgun. The shop's clerk testified appellant's application was not approved until the next day. Appellant picked up the gun on Tuesday, September 27 at 9:50 a.m.         Joshua's best friend, Zaneta Herst, testified she was serving as an office aide at Lancaster junior high on September 27 when appellant came to the office and asked to take Joshua out of school. Zaneta was given a hall pass to remove Joshua from class. Joshua asked Zaneta why appellant was there, but Zaneta did not answer. Zaneta testified Joshua left the school with appellant. The time written on the hall pass was 11:57 a.m.
        At 12:35 p.m., thirty-eight minutes after Joshua left school with appellant, appellant arrived at Yolanda's work. He waited for the lobby to clear, then pointed a gun at Yolanda and told her that if she screamed and did not leave with him, he was going to kill her. Yolanda attempted to hold onto the staircase, but appellant pulled her down the stairs and shoved her into the car. Co-workers called 9-1-1. Appellant's actions were caught on the company's surveillance camera, along with the time the incident occurred. The surveillance photographs showed Joshua was not with appellant and Yolanda.
        The Dallas police department investigated Yolanda's disappearance as an aggravated kidnapping. The next day, Dallas police officers contacted the Lancaster police department about their investigation into Yolanda's kidnapping, and advised Lancaster police that Yolanda's son, Joshua, was missing. Lancaster detective Stacy Kendrick began an investigation into the whereabouts of Joshua and learned Joshua had left school the day before with appellant. The police issued an Amber Alert. Around 6 p.m., officers found Joshua's body in a ditch approximately two miles from the junior high school. He had been shot once in the left lower eyelid; the bullet exited through the back of his head. Joshua clutched a hall pass in his left hand.
        The investigation led police to Denver. Yolanda testified appellant asked her if she wanted to go to Denver and she said “yes” because she thought appellant would kill her if she refused. They arrived in Denver September 28. While appellant and Yolanda were sleeping at the home of appellant's nephew, the FBI entered the home and arrested appellant. A victim's advocate in Denver informed Yolanda that Joshua had been murdered in Lancaster the day before.
        During the investigation, police officers found a gun in the trunk of appellant's car, along with a receipt for the gun from the police supply shop. Testing showed the bullet recovered from the ditch where Joshua was found was fired from the gun in appellant's car. Detective Kendrick testified he drove from Joshua's school to Yolanda's work, obeying the speed limit, in twenty-six minutes.
        During his testimony, appellant explained that about a month before this incident, Joshua had been threatened by two people on two different occasions: once by an unknown man on a motorcycle, and once by someone with a gun. Appellant purchased a handgun to protect his family. When he arrived home on September 27 after purchasing the gun, he saw three men, each with a gun, knocking on the door of his house looking for Joshua. Appellant told them he was Joshua's stepfather. One of the gunmen took appellant's gun, ordered him in the car, and ordered him to drive to Joshua's school. The gunman told appellant he wanted appellant to take Joshua out of school and, if he did not, he would kill appellant. He also told appellant he had “people” watching Yolanda at work and would kill her if she tried to leave. This gunman rode in the car with appellant to the school. The other two gunmen followed on motorcycles. They communicated with each other with Nextel walkie-talkies.
        At the school, appellant asked to speak to Joshua, and Zaneta was given a hall pass to take Joshua out of class. Appellant did not tell Joshua about the motorcycle gang or ask why they were looking for him. Instead, he decided not to take Joshua out of school as the gunman had ordered and walked out to the car by himself. As he reached the car door, Joshua came out of the school and asked if he could have a couple of dollars. Even though he knew the gunman was in the car waiting for Joshua, appellant told Joshua he could come to the car and get the money. When Joshua got to the car, the gunman forced him into the car. They drove off, with the other two gunmen following on the motorcycles. When they had driven a distance from the school, the gunman ordered appellant to stop the car. Joshua got out of the car and tried to run away. The two gunmen on motorcycles chased Joshua and brought him back to the other gunman. That gunman put Joshua in a headlock and shot him once in the head with appellant's gun. The gunman dropped appellant's gun, got on one of the motorcycles, and the three gunmen left.
        Appellant testified that after the gunman shot Joshua, he was in “frantic mode.” He did not call police because he did not have a cell phone and it was not a priority to him. Instead, he picked up the gun so no one else would get hurt and drove to Yolanda's work to take her to safety. She refused to go with him, and he did not want to tell her what had just happened. So, he used the gun to force her to leave with him. They left for Denver that same day, and he never told Yolanda about Joshua and never called the police.
        Appellant claims this explanation of the crime is so “bizarre” and “not rational” that it should have suggested to the trial court that he was incompetent. We do not agree. Although some of appellant's testimony may not have been credible, it did not suggest he lacked a rational understanding of the case against him. See Baldwin v. State, 227 S.W.3d 251, 256 (Tex. App.-San Antonio 2007, no pet. h.).
Appellant's testimony admitting he kidnapped his wife
        Appellant also argues his incompetence was evident when he admitted kidnapping his wife at gunpoint even though he previously pleaded not guilty to this offense. We do not agree this is evidence of incompetence. The State had earlier introduced direct evidence, the surveillance photographs, of appellant dragging Yolanda out of the office at gunpoint. Appellant admitted what he could not dispute. And he tried to explain it by saying he had to get Yolanda out of the office for her own safety. This does not show appellant lacked a rational understanding of the proceedings.
Medical report
        To the extent appellant attempts to argue he did not follow the doctor's recommendations and lapsed into trial incompetency between the doctor's final report and the date the trial began, there is no evidence to support this contention. The record does not note any outbursts or bizarre behavior during trial suggesting incompetence. See LaHood v. State, 171 S.W.3d 613, 618-19 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd); Greene, 225 S.W.3d at 327-29; Reed v. State, 14 S.W.3d 438, 439-40 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). And appellant's responses to the questions posed were not irrational, incoherent, nonresponsive, or rambling; and he did not show he was out of touch with reality. See LaHood, 171 S.W.3d at 618-19; Greene, 225 S.W.3d at 329. Indeed, appellant's own testimony disputes his contention. See Ryan v. State, 937 S.W.2d 93, 106 (Tex. App.-Beaumont 1996, pet. ref'd) (accused's own testimony at trial is good barometer of his competency to stand trial). Cf. Reed, 14 S.W.3d at 439-40. Appellant testified out of the presence of the jury that he and his counsel had discussed his decision whether to testify, he understood he had a right not to testify, he understood he would be cross-examined by the State if he chose to testify, no one could stop him from testifying, it was his desire to testify, and his decision was made freely and voluntarily.
        In summary, appellant does not point to, and we have not found, anything in the record that demonstrates he was unable to consult with his lawyer with a reasonable degree of rational understanding, or that he did not have a rational and factual understanding of the proceedings against him.
        We resolve appellant's second issue against him.
        We affirm the trial court's judgments.
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061184f.u05
 
 
Footnote 1 Appeal number 05-06-01184-CR (trial court cause number F05-40150-L).
Footnote 2 Appeal number 05-06-01185-CR (trial court cause number F05-57821-L).