Higginbotham v. State

807 S.W.2d 732, 1991 WL 3162
CourtCourt of Criminal Appeals of Texas
DecidedMay 1, 1991
Docket413-89
StatusPublished
Cited by80 cases

This text of 807 S.W.2d 732 (Higginbotham v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higginbotham v. State, 807 S.W.2d 732, 1991 WL 3162 (Tex. 1991).

Opinions

OPINION ON STATE’S AND APPELLANT’S PETITIONS FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant, Neil Wayne Higginbotham, was convicted of murder and sentenced to 50 years in the Texas Department of Corrections.1 The Fourteenth Court of Appeals reformed the judgment to delete the affirmative finding, and affirmed appellant’s conviction. Higginbotham v. State, 769 S.W.2d 265 (Tex.App. — Houston [14th] 1989, pet. granted). We granted appellant’s petition for discretionary review to decide:

Whether the Court of Appeals utilized the proper methodology for analyzing harm when an illegally obtained confession is admitted into evidence, and the defense is insanity.

On the afternoon of May 5, 1986, appellant entered the offices of Houston’s First Methodist Church. Carrying a 9 mm automatic pistol, he took the elevator to the fifth floor and walked down the hall, passing several people. He warned passersby to “call an ambulance.” Appellant entered the office of Reverend Anderson, and said he was looking for the senior pastor, Dr. Hinson. At gunpoint, appellant forced Reverend Anderson to take him to Dr. Hin-son’s office, but when they arrived Dr. Hinson was not there. In an empty office nearby, the two had a loud discussion in which Reverend Anderson was overheard to say “We’ve tried to help you ... I know you’re serious” and appellant exclaimed [733]*733“I’m serious. I mean it.” This loud exchange was followed by a gunshot.

Then appellant backed out of the office into a hallway where he was met by another associate pastor. He pointed the gun at the pastor, who ducked into a nearby office. Appellant again got on the elevator, and when he reached the ground floor he was met with another associate pastor. He pointed the gun at the pastor, asked if Dr. Hinson was in the building, and when the pastor said he was not, appellant left.

According to a neighbor, appellant soon arrived at the home where he lived with his mother. The neighbor testified that appellant said “I shot a man and I need help, and I’m [the] son of King David, and call Pat Robertson,” then disappeared into the house. While in the house, appellant told his neighbor over the phone that he would not come out for fear the authorities would harm him. The officers assured appellant over the neighbor’s phone that they would not hurt him, so he surrendered and was arrested.

Appellant was taken to the Houston Police Department’s homicide division and was given Miranda warnings. At that time, he did not indicate that he wanted a lawyer. When officers asked appellant if he would make a statement he responded first by speaking in tongues, then he told the officers that he shot a man at the church and witnesses saw him do it.

Shortly thereafter, appellant was taken before a magistrate and admonished. It was at this point that he requested an attorney. The magistrate told appellant he should ask the district judge, who he would see within 24 hours, for an attorney. Officers escorted appellant back to a police interview room, where they asked if he still wanted to talk to them. Appellant said he knew he would get an attorney later and, after two more sets of Miranda warnings, he gave the tape recorded oral confession challenged on direct appeal. At trial, appellant pleaded not guilty. His sole defense was insanity.

The Fourteenth Court of Appeals found that appellant’s request for an attorney before the magistrate was an invocation of his Fifth Amendment right to counsel to prevent self-incrimination. Higginbotham v. State, 769 S.W.2d at 269 [citing Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)]. Therefore, the confession recorded afterwards at the police station was improperly obtained. Id. However, the court found that the admission of the confession constituted harmless error because:

Appellant’s confession was not the basis of the State’s case.... There was an abundance of overwhelming evidence demonstrating appellant’s guilt. The confession was merely cumulative of existing relevant facts; the State did not need this evidence to establish appellant’s guilt in committing the crime.

Id., at 272 (citations omitted). The court of appeals decided on this basis that the confession did not meaningfully contribute to the jury’s guilty verdict, so that any error that occurred was harmless.

Appellant argues that the admission of the taped confession was harmful, not in the sense that it contributed to a finding of guilt, but that it affected the jury’s rejection of appellant’s insanity defense because of the calm demeanor exhibited by appellant while giving the confession.2 There is evidence in the record to support this contention. In fact, the court of appeals acknowledged that

the prosecutor’s references to the confession did not dwell on the content of the appellant’s statements. Instead, the prosecutor discussed [the interviewing officers’] impressions regarding appellant’s demeanor during the interview.... The State did not urge the jury to consider appellant’s statements as evidence of sanity. Instead, the State’s arguments discussed appellant’s apparent rational [734]*734conduct as viewed by third parties and challenged on the basis upon which [the defense expert] made his determination of appellant’s mental condition.

Id., at 273. The prosecutor also argued that a defense expert’s testimony that appellant was insane at the time of the offense was less credible than the demeanor actually exhibited by appellant because so much time had passed before the defense expert actually examined appellant. Id.

Appellant attacks the methodology employed by the court of appeals in making its determination of harmless error. This methodology considered such things as the importance of the evidence in question to the State’s case, the cumulative nature of the evidence, admission of corroborative or contradictory evidence, whether a curative or limiting instruction was or could have been given, the prosecutor’s comments on the evidence, the defendant’s prior history of arrests or convictions, and the overall strength of the State’s case. Id., at 272. Unfortunately, neither the parties nor the court of appeals had the benefit of this Court’s opinion in Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989). Prior to Harris, this Court had “failed to articulate a coherent standard for determining when an error is harmless.” Harris, 790 S.W.2d at 584.

In Harris, appellant urged several points of error that this Court found to be harmless, and in so doing, clarified the procedure employed in making such a determination. Id., at 588. This determination originates with the premise set out in Tex.R. App.Pro., Rule 81(b)(2), which provides:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

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Bluebook (online)
807 S.W.2d 732, 1991 WL 3162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higginbotham-v-state-texcrimapp-1991.