Higginbotham v. State

Decision Date16 February 1989
Docket NumberNo. B14-87-00422-CR,B14-87-00422-CR
Citation769 S.W.2d 265
PartiesNeil Wayne HIGGINBOTHAM, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
CourtTexas Court of Appeals

Allen C. Isbell, Houston, for appellant.

J. Harvey Hudson, Houston, for appellee.



ELLIS, Justice.

Appellant was convicted for the offense of murder. TEX.PENAL CODE ANN. § 19.02 (Vernon 1974). After rejecting appellant's "not guilty" plea, the jury assessed punishment at fifty years in the Texas Department of Corrections. We affirm and reform the judgment to delete the affirmative finding of the use of a deadly weapon.

At approximately 4:00 p.m., on May 5, 1986, appellant entered the church offices of the First Methodist Church in downtown Houston. Appellant took the elevator to the fifth floor, carrying a 9 mm. automatic pistol. When he reached the fifth floor and began walking down the hall, he passed several people. Each time he would announce that someone should "call an ambulance." Appellant entered the office of Reverend Anderson, announcing that he was looking for the senior pastor, Dr. Hinson. Appellant made Reverend Anderson escort him to Dr. Hinson's office at gun point. When both men discovered that Dr. Hinson was not in, appellant took Anderson to an empty office where both men began to have a loud discussion. A nearby church worker heard Anderson say, "We've tried to help you ... I know you're serious." This statement was followed by appellant's loud proclamation, "I'm serious. I mean it." The church worker heard the reverend again answer appellant and then a gunshot. Appellant backed out of the room where Reverend Anderson lay dying. He encountered another associate pastor. For an instant, the two men froze, and then appellant slowly leveled the gun at the associate pastor. The associate pastor ducked inside a nearby office and appellant got on the elevator. When appellant reached the ground floor, and the elevator doors opened, he encountered yet another associate pastor. He pointed his gun at the associate pastor and demanded to know Dr. Hinson's whereabouts. When the associate pastor assured appellant that Dr. Hinson was not on the premises, appellant left the building. At about 4:30 p.m., one of appellant's neighbor's saw appellant enter the driveway to appellant's mother's home. The neighbor walked toward appellant and heard appellant say, "I shot a man and I need help, and I'm [the] son of King David, and call Pat Robertson." Appellant then parked his car and disappeared into his house. The scenario which followed encompassed appellant's barricading himself in his house and refusing to leave because he feared the authorities would harm him. During the time that he remained in the house, he talked over the telephone with his next door neighbor. Officers arriving at the scene were able to communicate with appellant over the neighbor's phone and assured appellant he would not be harmed. Appellant subsequently surrendered to the authorities and was arrested. At trial, appellant pled "not guilty" and raised the affirmative defense of insanity.

In point of error one, appellant contends the trial court erred in allowing his recorded confession into evidence. Appellant argues that his statement was inadmissible because it was taken in violation of his right to counsel during custodial interrogation under the Fifth and Fourteenth Amendments to the United States Constitution.

Shortly after appellant's arrest, he was taken to the Houston Police Department's homicide division where he met Sergeants Roy Ferguson and Ruben Anderson. The officers escorted appellant to an interview room where he was advised of his Miranda rights. Appellant responded that he understood his rights and did not indicate in any manner that he desired counsel. Appellant stated that he was willing to make a statement but that he wished to first speak in tongues. Appellant spoke in a series of incomprehensible words for about twenty seconds. After appellant finished his glossolalia, he told the officers that he "shot a man at the church" and there were witnesses who had seen him do it. At this point, Sergeant Anderson typed up a statutory warning form and the officers escorted appellant to a magistrate in the municipal courts building next door. See TEX.CODE CRIM.PROC.ANN. ART. 38.22 § 3 (Vernon Supp.1989). While in the course of being "magistratized", 1 appellant told the magistrate that he would like an attorney but could not afford one. The magistrate told appellant that he would get an attorney in twenty-four hours or at the twenty-four hour hearing and to so advise the district court judge of his desire for the appointment of counsel. 2

The officers were present during this exchange and, after the warnings were administered, escorted appellant back to the interview room. The officers asked appellant whether he still wanted to talk to them since appellant had indicated that he desired an attorney. Appellant said that he still wanted to talk to the officers; he "knew he would get an attorney at a later time." The officers then gave appellant a third set of Miranda warnings and told him that his statement would be recorded. Upon starting the tape recorder, the officers administered a fourth set of Miranda warnings to appellant and asked him if he understood the warnings. Appellant subsequently gave the oral confession which is now challenged.

It is clear that counsel was not present when appellant gave any of the statements mentioned above, including the last one. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court outlined the procedural safeguards that must be taken during custodial interrogation. Included in these safeguards is the requirement that the suspect be told of this right to the presence of an attorney, either retained or appointed. The Court went on to acknowledge that the suspect's right to remain silent and his right to counsel could be waived, but cautioned that when a defendant requests in any manner and at any stage for the presence of counsel, interrogation must cease. Under Miranda, an unequivocal request for counsel precludes subsequent police-initiated interrogation. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Bush v. State, 697 S.W.2d 397 (Tex.Crim.App.1985).

Appellant's request was not made during custodial interrogation but was made before a magistrate. In Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the United States Supreme Court held that a request for custodial counsel at an arraignment is not diminished by virtue of asking a judge at such a setting and not the police during a custodial interview. An arraignment, however, is a critical stage in the initiation of formal charges by the State which confers the right to counsel under the Sixth Amendment. U.S. v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); Forte v. State, 707 S.W.2d 89 (Tex.Crim.App.1986). There has been much debate regarding what role an article 15.17 magistrate proceeding plays in the various stages of a criminal prosecution. In Wyatt v. State, 566 S.W.2d 597 (Tex.Crim.App.1978), the court held that an article 15.17 hearing, in the absence of formal charges, does not constitute a critical stage of adversarial proceedings. Therefore, no entitlement to counsel as a matter of right exists in such setting. Id. at 600. However, in Nehman v. State, 721 S.W.2d 319 (Tex.Crim.App.1986), the court held that the presence of formal charges at an article 15.17 hearing transforms such proceeding into a critical stage and confers a right to counsel. No formal charges were present against appellant at the time of this article 15.17 proceeding, and thus, appellant was not entitled as a matter of right under the Sixth Amendment to the assistance of counsel. However, while counsel is not a matter of right under the Sixth Amendment in this instance, this proceeding is an integral stage in a defendant's invocation of his Fifth Amendment right to counsel to protect him against self-incrimination. Pursuant to Miranda, when a defendant requests counsel, counsel must be provided in order to advise a defendant "during any interview with peace officers or attorneys representing the state." Miranda v. Arizona, 384 U.S. 436, 445, 470, 86 S.Ct. 1602, 1612, 1625, 16 L.Ed.2d 694 (1966). See and compare, McGee v. Estelle, 625 F.2d 1206, 1208 (5th Cir.1980), cert. denied, 449 U.S. 1089, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981). Both the magistrate and the police have a duty to ensure that counsel is provided when it has been requested. TEX.CODE CRIM.PROC.ANN. ART. 15.17 (Vernon Supp.1989). The State does not dispute that appellant asked the magistrate for appointed counsel and that the magistrate told him he could get counsel later. No testimony from the magistrate explaining the context of this exchange or the reasons in delaying appointment appears of record. 3 It belies common-sense to presume that the words "I would like an attorney but I cannot afford one" were somehow ambiguous. Similar statements such as "Uh, yeah. I think I'd like to do that" or "I think I want a lawyer" are considered facially distinct requests for counsel. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984); Jones v. State, 742 S.W.2d 398 (Tex.Crim.App.1987). Cf. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). 4

Even assuming that appellant's request was ambiguous, it was the magistrate's duty to clarify that request and ascertain appellant's true desires. Castillo v. State, 742 S.W.2d 1, 4-5 (Tex.Crim.App.1987) (after pulling out business card and showing it to detective, appellant was taken back to judge who questioned accused about desire to make a statement); Russell v. State, 727 S.W.2d 573 (Tex.Crim.App.1987) (when accused's desires are related in equivocal manner, interrogating...

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7 cases
  • Goodwin v. Johnson
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 23, 1997
    ...conceded that the defendant invoked his Fifth Amendment right to counsel at an article 15.17 hearing); Higginbotham v. State, 769 S.W.2d 265, 269 (Tex.App.--Houston [14th Dist.] 1989) (holding that a defendant's request for counsel during an article 15.17 hearing that took place prior to th......
  • Green v. State
    • United States
    • Texas Court of Criminal Appeals
    • January 12, 1994
    ...1992, pet. ref'd); Alford v. State, 788 S.W.2d 436, 439 (Tex.App.--Houston [1st Dist.] 1990); and, Higginbotham v. State, 769 S.W.2d 265, 268 (Tex.App.--Houston [14th Dist.] 1989), rev'd on other grounds, 807 S.W.2d 732 (Tex.Cr.App.1991). Therefore, I would hold that a PIA hearing under art......
  • State v. Hernandez
    • United States
    • Texas Court of Appeals
    • August 31, 1992
    ...adversarial proceedings had been initiated for Sixth Amendment purposes. Nehman, 721 S.W.2d at 322; Higginbotham v. State, 769 S.W.2d 265, 268-69 (Tex.App.--Houston [14th Dist.] 1989), rev'd in part on other grounds, 807 S.W.2d 732 (Tex.Crim.App.1991); Alford v. State, 788 S.W.2d 436, 439 (......
  • People v. Crusoe
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    • Michigan Supreme Court
    • December 7, 1989
    ...an arraignment, but did not invoke right by filling out request for counsel form available to warden but not police); Higginbotham v. State, 769 S.W.2d 265 (Tex.App.1989) (precharge request for counsel to a magistrate invokes Fifth Amendment right to counsel).4 The majority's reliance on Co......
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