Blankenship v. State

673 S.W.2d 578, 1984 Tex. Crim. App. LEXIS 721

• Court: Court of Criminal Appeals of Texas
• Decided: July 18, 1984
• Docket: 796-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

“He who represents himself has a fool for a client.”

While there may be resounding truth to the old proverb, today we must determine if the trial judge’s jealous protection of the appellant’s Sixth Amendment right to counsel demonstrated by his refusal to allow pro se representation was in error. We find that it was and reverse appellant’s conviction.

Appellant was convicted by a jury of aggravated robbery and his punishment was assessed at 35 years confinement. The El Paso Court of Appeals affirmed the conviction in Blankenship v. State, 656 S.W.2d 184 (Tex.App.—El Paso 1983). We granted appellant’s petition for discretionary review to consider the Court of Appeals' holding that appellant's request for pro se representation was conditional on his being provided with the appropriate law books and thus there was no error in the trial judge’s refusal to permit appellant to represent himself at trial.

On December 11, 1980, appellant was indicted for aggravated robbery. On February 6, 1981, a copy of the State’s Motion for Arraignment was sent to Adolfo Quija-no, the appellant’s attorney.¹ At the March 2, 1981, arraignment, appellant appeared with his attorney and pled not guilty. On March 30,1981, the day of trial, the trial judge engaged in the following colloquy with the appellant:

“THE COURT: Mr. Terry Blankenship, Mr. Quijano has informed the Court you want to represent yourself.

“DEFENDANT BLANKENSHIP: Yes, sir. I would like to pro se my own case.

“THE COURT: Of course, the law says you have a constitutional right—

“DEFENDANT BLANKENSHIP: That is right.

“THE COURT: —and providing that you have the ability.

“DEFENDANT BLANKENSHIP: I do have the ability, sir.

“THE COURT: May I ask your educational background, sir?

“DEFENDANT BLANKENSHIP: Okay. I was born in South Carolina, and I have about six years in college.

“THE COURT: I am sorry?

“DEFENDANT BLANKENSHIP: College.

“THE COURT: What college?

“DEFENDANT BLANKENSHIP: Columbia.

“THE COURT: Which college?

“DEFENDANT BLANKENSHIP: Columbia, a university in South Carolina. It is just a small town college. I don’t remember the name of it.

“THE COURT: You don’t remember the name of it?

“DEFENDANT BLANKENSHIP: No, it has been years since I have been there.

“THE COURT: How many years did you spend in that college?

“DEFENDANT BLANKENSHIP: About six years.

“THE COURT: Did you graduate?

“DEFENDANT BLANKENSHIP: No, sir.

“THE COURT: What did you major in?

“DEFENDANT BLANKENSHIP: History-

“THE COURT: How many hours did you end up with?

“DEFENDANT BLANKENSHIP: I really couldn’t say right now.

“THE COURT: Did you take any courses in law down there?

“DEFENDANT BLANKENSHIP: No, I studied that on my own.

“THE COURT: How did you study the law?

“DEFENDANT BLANKENSHIP: I went to the library and got books.

“THE COURT: When did you do that?

“DEFENDANT BLANKENSHIP: While I was there.

“THE COURT: While in college?

“DEFENDANT BLANKENSHIP: No, not while in college, in later years.

“THE COURT: What books did you study? “DEFENDANT BLANKENSHIP: United States Constitutional Law.

“THE COURT: You mean the Constitution itself?

“DEFENDANT BLANKENSHIP: Yes, and the Amendments.

“THE COURT: Did you read any other books?

“DEFENDANT BLANKENSHIP: I studied the Constitution and Constitutional Amendments. That is about it.

“THE COURT: And no other, you didn’t study any other law?

“DEFENDANT BLANKENSHIP: No. “THE COURT: What kind of work have you done since college?

“DEFENDANT BLANKENSHIP: Landscaping, mostly.

“THE COURT: Nothing that involved a great deal of writing, reading or speaking?

“DEFENDANT BLANKENSHIP: No.

“THE COURT: You understand if the Court allows you to represent yourself that I can’t help you on anything, you are on your own.

“DEFENDANT BLANKENSHIP: I am not expecting that at all.

“THE COURT: Do you know what the voir dire part of a trial is?

“DEFENDANT BLANKENSHIP: What is that?

“THE COURT: Do you know what the purpose of voir dire is?

“DEFENDANT BLANKENSHIP: I would have to see the books.

“THE COURT: All right. Do you understand that by representing yourself that you are going to be bound by the law?

“DEFENDANT BLANKENSHIP: Oh, yes.

“THE COURT: The Court is going to assume you know the law and if you don’t know the law, it is at your own risk and peril.

“DEFENDANT BLANKENSHIP: I understand that.

“THE COURT: Okay. Do you understand that it is up to you to subpoena any witnesses that you have. Do you know how to do that?

“DEFENDANT BLANKENSHIP: Yes, but I also have to be provided with the books.

“THE COURT: You are making a request for law books?

“DEFENDANT BLANKENSHIP: That is part of my Constitutional rights.

“THE COURT: What books do you want, sir?

“DEFENDANT BLANKENSHIP: Constitutional law. I want books parallel to my own case, parallel to that, like the State versus So and So, or So and So versus the State of Texas, or whatever.

“THE COURT: Do you know what the best evidence rules is, sir? I am just asking if you know some rules.

“DEFENDANT BLANKENSHIP: It has been a while since I studied. You will have to excuse me on that.

“THE COURT: Do you know what the definition of robbery and aggravated robbery?

“DEFENDANT BLANKENSHIP: Like I said, it has been a while since I studied this stuff.

“THE COURT: Do you know what grounds for cause that you can use on challenging a prospective juror?

“DEFENDANT BLANKENSHIP: Prejudice is one.

“THE COURT: What type of prejudice?

“DEFENDANT BLANKENSHIP: In my case, since I do have long hair and I do look like a so-called hippie, a lot of people think about that. That would be proper.

“THE COURT: Do you know how many peremptory challenges you are entitled to in a trial?

“DEFENDANT BLANKENSHIP: Three, I believe.

“THE COURT: Do you know basically what a hearsay objection is?

“DEFENDANT BLANKENSHIP: That is hearsay evidence that hasn’t been proved. Well, in other words, it is like some one sees you do something but they are not quite sure it was you or not. That is hearsay.

“THE COURT: Do you know what the Fourth Amendment is about?

“DEFENDANT BLANKENSHIP: Like I say, it has been a while since I studied, many years.

“THE COURT: All right. You don’t know what the Fourth, Fifth or Sixth Amendments are?

“DEFENDANT BLANKENSHIP: I know the freedom of speech, freedom of press, and so forth and so on.

“THE COURT: Do you know what elements the State must prove against you?

“DEFENDANT BLANKENSHIP: They have to prove I am guilty or I am not. “THE COURT: Sir?

“DEFENDANT BLANKENSHIP: They have to prove beyond a reasonable doubt, beyond a shadow of a doubt that I am guilty of what they say, or I am innocent.

“THE COURT: You don’t know what elements they have to prove?

“DEFENDANT BLANKENSHIP: They have to prove that I was there at the time, what is stated in the statements against me is true and they have to prove it.

“THE COURT: All right, Mr. Blankenship—

“DEFENDANT BLANKENSHIP: Yes, sir.

“THE COURT: I don’t think you are qualified to represent yourself in Court.

“DEFENDANT BLANKENSHIP: Like I said before, Your Honor, and as you said yourself, it is my Constitutional right and therefore, I am going to take that Constitutional right.

“THE COURT: I overrule you this time. You will be represented by Mr. Quijano in this case. That is all.”²

The Sixth and Fourteenth Amendments to the United States Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can validly be convicted and punished by imprisonment. The U.S. Supreme Court in Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975) found in the Sixth Amendment an independent constitutional right of an accused to conduct .his own defense and held that the right to self-representation does not arise from one’s power to waive assistance of counsel. The Court held that it is for the accused personally to decide whether assistance of counsel in his particular case is to his advantage, and “his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law/ ” Id. at 834, 95 S.Ct. at 2541, citing Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 1064-1065, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). (Emphasis added).

The nature of criminal litigation is complex and defendants who insist that they neither need nor want assistance in rebutting the prosecution’s claim have made an unsagacious choice. It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But the right to defend is personal. It is the defendant, not his lawyer or the State, who will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. While we may be skeptical of his election knowing that he may conduct his defense ultimately to his own detriment, his choice must be honored. Faretta, supra 422 U.S. at 833, 95 S.Ct. at 2540. In order to competently and intelligently choose self-representation, the defendant should be made aware of the dangers and disadvantages of self-representation so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Faretta, supra at 835, 95 S.Ct. at 2541, citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 269 (1942). While Faretta does not mandate an inquiry concerning appellant’s age, education, background or previous mental health history in every instance where an accused expresses a desire to represent himself, Martin v. State, 630 S.W.2d 952, 954 (Tex.Cr.App.1982), the record must contain proper admonishments concerning pro se representation and any necessary inquiries of the defendant so that the trial court may make “an assessment of his knowing exercise of the right to defend himself.” Faretta, supra, 422 U.S. at 836, 95 S.Ct. at 2541.

“In honoring such requests, [for self-representation] however, the courts are duty-bound to examine defendants assiduously as to their knowledge and intent, ever cautious to ensure that the election is not merely the hollow incantation of a legal formula, but a purposeful, informed decision to proceed pro se.”

United States v. Tompkins, 623 F.2d 824, 825 (2d Cir.1980).

This Court requires no formulaic questioning to establish a knowing and intelligent waiver nor will it author a script for courtroom recitation by trial judges faced with this dilemma. On the other hand, Faretta does not authorize trial judges across this state to sit idly by doling out enough legal rope for defendants to participate in impending courtroom suicide; rather, judges must take an active role in assessing the defendant’s waiver of counsel.

“A judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right, does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments, thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which a plea is tendered.” Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948).

See also Geeslin v. State, 600 S.W.2d 309 (Tex.Cr.App.1980); Goodman v. State, 591 (Tex.Cr.App.1979). In the end however, a defendant must be allowed to represent himself “if he truly wants to do so.” Faretta, supra, 422 U.S. at 817, 95 S.Ct. at 2532.³

In the instant ease, in its examination of Blankenship, the trial court elicited information such that the appellant had spent six years attending a small South Carolina college majoring in history, had previously studied constitutional law and was employed in the field of landscaping. The record also indicates that the appellant was informed that he would have to bear the consequences of his action and that he was aware of the impact his waiver would have. It was not until the court began questioning Blankenship about his familiarity with the formalities of the rules of evidence and procedure that things began to snag. The appellant told the judge he was unable to answer the court’s specific procedural and evidentiary questions until he reviewed the appropriate law books to refresh his memory. The Supreme Court in Faretta specifically addressed this issue and stated, “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation....” Faretta, supra at 835, 95 S.Ct. at 2541. (Emphasis added). See Burton v. State, 634 S.W.2d 692, 694 (Tex.Cr.App.1982). The record indicates that Blankenship was aware of the implications of his decision; to also require a lawyer’s expertise as a prerequisite to asserting the right would deny it to all but a small portion of society. Lyles v. Estelle, 658 F.2d 1015 (5th Cir.1981). While we may agree that the appellant flunked the trial court’s impromptu evidentiary and procedural “pop quiz,” the court’s ruling that appellant was unqualified in that his lack of proficiency negated a “knowing and intelligent” waiver, was an improper ground for denial of appellant’s right to self-representation.

The Court of Appeals' interpretation of the colloquy is equally erroneous. The appellant never told the trial court he had to have the “books” in order to represent himself. Nor was his waiver of counsel conditioned upon the right to have the books and the time to prepare his defense, as the Court of Appeals suggests. While it is true that the appellant did request law books, it is not apparent that this request was intended by him as a condition precedent to his pro se application. To excerpt the five sentences referring to law books from the long colloquy between the court and the appellant and say that they cause the pro se request to become “conditional” would be to ignore the clear holding of the trial court (that appellant was not qualified to represent himself). While all appellate courts are faced with a cold record, it is clear in the instant case that the trial judge based his careful decision on the total dialogue between he and the appellant. To excerpt five sentences from seven pages of the record and give them special significance would be to grossly distort the meaning and importance of what was said. Such selective interpretation by an appellate court is also patently unfair to this trial judge and also to every trial judge faced with the same situation in the future. We therefore find that the conclusions of the appellate court are not supported by the record. Our finding, that the pro se request was not conditional, is further supported by the dialogue which ensued wherein the appellant made unequivocal demands to proceed pro se, Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982); Burton, supra, and in fact his response to the trial judge after being informed he was unqualified to represent himself was unequivocal.⁴ It seems from the record, therefore, that the appellant’s demand for pro se representation was unconditional.

While acknowledging that a request for change of counsel cannot be made so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice, Renfro v. State, 586 S.W.2d 496 (Tex.Cr.App.1979), there is no suggestion in the record that appellant’s assertion of his pro se right was designed to achieve delay or tactical advantage, or that it would in fact have resulted in any delay, or that the trial court denied appellant’s request on the assumption that it would result in delay. While this court has held that the accused may not wait until the day of trial to demand different counsel or to request that counsel be dismissed so that he may retain other counsel where this results in a delay of the proceedings, Robles v. State, 577 S.W.2d 699 (Tex.Cr.App.1979), such is not the situation in the case at bar. Appellant neither demanded the appointment of different counsel nor did he ask that his attorney be dismissed so that he could retain other counsel. He merely asserted his constitutional right to represent himself at trial.

The appellant’s assertion of the right to defend pro se was made timely in that it was asserted before the jury was empaneled. Chapman v. United States, 553 F.2d 886, 894 (5th Cir.1977). See also, United States v. Price, 474 F.2d 1223, 1227 (9th Cir.1973); United States v. Doughterty, 473 F.2d 1113, 1119 and 1124 (D.C.1972); and United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir.1965), cert. denied, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966).

“The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.” Faretta, supra at 820, 95 S.Ct. at 2533-2534.

Despite the trial judge’s benevolent intentions, the denial of appellant’s right to self representation under the facts of this case⁵ constituted reversible error.

The judgments of the trial court and the Court of Appeals are reversed and cause is remanded to the trial court.

1 . We assume that Mr. Quijano was appointed to represent the appellant prior to the date of said Motion although the record is silent.

2 . Immediately after the court overruled appellant’s motion to proceed pro se, the court overruled Attorney Quijano’s motion to withdraw as appellant's counsel. Quijano told the court he was unable to effectively represent the appellant inasmuch as the appellant informed him he no longer desired Quijano's services and he would be uncooperative in the defense of his case.

All emphasis throughout this opinion is supplied by the writer unless otherwise indicated.

3 . One may be disenfranchised of this right, of course, by the conduct of an accused, i.e., if the right is sought to be coupled with contumacious or disruptive conduct, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), or is exercised in order to delay the proceedings, Chapman v. United States, 553 F.2d 886 (5th Cir.1977).

4 . Appellant’s response was:

"Like I said before, Your Honor, and as you said yourself, it is my Constitutional right and therefore, I am going to take that Constitutional right.”

The Fifth Circuit in Brown, supra, noted that:

"A defendant is entitled to conduct his own defense even if the court doubts his legal expertise or ability so long as the request is intelligently and clearly made, [citing Faret-ta, supra 422 U.S. at 835, 95 S.Ct. at 2541.] Neither should it be read to indicate that a defendant, to avoid waiver, must continually renew his request to represent himself even after it is conclusively denied by the trial court. After a clear denial of the request, a defendant need not make fruitless motions or forego cooperation with defense counsel in order to preserve the issue for appeal.” Brown, supra at 612.

5 . Compare Wiggins v. State, 520 S.W.2d 780, 782 (Tex.Cr.App.1975), affirmed McKaskle v. Wiggins, — U.S. —, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) where the trial judge in the proper exercise of judicial discretion appointed an attorney as standby counsel to assist the defendant if needed.