Blankenship v. State

• Decision Date: 18 July 1984
• Docket Number: No. 796-83,796-83
• Citation: 673 S.W.2d 578
• Parties: Terry BLANKENSHIP, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 578

673 S.W.2d 578

Terry BLANKENSHIP, Appellant, v. The STATE of Texas, Appellee.

No. 796-83.

Court of Criminal Appeals of Texas En Banc.

July 18, 1984.

Adolfo Quijano, Jr. (Court-appointed), Robin Norris, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Allan Massis, Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty., and Cathleen Riedel, Asst. State's Atty., Austin, for the State.

Before the court en banc.

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 Quijano, 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...