Order filed August 30, 2018




                                       In The


          Eleventh Court of Appeals
                                     __________

                              No. 11-18-00089-CR
                                     __________

                  TIMOTHY PATRICK LEE, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 106th District Court
                             Gaines County, Texas
                         Trial Court Cause No. 17-4721


                                     ORDER
      Timothy Patrick Lee, who previously waived his right to appellate counsel
and is currently representing himself pro se in this appeal, has now filed in this court
a document in which he expressly requests court-appointed counsel. We abate this
appeal.
      The Court of Criminal Appeals has indicated that, as long as the defendant’s
actions do not obstruct the orderly procedure of the court system, the defendant may,
after asserting the right of self-representation, abandon his right to represent himself
and request that an attorney be appointed. See Funderburg v. State, 717 S.W.2d 637,
642 (Tex. Crim. App. 1986); Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App.
1976). Additionally, the Texas Code of Criminal Procedure provides, “A defendant
may withdraw a waiver of the right to counsel at any time but is not entitled to repeat
a proceeding previously held or waived solely on the grounds of the subsequent
appointment or retention of counsel.” TEX. CODE CRIM. PROC. ANN. art. 1.051(h)
(West Supp. 2017). Although Lee has already filed an appellate brief, Lee’s request
appears to be timely because the State has not yet filed its brief. See Hubbard v.
State, 739 S.W.2d 341, 344–45 (Tex. Crim. App. 1987).
        Accordingly, we again abate this appeal and remand the cause to the trial
court1 so that the trial court may determine the following:
       1. Whether Lee desires to prosecute his appeal;
       2. Whether Lee is indigent;
       3. If not indigent, whether Lee has retained counsel for this appeal; and
       4. If indigent, whether Lee has abandoned his right to represent himself and
          now desires to have counsel appointed to represent him in this appeal or
          whether, after being warned of the dangers and disadvantages of self-
          representation, Lee competently and intelligently chooses to continue to
          exercise the right to represent himself.

See Faretta v. California, 422 U.S. 806 (1975); Ex parte Davis, 818 S.W.2d 64 (Tex.
Crim. App. 1991); Hubbard, 739 S.W.2d at 345; Webb, 533 S.W.2d at 783–86. The
trial court is requested to develop evidence as to whether Lee wishes to withdraw
his previous assertion of the right to represent himself and to now have counsel
appointed to represent him in this appeal. We note that Lee is not entitled to hybrid
representation. We also note that Lee need not appear in person at the hearing and


        1
          We note that Lee asks this court to appoint counsel for him and to instruct the trial court not to
appoint Arthur Aguilar Jr. Appellate courts have no authority to appoint counsel, and we are not inclined
to instruct the trial court that a particular attorney may not be appointed in this cause.
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that the trial court may permit Lee to appear via telephone. The trial court is directed
to enter findings of fact and conclusions of law; to make any appropriate
recommendations to this court; and, if appropriate, to appoint counsel to represent
Lee in this appeal.
        The clerk of the trial court is directed to prepare and forward to this court a
supplemental clerk’s record containing the findings, recommendations, and any
orders of the trial court. The court reporter is directed to prepare and forward to this
court the reporter’s record from the hearing. These records are due to be filed in this
court on or before September 27, 2018.
        The appeal is abated.


                                                                   PER CURIAM


August 30, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J. 2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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