Opinion
11-21-00145-CR
08-31-2023
DANIEL RAY GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 106th District Court Gaines County, Texas Trial Court Cause No. 19-5086
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
PER CURIAM
Daniel Ray Garcia, 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. Garcia states in the motion that he "has suffered a strock [sic] and can not proceed in the appeal. he has short term memory lost can not think right." Appellant further states that he is on medications, suffers pain, and "does not no [sic] what he is doing in this appeal." 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 that 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. 2022). Nothing in Appellant's motion indicates that he desires to obstruct or "manipulate the orderly procedures of the appellant system or to interfere with the fair administration of justice" by this request. 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 court so that the trial court may determine the following:
We note that Garcia 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.
1. Whether Garcia desires to prosecute his appeal;
2. Whether Garcia continues to be indigent;
3. If he is no longer indigent, whether he has retained counsel for this appeal; and
4. If he is indigent, whether he 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, he 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 Garcia 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 Garcia is not entitled to hybrid representation. We also note that Garcia need not appear in person at the hearing and that the trial court may permit him to appear via telephone or through other remote means. 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 Garcia in this appeal.
The district clerk is directed to prepare and file a supplemental clerk's record containing the findings, recommendations, and any orders signed by the trial court with the clerk of this court. The court reporter for the 106th District Court is directed to prepare and forward to this court the reporter's record from the hearing. These records shall be filed in this court on or before September 29, 2023. If the trial court appoints counsel to represent Garcia in this appeal, appointed counsel is requested to advise this court within fourteen days of the appointment if he or she will be adopting Appellant's briefs or will be filing an amended brief. If the appointed attorney wishes to file an amended brief, the brief will be due within thirty days of the reinstatement of this appeal.
The appeal is abated.