MOTION FOR REHEARING
ODOM, Judge.Appellant was convicted of theft on his plea of guilty and punishment was assessed at six years.
On original submission the conviction was reversed because the trial court considered and denied his pre-trial motion to dismiss for denial of a speedy trial in an ex parte proceeding, which violated the requirement of Art. 28.01, V.A.C.C.P., that the defendant be present “during any pre-trial proceedings,” and also violated his right to counsel.
By motion for rehearing the State presents two arguments to affirm this conviction. First, it argues that appellant’s guilty plea should constitute a waiver of the right to speedy trial, i. e., of the matter urged in the pre-trial motion that was denied ex parte. As appellant points out in his response to the State’s motion, Article 44.02, V.A.C.C.P., expressly permits an appeal after a guilty plea from a matter raised by a pre-trial motion. In Ferguson v. State, 571 S.W.2d 908, we held that the amendment to Art. 44.02, supra, abolished the rule that a valid guilty plea waives all non-jurisdictional defects in cases where there is a plea bargain and punishment is assessed within the terms of the agreed recommendation. Appellant’s guilty plea did not waive his pre-trial motion to dismiss for denial of a speedy trial.
The other argument presented in the State’s motion for rehearing points out that after appellant’s motion was overruled in the ex parte proceeding, counsel was appointed for appellant and the record is silent as to whether the motion was ever reurged. Apparently the State contends this was a waiver. We cannot infer a waiver of counsel from a silent record:
“[A]n accused may waive his right to counsel if such waiver is made voluntarily with knowledge of the consequences thereof. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Barbour v. State, 551 S.W.2d 371; Thomas v. State, 550 S.W.2d 64. To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra; Thomas v. State, supra. To this extent, this court has held that the record must clearly show that the accused voluntarily, knowingly and intelligently waived his right to counsel in order to assert his right to represent himself. Thomas v. State, supra; Webb v. State, 533 S.W.2d 780.” Jordan v. State, 571 S.W.2d 883.
We remain convinced that appellant’s rights were violated in both respects stated on original submission. We will nevertheless reconsider that decision to the extent that it ordered a reversal of appellant’s conviction.
In Trevino v. State, 565 S.W.2d 938, we were confronted with a situation in which the defendant had been denied his right to counsel at the hearing on his motion for new trial. It was held that the appropriate relief was not to reverse the conviction, but, instead, to return the case for a second hearing on the motion at which the defendant would be afforded his right to counsel. It was emphasized in Trevino that this was possible because a motion for new trial is heard after the conviction and is actually a part of the review process. While that fact *463would distinguish Trevino from the instant case, in which the right to counsel was denied at a proceeding before trial, a more recent case suggests that a second hearing at this date would be sufficient even though the error accompanied a pre-trial hearing.
In Brandon v. State, Tex.Cr.App. (No. 59348, 1979), it was held that the defendant was denied due process and a fair hearing on his pre-trial hearing to determine competency to stand trial. The relief ordered, however, did not require invalidation of the subsequent trial and reversal of the conviction. Instead, the cause was remanded with directions that the trial court empanel a jury to make a retrospective determination of the defendant’s competency. He was to be granted a new trial if the jury found him incompetent; if he were found competent, an appeal would be allowed to review only the competency proceedings.
For purposes of determining the appropriate relief in this case, which likewise presents reversible error at a pre-trial proceeding, we conclude that Trevino v. State and Brandon v. State, supra, support modification of the relief ordered by our decision on original submission. Accordingly, we abate this appeal and remand this case for a hearing on appellant’s motion to dismiss for denial of a speedy trial. A record of that hearing shall be prepared in the manner required by Art. 40.09, V.A.C.C.P. and transmitted to this Court for further disposition.
It is so ordered.