IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0025-21

DANIEL GARCIA, Appellant

v.

STATE OF TEXAS

ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

BELL COUNTY

YEARY, J., filed a dissenting opinion.

DISSENTING OPINION

The court of appeals resolved the merits of Appellant’s challenge to the trial court’s 

restitution order in this case without mentioning, much less addressing, any question of 

procedural default. Garcia v. State, No. 03-19-00375-CR, 2020 WL 4462805 (Tex. App.—

Austin Jul. 21, 2020) (mem. op., not designated for publication). We could easily remand 

this case to the court of appeals to address the procedural default question in the first 

instance, as it should have done on original submission. Because the Court does not, I 

respectfully dissent.
GARCIA — 2

I. My Reasons for Preferring Remand

The State did not make an issue of procedural default until rehearing in the court of 

appeals. As the State Prosecuting Attorney [SPA] points out, however, because error 

preservation is “systemic,” the State may raise it for the first time even on discretionary 

review. State’s Petition for Discretionary Review at 6 n.8 (citing Darcy v. State, 488 

S.W.3d 325, 327–28 (Tex. Crim. App. 2016)). The Court has sometimes said that, when a 

court of appeals reverses a conviction without addressing this threshold issue, this Court 

“can and should” address the issue itself.

1 Darcy, 488 S.W.3d at 328. This proposition is 

somewhat at odds, however, with our ordinary practice to remand cases to the intermediate 

appellate court to address indispensable issues that the lower court has failed to address on 

original submission. See Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2002) 

(declining to address the State’s “alternative waiver” arguments for the first time on 

discretionary review; leaving those issue for the lower court on remand). The problem with 

this Court addressing this “systemic” issue in the first instance, instead of remanding for 

the first-tier appellate court to do so, is that the issue is not always adequately briefed in 

this Court. That, in my view, is what is going on in this case.

In its petition for discretionary review and in its brief on the merits, the SPA has 

argued that it was incumbent on Appellant to complain about the trial court’s restitution 

order at trial, in order to preserve error for appeal, because of the character of the complaint 

itself: that the trial court’s restitution order was not “appropriate.” State’s Brief on the 

1 As far as I know, the Court has never said that it must address procedural default issues 

for the first time on discretionary review under these circumstances, and I would not be inclined 

to so conclude. There will undoubtedly be other circumstances in which, as in this case, a remand 

for an initial resolution of the procedural default question would be greatly preferred.
GARCIA — 3

Merits at 4–6. In Idowu v. State, 73 S.W.3d 918, 921–23 (Tex. Crim. App. 2002), the Court 

held that an appellate complaint about the “appropriateness” of a restitution order must be 

preserved in the trial court. At the same time, the Court strongly suggested that a claim that 

the restitution order lacked a “factual basis” in the record (like a challenge to legal 

sufficiency of the evidence to establish guilt) need not be preserved at trial. Id.

In the present case, the SPA argues only that Appellant’s challenge to the restitution 

order in this case is of the former “appropriateness” kind, and therefore will be forfeited if 

not raised in the trial court.2 There is no further argument that Idowu’s distinction between 

“appropriateness” claims and “factual basis” claims should simply be disowned, as the 

Court does today. I originally believed that we granted the SPA’s petition to explore and 

explain the difference between the two, not to decide whether to dispense with the 

distinction altogether. The parties have not briefed that question.

I would remand the case to the court of appeals to address the procedural default 

question in the first instance. If at that point the State wished to argue—contrary to the 

suggestion in Idowu—that any complaint about a restitution order, of any character, must 

be preserved in the trial court before it may be raised on appeal, it would be free to do so. 

The parties could then fully brief that issue accordingly. This Court would then have the 

benefit of that briefing and the lower appellate court’s resolution of the issue to inform our 

own review of the question, should we even deem that necessary in a subsequent petition 

2 Were the Court to resolve this argument in the SPA’s favor, then, as in Idowu itself, it 

would not have to decide definitively whether a “factual basis” claim must also be preserved by a 

trial-level objection. It could once again save that question for a later day.
GARCIA — 4

for discretionary review.3 See McClintock v. State, 444 S.W.3d 15, 20 (Tex. Crim. App. 

2014) (“[O]ur resolution of the issue (if any should even be necessary after a remand) 

would benefit from a carefully wrought decision from the court of appeals.”).

II. Conclusion

We should remand this case to the court of appeals to address procedural default in 

the first instance. Because the Court instead insists on addressing and resolving the 

question today—and because it also resolves the question on a basis not even prompted by 

the pleadings or fully briefed by the parties—I respectfully dissent.

FILED: March 2, 2022

PUBLISH

3 Many of the Court’s reasons today for subjecting a “factual basis” claim to a preservation 

requirement would apply equally well to an argument that claims of legal sufficiency should also 

have to be preserved at the trial-court level before they may be brought on appeal. But surely the 

Court would not hold that legal sufficiency claims must be preserved! The Court should do a better 

job of explaining why Idowu’s analogy between “factual basis” claims and legal sufficiency 

claims, dicta though it may be, is improper. Briefing could facilitate a more proper resolution of 

the issue.