In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-23-00318-CR 

 

ANTONIO GARCIA, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

On Appeal from the 100th District Court 

Childress County, Texas 

Trial Court No. 7028, Honorable Stuart Messer, Presiding 

May 1, 2024 

ORDER OF ABATEMENT AND REMAND 

Before QUINN, C.J., and DOSS and YARBROUGH, JJ. 

Antonio Garcia appeals from the trial court’s judgment revoking his deferred 

adjudication community supervision, adjudicating him guilty of the first-degree felony 

offense of engaging in organized criminal activity, and imposing a forty-year term of 

imprisonment. The court also assessed an $8000 fine and court costs of $340. 
2

Appellant’s court-appointed appellate counsel filed a motion to withdraw supported by an 

Anders brief.1 

In support of her motion to withdraw, counsel certified that she conducted a 

conscientious examination of the record, and in her opinion, it reflected no arguable basis 

for reversing appellant’s conviction. See Anders, 386 U.S. at 744–45; In re Schulman, 

252 S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel explained why, under the 

controlling authorities, the record supports that conclusion. She further demonstrated that 

she complied with the requirements of Anders and In re Schulman by 1) providing a copy 

of the brief, motion to withdraw, and appellate record to appellant, 2) notifying appellant 

of his right to file a pro se response, and 3) informing appellant of his right to file a pro se 

petition for discretionary review. See In re Schulman, 252 S.W.3d at 408. By letter dated 

March 18, 2024, this Court granted appellant an opportunity to file a response to counsel’s 

motion and a pro se brief by April 17, 2024. To date, appellant has done neither or

otherwise contacted the court.

We independently examined the record to determine whether there were any nonfrivolous issues supporting reversal as required by In re Schulman. We conclude there 

is at least one. Nothing in the record currently before us indicates the trial court inquired 

“on the record whether the defendant has sufficient resources or income to immediately 

pay all or part of the fine and costs.” See TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1)

(requiring same). Nor does the current record reveal the defendant waived the 

requirement on the record. See id. § 42.15(a-2) (stating that the defendant may waive 

1 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
3

the requirement to be on the record). At least one Court of Appeals has held that to be a 

basis on which to remand for the appointment of new counsel in an Ander’s setting. See 

Almeida v. State, No. 04-22-00669-CR, 2024 Tex. App. LEXIS 283, at *3–5 (Tex. App.—

San Antonio Jan. 17, 2024, no pet.) (mem. op., not designated for publication) (abating 

and remanding because record was silent as to whether the court conducted an inquiry 

into the defendant’s ability to pay the fine or costs).

2

We therefore grant counsel’s motion to withdraw, abate the appeal, and remand 

the cause to the trial court. Garner v. State, 300 S.W.3d 763, 767 (Tex. Crim. App. 2009). 

On remand, the trial court shall, by written order, appoint new counsel to represent 

appellant on appeal. The name, address, email address, telephone number, and State 

Bar number of newly appointed counsel must be specified in the order. The trial court will 

then cause its order to be filed in a supplemental clerk’s record with the Clerk of this Court 

no later than May 20, 2024.

In identifying an arguable issue, we do not predetermine its merit. Newly appointed 

appellate counsel is simply directed to brief the matter. That briefing shall include 

discussion on 1) whether potential non-compliance with article 42.15(a-1) requires 

preservation for review, 2) if so, whether non-compliance occurred here, and 3) if so, the 

effect of non-compliance and the extent of available remedies, such as remand or 

reversal. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980) 

(remanding for the determination of the amount of restitution); Drilling v. State, 134 

2 Unlike the circumstances in Sparks v. State, No. 07-23-00215-CR, 2024 Tex. App. LEXIS 2574 

(Tex. App.—Amarillo Apr. 12, 2024, no pet. h.) (mem. op., not designated for publication) and Stanberry v. 

State, No. 07-23-00194-CR, 2024 Tex. App. LEXIS 1066 (Tex. App.—Amarillo Feb. 9, 2024, no pet.) (mem. 

op., not designated for publication), the judgment here does not include a provision regarding the 

defendant’s ability to immediately pay costs. 
4

S.W.3d 468, 471 (Tex. App.—Waco 2004, order) (per curiam) (same). The deadline by 

which newly appointed counsel must file an appellant’s brief addressing this and any other 

arguable issue he or she discovers is June 18, 2024, unless otherwise extended. Newly 

appointed counsel may also request the supplementation of the appellate record as 

needed. Such supplementation, if any, must be requested by written motion filed with the 

Clerk of this Court before June 3, 2024. 

It is so ordered.

 Per Curiam

Do not publish.