TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00683-CR
NO. 03-14-00684-CR
NO. 03-14-00685-CR
NO. 03-14-00686-CR
NO. 03-14-00687-CR
Ex parte Tammy Marie Ybarra
FROM THE COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY
NOS. 42741, 42930, 43238, 43890, 44176
HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
O R D E R A N D M E M O R A N D U M O P I N I ON
PER CURIAM
Tammy Marie Ybarra, acting pro se, entered into a plea agreement under which she
pleaded guilty to nine separate misdemeanors in five separate cause numbers—including two counts
of criminal trespass, two counts of driving while intoxicated, two counts of evading arrest and
detention, two counts of possession of a dangerous drug, and one count of possession of a controlled
substance. The trial court convicted Ybarra and sentenced her to 300 days in jail for the two evading
arrest convictions, 300 days in jail for each of the drug convictions, 300 days in jail for one of the
criminal trespasses, and 180 days in jail for the each of the remaining offenses, with the sentences
to run concurrently. Furthermore, the trial court ordered Ybarra to pay a total of $4,895 in fines and
court costs for these convictions.
Ybarra completed her 300-day jail sentence on October 27, 2014. However, Ybarra
remains incarcerated because she is “laying out” her fines and court costs—meaning she is forgiven
$50 in fines and court costs for each additional day she remains in jail. Following the completion
of her 300-day sentence, Ybarra, now represented by pro bono counsel, filed a motion entitled
“Motion for Indigency Hearing Pursuant to Art. 43.03(a) C.C.P.” In this motion, Ybarra complains
that her continued incarceration based on her inability to pay fines and court costs is unconstitutional
and inconsistent with the Code of Criminal Procedure. Furthermore, Ybarra requested that the trial
court conduct a hearing pursuant to article 43.03(d) of the Code of Criminal Procedure to determine
whether Ybarra is indigent and, if so, to determine whether she has failed to make a good faith effort
to acquire the resources to pay her fines.
The trial court conducted a hearing on Ybarra’s motion. Ybarra testified that she was
indigent and that she wanted the opportunity to be released from jail so that she could seek
employment to pay off the court costs and fines. The trial court, after taking judicial notice of its file
and the reporter’s record from the hearing where Ybarra pleaded guilty and was sentenced as
outlined above, found that at the sentencing hearing, Ybarra never “claim[ed] indigency to this
Court, indicate[d] any inability to pay the monies, or to choose not to lay them out.” Furthermore,
the trial court determined that laying out her fines through additional jail time was a term of Ybarra’s
plea agreement “[a]nd either that was the deal she made or she perpetrated a fraud on the Court.”1
1
We have not received the clerk’s record in this case, and therefore we do not have a copy
of Ybarra’s plea agreement with the State. However, given the expedited nature of this case and our
decision to abate this appeal to supplement the record, we do not require the plea agreement at this
time.
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Although we do not yet have a copy of the trial court’s order itself, it is undisputed and clear from
the reporter’s record that the trial court denied Ybarra’s motion without addressing the issue of
indigency or its implications for her further confinement.
On appeal, Ybarra asserts that the trial court should have construed her motion as a
post-conviction petition for writ of habeas corpus. See generally Tex. Code Crim. Proc. arts. 11.09
(requiring person confined for misdemeanor to file habeas petition in county court where offense
committed), 11.14 (listing necessary information in habeas petition); see also Surgitek, Bristol-
Meyers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (instructing courts to look at substance of
pleading rather than its caption to determine its nature); Ex parte Casillas, 25 S.W.3d 296, 298 n.1
(Tex. App.—San Antonio 2000, orig. proceeding) (same). We agree.
In substance, Ybarra’s motion for indigency hearing asserts that her continued
confinement for failure to pay fines is unlawful because the trial court has not conducted a hearing
and made appropriate findings as required by article 43.03 of the Code of Criminal Procedure. A
trial court may order a defendant convicted of a misdemeanor who is unable to pay fines or court
costs to be “confined in jail for a sufficient length of time to discharge the full amount of the fine
and costs adjudged against him; rating such confinement at $50 for each day.” See Tex. Code
Crim. Proc. art. 43.09(a). However, article 43.03 requires a trial court to conduct a hearing before
confining a defendant who defaults on her fine and court costs. See id. 43.03(a), (d). Furthermore,
in order to confine a defendant for failure to pay court costs, a trial court must make a written
determination that:
(1) the defendant is not indigent and has failed to make a good faith effort to
discharge the fines and costs; or
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(2) the defendant is indigent and:
(A) has failed to make a good faith effort to discharge the fines and costs
[through community service under article 43.09(f)]; and
(B) could have discharged the fines and costs under article 43.09 without
experiencing undue hardship.
Id. art. 43.03(d). A defendant who has completed her sentence may, through a habeas petition,
request an article 43.03 hearing to determine whether her continued confinement for the purpose
of discharging fines and court costs is justified.2 See id. art. 43.08 (noting that provisions and
protections of chapter 43 of Code of Criminal Procedure apply even after defendant has been
committed); Gunstanson v. State, 666 S.W.2d 183, 184 (Tex. App.—Dallas 1983, pet. ref’d)
(discussing defendant’s habeas petition asserting that underlying sentence was complete and
continued confinement to satisfy fines was unlawful because defendant was indigent).
Given that Ybarra’s motion complains that her continued confinement is unlawful
and requests either an article 43.03 hearing or that she be released from confinement, Ybarra’s
motion should be construed as a petition for writ of habeas corpus. It is not entirely clear from the
record whether the trial court treated Ybarra’s motion as a habeas petition. However, it is clear from
the reporter’s record and the parties’ briefs that the trial court did not reach Ybarra’s underlying
2
At least one court has concluded that if a trial court fails to conduct an article 43.03 hearing
or fails to make the required findings, a petitioner can be entitled to habeas relief because his
continued confinement would be unlawful. See Ex parte Jeff Burks, No. 06-13-00217-CR, 2014
Tex. App. LEXIS 4507 (Tex. App.—Texarkana Apr. 25, 2014, no pet.) (mem. op., not designated
for publication) (concluding that petitioner entitled to release where trial court refused to conduct
43.03(d) hearing).
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complaint that she was entitled to release under article 43.03. Without the factual findings required
by article 43.03(d), we cannot determine whether Ybarra is entitled to habeas relief.
Given the expedited nature of this case,3 we abate this appeal for ten days and
instruct the trial court to prepare and send to this Court the written findings required under article
43.03(d) of the Code of Criminal Procedure. A supplemental clerk’s record containing the trial
court’s ruling and any related records shall be forwarded to the clerk of this Court no later than
December 1, 2014.
It is ordered November 17, 2014.
Before Justices Puryear, Pemberton, and Field
Abated and Remanded
Filed: November 17, 2014
Do Not Publish
3
Ybarra completed her underlying 300-day sentence on October 27, and given that her most
serious offense is a Class A misdemeanor with a maximum of 365 days confinement, Ybarra cannot
remain confined beyond December 31, 2014. See Tex. Penal Code § 12.21(2) (noting maximum
punishment for Class A misdemeanor); Tex. Code Crim. Proc. art. 43.03(c) (noting that if defendant
sentenced to confinement and to pay fine or costs, term of confinement for defaulting on paying costs
combined with term of confinement may not exceed maximum term of confinement authorized for
offense).
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