### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

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 Tam m y Marie Ybarra

F ROM TH E CO UNTY COURT AT LAW NO . 1 OF CALDWELL CO UNTY

NOS . 427 41, 4 2930 , 432 38, 4 3890 , 441 76 HO NORAB LE EDWARD L. J ARRETT, JUDGE P RESIDING

O R D E R A N D M E M O R A N D U M O P I N I ON

P ER CURIAM

Tammy Marie Ybar

ra, acting pro se, enter ed into a plea ag ree ment under which she pleade d g uilty to nine separ ate misdemeanors in five separ ate cause numbers—including two counts

o f crimi nal trespass, two counts of driving while intox icated, two counts of evading arr est and detention, two counts of possession of a dang erous drug , and one count of possession of a controlled substance. The trial court convicted Ybar ra and sentenc ed her to 300 day s in jail for the two evading

arr est convictions, 300 day s in jail for each of the drug convictions, 300 day s in jail for one of the criminal trespasse s, and 180 day s in jail for the ea ch of the rema ining offe nses, with the sentenc es
to run concur

rently

. Fur

thermore , the trial court order ed Ybar ra to pay a total of $4,895 in fines and

court c osts for these c onvictions.Ybar ra completed her 300-day jail sentenc e on October 27, 2014. Howeve r, Ybar ra

rema ins incar cer ated beca use she is “lay

ing out” her fines and court costs—meaning she is forg iven $50 in fines and c ourt costs for e ach a dditional day she re mains in jail. Following the completion of her 300-day s en tence , Ybar ra, now repr esente d by pro bono counsel, filed a motion entitled “Motion for I ndige ncy Hea ring Pursuant to Art. 43.03(a) C.C.P .” I n this motion, Ybar ra complains that her continued incar cer ation based on her inability to pay fines and court costs is unconstitutional and inconsistent with the Code of Criminal Procedur e. Fur thermore , Ybar

ra reque sted that the trial

court conduct a hear ing pursuant to article 43.03(d) of the Code of Criminal Procedur e to deter mine whether Ybar

ra is indige nt and, if so, to deter mine whether she has failed to make a g ood faith eff ort to acquire the re source s to pay her f ines. The trial court conducte d a hear ing on Ybar ra’ s motion. Ybar

ra testified that she was i n dige nt and that she wanted the opportunity to be rele ased from jail so that she coul d s ee k employ ment to pay off the court costs and fines. The trial court, afte r taking judicial notice of its file and the repor

ter’s rec ord from the hear ing wher e Ybar ra p l ea d ed gu ilty and was sentenc ed as

o u tlined above, found that at the sentenc ing hear ing, Ybar ra never “cla im[ ed] indige ncy to thi s Court, indicate[d] any inability to pay the monies, or to c hoose not to lay them out.” Fur thermore , the trial court deter

mined that lay ing out her fines throug h additional jail time was a term of Ybar ra’ s plea ag ree ment “[a]nd either that was the de al she made or she pe rpetra ted a f raud on the Court.” 1

We have not rec eived the cler k’s rec ord in this case , and there fore we do not ha ve a copy 1 of Ybar ra’ s plea ag ree ment with the State. Howeve r, g iven the expedited nature of this case and our decision to abate this appea l to supplement the rec ord, we do not require the plea ag ree ment at this time. 2Although we do not y et have a copy of the trial c ourt’s orde r itself, it is undisput ed and clea r from the repor ter’s rec ord that the trial court denied Ybar ra’ s motion wit h out addre ssing the issue of indige ncy or its impli cations for

her f urther c onfinement.
On appea l, Y

barr a asser

ts that the trial court should have construed her motion as a post-conviction petition for writ of habea s corpus. See generally Tex. Code Crim. Proc. arts. 11.09 (re quiring person confine d for misdemeanor to file habea s petition in co u n ty court wher e offe nse committed), 11.14 (listing nece ssary information in habea s petition); see also Surgit ek, BristolMey ers Corp. v. Abel , 997 S.W .2d 598, 601 (Tex. 1999) (instructing courts to look at substance of pleading rathe r than its caption to deter mine its nature ); Ex parte Casill as , 25 S.W .3d 296, 298 n.1 (Tex. App.—San Antonio 2000, orig . proce eding ) (sa me). We ag ree . I n substance, Ybar

ra’ s motion for indige ncy hear ing asser ts that her continued confine ment for failure to pay fines is unla wful beca use the trial court has not conducte d a hear ing and made appropr iate findings as require d by article 43.03 of t he C ode of Criminal Procedure. A trial court may order a defe ndant convicted of a misdemeanor who is unable to pay fines or court

co s t s to be “confined in jail for a sufficie nt leng th of t ime to discharg e the full amount of t he f i n e and costs adjudg ed ag ainst him; rating such confin em en t at $50 for eac h day .” See Tex. Code Crim. Proc

. art. 43.09(a)

. Howeve r, article 43.03 require s a trial court to c onduct a hear ing befor e confining a defe ndant who defa ults on her fine and court costs. See id. 43.03(a) , (d). Fur thermore , in order t o co n fi n e a defe ndant for failure to pay court costs, a trial court must make a written deter mination that:
(1) t h e defe ndant is not indige nt and has failed to make a g ood faith eff ort t o discharg e the f

ines and c osts; or

3(2) the def endant is indig ent and: (A) has failed to make a g ood faith eff ort to discharg e the fines and costs [t hroug h community

service under a

rticle 43.09(f

)]; and (B ) could have discharg ed the fines and costs under article 43.09 without experiencing undue har dship.

Id. art. 43.03(d). A defe ndant who has co m p l et ed her sentenc e may , throug h a habea s petition,
reque st an article 43.03 hear ing to deter mine whether her con t i n u ed confinement for the purpose of discharg ing fines and court cos t s is justified. See id. art. 43.08 (noting that provisions and 2 prot ec t i o n s of chapte r 43 of Code of Criminal Procedur e apply even afte r defe ndant has been committed); Gunstanson v. State , 666 S.W .2d 183, 184 (Tex. App.—Dallas 1983, p et

. ref’d) (discussing defe ndant ’s h ab eas petition asser ting that underly

ing sentenc e was complete and continued conf

inement to satisfy

fines wa s unlawful bec ause de fenda nt was indig ent). Given that Ybarra’ s motion complains that her continued confine ment is unlawful and re q u est s either an article 43.03 hear ing or that she be rele ased from confine ment, Ybar ra’ s motion should be construed as a petition f or writ of habea s corpus. I t is not entirely clea r from the

rec ord whether the trial court treated Ybar ra’ s motion as a habea s petition. Howeve r, it is clea r from the repor ter’s rec ord and the parties’ briefs that the trial court did not rea ch Ybarra ’s u n d erlying

At least one court has conclude d that if a trial court fails to conduct an article 43.03 hear ing 2 or fails to make the require d finding s, a petitioner can be entitle d to habea s relief beca use his co n t i n u ed confine ment would be unlawful. See Ex parte Jeff Burks , No. 06-13-00217- CR, 201 4 Tex. App. L EXI S 4507 (Tex. App.—Te x arka na Apr. 25, 2014, no pet.) (mem. op., not de signated for publication) (conc luding that petitioner entit led t o rele ase where trial cour t ref used t o conduct 43.03(d) he aring ). 4complaint that she was entitled to rele ase under article 43.03. Wit hout the fac tual finding s require d

by article 43.03(d), we cannot de termine whe ther Yba rra is entitled to habeas r elief. Given the expedited nature of this case , we abate t h i s appea l for ten day s and 3
instruct th e trial court to prepa re and send t o this Court the writt en findings required under article 43.03(d) of th e C o d e of Criminal Procedur e. A supplemental cler k’s rec ord containing the trial
court’s ruling and any related rec ords shall be forwa rded to the cler

k of thi s C o u rt n o l ater than
Dec ember

1, 2014.
I t is ordere d November

17, 2014.

Be fore J ustices Pury ear , Pemberton, and F ield Abated a nd Remanded Filed: Nove mber 17, 2014 Do Not Publish

Ybar ra completed her underly

ing 300-day sentenc e on October 27, and g iven that her most 3 serious offe nse is a Class A misdemeanor with a maxi mum of 365 day s confine ment, Ybar ra cannot rema in confine d b ey o nd Dec ember 31, 2014. See Tex. Penal Code § 12.21(2) (noting maxi mum punishment for Class A misdemeanor) ; Tex. Code Crim. Proc. art. 43.03(c) (noting that if defe ndant sentenc ed to confine ment and to pay fine or costs, term of confine ment for defa ulting on paying costs combined with term of confine ment may not exceed maxi mum term of confine ment authorized for offe nse). 5