Ybarra v. State
| Decision Date | 08 April 2021 |
| Docket Number | No. 11-19-00127-CR,No. 11-19-00126-CR,11-19-00126-CR,11-19-00127-CR |
| Parties | DAVID YBARRA JR., Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 50th District Court Baylor County, Texas
Trial Court Cause Nos. 5693 & 5694
Appellant, David Ybarra Jr., was indicted in Cottle County in separate cause numbers for the aggravated kidnapping and murder of Cruz Garibaldi Jr. See TEX. PENAL CODE ANN. §§ 20.04(a)(3)-(4), (b), 19.02(b)(2) (West 2019). Each offense was enhanced by allegations of prior felony convictions for delivery of a controlled substance and conspiracy to harbor and transport unlawful aliens. Appellant filed a motion to change venue in each cause and alleged that there existed so great a prejudice against him that he could not obtain a fair and impartial trial in Cottle County, namely because "[the] incident[s] [had] been widely publicized in [Cottle] County." See TEX. CODE CRIM. PROC. ANN. art. 31.03(a)(1) (West 2006). The State did not contest Appellant's change of venue requests. As such, for the convenience of the parties and in the interest of justice, the trial court granted the motions and changed the venue of each cause to Baylor County.1 Id. art. 31.03(b).
The charged offenses were later consolidated for trial, and a Baylor County jury convicted Appellant of both offenses. Appellant thereafter pleaded "not true" to the enhancement allegations. The same jury found the enhancement allegations to be "true" and, for each conviction, assessed Appellant's punishment at eighty-five years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine. The trial court sentenced Appellant accordingly and ordered the sentences to run concurrently.
In cases in which a change of venue has been ordered, and upon the completion of the defendant's trial, Article 31.08 of the Texas Code of Criminal Procedure grants discretion to the trial court to return the cause to the original county in which the indictment was filed. See CRIM. PROC. art. 31.08, § 1(a). Here, the trial court did not return these causes to Cottle County. Accordingly, these appeals were filed with this court. See GOV'T § 22.201(l).2
Appellant raises three issues on appeal. He contends that (1) the trial court erred when it refused to instruct the jury on the lesser included offense of unlawfulrestraint, (2) the trial court erred when it refused to instruct the jury on the lesser included offense of assault, and (3) the trial court's refusal to instruct the jury on these lesser included offenses was harmful and violated his rights to due process and to a fair trial. We affirm.
Prior to Garibaldi's kidnapping and murder, Appellant and Garibaldi were involved in a conflict concerning a debt Garibaldi allegedly owed to Appellant. During a previous confrontation concerning the debt, they allegedly exchanged heated words at a local convenience store, and Appellant slapped Garibaldi. On February 26, 2018, three months after the incident at the convenience store, Garibaldi went to Appellant's home to again confront him about the debt. Appellant was not home, but his thirteen-year-old son, J.Y., answered the door and spoke with Garibaldi. J.Y. testified that Garibaldi appeared intoxicated. After a brief discussion, Garibaldi slapped J.Y. and then left. J.Y. thereafter called Appellant and informed him of what had occurred.
Later that evening, Garibaldi visited a friend, Joe Angel Macias, and they discussed Garibaldi's encounter with J.Y. During their conversation, Macias received a text message from Chris Dominguez, a relative of Appellant; the text message requested that Macias bring Garibaldi to Dominguez's apartment. Dominguez also stated in the text message that he would give Macias some methamphetamine if he complied with the request. Macias knew that Garibaldi used drugs, so he told Garibaldi that Dominguez had methamphetamine for them to use. Based on this assurance, Garibaldi agreed to go with Macias to Dominguez's apartment.
A. The Attack
Macias and Garibaldi arrived at Dominguez's apartment between 8:00 p.m. and 9:00 p.m. Dominguez and several other people, including Humberto Davila, were outside the apartment barbecuing. Macias went inside the apartment with Dominguez, while Garibaldi remained in Macias's pickup. Around this time, Appellant arrived in his vehicle and pulled up near Macias's pickup. Although several witnesses—including Macias, Dominguez, Davila, and J.Y.—testified about the events that followed, their testimony conflicted on certain critical details.
Macias testified that, while inside Dominguez's apartment, he heard a loud noise from outside that sounded like glass breaking. After he stepped outside, Macias observed Appellant striking Garibaldi while Garibaldi was in Macias's pickup. He then saw Dominguez strike Garibaldi in the head several times with a metal baseball bat while Appellant paced and shouted at Garibaldi. Macias testified that, at some point during the attack, Garibaldi lost consciousness. Appellant then pulled Garibaldi from Macias's pickup onto the ground and kicked him twice in the face. Dominguez splashed water on Garibaldi's face while he was on the ground. Garibaldi choked on the water but did not wake up. Appellant then dragged Garibaldi to the rear of Macias's pickup and loaded him onto the pickup bed. Macias testified that he believed that Appellant hit Garibaldi's head on the trailer hitch receiver twice as Appellant loaded Garibaldi onto the bed of Macias's pickup.
After J.Y. informed Appellant that Garibaldi had slapped him, Appellant texted Dominguez and asked him to find Garibaldi. Dominguez testified that he asked Macias via a text message to bring Garibaldi to Dominguez's apartment. Dominguez also texted Appellant and advised him that Garibaldi was coming toDominguez's apartment. After Macias and Garibaldi arrived, Dominguez and Macias went inside the apartment. Then, Dominguez heard a loud bang outside. He went outside and saw Appellant pointing a gun into Macias's pickup at Garibaldi. Garibaldi opened the door to the pickup, and Appellant then struck him in the face with the gun at least three times. According to Dominguez, after the gun fell onto the floorboard of the pickup, Appellant struck Garibaldi two more times in the face with his fists. Dominguez then grabbed a metal bat and struck Garibaldi twice in the face with the bat. Dominguez testified that no one asked him to strike Garibaldi with the bat; he did so of his own initiative to help Appellant and to show him that he "was loyal and . . . had his back."
After Dominguez struck Garibaldi with the bat, Appellant pulled Garibaldi out of the pickup onto the ground and kicked him two more times. Macias then asked Dominguez to move Garibaldi, but Dominguez testified that he refused to touch Garibaldi. Dominguez went inside the apartment, retrieved some water, and threw it on Garibaldi's face. Garibaldi choked on the water but did not wake up. Appellant then dragged Garibaldi to the rear of Macias's pickup where, according to Dominguez, Appellant slammed Garibaldi's head into the receiver hitch three times. Although Dominguez denied helping load Garibaldi onto the bed of Macias's pickup, he testified that J.Y. assisted Appellant in doing so.
Davila testified that Appellant struck Garibaldi in the face with a pistol five or six times. Then Dominguez struck Garibaldi on the head with the metal bat five or six times. Davila testified that either Appellant or Dominguez dragged Garibaldi out of Macias's pickup; however, both of them loaded Garibaldi onto the bed of Macias's pickup. Davila did not see anyone strike or kick Garibaldi while he was on the ground. Davila also testified that, before Macias and Garibaldi arrived,Dominguez told Davila that he and Appellant were going to "beat [Garibaldi] up" because Garibaldi had slapped J.Y.
J.Y. was in Appellant's vehicle when Appellant pulled up in front of Dominguez's apartment. Appellant parked his vehicle, got out, and walked toward Macias's pickup. J.Y. testified that he heard someone say, "no guns"; he then saw Appellant drop his gun before he reached Macias's pickup. According to J.Y., Appellant struck Garibaldi in the face with his fists five to seven times. Then Dominguez hit Garibaldi in the face three times with a metal bat. J.Y. testified that, after this, Appellant pulled Garibaldi from Macias's pickup. At the time, Garibaldi was "asleep" and "snoring." Appellant then struck Garibaldi in the face with his hand once more while Garibaldi was lying on the ground. Appellant thereafter picked up Garibaldi and, with Dominguez's assistance, loaded him onto the bed of Macias's pickup.
Appellant denied striking Garibaldi with a pistol. Appellant stated that Garibaldi opened the door to Macias's pickup, that Dominguez took the gun from Appellant, and that Garibaldi then took a wild swing at Appellant while Garibaldi was still inside the pickup. Appellant stated that he punched Garibaldi four times in the face with his fists, knocking him out by the third punch. Appellant claimed that, after these four punches, he did not strike Garibaldi again. Nevertheless, Appellant did berate Garibaldi while he was unconscious. Then Dominguez struck Garibaldi on the head with a metal bat several times; Appellant did not direct Dominguez to do so. Appellant testified that Garibaldi fell out of Macias's pickup onto the ground after Appellant touched him to wake him up. According to Appellant, Dominguez threw water on Garibaldi, who choked but did not regain consciousness.
Appellant and Dominguez then picked up Garibaldi and loaded him onto the bed of Macias's pickup. Appellant denied striking Garibaldi's head on the trailer hitch receiver of Macias's pickup as they were loading him.
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