David Ybarra Jr. v. The State of Texas

Eastland, TX - Criminal defense attorney represented David Ybarra Jr. with aggravated kidnapping and murder charges.

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. 4

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.

1. Macias's Testimony

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.

2. Dominguez's Testimony

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 to 5

Dominguez'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.

3. Davila's Testimony

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, 6

Dominguez told Davila that he and Appellant were going to "beat [Garibaldi] up”

because Garibaldi had slapped J.Y.

4. J.Y.'s Testimony

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.

5. Appellant's Testimony

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. 7

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.

6. The Kidnapping

Macias testified that Appellant told him to drive away from the scene.

Appellant sat in the front passenger seat of Macias's pickup when they left

Dominguez's apartment. Although Appellant claimed that Dominguez instructed

Macias to take Garibaldi away from Dominguez's apartment, Macias testified that

Appellant directed him to the location where Garibaldi's body was abandoned.

Appellant testified that they had planned to take Garibaldi "up the road” so Garibaldi

could walk home. Nevertheless, Appellant admitted that they drove in the opposite

direction from where Garibaldi's house was located. They eventually stopped on a

dirt road in a secluded area, and according to Macias, Appellant thereafter dragged

the unconscious Garibaldi from the bed of the pickup onto the ground. Appellant

testified that, when they stopped driving, Garibaldi was conscious and exited the

pickup bed on his own and without assistance. According to Appellant, Garibaldi

was also conscious when they left him. However, Macias testified that he did not

see any movement from Garibaldi after Appellant had "dumped him.”

J.Y. remained at Dominguez's apartment while Appellant left with Macias;

Garibaldi was in the bed of Macias's pickup. Later that night, J.Y. was a passenger

in another vehicle with Appellant and Appellant's uncle, Daniel Ybarra, and they

drove to the secluded area where Appellant had dumped Garibaldi's body. J.Y.

testified that he saw Garibaldi moving slightly as they drove by him. They did not

stop and left Garibaldi lying there.

Around 11:30 p.m. or 12:00 a.m. that night, Dominguez told his wife to call

9-1-1 to request assistance for Garibaldi. Chief Leroy Rodriguez of the Paducah 8

Police Department responded to the emergency dispatch and discovered Garibaldi

lying near the side of a dirt road at approximately 1:30 a.m. Chief Rodriguez stated

that he nearly missed Garibaldi's body while he searched for it because only

Garibaldi's feet were visible from the roadside brush where he was lying. He also

testified that, although he had grown up with Garibaldi, Garibaldi's face was initially

unrecognizable because of the multiple facial injuries Garibaldi had sustained.

Texas Ranger Ricky Dale Brown assisted in the investigation. He took

numerous photographs of both crime scenes—the secluded area where Garibaldi was

discovered and the area around Dominguez's apartment—and Macias's pickup. He

testified that, as he took photographs of the area where Garibaldi was found, no

traffic passed by even though it was daytime.

Garibaldi was pronounced dead at approximately 6:00 p.m. on February 27,

the day after he was beaten by Appellant and Dominguez. Dr. Marc Andrew Krouse,

a forensic pathologist with the Tarrant Medical Examiner's District in Fort Worth,

testified that all of Garibaldi's facial bones were fractured and that Garibaldi's cause

of death was blunt force trauma to the head. Dr. Benedicto Baronia, a neurosurgeon

at the University Medical Center in Lubbock, examined Garibaldi's CT scans and

testified that Garibaldi had suffered internal hemorrhaging in his brain and that the

bleeding had begun within the previous twenty-four-hour period. Both doctors

testified that there is typically only a one-hour window in which to treat a patient

with such injuries before the patient's condition becomes fatal. Dr. Baronia further

testified that a single blow to the head with a hand or fist can cause and result in a

person's death. Dr. Krouse stated that Garibaldi's fatal injuries were consistent with

"all the described mechanisms of injuries . . . such as hitting with a fist, hitting with

a hand -- pistol whip[ping] [Appellant] with a gun, hit[ting] [Appellant] with a 9

baseball bat, [and] kicking in the head.” According to Dr. Krouse, "[t]he

contribution of those four things cannot be separated.”

Appellant, Dominguez, and Macias were arrested and charged for their roles

and involvement in Garibaldi's beating and eventual death. For some period of time,

Appellant and Macias were confined together in the Childress County Jail. During

their confinement there, Appellant admitted to Macias that he struck Garibaldi in the

face with a weapon at least three or four times. Another inmate at the Childress

County jail, Tanner Robison, also testified that Appellant admitted to striking

Garibaldi in the face with a pistol.

7. The Indictments and the Jury Charges

The indictment in Cause No. 5693 charged Appellant with aggravated

kidnapping in the following manner:

[Appellant] did then and there, with the intent to facilitate the

commission of a felony, to-wit: aggravated assault, or to facilitate the

flight after the attempt or commission of the felony, or with the intent

to inflict bodily injury on Cruz Garibaldi Jr., intentionally and

knowingly abduct Cruz Garibaldi Jr., hereafter styled the complainant,

by restricting the movements of the complainant without his consent so

as to interfere substantially with his liberty, by moving him from one

place to another, with the intent to prevent his liberation, by secreting

or holding him in a place where he was not likely to be found, and

[Appellant] did then and there use or exhibit a deadly weapon, to-wit:

a firearm or a bat, during the commission of the offense.

The indictment in Cause No. 5694 charged Appellant with murder in the

following manner:

[Appellant] did then and there, with intent to cause serious bodily injury

to an individual, namely, Cruz Garibaldi Jr., hereafter styled the

complainant, commit an act clearly dangerous to human life that caused

the death of the complainant by striking him with a firearm, or a bat, or

a hand, or a foot, or an object unknown to the grand jury.10

The trial court included in the jury charge instructions on the indicted offenses

of aggravated kidnapping and murder, the law of parties, and the lesser included

offense of aggravated assault with a deadly weapon. At the conclusion of the

guilt/innocence phase of the trial, and before the charges were read to the jury,

Appellant's trial counsel requested the submission of the lesser included offenses of

assault, kidnapping, and unlawful restraint. The trial court denied these requests,

and the jury convicted Appellant of the aggravated kidnapping and murder of

Garibaldi. This appeal followed.

II. Analysis

On appeal, Appellant challenges the trial court's refusal to charge the jury as

requested by Appellant. Specifically, Appellant contends that the trial court erred

when it refused to instruct the jury on the lesser included offenses of unlawful

restraint3 and assault. We disagree.

Whether an instruction on a requested lesser included offense is warranted

requires a two-step analysis. Safian v. State, 543 S.W.3d 216, 219 (Tex. Crim. App.

2018); Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) (citing Hall v.

State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)); Mathis v. State, 67 S.W.3d

918, 925 (Tex. Crim. App. 2002); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.

Crim. App. 1993). First, we must determine, as a matter of law, whether the offense

to be submitted is a lesser included offense of the charged offense. Safian, 543

S.W.3d at 219–20; Rice, 333 S.W.3d at 144. This is accomplished by comparing the

statutory elements of the lesser offense and the "statutory elements and any

descriptive averments in the indictment.” Ritcherson v. State, 568 S.W.3d 667, 670–

71 (Tex. Crim. App. 2018) (citing Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim.

3

Appellant does not appear to appeal the trial court's refusal to instruct the jury on the lesser

included offense of kidnapping. To the extent that Appellant intended to appeal this refusal, any such point

of error is overruled and dismissed for inadequate briefing. See TEX. R. APP. P. 38.1(f), (i).11

App. 2016)). As relevant here, an offense is a lesser included offense if "it is

established by proof of the same or less than all the facts required to establish the

commission of the offense charged.” CRIM. PROC. art. 37.09(1); Wortham v. State,

412 S.W.3d 552, 554–55 (Tex. Crim. App. 2013). Because the first prong concerns

a question of law, "[w]e do not consider the evidence that was presented at trial.

Instead, we consider only the statutory elements of [the offense] as they were

modified by the particular allegations of the indictment . . . . We then compare them

with the elements of the [requested] lesser offense . . . .” Wortham, 412 S.W.3d at

555 (all but first alteration in original) (quoting Hall, 225 S.W.3d at 536).

Next, before an instruction on a lesser included offense is required, we must

determine whether there is some evidence in the record that would permit a jury to

rationally find that, if the defendant is guilty, he is guilty only of the lesser-included

offense. Safian, 543 S.W.3d at 219; Rice, 333 S.W.3d at 145; Mathis, 67 S.W.3d at

925. This requirement is satisfied if there is "(1) evidence that directly refutes or

negates other evidence establishing the greater offense and raises the lesser-included

offense or (2) evidence that is susceptible to different interpretations, one of which

refutes or negates an element of the greater offense and raises the lesser offense.”

Ritcherson, 568 S.W.3d at 671 (citing Saunders v. State, 840 S.W.2d 390, 391–92

(Tex. Crim. App. 1992)). We consider all of the evidence admitted at trial; if more

than a scintilla of evidence exists in the record to raise the lesser offense and either

negate or rebut an element of the greater offense, then the defendant is entitled to a

lesser-included-offense jury instruction. Id. (citing Roy v. State, 509 S.W.3d 315,

317 (Tex. Crim. App. 2017)); see Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.

App. 1994). Nevertheless, such evidence cannot be speculative; it must consist of

affirmative evidence that raises both the lesser included offense and rebuts or negates

an element of the greater offense. Wortham, 412 S.W.3d at 558. Furthermore, the 12

evidence must be such that it establishes the lesser included offense as a "valid

rational alternative to the charged offense.” Segundo v. State, 270 S.W.3d 79, 91

(Tex. Crim. App. 2008).

On appeal, the State concedes that the offenses of unlawful restraint4 and

assault5 are lesser included offenses of aggravated kidnapping and murder,

respectively. See CRIM. PROC. art. 37.09. Therefore, because the first prong of the

analysis has been established, it remains only for us to determine whether there is

some evidence that would permit a jury to rationally find that Appellant is guilty

only of these lesser included offenses. After a thorough review of the record before

us, we hold that the evidence does not rise to a level that would permit a rational jury

to find that, if Appellant is guilty, he is guilty only of unlawful restraint or assault.

A. Unlawful Restraint

The critical element that distinguishes unlawful restraint from kidnapping or

aggravated kidnapping is abduction, not restraint. See PENAL §§ 20.02, 20.04. A

person commits aggravated kidnapping if he intentionally or knowingly abducts

another person with the intent to, among other things, facilitate the commission of a

felony or inflict bodily injury on the person, or he uses or exhibits a deadly weapon

during the commission of the offense. See id. § 20.04(a)(3)–(4), (b). A person

commits the offense of unlawful restraint when he intentionally or knowingly

restrains another person. Id. § 20.02(a). The term "restrain” in this provision means

"to restrict a person's movements without consent, so as to interfere substantially

4

See, e.g., Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996) (holding that unlawful

restraint is a lesser included offense of aggravated kidnapping).

5

See, e.g., Hayward v. State, 158 S.W.3d 476, 479 (Tex. Crim. App. 2005) ("It is possible, under

the right set of circumstances, for the statutory elements of assault to be included within a murder because

the two offenses could have the same culpable mental state and bodily injury can be a subset of serious

bodily injury.”).13

with the person's liberty, by moving the person from one place to another or by

confining the person.” Id. § 20.01(1). "Abduct” means "to restrain a person with

intent to prevent his liberation by: (A) secreting or holding him in a place where he

is not likely to be found; or (B) using or threatening to use deadly force.” Id.

§ 20.01(2).

Here, Appellant contends that the jury could have found him guilty of

unlawful restraint because some evidence—albeit Appellant's own testimony—

tended to show that Appellant did not abduct Garibaldi but, rather, only restrained

him. We disagree.

Pursuant to the trial court's charge in Cause No. 5693, the jury was authorized

to convict Appellant of aggravated kidnapping if the jury found (1) that Appellant

had abducted Garibaldi by either secreting him in a place where he was not likely to

be found or by using or threatening to use deadly force and (2) that Appellant used

or exhibited a deadly weapon during the commission of the offense. As such, there

were a variety of manner and means by which the jury could have concluded that

Appellant committed this offense.

All witnesses to the attack, including Appellant, testified that Appellant

displayed and exhibited a firearm as he approached Garibaldi. Likewise, it is

undisputed that Garibaldi lost consciousness after Appellant attacked and brutalized

him. Only Appellant testified that Garibaldi regained consciousness at some point

after the beating. Nevertheless, even assuming that the jury believed Appellant's

version of events, the evidence is uncontroverted that Appellant displayed and

exhibited a firearm during his attack on and beating of Garibaldi and that Appellant

possessed and exhibited the same firearm when he and Macias transported Garibaldi

away from Dominguez's apartment to the secluded, unoccupied area where

Garibaldi's body was abandoned and later found. 14

All witnesses to the attack further testified that, after violently beating

Garibaldi until he lost consciousness, Appellant—with or without assistance—

moved and loaded Garibaldi onto the bed of Macias's pickup. Appellant and Macias

then forcibly transported Garibaldi to a secluded and unoccupied area, discarded

Garibaldi into the roadside brush adjacent to an overgrown dirt road, and abandoned

him there, severely injured and without assistance. Although Appellant testified that

they merely intended to move Garibaldi away from Dominguez's apartment so

Garibaldi could walk home, Appellant also admitted that they drove in a direction

away from Garibaldi's home after they left Dominguez's apartment. This is not

evidence of restraint without abduction.

Garibaldi's body was later found in a secluded, unoccupied area.

Ranger Brown testified that no traffic passed while he investigated this area and

searched for Garibaldi's body. Chief Rodriguez responded to the 9-1-1 dispatch and

was informed that Garibaldi's body had been left in this secluded area. Yet, he stated

that he was fortunate to have located Garibaldi's body—even though he actively

searched for it—because only Garibaldi's feet were visible from the outer

boundaries of the roadside brush. This evidence shows that Appellant abducted and

restrained Garibaldi by moving him from one place to another without his consent

and by secreting him in a place where he was not likely to be found, namely the

secluded, unoccupied area where Garibaldi's body was eventually located.

Furthermore, Appellant does not, and cannot, refer us to any evidence in the

record that would indicate that Appellant accomplished the movement or

confinement of Garibaldi with the use or threat of force other than deadly force. See

Anderson v. State, 125 S.W.3d 729, 731, 734 (Tex. App.—Texarkana 2003, no pet.)

(To be entitled to a lesser included offense instruction "there must be some evidence

directly germane to an unlawful restraint offense for such an instruction to be 15

warranted.”). The evidence in the record before us shows, without dispute, that

Appellant—either personally or as a party—brutally attacked Garibaldi and

thereafter transported him to a secluded, unoccupied area and abandoned him.

Additionally, it is undisputed that, throughout the commission of this aggravated

kidnapping, Appellant also used, exhibited, or possessed a deadly weapon, namely

a firearm. Importantly, Appellant concedes in his brief that "[i]t is easy to see how

moving Garibaldi from Dominguez's apartment to a secluded back road and

dumping the body in tall weeds could facilitate the commission of aggravated

assault.” We agree. In this case, Appellant abducted Garibaldi with the intent to

facilitate the commission of a felony, while exhibiting and displaying a deadly

weapon throughout the duration of this episode. Such conduct could only constitute

aggravated kidnapping, not unlawful restraint as Appellant suggests.

We have carefully reviewed the record and conclude that the evidence

presented at trial does not rise to the level or provide a basis that would permit a

rational jury to find that, if Appellant is guilty, he is guilty of only the lesser included

offense of unlawful restraint. Furthermore, no evidence was presented to establish

that the requested lesser included offense of unlawful restraint is a valid, rational

alternative to the indicted offense of aggravated kidnapping to which Appellant was

convicted. The second prong of the analysis cannot be satisfied. Therefore, the trial

court was not required to submit, and did not err when it correctly refused to instruct

the jury on, the requested lesser included offense of unlawful restraint. Accordingly,

we overrule Appellant's first issue on appeal.

B. Assault

A person commits the offense of assault if he intentionally, knowingly, or

recklessly causes bodily injury to another. See PENAL § 22.01(a)(1). "Bodily injury”

is defined as "physical pain, illness, or any impairment of physical condition.” Id. 16

§ 1.07(a)(8) (West Supp. 2020). A person commits the offense of murder if he

intends to cause serious bodily injury to an individual and he commits an act clearly

dangerous to human life that causes the death of an individual. Id. § 19.02(b)(2).

"Serious bodily injury” is defined as "bodily injury that creates a substantial risk of

death or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.” Id. § 1.07(a)(46).

The indictment in Cause No. 5694 charged Appellant with the offense of

murder pursuant to Section 19.02(b)(2) of the Penal Code. Therefore, to convict

Appellant of this offense, the State was required to prove that (1) he intended to

cause serious bodily injury, (2) he committed an act clearly dangerous to human life,

and (3) his act caused the death of Garibaldi. See id. § 19.02(b)(2).

The testimony of multiple witnesses established the serious bodily injuries

that were inflicted upon Garibaldi by Appellant. These witnesses, including

Appellant, testified that Appellant struck Garibaldi in the face multiple times with

his fists, feet, or a pistol. J.Y. and Appellant testified that Appellant struck Garibaldi

several times in the head/face with his fists. Davila, Dominguez, and Robison

testified that Appellant struck Garibaldi several times in the head/face with a pistol.

Each of these witnesses, including Appellant, testified that Appellant struck

Garibaldi in the face a minimum of three times and that, as a result, Garibaldi lost

consciousness. In fact, Appellant even testified that, while Garibaldi was

unconscious, Appellant struck him in the face again. Clearly, the extent and severity

of the injuries sustained by Appellant as a result of Appellant's brutality could hardly

be characterized as mere "bodily injury.”

Moreover, and alternatively, the State presented evidence that Appellant also

acted as a party in causing Garibaldi's serious bodily injuries. Under the law of

parties, "[a] person is criminally responsible as a party to an offense if the offense is 17

committed by his own conduct [or] by the conduct of another for which he is

criminally responsible.” Id. § 7.01(a) (West 2011). Here, the witnesses to this

beating testified that, once Appellant stepped away from Garibaldi after he

momentarily ceased with his barrage of punches, Dominguez then struck Garibaldi

in the head several times with a metal bat. Appellant and Dominguez testified that

Appellant did not ask or expect Dominguez to participate in the beating; however,

after Dominguez chimed in, Appellant did not attempt to stop Dominguez's

savagery. Dominguez and Appellant both testified that they had coordinated a plan

to retaliate against and lure Garibaldi to Dominguez's apartment in order to ambush

him because Garibaldi had slapped J.Y. earlier that day. This payback was carefully

conceived. Appellant was a party to Dominguez's actions, which in concert with his

own conduct resulted in and caused Garibaldi's serious bodily injuries and eventual

death.

Appellant and others also testified that, after the beating, Appellant, either

acting alone or with assistance, loaded Garibaldi onto the bed of Macias's pickup.

Appellant and Macias then transported Garibaldi to a secluded, unoccupied area that

was located in the opposite direction of Garibaldi's home, dumped his body into the

brush adjacent to an isolated dirt road, and abandoned him. Furthermore, Appellant

directed Macias to the secluded area where Garibaldi's body was abandoned. The

State also presented medical testimony that a limited period of time existed in which

to treat a person who had sustained injuries of this severity. According to Dr. Krouse

and Dr. Baronia, in order to provide necessary treatment and to possibly avoid a fatal

situation, only a one-hour window of opportunity existed from the time these

extensive and serious injuries had been inflicted upon Garibaldi. It is undisputed

that Garibaldi had been abandoned in a secluded, unoccupied area in an unconscious

state for several hours before his body was located. This passage of time and 18

Appellant's role and direct involvement in moving and abandoning Garibaldi in the

wild significantly contributed to and caused Garibaldi's eventual death. Thus, in

addition to his active role in the brutal beating of Garibaldi, Appellant was clearly a

party to the actions of Dominguez and Macias.

Importantly, Dr. Krouse and Dr. Baronia further stated that any of the alleged

actions—the striking with a hand, a pistol, a bat, or kicking Garibaldi in the head—

could result in and cause serious brain trauma and potentially fatal injuries.

Dr. Krouse testified that these actions could not be distinguished from each other as

being the sole cause of Garibaldi's fatal injuries. Furthermore, Dr. Baronia testified

that striking a person after he is unconscious will produce a heightened risk of other

brain injuries to that person. The official cause of Garibaldi's death was determined

to have been blunt force trauma to his head, which ultimately caused massive

internal cerebral hemorrhaging and intracranial swelling. According to Dr. Baronia,

the internal bleeding in Garibaldi's brain had commenced within twenty-four hours

of his death.

Here, the evidence shows that Appellant, and others with whom Appellant

was a party, subjected Garibaldi to a vicious, brutal beating that resulted in

Garibaldi's eventual death. As we have said, this is not a circumstance in which the

victim only sustained "bodily injuries.” Without question, the multiple injuries

inflicted upon Garibaldi by Appellant and others were beyond serious. We have

thoroughly reviewed the record and hold that the evidence presented at trial does not

rise to a level or provide a basis that would permit a rational jury to find that, if

Appellant is guilty, he is guilty only of the lesser included offense of assault. Safian,

543 S.W.3d at 219; Rice, 333 S.W.3d at 145. Furthermore, no evidence was

presented to establish that the requested lesser included offense of assault was a

valid, rational alternative to the indicted offense of murder to which Appellant was 19

convicted. Again, the second prong of the analysis cannot be satisfied. Therefore,

the trial court was not required to submit, and did not err when it correctly refused

to instruct the jury on, the requested lesser included offense of assault. Accordingly,

we overrule Appellant's second issue on appeal.

C. Harm/Due Process

Finally, in his third issue, Appellant asserts that the trial court's refusal to

instruct the jury on the requested lesser included offenses of unlawful restraint and

assault was harmful and violated his rights to due process and to a fair trial. We

disagree.

In reviewing alleged jury charge error, we first must determine whether the

charge contained actual error. Phillips v. State, 463 S.W.3d 59, 64 (Tex. Crim. App.

2015) (citing Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)); Abdnor v.

State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Garcia v. State, 592 S.W.3d

590, 596 (Tex. App.—Eastland 2019, no pet.). If no error occurred, our analysis

ends. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). However, if

actual error is present, we must next determine whether the error resulted in

sufficient harm to require reversal. Phillips, 463 S.W.3d at 64–65; Ngo, 175 S.W.3d

at 743–44; Abdnor, 871 S.W.2d at 731–32; Garcia, 592 S.W.3d at 596. In this case,

because Appellant contends that the trial court erred when it refused to instruct the

jury on these requested lesser included offenses, any alleged charge error would be

subject to an Almanza harm analysis. Saunders, 840 S.W.2d at 392; see Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

In light of our disposition of Appellant's first and second issues, and for the

reasons we have expressed above, we cannot conclude that Appellant was either

harmed, denied a fair trial, or deprived of his right to due process by the trial court's

proper refusal to charge the jury as Appellant requested. In fact, no harm or due 20

process violation could ever exist because the evidence presented at trial does not

support the submission of either unlawful restraint or assault. Irrespective of

Appellant's assertions, the fairness of his trial was not compromised.

Nevertheless, it should be noted that, in Cause No. 5693, even though the trial

court refused Appellant's requests to instruct the jury on the lesser included offenses

of kidnapping and unlawful restraint, on appeal Appellant only challenges the trial

court's refusal to instruct the jury on the even lesser offense of unlawful restraint.

See TEX. R. APP. P. 38.1. We cannot say, and will never know, if the jury in this

case, based on the evidence presented at trial, would have convicted Appellant of

the lesser offense of kidnapping had the jury been so charged. Such speculation is

not before us and is of no consequence to our analysis. Of significant consequence,

however, is that the evidence in the record does not establish unlawful restraint as a

valid, rational alternative to the charged offense of aggravated kidnapping.

Moreover, in Cause No. 5694, the trial court's charge included an instruction

for the jury to consider the lesser included offense of aggravated assault, which "lies

between” the offenses of assault and murder.6

See Flores v. State, 245 S.W.3d 432,

439 (Tex. Crim. App. 2008) (citing Jackson v. State, 992 S.W.2d 469, 474–75 (Tex.

Crim. App. 1999)). Appellant contends that the "lies between” rule should not

foreclose an assault instruction in this case because the evidence that supports an

assault submission differs from the evidence that would support an aggravated

assault submission. In support of his argument, Appellant cites to two cases that

address whether lesser-included-offense instructions for both theft and aggravated

assault were warranted, since aggravated assault lay between theft and the charged

offense of aggravated robbery. See Hudson v. State, 449 S.W.3d 495, 499 (Tex.

6

See Hayward, 158 S.W.3d at 479; Forest v. State, 989 S.W.2d 365, 367–68 (Tex. Crim. App.

1999) (holding that aggravated assault can be a lesser included offense of murder).21

Crim. App. 2014); Sweed v. State, 351 S.W.3d 63, 69 (Tex. Crim. App. 2011).

Contrary to Appellant's assertion, the holdings in Hudson and Sweed are

inapplicable and clearly distinguishable.

Here, the statutory elements of assault and aggravated assault were each

contained within the offense of murder as it was charged in the indictment in Cause

No. 5694. Furthermore, the jury was able to consider the lesser included offense of

aggravated assault in arriving at its verdict. As such, based on the facts of this case,

and in light of the jury's verdict to convict Appellant of murder rather than the

submitted lesser included offense of aggravated assault, the trial court's proper

refusal to charge the jury on the even lesser offense of assault did not, and could not,

harm Appellant or violate his rights to due process or to a fair trial. See Masterson v.

State, 155 S.W.3d 167, 171–72 (Tex. Crim. App. 2005); see also Hardeman v. State,

556 S.W.3d 916, 923–24 (Tex. App.—Eastland 2018, pet. ref'd); Lopez v. State,

2012 WL 3129160, *3 (Tex. App.—Eastland Aug. 2, 2012, pet. ref'd); Levan v.

State, 93 S.W.3d 581, 584–87 (Tex. App.—Eastland 2002, pet. ref'd). Accordingly,

we overrule Appellant's third issue on appeal

We affirm the judgments of the trial court.