Opinion
02-23-00115-CR
03-14-2024
Gabriel Ybarra, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1773209R
Before Sudderth, C.J.; Birdwell and Wallach, JJ.
MEMORANDUM OPINION
Wade Birdwell Justice
Appellant Gabriel Ybarra appeals his conviction for sexual assault. See Tex. Penal Code Ann. § 22.011(a)(1). In one issue, Ybarra argues that the evidence was insufficient to prove lack of consent. Because we conclude that the evidence was sufficient to support the jury's determination that the complainant, N.G., did not consent to sexual intercourse with Ybarra, we affirm the conviction.
We use initials to protect the complainant's identity. See Tex. R. App. P. 9.8 cmt.; 2d Tex.App. (Fort Worth) Loc. R. 7; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
I. Background
While on patrol on August 9, 2017, Officer Hunter Hart-who, at the time, worked for the Bedford Police Department-saw a black vehicle parked on the side of the access road in an "accident investigation area." It was just after 1:00 a.m., and the vehicle did not have any lights on. Officer Hart pulled over to investigate and approached the vehicle with a flashlight. He observed two occupants-Ybarra and N.G.-inside the vehicle in the front passenger seat, which was leaned all the way back. N.G. was lying on her back with her legs "spread open," and Ybarra, who was naked, was on top of her positioned in between her legs. Officer Hart instructed Ybarra to get out of the vehicle and put his pants on. After Ybarra got out of the vehicle, N.G. did not move; she "continued . . . to lay there" and did not appear to be "actively . . . trying to . . . clothe herself" or "get dressed."
Ybarra acknowledged that he and N.G. had been having sex in the vehicle, which he attributed to alcohol consumption. At trial, Officer Hart testified that Ybarra was "very, very, very much trying to . . . downplay the situation." He told Officer Hart that he had met N.G. that night at a bar and that they had just left the bar to go back to her house, which she shared with her mother. Officer Hart and Bedford Police Lieutenant William Mack-another officer who had arrived on the scene-observed that Ybarra did not appear to be intoxicated and was able to communicate clearly. After Officer Hart administered standardized field sobriety tests, he determined that Ybarra was not intoxicated.
Officer Hart later learned that this was a lie. N.G. was Ybarra's biological half-sister.
In contrast, Officer Hart observed that N.G. was "very disoriented" and that she appeared to be intoxicated. Lieutenant Mack had to help N.G. get out of the vehicle. N.G. was "incoherent" and could not provide her name or date of birth. Lieutenant Mack observed that N.G. appeared to be "extremely intoxicated" and explained that officers had her sit down on the curb because she had difficulty maintaining her balance. Bedford Police Officer Tara Noble-who had been called to the scene so that N.G. could speak to a female officer-also observed that N.G. appeared to be intoxicated and that she needed support to walk, describing N.G. as "disheveled."
When officers initially interacted with N.G., she was "very confused about where she was . . . and what was going on." However, Officer Hart and Lieutenant Mack observed a change in N.G.'s demeanor as she appeared to realize that she and Ybarra had had sexual intercourse. N.G. became "very, very upset[,] and she was very distraught over that." Officer Noble described N.G. as "extremely scared" and emotional. She was crying, and her emotions went back and forth between confusion and anger. When asked about what she could remember from that night, N.G. stated that she remembered leaving a bar but that she did not remember pulling over on the side of the road. The next thing she knew, she was in the car; she remembered an officer standing outside the vehicle and Ybarra being on top of her having sexual intercourse with her. N.G. told Officer Noble that she "would never consent to have sex with [her] half-brother."
At trial, N.G. testified that she and Ybarra had been drinking at her house before they went to the bar, where they continued drinking with other people. N.G. "was drunk" when they left the bar, so Ybarra drove her home. She testified that, although she had "blacked out" and could not remember the entire car ride, she specifically remembered Ybarra being on top of her, with his penis inside her vagina, when the officer shined his flashlight into the car. N.G. testified that she did not consent to having sex with Ybarra and that she had never had a consensual sexual relationship with him. Rather, she had had only a brother-sister relationship with Ybarra, which was important to her because she wanted to "know all [her] siblings."
N.G. was examined by a sexual assault nurse examiner (SANE), Connie Housley. Housley testified that during the SANE exam, N.G. appeared to be intoxicated. When Housley asked N.G. to describe what she remembered, N.G. said that she and Ybarra "were in the car, and [she] woke up, and [Ybarra] was . . . having sex with [her], and [she] didn't know." When asked whether she had been conscious while Ybarra was having sex with her, N.G. indicated that she was intoxicated, in and out of consciousness. Housley then collected blood samples from N.G., which were subsequently tested and the results admitted at trial. N.G.'s blood-alcohol concentration (BAC) at the time of the blood draw was 0.19. Dr. Robert Johnson, the chief toxicologist at the Tarrant County Medical Examiner's Office, testified to that BAC and explained that it is more than twice the legal limit to drive. Using retrograde extrapolation, Dr. Johnson testified that N.G.'s BAC at the time of sexual intercourse could have been somewhere between 0.22 and 0.28.
Retrograde extrapolation is the computation back in time of the blood-alcohol level that estimates a person's BAC at a previous time-generally, at the time of the offense-based on a test result from some later time. Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001).
Dr. Johnson also provided expert testimony about the effects of alcohol on the human body. Describing alcohol as a central nervous system depressant drug, Dr. Johnson testified that alcohol may cause side effects ranging from "euphoria" to even death resulting from overconsumption. He explained that, as alcohol is first absorbed into the blood, it creates a "euphoric" effect: "we're all a little bit happier, so we may say something we wouldn't normally say or we may do something we wouldn't normally do." As the BAC increases, the person will "start to lose control of muscle groups within the body," beginning with fine muscles like eye movement and eventually affecting the ability to speak or walk. Then, "at a high enough BAC," the person will "pass out or become unconscious from alcohol." Dr. Johnson testified that there are two versions of passing out. The first version is that the person is completely unconscious or asleep and has no awareness of what is happening around them. The second version occurs when the person does not comprehend or understand what is happening around them but is still able to physically move and function. Dr. Johnson testified that a person who has passed out from alcohol consumption may go "in and out of consciousness." A high BAC may also affect a person's ability to respond to certain stimuli, which "could literally be anything." In other words, the person no longer has "the ability to react like [they] would or should."
When asked about the apparent signs of intoxication-how an "average person" may observe that alcohol has affected someone else's mental or physical faculties-Dr. Johnson described behaviors such as speaking in a louder voice, slurring speech, fumbling around, stumbling or not being able to walk in a straight line, dropping things, and being confused about what is happening around the person. Alcohol may cause the person to experience "emotional swings" ranging from extremely happy to crying and distraught within a short time. Other observations include red, watery eyes and the inability to answer simple questions.
At the close of evidence, a jury found Ybarra guilty of sexually assaulting N.G., his half-sister. The trial court assessed Ybarra's punishment at 25 years' confinement and entered its judgment of conviction. This appeal followed.
II. Standard of Review
In our evidentiary-sufficiency review, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We may not re-evaluate the evidence's weight and credibility and substitute our judgment for the factfinder's. Queeman, 520 S.W.3d at 622. Instead, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume that the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608. The standard of review is the same for direct- and circumstantial-evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Carter v. State, 620 S.W.3d 147, 149 (Tex. Crim. App. 2021), cert. denied, 142 S.Ct. 859 (2022).
III. Applicable Law
A person commits the offense of sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of another person by any means, without that person's consent. Tex. Penal Code Ann. § 22.011(a)(1)(A). As relevant here, a sexual assault is without consent if the other person has not consented and the actor knows that the other person is unconscious, physically unable to resist, or unaware that the sexual assault is occurring. Id. § 22.011(b)(3), (5).
Evidence that the complainant was unconscious or close to unconscious due to voluntary intoxication is sufficient to prove lack of consent. See Elliott v. State, 858 S.W.2d 478, 485 (Tex. Crim. App. 1993). Additionally, "[a] victim's testimony is sufficient, in and of itself, to provide sufficient evidence to support a conviction." Babineaux v. State, No. 02-21-00085-CR, 2023 WL 164089, at *2 (Tex. App.-Fort Worth Jan. 12, 2023, no pet.) (mem. op., not designated for publication) (citing Marshall v. State, 479 S.W.3d 840, 845 (Tex. Crim. App. 2016)).
IV. Analysis
Ybarra admits to having engaged in sexual intercourse with N.G. He challenges only one element of the charged offense: lack of consent. Ybarra contends the evidence is insufficient to prove (1) that N.G. did not consent and (2) that he knew she was unconscious, physically unable to resist, or unaware that sex was occurring. According to Ybarra, the officers' body-camera footage negates lack of consent because it shows (1) that, although N.G. was "very intoxicated" and "unsteady on her feet," she was still physically able to dress herself, sit and stand "on her own," and converse with the officers; (2) that she was never unconscious through the duration of the body-camera footage; and (3) that she was essentially coerced-by the officers' "repeatedly" asking and expressing concerns about consent-into claiming that she did not consent. We disagree with Ybarra's contention.
At trial, the State introduced, and the trial court admitted, evidence showing that N.G. did not consent to the sexual intercourse:
• Officer Hart testified that, when he instructed Ybarra to exit the vehicle, N.G. "continued . . . to lay there" and did not appear to be "actively . . . trying to . . . clothe herself" or "get dressed";
• Officer Hart and Lieutenant Mack testified that Ybarra had initially lied about his familial relationship with N.G.;
• Officer Hart testified that Ybarra was trying to "downplay the situation";
• Lieutenant Mack testified that Ybarra had told officers that "alcohol" was the reason he had sex with his half-sister;
• Testimony from the responding officers that Ybarra did not appear to be intoxicated, was able to communicate clearly, and "passed" the standardized field sobriety tests;
• Testimony from the responding officers that, in contrast to Ybarra's mental and physical faculties, N.G. was "very disoriented," "disheveled," and "incoherent"; she could not provide her name and date of birth; she needed help getting out of the vehicle, sitting on the curb, and walking; she could not maintain her balance; and she appeared to be "extremely intoxicated";
• Testimony from the responding officers that N.G. was confused about where she was or what was going on;
• Officer Hart and Lieutenant Mack testified that, as N.G. appeared to realize that she and Ybarra had had sexual intercourse, her demeanor changed, and she became very upset, scared, and emotional. She was crying, and her emotions went back and forth between confusion and anger;
• N.G. testified that she was "drunk" when she and Ybarra left the bar, so Ybarra drove them to her house;
• N.G. testified that she had "blacked out" and that she could not remember the entire car ride home;
• N.G. testified that she remembered leaving the bar but did not remember Ybarra pulling the car to the side of the road. The next thing she remembered was Officer Hart standing outside the car with a flashlight and Ybarra being on top of her with his penis inside her vagina;
• Officer Noble testified that N.G. had told her that she "would never consent to have sex with [her] half-brother";
• N.G. testified that she had not consented to having sex with Ybarra;
• N.G. testified that she had never had a consensual sexual relationship with Ybarra and that she had had only a brother-sister relationship with him, which was important to her because she wanted to "know all [her] siblings";
• Housley testified that during the SANE exam, N.G. stated that she remembered that she and Ybarra "were in the car, and [she] woke up, and [Ybarra] was . . . having sex with [her], and [she] didn't know";
• Housley testified that N.G. relayed that she had been in and out of consciousness;
• Dr. Johnson testified that N.G.'s BAC was 0.19 at the time of the blood draw and an estimated 0.22 to 0.28 at the time that Ybarra was engaging in sexual intercourse with her;
• Dr. Johnson testified to the effects of alcohol on the human body, including loss of muscle function and passing out or becoming unconscious;
• Dr. Johnson testified that there are two versions of passing out: (1) the person is completely unconscious or asleep and has no awareness of what is happening around the person and (2) the person does not comprehend or understand what is happening around them but is still able to physically move and function;
• Dr. Johnson testified that a person who has passed out from alcohol consumption may go "in and out of consciousness";
• Dr. Johnson testified to the outward signs or characteristics indicating that a person is intoxicated or has lost control of their mental or physical faculties: speaking in a louder voice, slurring speech, fumbling around, stumbling or not being able to walk in a straight line, dropping things, and being confused about what is happening around the person;
• Dr. Johnson testified that alcohol can cause a person to experience "emotional swings" ranging from extremely happy to crying and distraught within a short period of time; and
• Body-camera footage from Officer Hart, Lieutenant Mack, and Officer Noble showing N.G.'s and Ybarra's demeanors and the officers' observations.
The evidence is sufficient to show that N.G. had not consented and that Ybarra knew that, during the sexual assault, N.G. was not conscious, she was physically unable to resist, or she was unaware that she was engaging in sexual intercourse. See Elliott, 858 S.W.2d at 485 (holding evidence that complainant was unconscious or close to unconscious due to voluntary intoxication was sufficient to prove lack of consent); see also Flores v. State, No. 01-20-00213-CR, 2022 WL 961554, at *9 (Tex. App.-Houston [1st Dist.] Mar. 31, 2022) (mem. op., not designated for publication) (holding jury was entitled to find appellant knew, during the sexual assault, that complainant was unconscious, physically unable to resist, or unaware appellant was engaging in sexual intercourse with her when jury heard testimony that complainant did not consent and had "blacked out" due to alcohol consumption), aff'd, 679 S.W.3d 695 (Tex. Crim. App. 2023); Lewis v. State, No. 13-10-00655-CR, 2012 WL 29326, at *3-4 (Tex. App.-Corpus Christi-Edinburg Jan. 5, 2012, pet. ref'd) (mem. op., not designated for publication) (stating complainant's testimony about defendant being on top of her when she awoke supported a finding that he began the sexual assault while she slept, without her consent); Mauldin v. State, No. 05-09-00513-CR, 2010 WL 936695, at *4 (Tex. App.-Dallas Mar. 17, 2010, pet. ref'd) (not designated for publication) (stating jury was entitled to conclude complainant did not consent when she testified that she did not consent to any sexual act with appellant, that she blacked out several times during the evening because of the amount of alcohol she had consumed-which was consistent with her elevated blood-alcohol level hours later-and that she awoke at one point to find appellant on top of her with his penis inside of her).
A relatively recent decision from our sister court in Austin is instructive. See Limonta-Diaz v. State, 593 S.W.3d 447 (Tex. App.-Austin 2020, pet. ref'd). In that case, the complainant had consumed several alcoholic drinks while out socializing with friends. Id. at 450. She became intoxicated and felt drunk, and she decided to request a ride home through a rideshare application. Id. She testified that the last thing she remembered was talking to the bartender at the bar she had visited; she did not remember meeting the rideshare driver or getting into his vehicle. Id. Her next memory was of trying to direct the rideshare driver to her apartment. Id. Then, she remembered the rideshare driver being on top of her in the backseat. Id. She tried to push the driver off of her and then tumbled out of the vehicle. Id. The jury heard testimony that the complainant was severely drunk and unsteady to the extent that she needed help to sit on the couch in her apartment. Id.
On appeal, the Austin Court of Appeals held that the evidence of the complainant's intoxication was sufficient to allow the jury to reasonably conclude that the gaps in her memory represented times during which she was unaware of the sexual assault due to her level of intoxication. Id. at 459. The court concluded that nothing in the statute requires "total" or extended unconsciousness. See id. We agree with our sister court's conclusion, and we likewise hold that, here, the evidence of N.G.'s intoxication was sufficient to show that the gaps in her memory represented moments in which she was unaware of the sexual assault due to her level of intoxication.
To the extent that there is any discrepancy between the testimony and the officers' body-camera footage-according to Ybarra, that is-we note that the jury viewed the footage, and as factfinder, the jury was free to judge the weight of the evidence and the credibility of the witnesses' testimony and resolve any conflicting inferences therefrom. Viewing all the evidence and any reasonable inferences in the light most favorable to the verdict, we conclude that the jury could have found beyond a reasonable doubt that N.G. did not consent to the sexual intercourse with Ybarra. Thus, we hold that the evidence is sufficient to support Ybarra's conviction. We overrule Ybarra's single appellate issue.
In the footage, although N.G. eventually was able to clothe herself before she exited the vehicle, she appeared extremely intoxicated, so much so that the responding officers asked her to sit on the curb while they interviewed Ybarra. Apparently listening to Ybarra's answers to questioning, N.G. several times reacted by emphatically calling him a "liar." When she eventually understood and recognized that she was just down the street from her mother's house, N.G. became emotional in a manner indicating a degree of disbelief in her circumstances. When asked by Officer Noble if she wanted to go home before heading to the hospital, N.G. emphatically refused, from which the jury could infer she did not want her mother to find out what had happened to her. All of this would support the jury's finding that N.G. did not consent.
V. Conclusion
Having overruled Ybarra's sole issue on appeal, we affirm his conviction.