Aybar v. State

GUSTAVO AYBAR, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-18-00018-CR

NO. 01-18-00019-CR

NO. 01-18-00020-CR

Court of Appeals For The First District of Texas

July 18, 2019

On Appeal from the 262nd District Court Harris County, Texas

Trial Court Case No. 1493128, 1500417 & 1500418

MEMORANDUM OPINION

Following a joint trial on three separate indictments, a jury found Gustavo Aybar guilty of the offenses of child endangerment, manslaughter, and aggravated assault.¹ After finding enhancement allegations regarding prior felony convictions to be true in each case, the jury assessed the following punishment for Aybar: 2 years in prison for the child-endangerment offense, 27 years in prison for the manslaughter offense, and 12 years in prison for the aggravated-assault offense.²

Aybar appeals each judgment of conviction. In the child-endangerment case, he challenges the sufficiency of the evidence to support his conviction, and he asserts charge error. In the manslaughter and aggravated-assault cases, he contends that he received ineffective assistance of counsel. In all three appeals, Aybar challenges the assessment of various costs and fees.

We affirm the judgment of conviction in the manslaughter case, and we affirm as modified the judgments of conviction in the child-endangerment and aggravated-assault cases.

Background

Around 6:00 p.m. on December 26, 2015, Charles Futrell and his wife, Yolanda, were traveling west on Interstate 10 (I-10) through Houston to attend a family Christmas celebration in Katy. Charles was driving their Nissan Versa, andYolanda was in the passenger's seat. They were in the high-occupancy vehicle lane (HOV) lane, traveling around 60 miles per hour with the flow of traffic.

To get to their destination, the Futrells needed to take the Barker Cypress exit from I-10. Charles moved from the HOV lane and began to make his way into the stream of traffic on the freeway to reach the Barker Cypress exit.

At that time, Aybar was also on I-10. He was not far behind the Futrells. He was driving a white Cadillac with his three-year-old son, G.A., in the backseat. Unlike the Futrells, Aybar was not driving with the flow of traffic. Aybar was driving his Cadillac around 100 miles per hour, weaving in and out of traffic, cutting off cars, and driving on the shoulder. Other motorists had called 9-1-1 to report Aybar's highspeed, erratic driving.

M. Henry was also on I-10 behind the Futrells. Henry later testified that he was driving 60 miles per hour. He said that traffic was moderate and flowing continuously.

As he drove, Henry looked in his rearview mirror. He saw Aybar's Cadillac and a Toyota Camry coming up fast behind him, weaving through traffic. He estimated that the two cars were traveling at 90 to 100 miles per hour. Henry thought that the two cars were racing because they were moving from lane to lane trying to pass other cars. The Camry made it through traffic and passed Henry, but Aybar's Cadillac did not. In his rearview mirror, Henry saw Aybar coming up fastdirectly behind him. To avoid hitting Henry, Aybar swerved to the left. Henry then saw Aybar's Cadillac clip the back-passenger side of the Futrell's Nissan Versa. The Futrell's vehicle flipped, flew over the hood of Henry's car, and rolled across the roadway, landing on its roof on the other side of the freeway. Aybar's Cadillac hit the concrete barrier bordering the HOV lane, bounced off the barrier, and hit the back of Henry's car.

Motorists stopped at the scene to help. They flipped the Futrell's Nissan over right-side up. Yolanda Futrell was already dead, having died from the injuries she sustained in the accident. An autopsy showed that the cause of Yolanda's death was blunt trauma to her head, torso and extremities, with multiple fractures and brain injuries.

Charles Futrell survived the crash but was injured. An artery in Charles's arm was severed during the accident, and he suffered a broken neck and shoulder. Charles was airlifted from the accident scene by helicopter to a level-one trauma hospital. At trial, Charles indicated that he had healed from his physical injuries but still had difficulty with his equilibrium.

Henry bumped his head in the accident but did not receive medical treatment. Aybar's son, G.A., who was in the backseat of the Cadillac, had a facial abrasion after the accident.

Aybar was indicted for the offenses of child endangerment, manslaughter, and aggravated assault. With respect to child endangerment, the indictment alleged that Aybar had "intentionally and knowingly engage[d] in conduct that placed [G.A.], a child younger than fifteen years of age . . . in imminent danger of bodily injury, namely, by weaving in and out of traffic at a high rate of speed." The manslaughter indictment alleged that Aybar had "recklessly cause[d] the death of Yolanda Futrell by failing to control speed, failing to maintain a single lane, failing to keep a proper lookout, and by driving his motor vehicle and causing it to collide with a motor vehicle occupied by Yolanda Futrell." The aggravated assault indictment alleged that Aybar had "recklessly cause[d] serious bodily injury to Charles Futrell . . . by failing to control speed, failing to maintain a single lane, failing to keep a proper lookout, and by driving his motor vehicle and causing it to collide with a motor vehicle occupied by [Charles Futrell]."

Among the State's witnesses were Charles Futrell, eyewitnesses to the crash, first responders, law enforcement officers who had investigated the crash, and the assistant medical examiner. The State's evidence also included 9-1-1 calls, describing Aybar's driving before the accident and indicating that Aybar had caused the crash. In addition, crash data recorded by Aybar's Cadillac showed that, four seconds before the crash, Aybar was going 103 miles per hour.

Aybar testified in his own defense during the guilt-innocence phase. He stated that, at the time of the accident, he was taking his three-year-old son, G.A., to a birthday party. He said that his friend, Latrell, was in the front-passenger seat of the car and that he and Latrell had smoked a half a cigar of marijuana about 30 minutes before the crash. Aybar claimed that marijuana makes him "focused" and that he felt focused while driving before the accident.

Aybar testified that he routinely drives fast while weaving in and out of traffic. And he said that he has driven other cars at over 100 miles per hour, but he had never driven the Cadillac that fast. Aybar did not deny that he was going over 100 miles per hour before the accident, but he said that he was not looking at his speedometer that night.

Aybar explained why he was driving so fast and erratically at the time of the accident. He denied that he was racing with the Camry before the accident. Aybar said that he did not know the directions to the birthday party, so he was following his friend, K. Melton, who was driving the Camry. He said that Melton was driving fast and weaving in and out of traffic. Aybar claimed that he was trying to keep up with her and to not lose sight of the Camry, causing him to drive fast and mimic Melton's erratic driving. Aybar said that Melton entered the HOV lane, which surprised him, and he was trying to keep pace with her. He claimed that the accident occurred when Melton suddenly exited the HOV lane and cut across alllanes of traffic. Aybar said that Melton's action caused the cars in front of him to brake. He then pushed hard on his brakes and steered the Cadillac to the left to avoid hitting the car in front of him and cars to his right. He testified that he lost control of his car and hit the concrete barrier to his left.

Aybar denied hitting any other car. Specifically, he denied hitting the Futrells' vehicle and Henry's car. But he agreed that he had caused the accident. When asked how, Aybar testified, "Me wrecking, me wrecking, me hitting the [concrete barrier] wall and causing a big commotion, that's what caused the wreck. I admit that."

On direct examination, Aybar indicated that he was not aware of the risks that his driving posed to other drivers that night and he did not "think that this was going to happen." On cross-examination, however, Aybar acknowledged that he was aware that driving in the manner he was that night could result in a crash and that his son and other people could be injured.

The jury found Aybar guilty of the offenses of child endangerment, manslaughter, and aggravated assault. After finding enhancement allegations to be true, the jury assessed Aybar's sentence at 2 years in prison for child endangerment, 27 years in prison for manslaughter, and 12 years in prison for aggravated assault.

Aybar appeals each of the three judgments of conviction.

Sufficiency of the Evidence

In his first issue in the child-endangerment case, Aybar claims that the evidence was not sufficient to support his judgment of conviction.

A. Standard of Review

We review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden of proof under a single standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

Pursuant to the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational fact finder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 319; In re Winship, 397 U.S. 358, 361 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be insufficient under the Jackson standard in two...