AUSTIN (KXAN) — Prosecutors are declining to prosecute four people police investigated after an assault on a gay man on Austin's Sixth Street last April, records show. The Travis County Attorney's Office in March told the court it would not pursue assault charges against three University of Texas fraternity brothers and a woman.
Prosecutors said the case had several complicating factors and that, "after an extensive and exhaustive review, it was determined the facts and evidence did not meet our highest legal standard of proof beyond a reasonable doubt." KXAN highlighted the case in an investigation last year that showed few hate crimes are prosecuted in Texas.
Austin Police Department investigators alleged in a police report that the department's HALO security cameras showed three men swarm Joshua Ybarra in downtown Austin, pin him to the ground and punch him repeatedly. According to multiple sources, the HALO cameras recorded the incident from a distance and did not have audio.
Few hate crimes are prosecuted in Texas. Attack against Austin gay man could be one of themYbarra told police, and later KXAN, that he was repeatedly called a homophobic slur during the encounter. APD's Hate Crime Review Committee reviewed the case and last spring determined the alleged actions of at least one of the men met the criteria to be classified as a hate crime, email records show.
According to Ybarra's attorney, that night he was wearing a purse, necklace and heels.
The county attorney’s office did not provide details as to what elements in the case were complicating, but Ybarra's legal team described a lack of audio in the video and uncertainty over which party initiated physical contact the night of the incident.
"Nothing in the video contradicts that the fraternity brothers approached him and his friends, began hurling slurs at them and brutally beat him. In fact, the video confirms the story that Mr. Ybarra has told from the beginning," Ybarra's attorney, Holt Lackey, said in a statement to KXAN.
David White, who represents the man who was facing a hate crime enhancement on the assault charge, denied that his client made any prejudicial statements.
White also alleged it was one of Ybarra's friends who initiated physical contact that night. He and David Thomas, the attorney who represents the two other men police accused of assault with bodily injury, accused Ybarra of lying to police officers and prosecutors.
"It is deeply concerning that the Austin Police Department's initial investigation relied heavily on the accuser's misleading narrative, overlooking exculpatory video evidence that could have resolved this matter sooner," White said in a statement to KXAN.
Lackey called the claims Ybarra lied about the incident or his injuries "scurrilous and false."
'Everyone belongs': City of Austin more effectively tracking hate crime data"While the video confirms Mr. Ybarra's consistent statements that the fraternity brothers approached and harassed him and that one of his friends confronted them and told them to back off, the video is ambiguous as to whether that friend or one of the fraternity brothers initiated the first physical contact," Lackey said.
Hate crime enhancements in Texas
In 2001, Texas Gov. Rick Perry signed the James Byrd Jr. Hate Crime Act into law, allowing enhanced penalties for an offense committed because of bias. Texas law requires prosecutors to prove the defendant intentionally selected the victim or their property because of the person's race, color, disability, religion, national origin, age, gender, sexual preference or status as a peace officer or judge.
The Texas Department of Public Safety has tracked hate crime incidents since the early 1990s, reaching a record 529 in 2022. In that year alone, 118 reported hate crimes allegedly targeted victims based on sexual orientation, also a record high. In the first six months of 2024, a total of 287 hate crimes were reported by law enforcement statewide, 44 of which were because of sexual orientation.
A report does not mean a hate crime will be affirmed in court. Data from the state's Office of Court Administration, or OCA, shows it's rare for Texas prosecutors to even ask a judge or jury to determine whether a suspect is guilty of a hate crime.
Between September 2001 and June 2024, DPS received 6,632 hate crime reports from law enforcement agencies statewide. In some cases, suspects were accused of targeting victims due to multiple biases — for example, both race and sexual orientation. Therefore, state data shows 6,797 incidences of bias during that time period: 64% because of race, ethnicity or ancestry, 20% because of sexual orientation and 12% because of religion. Other biases account for less than 5%.
But data from OCA shows in those thousands of reports, prosecutors only requested a hate crime finding in 41 cases — 0.6% of all hate crimes reported. Even fewer, 36, had a hate crime finding affirmed by a judge or jury.
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