Few hate crimes are prosecuted in Texas. Attack against Austin gay man could be one of them

Investigative Summary:

Three University of Texas at Austin fraternity brothers are facing misdemeanor assault charges after police say they attacked a man while at least one of them shouted homophobic slurs. The case is one of thousands of suspected hate crimes Texas law enforcement agencies have reported since 2001, but very few of those incidents are ever prosecuted as such.

AUSTIN (KXAN) – Joshua Ybarra was walking to his Uber on Austin’s Sixth Street when he says he heard a voice behind him say a gay slur. It was 2:20 in the morning. He was dressed in black-heeled booties with his late grandmother’s purse in his hand.

Minutes later, police say security cameras recorded as the same men he said shouted the slur pushed Ybarra to the ground and punched him until he blacked out. During the attack, Ybarra told police, he was still being called a “gay f—–.”

Joshua Ybarra in the hospital after police say he was assaulted on Sixth Street. (Courtesy Joshua Ybarra)

Police arrested three University of Texas Delta Sigma Phi fraternity members and have an arrest warrant out for a woman they say was also involved in the April 21 attack. The attorney for one of the men says one of Ybarra’s friends initiated the physical contact that night , but no one else has been charged.

In addition to the charges, the Austin Police Department determined under Texas law, one of the men’s actions that night was a hate crime.

It’s now one of more than 6,000 hate crimes Texas law enforcement officers have reported to the Texas Department of Public Safety since 2001. That year, Gov. Rick Perry signed the James Byrd Jr. Hate Crime Act into law, which allows enhanced penalties for an offense committed because of bias.

Law enforcement agencies have reported thousands of crimes they believe were committed because of prejudice since then, but only 41 have been prosecuted as hate crimes. It’s unclear if Ybarra’s case will be among them.

‘I was just trying to fight for my life.’

Months after the attack, 20-year-old Alex Saenz, 19-year-old Bhavya Kaushik, and the 21-year-old vice president of the Eta Chapter of Delta Sigma Phi, Sergio Martinez, turned themselves into the Travis County jail, according to court records.

A fourth suspect, Emilee Easley, has still not turned herself in after officers issued a warrant for her arrest.

Investigators said security footage shows the three men swarming Ybarra, pinning him to the ground and punching him. At one point, investigators said his long-time friend draped her body across his, but the men continued to assault them both.

“She threw her body over me, and I just remember seeing them punch the back of her head,” Ybarra said. “I was just screaming at her and saying, ‘you need to move.’”

The attorneys for Martinez and Kaushik say they have evidence that will exonerate their clients. Saenz’s attorney said the security footage shows the physical contact began when one of Ybarra’s friends lunged at and struck Saenz in the face. His attorney, David White, said, “This act of aggression compelled Mr. Saenz to defend himself, as is his right under the law.”

Investigators described how other fraternity members who witnessed the assault tried to pull Saenz, Martinez and Bhavik off Ybarra and his friends. The fraternity’s national office has not responded to repeated emails and calls from KXAN asking for comment. The Eta chapter did not provide a comment and declined to interview.

Ybarra’s other friend, a woman who investigators said was intoxicated and struggling to walk before the assault, fell to the ground during the melee and was seen lying motionless. According to investigators, surveillance video shows Easley punching her in the face and body several times.

Saenz, Martinez, Kaushik and Easley were all charged with misdemeanor assault causing bodily injury, but the Austin Police Department’s Hate Crime Review Committee determined Saenz was the only one who targeted Ybarra because of a bias.

Lt. Chris Davis, who oversees the Hate Crime Review Committee, said that after reviewing the evidence in the case, including the video, it determined that he met all the elements that led it to believe there was “potential 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.

Saenz’s attorney denies he made any prejudicial statements.

Ybarra and his attorneys say they requested the Austin Police Department and the County Attorney’s Office, which prosecutes misdemeanor offenses, to consider hate crime enhancements for the other defendants in the case, too.

“I feel like they should all be charged accordingly. I mean, it was just one person who started the whole thing, but they all followed suit, especially when I was getting beat; the slurs were coming,” Ybarra said.

Joshua Ybarra stands on the street where investigators say he was assaulted in April. (KXAN Photo/Kelly Wiley)

After the Hate Crime Review Committee classified the case as a hate crime in May, APD reported it to the Texas Department of Public Safety and FBI and forwarded it to the Travis County Attorney’s Office. The County Attorney’s office said it could not comment on pending cases.

“We are just [asking] hey, is there an element of bias associated with it, and we forward it off to look to the next level,” Lt. Davis said. “There is nothing to preclude the [District Attorney] or [County Attorney] from adding or taking away. They have full liberty to do that.”

Less than 1% found to be hate crimes in Texas

The Texas Department of Public Safety has tracked hate crime incidents since the early ’90s, 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.

This chart shows the number of hate crimes reported by law enforcement agencies in Texas each year since 2001, broken down by bias category. Data for 2024 is as of the end of June. Source: Texas Department of Public Safety. (KXAN Interactive/Christopher Adams)

Between September 2001 and June 2024, DPS received 6,632 hate crime reports from law enforcement agencies across the state. 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.

When a hate crime finding is affirmed, the district or county court clerk must notify OCA within 30 days.

KXAN analyzed the 36 affirmative findings submitted to OCA, and through court records and previous reports we found 61% were cases where victims were targeted because of race, ethnicity or ancestry, and 33% were targeted because of sexual orientation. In one case, the suspect targeted law enforcement. KXAN has been unable to confirm the bias in one instance — a 2014 case in Milam County.

In February, advocates called for prosecutors to request a hate crime finding after a 23-year-old Palestinian American, Zacariah Doar, was stabbed near UT’s West Campus. APD’s Hate Crime Review Committee determined the alleged aggravated assault met the definition of a hate crime.

But a grand jury ruled that Bert James Baker, who was indicted on a charge of aggravated assault with a deadly weapon, did not attack Doar because of bias or prejudice.

Since September 2001, five people have been found guilty of a hate crime in Travis County. Three of those were related to a 2019 attack on a gay couple in downtown Austin. Investigators said the two men were chased down, beaten and called homophobic slurs.

Quinn O’Connor, Kolby Monell and Frank Macias took a plea deal in August 2021 and were convicted of assault bodily injury with a hate crime finding. A judge ordered Macias to spend a year in county jail and send an apology letter to the victims. O’Connor and Monell were each sentenced to two years on probation, anger management counseling, 50 hours of community service and made to write a letter of apology.

“I know just the complexity these cases bring, and I can only imagine bringing these cases to the courtroom and persuading a jury that the mensrea – the reason why a person did this – was because of this,” Lt. Davis said.

‘There is really no recourse’

KXAN Live Anchor Will DuPree and Investigator Kelly Wiley discuss the difficulties of prosecuting hate crimes in Texas.

Texas lawmakers have attempted to revise, and study, hate crime laws over 20 times since lawmakers passed the James Byrd Jr. Hate Crime Act in 2001. Most of the bills targeting hate crimes since then have not passed, including one that would have added gender identity and expression to the statute on hate crimes.

“Where you live determines [whether] you’re going to get the help that you need. So, for a lot of rural and suburban LGBTQ Texans, oftentimes, there is really no recourse locally for folks to have these crimes taken seriously,” Equality Texas Executive Director Ricardo Martinez said . “We need lawmakers to have the courage to stand up and do something meaningful to protect our community because violence, like what happened to Josh, falls squarely on their heads.”

Ybarra has still not seen the video of the attack. He’s been trying to view it, but investigators and prosecutors have not shown him yet. He also asked the County Attorney’s Victim Services team to request a review of whether a hate crime finding should be pursued for the other defendants in the case.

Ybarra said doctors have not cleared him to return to his job as a certified medical assistant. His medical records show after the assault, his teeth and nose were broken, and he had a concussion.

The drawing from Ybarra’s niece sits on his bookshelf. (KXAN Photo/Chris Nelson)

During our interview, Ybarra pointed to a small, framed drawing on his bookcase. Now more than ever, he said he was turning to the message his niece had written at the center of the paper.

“To be yourself in a world constantly trying to make you something else is the greatest accomplishment.”

“It’s funny because I always look at that, and I’m trying to remind myself to be my true, authentic self regardless of everything that has happened,” Ybarra said.

Director of Investigations & Innovation Josh Hinkle, Investigative Photographer Chris Nelson, Graphic Artist Christina Staggs and Digital Director Kate Winkle contributed to this report.

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