A Texas man, accused of shooting and killing a drunk driver in a fit of rage in 2012 after the driver had just struck and killed his two sons, is set to go on trial for murder Monday.
Prosecutors are expected to argue that David Barajas was so enraged after seeing his sons hit by a car on a rural road outside Alvin, Texas, that he retrieved a gun and shot 20-year-old Jose Banda in the head.
Barajas and his sons —12-year-old David Jr. and 11-year-old Caleb — were pushing the family’s broken-down truck down a rural road just yards from their home in 2012 when Banda slammed into the back of the vehicle. The collision killed David Jr. at the scene. Caleb died hours later at the hospital.
Before emergency responders arrived at the scene Banda was dead.
Toxicology tests later revealed that Banda had more than twice the legal level of alcohol in his system at the time of the accident.
But investigators and prosecutors argue there was no way for Barajas to know that at the time. Nevertheless, they contend Barajas retrieved his gun and killed Banda after witnessing the crash.
“He was the only one standing around Jose Banda's vehicle when the gunshot was fired,” Dominick Sanders, a detective with the Brazoria County Sheriff's Department, told Fox 26 last year.
A search of Barajas’ home found ammunition consistent with the bullet that killed Banda. But the prosecution has very little additional evidence. They do not have a murder weapon. Nor do they have a witness to testify seeing Barajas with a gun at the scene. Gun powder residue tests performed on Barajas also reportedly came back negative.
“The prosecutor is starting from behind the eight ball,” Houston criminal defense attorney Grant Scheiner told The Associated Press.
Aside from the lack of evidence, prosecutors may also have to overcome public sympathy for Barajas’ situation. Many in his community have admitted publicly that they might have shot Banda themselves if put in a similar situation.
“Deep down, in a man's heart, it is for his family. God put that in his heart, so I don't see how anyone could ever fault this man for what happened, if he did it and I'm not saying he did,” Pamela Leribeus told Fox 26.
“Just black and white there's guilt, but as a father, put me in that situation, and I happen to have two boys myself, I can't judge and I won't judge,” said Gabriel Escochea.
“It's not the right way to do it, but jurors a lot of times make judgments based on moral responsibility, not legal responsibility,” Joel Androphy, a Houston defense attorney, said.
But others close to Banda are convinced of Barajas’ guilt.
“What (Barajas) did wasn't right,” said Felicia Leija, 22, Banda's common-law wife. “For other people to say they would have done the same thing ... you don't know what you would have done.”
Fox 26 legal analyst Chris Tritico said, though, he thought the odds of acquittal were strongly in Barajas’ favor.
“I would be comfortable in any county in Texas trying a case like this where the emotion is going to swing this heavily in favor of the defendant,” he said.
If convicted of murder Barajas could face life in prison. Jury selection is expected to conclude Monday with opening arguments beginning Tuesday.