The defense of David Barajas, the Texas man on trial for allegedly shooting to death the drunk driver who struck and killed two of Barajas' children, got a boost on Wednesday from the testimony of a few prosecution witnesses.
Two police officers who were at the scene of the December 2012 accident and shooting testified that more gunfire took place some time after the driver was shot. A fact that was not previously noted in police reports.
A third witness, the shooting victim's cousin, gave contradictory evidence as to whether Barajas had struck the drunk driver, José Banda, before shooting him.
Barajas, 32, is accused of fatally shooting the 20-year-old Banda near Alvin, Texas, minutes after Banda plowed into a vehicle that Barajas and his two sons had been pushing on a rural road. Twelve-year-old David Jr. and 11-year-old Caleb were killed. Barajas' truck had run out of gas about 100 yards from the family's home.
Barajas' attorney, Sam Cammack, has told jurors his client did not kill Banda and was focused only on saving his sons.
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A current deputy with the Brazoria County Sheriff's Office and a former deputy with the department told jurors they failed to note in reports that they had heard more gunfire after arriving at the crash site.
Ex-deputy Lloyd Anderson, who told jurors he was fired for not including more details in his reports, said he probably did inform an investigator about the gunfire.
When Cammack asked another deputy, Jason Knopp, why he failed to include the gunfire detail in his report, Knopp said, "No answer for it, sir."
Cammack has focused his efforts at Barajas' trial, which began Tuesday, on suggesting to jurors that authorities unfairly zeroed in on a grieving father as the killer without fully investigating other possible suspects. Cammack has suggested Banda could have been shot by several other people who witnesses say fled the crash site.
Anderson said a search the night of the accident failed to find any individuals who had reportedly fled the scene.
Gerardo Tellez, Banda's cousin, testified that he and Banda had become intoxicated on Jagermeister and possibly beer on the day of the accident. Tellez said he followed Banda home and witnessed his cousin slam into Barajas' truck.
Tellez said he fled after seeing the "body parts" of the boys on the road. He said before leaving he saw Barajas approach Banda's vehicle and start punching Banda through the driver's side window.
Cammack later showed jurors a crime scene photo of Banda's car and the driver's side window was up.
"You're going to stick with that even though we saw (the photo with the window up)?" Cammack asked Tellez.
"Yes," Tellez replied.
Legal experts have said the case could be difficult to prosecute given the lack of hard evidence: no weapon was recovered, no witnesses identified Barajas as the shooter and gunshot residue tests done on Barajas came back negative. If convicted, Barajas faces up to life in prison.
An even greater challenge for prosecutors could be overcoming sympathy for Barajas. Many residents in Alvin, 30 miles southeast of Houston, have supported Barajas. Some have said they might have done the same thing in a similar situation.
Despite no murder weapon, prosecutors have said they have other evidence, including ammunition found at Barajas' home that they say is similar to a bullet fragment found in Banda's car. Cammack says police found a shell casing for a different weapon, a 9mm handgun, at the scene and that Barajas couldn't have had enough time to retrieve a gun from his home and shoot Banda before authorities arrived.
During ex-deputy Anderson's testimony, dash-camera video from his patrol vehicle of the crash site was played for jurors. In the video, Cindy Barajas, the boys' mother, can be heard screaming, "No, not my babies."
Based on reporting by the Associated Press.