David Barajas is accused of fatally shooting Jose Banda in December 2012, minutes after Banda plowed into a pickup truck that Barajas and his two sons had been pushing on a rural road. Twelve-year-old David Jr. died at the scene and 11-year-old Caleb died at a hospital. Barajas' truck had run out of gas about 100 yards from the family's home.
Barajas' attorney told jurors his client did not kill Banda and was focused only on saving his sons.
In opening statements Tuesday in Barajas' murder trial, prosecutor Brian Hrach told jurors Banda made a horrible decision by drinking and driving,
"He deserved severe legal punishment, but he did not deserve a public execution," Hrach said.
Barajas allegedly left the scene of the accident, retrieved a gun from his home and returned to kill Banda.
Sam Cammack, Barajas' attorney, told jurors Barajas never left the crash site. Cammack portrayed Barajas as a father who was desperate to help his sons and was covered with their blood after he tried to perform CPR on the boys.
"When police get there my client is doing what he was doing the whole time, trying to save his children's lives," Cammack said.
Dashcam video of the crash scene played for jurors Tuesday after testimony had begun brought many in the courtroom to tears. Barajas kept his head down as the video was played.
On the video, Barajas can be seen kneeling on the ground near a roadside ditch where the body of his son David Jr. had landed. A woman can be heard screaming, "My babies. Why? Oh my God, please help them." David Barajas' wife, Cindy, and their infant son and 8-year-old daughter had also been in the truck. They were not seriously hurt.
Legal experts said the case will 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.
An even greater challenge for prosecutors could be overcoming sympathy for the father. Many people in the town of Alvin where the tragedy occurred, 30 miles southeast of Houston, have supported Barajas. Some have said they might have done the same thing in a similar situation. The trial is in the county seat of Angleton, Texas.
Hrach tried to minimize the absence of a murder weapon, saying a bullet fragment from a .357 caliber weapon was found at the murder scene and an open box with .357 caliber ammunition was found in Barajas' home.
Witnesses will testify that they saw Barajas leave the scene and then come back and approach Banda's vehicle, going up against the car, appearing to be hiding something, Hrach said.
When 911 calls were played for jurors during testimony Tuesday, Cammack tried to suggest Barajas would not have had enough time to shoot Banda.
On one call, screaming can be heard in the background as an unidentified caller told a dispatcher a boy is "bleeding badly ... he's in half. It's bad."
On another call, an unidentified caller said, "There is a guy shooting at people." The person who was shooting was not identified.
Cammack highlighted for jurors the timeline, while questioning dispatcher Grace Gambino. The first 911 call came in at 11:33 p.m., a child was reported dead at 11:34 p.m., gunshots were heard at 11:35 p.m. and police had arrived at the scene and cleared it for EMS to come in at 11:40 p.m.
If convicted, Barajas faces up to life in prison.
Testimony was to resume Wednesday.
At least 25 family members and friends of Barajas were in the courtroom, wearing buttons that said, "Forever in our hearts, David and Caleb Barajas" and with a picture of the two boys. At least 20 relatives and friends of Banda were also in the courtroom.
Before opening statements, Judge Terri Holder asked that family members take off the buttons, saying she did not want anything to influence the jury.
"This is a difficult case for everyone involved. Everyone in here has lost somebody they loved," she said.