In murder trial, two families dealing with grief Families pack courtroom as father on trial in death of drunken driver who killed his sons

David Barajas, charged with murder, walks with wife, Cindy, left, and stepmother, Betty Hernandez, into court in Angleton. ﻿ David Barajas, charged with murder, walks with wife, Cindy, left, and stepmother, Betty Hernandez, into court in Angleton. ﻿ Photo: Thomas B. Shea, Freelance Photo: Thomas B. Shea, Freelance Image 1 of / 26 Caption Close In murder trial, two families dealing with grief 1 / 26 Back to Gallery

ANGLETON - The family of David Barajas walked one by one into a tiny Brazoria County courtroom Tuesday morning, wearing blue and white buttons displaying pictures of the man's two young sons dressed in white suits, with angel wings digitally imposed on their shoulders. Below the photos were the words, "Forever in our hearts. David and Caleb Barajas."

Within an hour, nearly 40 of Barajas' family members packed the courtroom gallery, but soon some were asked to step outside. The judge wanted to make room for relatives of Jose Banda, the 20-year-old man who drove into Barajas' sons, 11-year-old Caleb and David Jr., 12, on a rural Brazoria County road in December 2012, killing them both.

Their father stands accused of killing Banda, who moments after the deadly drunken driving crash was found in his vehicle with a gunshot wound to the head.

"This is a difficult case for everyone involved," state District Judge Terri Holder said as opening arguments began in the murder trial. She asked that the pins be removed so there was no unfair influence over the jury and did not allow a life-size cardboard cutout of the boys in the courtroom. "I know everyone in here has lost someone they love."

For relatives of both families, maintaining composure on the first day of testimony was difficult. Autopsy photos of Banda elicited tears so loudly from one woman that the judge asked the jurors to momentarily leave the courtroom.

During a 911 recording of a frantic teenage boy, who described the children being hit and later hearing what he said was a gunshot, members from both families fought back tears, many cupping their hands over their mouths to muffle sobs.

Difficult to watch

A dash cam video from an Angleton Police Department officer's patrol car, showing Barajas kneeling by the side of his young son Caleb, appearing to desperately attempt CPR while his wife cried out for help, caused a few of his family members to leave the courtroom.

"It is difficult to not get emotional," said Barajas' cousin Lisa Rodriguez, after the day's proceedings. "It was hard hearing (the boys') mother cry out for help."

On Dec. 7, 2012, Banda's Chevrolet Malibu rear-ended the Barajas family's Ford 250 truck that had run out of gas on an unlit county road near Alvin. Barajas' young sons were helping their father push the vehicle to their home, about 100 yards away, when Banda's car then plowed into the truck and crushed the boys.

David Jr. died at the scene, and Caleb died at a hospital.

Shortly after the crash, 911 operators received calls about gunshots fired. Authorities later arrived at the scene to find Banda slumped in the front seat of his car with a bullet wound to his head.

Tests showed Banda's blood alcohol was nearly twice the legal limit when the crash occurred.

"Jose Banda did a stupid thing, he made a horrible decision by drinking and driving," assistant Brazoria County District Attorney Brian Hrach told jurors during opening arguments. He noted that the man deserved to be punished legally. "But he did not deserve a public execution."

The prosecutor also reminded jurors to pay attention to the facts of the case.

"Although tough," he said. "Please be advised that emotion cannot be what decides guilt or innocence."

Driver was shot in head

A Brazoria County grand jury indicted Barajas on a murder charge after a two-month investigation, during which authorities located a witness who reported seeing Barajas walk from the crash scene to his nearby home and return to Banda's car and hearing gunshots.

Authorities allege Barajas left the scene of the wreck, retrieved a gun from his home and returned to kill Banda.

The witness was not close enough to see if Barajas had a weapon in his hand. Investigators later searched Barajas' home, where they found an empty holster and unused ammunition, but no weapon.

Gunshot residue tests done on Barajas' hands came back negative.

Barajas pleaded not guilty. If convicted of murder, he faces up to life in prison.

Hrach told jurors that Barajas' blood was found inside Banda's vehicle and that an expert will explain the ease of washing away gun residue.

Burden of proof

Sam Cammack, Barajas' attorney, stressed to jurors the prosecution must prove that Barajas shot Banda. He told jurors his client's main focus that night was helping his children.

"When police get there, my client is doing what he's been doing the whole time, trying to save his son's life," Cammack said during opening arguments.

During cross-examination of two 911 dispatchers who answered calls the night of the incident, Cammack seemed to be suggesting Barajas would not have had enough time to have shot Banda.

Attorneys questioned several witnesses Tuesday, including Banda's wife, Felicia Leija, whose tearful testimony added to the day's emotions.

Prosecutors showed jurors pictures of Banda in the hospital holding a newborn girl, beaming with pride. Now a toddler, she was 5 months old when he died.

"I just don't trust anyone anymore," said Leija, who began to cry when asked by prosecutors how her life had changed since Banda's death. "Everyone has something bad to say about him, but he was a good guy. My daughter still asks for him sometimes."