San Marcos Mercury | Local News from San Marcos and Hays County, Texas

December 9th, 2010
Family of slain San Marcos man opens investigation

by SEAN KIMMONS

The family of a 19-year-old man who was shot to death outside a San Marcos home has begun its own investigation on whether the Nov. 14 shooting was justified.

Elijah Espinoza was reportedly shot as many as five times at about 3 a.m. as he tried to enter the back door of a home in the 1300 block of Belmont Drive, police say. Police described Espinoza as an intruder and no charges have been filed against the shooter.

On Tuesday, Espinoza’s mother, Nelda Jean Cuevas, filed a petition in state district court asking for permission to conduct depositions of the shooter, two women who reside at the home, a San Marcos police detective and a doctor at Central Texas Autopsy.

“He was a teenager who was unarmed and not equipped to commit a burglary,” said attorney Chevo Pastrano, who represents Cuevas. The family has also hired a private investigator, Claude Bookout of Austin.

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13 thoughts on “Family of slain San Marcos man opens investigation

  1. Boys should be with girls is a steady drumbeat in this country but so are owning guns.

    I remember teenage boys coming to our house in the middle of the night throwing pebbles at my sister’s window to be let in and being let in on more than one occasion. My mother sat by the window once she got smart enough to know of the activities and asked them if she should call their parents to give them a ride home.

    Shooting an innocent boy five times in cold blood and in the back has always been prosecuted as murder.

    The drum beats slow for justice in San Marcos.

  2. “He was a teenager who was unarmed and not equipped to commit a burglary.” Give me a break. He was a 19 year old with a significant criminal history, mental health issues, raised by a mother who is a career criminal, and he was equipped to commit a sexual assault, both times he broke into the house.

  3. @ Lynny-Where did you get the info he was shot in the back? Trying to enter a house in the middle of the night does not make one “innocent”. Try to enter my house in the middle of the night and you will surely be shot more than 5 times.

    Folks need to let this case work it’s way through the justice system. The stunt the man’s family is pulling with their ambulance chasing attorney will do nothing to bring their son back. Let a grand jury hear the case. If you don’t like that answer, then use the civil courts to address your issues. You never know what a grand jury will do. The dead man’s family deserves to have the system work for them.

    I am curious Chevo, when does a burglar have to be armed and what “equipment” is needed to commit a residential burglary? Has anyone recently read Chapter 9 of the Texas Penal Code? Might be worth reading….

  4. I think mom would be doing more than offering the man a ride home if he was a known criminal, he forgot to throw the cute little pebbles, then breaks in and attacks her daughter.

  5. Lynn,

    If you go back an listen to the mother’s first statements to Fox television and the Austin Statesman, you will see that she has completely changed her story. Her first comments were “We were afraid that something like this would happen. He was a good boy, but he had schizophrenia and a bipolar disorder. He often liked to go out late at night.”

    I don’t think enough people are focusing on the fact that this was a very troubled young man who was not getting the help he needed. A young man who does not have sufficient support by his family and is out wondering at 3:00 in the morning…is a formula for disaster.
    This does not appear to be a “date” for the young girl involved or a case of throwing pebbles at the window. Your blaming a young girl for an attack is beyond comprehension.

    I understand his family is grieving…but give me a break.
    The young man was mentally ill! It is too bad that the young man did not get the help he so desparately needed before this tragedy took place. If he had received the help, it might have spared
    many people around him grief.

  6. Offering another possible scenario was based on my outrage for the shooting of an unarmed, albeit disturbed, young man who reportedly had no weapons or tools for burglarizing. I am sorry for offending anyone and for writing with no real facts at hand. I made too many assumptions from inadequate information.

    I have learned a few more details about the incident and I am more inclined to withdraw the possibility that Elijah had a prior relationship with the shooter’s daughter, yet I stay the course on the original opinion of the shooting.

    Chapter 9 of the Texas Penal Code describes deadly force as justified to prevent arson, robbery, theft or criminal mischief at night, or to prevent a suspect from fleeing if the property owner “reasonably believes the land or property cannot be protected or recovered by any other means; or the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.” The facts of the case may prove the shooter justified or it may prove the shooter guilty of murder.

    On the night of the murder there was no report of Elijah having a weapon or a tool for breaking into the house or that he had actually entered the house. Calling the police on the night of the shooting seemed the better, right choice since no forced entry was reported as having been committed. I realize the Castle Law gives individuals a great deal of leeway for presuming reasonable use of force and based on what might have happened the night before it is easy to imagine the family felt this right extended into the next night.

    Any shooting by private citizens brings up questions. Should anyone who owns a gun be required to go through extensive, on-going training on how to use it in self-defense? Should gun-owning, private citizens take the same training that is required for law enforcement officers? No matter, I seriously doubt any jury in Texas would prosecute the shooter under these circumstances.

    The tragedy is that one man and his family must live with the repercussions of having killed a fellow human being. Elijah was old enough to now be responsible for all of his actions but another tragedy is he was unable to conquer his own mental demons or rise above the poverties of his life. Was he failed by society, family, friends, or health care workers? Was the family he targeted failed by law enforcement and therefore felt they had no other choices? Would one shot in the knee have altered the course Elijah was on? Perhaps not, we will never know.

    My heartfelt sympathy goes out to both the shooter and his family and to Elijah’s family. Five bullets have altered the lives of so many.

  7. Lynny Moore, please read Chapter 9, Penal Code, in particular:

    Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

    (1) if the actor would be justified in using force against the other under Section 9.31; and

    (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

    (A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

    (B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

    (b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

    (1) knew or had reason to believe that the person against whom the deadly force was used:

    (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

    (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

    (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

    (2) did not provoke the person against whom the force was used; and

    (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

    (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

    (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

  8. The Cold Hard Facts-

    Yes, I referred to Chapter 9 of the Texas Penal Code in my second response. What is the opinion you wanted to express by copying and pasting it?

    I believe it is well established that trying to or actually entering someone’s house without permission is illegal but the letter of the law in Sec. 9.32 is “unlawfully AND with force.” We don’t have all the facts, but I was questioning whether on the night of the shooting Elijah actually tried to enter the house with force. Both criteria may not have been met. However, the castle law is generous and Texas jurors are more generous so I guess you could just act on the famous adage, “Shoot first, ask questions later.” It is my understanding that both are so generous that as a private citizen (non-law enforcement person) shooting an unarmed, alleged thief or person crossing your property would be excused under Sec. 9.32. So, actually, my questions are moot in the presence of Texas Law.

  9. the point is your reference (in paragraph 3) was clearly to the text of section 9.42, deadly force to protect property

    the “Castle Doctrine” is section 9.32, deadly force to protect person

  10. I am starting to feel like a lawyer might feel.

    I think that we are both wrong about which exact Section would be applied in this case. You are right in that the original opinion I wrote is not from Sec. 9.32 but from Sec. 9.42. I was attempting to draw from Sec. 9 in general and used language from Sec. 9.42 instead of Sec. 9.32.

    We continue to make assumptions without facts. One assumption is that the shooter lived or did not live at the residence. I believed he was staying there that one night only because of the incidents from the night before and that he brought a gun with him. That may change things but not significantly since Sec. 9.33 incorporates Sec. 9.31 or Sec. 9.32. It would be safe to say the shooter acted from Sec. 9.33 and would eliminate any concern of habitat.

    Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:

    (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

    (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

    Note how it refers to Secs. 9.31 or 9.32, the Section(s) I originally meant to draw from and in particular, “and with force.”

    Now that we might have all the various exact listings and wordings of some of the subsections from Section 9 of the Texas Penal Code, the same questions remain that would assist in the interpretation.

    Was Elijah invited in or did he use force to break in? Did he then attempt a sexual assault the night before? Was he attempting to burglarize the house on both of the nights? If so, why did he ride his bicyle over there? Was he shot in the back as rumor has it? How many times was he shot in the back? On the night he was shot, was he using force to come into the house? If not, does jiggling a door handle constitute force? There are hundreds of more questions that could be asked.

    The big question? Was the shooting homicide of Elijah Espinoza necessary to protect the family and their things? Looking outside of how the various laws are written to justify homicide for defense, are they right? How do they work in concert with our gun laws or lack of them? Do owning guns with very little training on how and when to use them in the defense of property or person create an atmosphere for “Shoot first, ask questions later?” Many people don’t see anything wrong with that until it is their daughter or son or brother or sister or father or mother or cousin or friend who gets shot.

  11. John White was pardoned and released early today. A generous holiday present for him and his family from Governor Paterson.

    Had he been from Texas he would have never gone to prison. Oh wait, what was I thinking? He probably would have gotten the electric chair for shooting while Black.

  12. Well everyone is entitled to there opinion on thiss but I am a close friend of the family and I knew the Elijah since he was little. There were so many rumors about the shooting and it is sad and hard for the family to cope with the loss. Kids are stating that Elijah and the girl were dateing and suposedly watching inapropiate movies together. I don’t know what realy happened only god knows but from what I saw from him he was a good boy. He was real polite and he went to church on sunday. Just becuase you you have gotten into trouble dose not make you a bad person. Nelda her name is nelda and she was my best friend and she did more for me then words can ever express my gratitude to her. She had the bigest heart and she loved her kids! She would help people all the time. She always went out of her way for people. All you people that are quick to judge what makes you so perfect na d to feel you have a right to judge. Have any of you lost a child or someone you love. Weather my kid was wrong or right if my kid was shot five times you better beleive I would be right there ready to get to the bottom of things and with the way the investigation went I would push for more. She was devastated when her son passed away I watched her cry and I held her hand and now she has passed away. She was hit by a eighteen wheller and died instantly so when you say his mother the criminal she has a name and her name was nelda and she was my friend and I love her very much and I miss her and you people should be ashamed get a life!
    LET HE WHO IS WITH OUT SIN CAST THE FIRST STONE!

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