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

February 14th, 2011
Alleged intruder shot in the back, autopsy shows

by SEAN KIMMONS

A 19-year-old San Marcos man described by his family as mentally retarded and by police as an intruder was shot four times, one of those in the back, according to an autopsy report.

Espinoza

An unarmed Elijah Espinoza was shot to death on Nov. 14 as he tried to enter the back door of a San Marcos home in the 1300 block of Belmont Drive. Police discovered his body in the house’s front yard.

San Marcos police have said they believe Espinoza was the same person who broke into the house a night earlier and groped a teenage girl who lived there. The girl’s father, Thomas Pope, told authorities he was guarding the house against another break-in.
According to an autopsy conducted by Dr. Suzanna Dana of Central Texas Autopsy, the first gunshot hit the left clavicular region of Espinoza’s chest and was recovered in the lower lobe of his right lung. The autopsy found “stippled wounds” on his face embedded with glass fragments.

The second gunshot entered his anterior chest and was recovered in his right lateral chest wall; the third shot entered and passed through his left upper arm.

The fourth wound is described by Dana as “peri-mortem,” which means it occurred at or near the time of death. The language suggests the fourth shot was fired sometime after the initial volley of three gunshots.

Attorney Chevo Pastrano, who represents Espinoza’s mother, Nelda Jean Cuevas, said that the fatal shooting isn’t as black and white as police originally assumed.

“I think it speaks for itself,” Pastrano said of the report. “It’s hard to conceive self defense when somebody is turned in the opposite direction and you put a bullet into his back.”

All of the bullet wounds resulted from 9mm hollow point copper jacketed bullets, the report said.

The prescription drug 10-Hydroxycarbamazepine, an anticonvulsant used to treat seizures, was also found in Espinoza’s body, a toxicology report stated. Espinoza’s family members have said that he was diagnosed as being mentally retarded and suffered from  psychiatric disorders, Pastrano said.

“There’s no doubt that he’s been prescribed medication for his psychiatric problems,” he said.

In early December, Cuevas opened a private investigation and filed a petition in state district court asking permission to conduct depositions of the shooter, two women who reside at the home, a San Marcos police detective and the autopsy doctor.

On Jan. 4, State District Judge Gary Steel denied the requests but ruled that Espinoza’s family can wait six months to seek the witness accounts when the criminal investigation into fatal shooting will presumably be complete or nearly complete. The family will continue their investigation and decide whether to proceed with a civil lawsuit for wrongful death. If the family does file a civil lawsuit, it would have the right to conduct depositions sooner than the six-month delay, Pastrano said.

The San Marcos Police Department’s investigation into the shooting is completed and will file no charges in the case, Police Chief Howard E. Williams said, specifically citing the state’s Castle Doctrine. Case files were handed over to the Hays County District Attorney’s Office last month, he said.

The department’s Criminal Investigations Division Cmdr. Penny Dunn would not comment on the autopsy report since the investigation hasn’t been presented to a grand jury.

“It’s still an open investigation,” she said. “We do not want to taint this investigation.”

District Attorney Sherri Tibbe declined comment on if or when her office would present the case to the grand jury for possible indictments.

SEAN KIMMONS reports for the Hays Free Press where this story was originally published. It is reprinted here through a news partnership between the Free Press and the San Marcos Mercury.

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30 thoughts on “Alleged intruder shot in the back, autopsy shows

  1. If a person is trying to break in a home, and is shot multiple times, wouldn’t you expect that the last shot might be in the back?

    After all wouldn’t it be a natural reaction, when shot once, to begin turning away and retreating?

  2. While I have no opinion on the question of responsibility for the death of Espinoza and whether it was justified or not, I find the comment of Chevo Pastrano ridiculous on its face: “It’s hard to conceive self defense when somebody is turned in the opposite direction and you put a bullet into his back.”

    On the contrary, it is not at all hard to conceive how Espinoza might have been shot in the back with the fourth shot. If a person has been shot three times from the front, he would be in the process of falling down or twisting away from the shooter. If he was twisting away, the fourth shot could easily enter his back. Nothing about what has been reported negates self-defense under the castle doctrine.

    In Texas, the castle doctrine is rather convoluted, but can be found at sections 9.31 and 9.32 of the Texas Penal Code. In a case with the facts as they have been reported here, deadly force is permitted if a person in a habitation reasonably believes that another person is attempting to unlawfully enter the habitation to commit robbery or aggravated robbery or sexual assault (or several other named offenses). All the facts related to the intruder are important, as is the reasonableness of the shooter’s belief that deadly force was necessary.

    Obviously, Mr. Pastrano has a financial interest in interpreting the facts to the advantage of his client. If the shooter is found to be justified in his actions, he is immune from civil liability for the shooting and Mr. Pastrano’s client will not be able to recover financial damages for the shooting, damages which Mr. Pastrano will likely share in his role as the attorney.

    Whenever someone dies an untimely death, it is always a tragedy for the family, friends, and the community. Sometimes another person can be held legally responsible and sometimes not. A grand jury is the appropriate forum for determining whether the shooter can legally be held responsible for the death in this case. Trying to influence public opinion through the media is a time-worn tactic used by lawyers and others. I hope the public will not give much weight to the self-interested and factually absurd opinion of Mr. Pastrano, but will let the grand jury sort out the facts dispassionately so that it can reach a fair and just conclusion.

  3. I’m not a lawyer (thank goodness), but I also have been trained in self defense as well as the castle doctrine. I essentially agree with Mr Hankins. “Ambulance chasing” lawyers like Pastrano warp the intended consequences that our society has established. We as a society (in Texas) have decided that citizens have a right to protect their family and property–even with deadly force. Using the civil court system rather than working to change the law is the best evidence that lawyers like Pastrano are a cancer to our system. They make grieving families believe that they can get rich off of the criminal activities of their family members–disgraceful in my opinion. The best way to not get shot is to obey the law. If you don’t agree with that I’d suggest moving to California, Chicago, or Washington DC. One last point, if the intruder in this case was mentally disabled, then why did the family let him wander around the streets unsupervised at 2am? Proper supervision of this disabled person by his family would have prevented the entire incident.

  4. “While I have no opinion on the question of responsibility for the death of Espinoza and whether it was justified or not…” and,

    “Nothing about what has been reported negates self-defense under the castle doctrine.”

    Mr. Hankins. Do you take us for fools—or are you a fool?

    If you had critically read what has been reported or used a little common sense you wouldn’t have written either of those statements.

    News accounts and the official police report contain so many discrepancies that you had to have an opinion to have missed them.

    Breaking in for what?

    No report of sexual attack was made regarding the Saturday morning event but the authorities introduced that element later to give support to the shooter motive of Castle Law that the authorities introduced. The police are suppose to investigate the facts—not make prosecutorial or judicial determinations.

    What do you suppose someone on a bike plans to burgle—maybe a TV, laptop or antique furniture?

    Your analysis of the autopsy report demonstrates that you have been watching to much TV.

    “I hope the public… will let the grand jury sort out the facts dispassionately so that it can reach a fair and just conclusion.”

    It’s clear you don’t have a clue about our Hays County DA’s office.

    Do I have to cite the previous incompetent, biased and unjust actions of our DA?

    You certainly do have an opinion about this matter and perhaps of other matters—and I can only hope your other opinions are not as uninformed as the one you expressed in writing above.

  5. There are so many theories to this case. One is that the boy was indeed seeing the girl who lived there. Just saying. Our law enforcement does tend to pass judgement and make up their own minds as to what happened in an incident and do tend to try to persuade which ever side they tend to lean toward. This must come from us being such a bit small despite Texas State. Is Stevens still an officer?

  6. If someone is breaking into your house in the middle of the night (or anytime for that matter) you have the right to protect yourself and your family. Espinoza was not knocking on the front door. He was attempting to break into the house. What should be done when someone is breaking into your house?

  7. O’Dell:

    There is no one more incompetent (as in crazy) and biased than you, with your typical tin foil hat conspiracy theories you make up to further whatever losing cause you happen to be associated with at the time; in this case, your long-standing vendetta against Tom Pope (and apparently the DA’s office) for something that has nothing to do with this case, as evidenced by the fact that you spend an inordinate amount of time commenting on every internet article on this subject.

    Your allusions to the “official police report” in this case are clearly false; you do not have access to, nor have you read the reports generated by law enforcement in this case. It is clear from your comments that you know nothing factual about this case, but that you won’t hesitate to make up your own.

    Sincerely,

    The Cold Hard Facts

  8. Gentlemen,
    Since when is it required for me to determine the motive, mode of transportation, or mental capacity of someone who is attempting to forcefully enter my residence while I am inside with my family–especially at night? No one that I know wants to shot or kill another human being, but it is preferable to the alternative in many situations such as this one. I don’t want to live in a society where it’s against the law for me to protect my family and property. Let’s keep both families in our prayers.

  9. Did the family or lawyer also say that Elijah had just been released from the state juvenile prison and how many years he was locked up? And why they let their mentally retarded son roam the streets all night?
    Oh and lots of cell phones can be carried on a bike…Mr. Odell, if you ever saw Elijah’s Facebook page the week after the incedent and before it was changed…he had a picture of a pile of dozens of cell phones along with assault/machine guns.
    Oh and we have another question that must be asked of a criminal at 3am who is trying to enter your house after breaking into it the night before…After you are through asking him his mode of transportation and asking whether he is armed. You must now ask: Are you average or above IQ? If you are mentally unstable, then come right on in!

  10. O’Dell-your ignorant comments don’t even justify a response. Your beyond stupid.

    Imagine- “Our law enforcement does tend to pass judgement and make up their own minds as to what happened in an incident”-Wow. I wonder why they would do that? Maybe THEY have all the facts and information about case because of their investigation. Now that might make some sense, huh?

    All you folks that chime in here thinking you know all the facts in this case (or any pending law enforcement investigation for that matter) should probably just watch from the sidelines and let the process work. When it is done and reported out, then start asking questions and giving your own conspiracy theories. File an FOI and get the whole report. Don’t simply rely on the media.

    Lamar and I don’t always agree on things but he is right on target with this one. Chevo is an lawyer who will do almost anything to make a buck. Truth means absolutely nothing to him. He will twist information, misrepresent and outright “warp” the truth to get his criminal clients off or make money from a grieving family. He is pathetic at best.

    I don’t know all the information in this case since I am no longer involved. I do know the professionals conducting the investigation and have the utmost faith they will gather all of the facts, put them in an understandable format and then present it to a grand jury and let them decide if any criminal charges should be filed.

    It is tragic someone had to die, that someone has to live with killing someone in order to protect their family, and even more tragic that an ambulance chasing attorney is victimizing the dead man’s family trying to make a buck and get face time in front of TV cameras. All you researchers out there do a little digging into Chevo’s past and see what skeltons he has. Never know what you might find….

  11. The Cold Hard Facts just had a look at the autopsy report. Shots 1 and 2 were in the front, and were fatal. Shot 3 was through the left arm from outside to inside, as he was turning, and would not have been fatal. Shot 4 was in the back, and the path of the bullet was very short, just under the skin, from left to right, parallel to the width of the body, not perpendicular, so the decedent was turned at a 90 angle to the path of the bullet. Shot 4 was not fatal and did little damage.

    Just more Cold Hard Facts for ya!

  12. Why couldn’t the reporter come out and state the facts like Cold Hard facts did? Shot in the back gets more attention than Shot in the Side on the last Shot!!

  13. Cold Hard,

    You have a big mouth for someone who is clueless and hides behind a fake online name.

    “Your allusions to the “official police report” in this case are clearly false; you do not have access to, nor have you read the reports generated by law enforcement in this case.”

    Maybe you should check your sources before spouting off. Check with the San Marcos Police Department and see if they sent 34 pages of Incident Reports #100000084912 and #100000085171 in response to our December 2010 Texas Public Information Act (open records) request.

    And T.(Terry?} Nichols. “File an FOI and get the whole report. Don’t simply rely on the media.”

    FOI is a freedom of information request (federal) and we have one of those pending with TSA.

    With your experience in law enforcement you should know that investigation reports are not available during an “active” investigation. Then, after the DA goes before a grand jury and obtains a no-bill by claiming Pope was just protecting his ex-wife’s property and daughter’s virtue we can’t rely on getting all responsive materials from agencies protecting their butts.

    Or evidence will be sealed. This happened to us after the Texas Attorney General Office moved to dismiss the charge against lobbyist Mark Littlefield for ACC voter fraud in San Marcos in 2004. That process was funded by local developer Randall Morris and involved his son.

    As for “relying on the media,” where do you believe reporters get their information, especially when quoting law enforcement personnel? Read the media reports over time and see how law enforcement quotes change and contradict earlier quotes.

    I would expect you cast a blind eye to law enforcement abuses in Hays County because of your work history. We don’t know who Cold Hard is but he is obviously well connected with the Good Ole Boys of Hays County and doesn’t appreciate the factual work that we do.

    No one has ever sued us for libel or slander based on any of our reports—even though attorney Charles Soechting threatened to on this site. They, like you and others just try to discredit our documented work.

    Maybe that’s because we can back up all our work with public documents and factual evidence.

    But hey, all of you give it your best shot.

  14. Mr Odell: no one sues you because they aint gonna score Any money. The only reason they would do that is to discredit you….but you seem to be very adept at that on your own.

  15. The language suggests the fourth shot was fired sometime after the initial volley of three gunshots.

    That is the troubling sentence. Makes it sound like the shots went 1,2,3…………….4. Or were they 1,2,3,4? Bad reporting, or a bad act?

    Personally I don’t know if I could get off 4 shots that quick. But then I shoot a .45ACP.

  16. @ o’dell-“News accounts and the official police report contain so many discrepancies that you had to have an opinion to have missed them.” So Charles, do share with us the wealth of information you have in those 34 pages of official police reports. You and I both know what you have is nothing but cover sheets of the offense reports with everything else redacted because it is an “active” investigation. You have no official details of this investigation, so stop pretending that you do. Those of us that actually do have a clue recoginze that you are a fool.

    As for media containing discrepancies…look who is talking to the media. Chevo. He would not know the truth if it hit him in the mouth. He has $ signs in his eyes thinking there is a quick buck to be made at a poor and grieving family’s expense. The PD made an initial statement about the event and ever since (rightfully so) stopped discussing any details until after the case is heard by a grand jury.

  17. I agree that the 4th shot is going to be a big deal. It looks like the first 3 were self-defense shots and he was within his rights. But the 4th? That’s going to get hairy. Espinoza was going down after the first 3.

    Plus Pope was on guard waiting for him? There’s a difference between self-defense and preparing an intentional defense. Sounds like there is more to the story here, probably involving the daughter. If the 4th was an anger shot then Pope might be in some trouble. Not a huge fan of ambulance chasing lawyers, but Espinoza’s family may have a case.

    Nevertheless, intruding into a home at 2am in Texas… that’s inviting trouble.

  18. LOL at O’dell

    Says he has the reports in one comment, then Terry (and CHF) gives him the smack down, and then he tells Terry that they are not available in his next comment. What a tool.

    Sincerely,

    The Cold Hard Facts

  19. Cold Hard Facts,

    There is a difference between an “Incident Report” and an “Investigative Report.” We were given what we asked for and we didn’t ask for any investigative reports because we understand the law.

    How do you get your “hard facts” so quickly? Do you have an inside tract to officials and skip open records requests?

    T. Nichols,

    “You have no official details of this investigation, so stop pretending that you do.

    Who’s pretending? Do you have information the public doesn’t have?

    “Those of us that actually do have a clue…” Are you an insider too?

    Here’s an example of official contradiction:

    “The San Marcos Police Department’s investigation into the shooting is completed…Police Chief Howard E. Williams said,…”

    Then,

    “It’s still an open investigation,” she (Division Cmdr. Penny Dunn) said.”

    Cold Hard Facts and T. Nichols are biased. Why?

  20. It would not be surprising to add schizophrenia to Chucky’s paranoia but it’s a better guess that O’Dell would like us to believe that he has more than himself interested in this case. I imagine the truth is that he often goes days without speaking to anyone.

  21. Dear Charles PhD:

    It is unfortunate that you are retired as you seem to have so much energy trying to “keep everyone straight.” I have observed your comments about elected public officials, people working for the county, and city. Who would have known that San Marcos could have so much corruption!!!!!!!

    I for one, feel so much safer having a watch dog like your self as the guardian of Hays County and the “keeper of truth.” Because you have a distorted view of yourself, I would like to add that I am saying that out of sarcasm…not respect.

    I have only one question for you. Is there anyone in Hays County that you do not see as corrupt or involved in a conspiracy or some type? Correct me if I am wrong, but I have never seen anything positive written by you other than comments about yourself.

    Please do everyone reading a paper a favor and quit posting.

  22. O’Dell, I would have sued you but I wasn’t damaged by anything you said. My income actually went up not down. Even though your statements were (and usually are) false you got a free pass because…well, you’re just irrelevant. Thanks for helping my business.

  23. A San Marcos Mercury EXCLUSIVE!!!

    Charles O’Dell tries his hand at humor.

    Though unsuccessful, the famed Ph.D today ventured into new territory with a sarcastic retort in the comments section following a news article. Other posters with whom O’Dell regularly exchanges barbs were amused by the attempt which will no doubt be met with the same patience afforded Dr. O’Dell’s other gaffs, misdirections and obfuscations.

    Stay tuned for updates!

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