David Barajas gets a kiss from his wife Cindy after a jury acquitted him of murder at the Brazoria County Courthouse on Wednesday, Aug. 27, 2014, Angleton, Texas. Barajas was accused of fatally shooting Jose Banda in December 2012 near Alvin, minutes after Banda hit a truck Barajas and his two sons were pushing after it ran out of gas. Twelve-year-old David Jr. and 11-year-old Caleb were killed. He could have been sentenced to up to life in prison, if he had been convicted. (AP Photo/Patric Schneider)

On a cool night in December 2012, the Barajas family’s Ford pickup ran out of fuel.

David Barajas and his two sons, 12-year-old David Jr. and 11-year-old Caleb, got out to push. Barajas’s wife, Cindy, his 8-year-old daughter and his 3-month-old son stayed inside the truck. They were about 100 yards from home in Alvin, Tex., some 30 miles southeast of Houston.

Jose Banda, 20, was driving his Chevrolet Malibu down that same unlit country road — with a blood alcohol level twice the legal limit, investigators said. He didn’t swerve. He didn’t break. He allegedly crashed into the back of the pickup, killing the two pre-teen boys.

But it was the moments following the fatal crash that had David Barajas in a courtroom until this week. During the investigation, a witness reported seeing Barajas leave the scene, walk home and return to Banda’s car — after which gunshots were reported. Prosecutors alleged Barajas flew into a rage and killed Banda. The defense argued Barajas was trying to save his sons. And a jury acquitted Barajas on Wednesday for fatally shooting the man responsible for killing his kids.

“This was a loss for everybody,” Barajas said after the verdict, according to the Associated Press.

When authorities arrived on Dec. 7, 2012, a police vehicle dash cam video captured Barajas on his knees beside his son Caleb, appearing to attempt CPR. David Jr. died at the scene and Caleb died at a nearby hospital, the AP reported.

Banda was found slumped in his seat with a bullet wound to the head, the Houston Chronicle reported.

During the trial, prosecutors made their case. Brazoria County District Attorney Jeri Yenne said police had found an empty gun holster, ammunition and no gun at Barajas’s home. Investigators said a bullet fragment found in Banda’s car could have come from a .357-caliber gun — and ammunition for such a gun was found in his house. And DNA evidence traced blood found on the driver’s side door and arm rest of Banda’s car back to Barajas.

But it wasn’t enough to convict him. No witnesses saw a shooting. No weapon was ever recovered.

Defense attorney Sam Cammack said the bullet fragment that was found could have also come from a different kind of gun. And gunshot residue tests done on Barajas’s hands came back negative.

Barajas could have faced life in prison if he had been convicted.

After the verdict was read Wednesday, all sides agreed it was a tragedy for everyone involved.

“Three sons were lost that day,” Yenne said. “The state has compassion for every single one of them.”


This undated photo provide by the Barajas family shows from left, Cindy Barajas, Jenessah Barajas, Caleb Barajas, David Barajas and David Barajas Jr. Caleb and David Jr. were killed during a Dec. 7, 2012, accident near their home in Alvin, Texas, as the boys and their father were pushing their truck on a rural road after it had broken down. Authorities say 20-year-old Jose Banda was intoxicated when he slammed his vehicle into the truck, killing the brothers. The boys’ father was charged with fatally shooting Banda minutes after the accident. His trial is set to begin Monday, Aug 18. (AP Photo/Courtesy Barajas Family)