by SEAN KIMMONS
A district judge has denied requests for depositions and other evidence sought by the mother of a 19-year-old man who was shot to death outside a San Marcos home in November, court records say.
State District Judge Gary Steel did rule, however, that the family of Elijah Espinoza can wait six months to seek the witness accounts when the criminal investigation into the Nov. 14 shooting will presumably be complete or nearly complete.
Espinoza, of San Marcos, was shot as many as five times around 3 a.m. Nov. 14 as he tried to enter the back door of a home in the 1300 block of Belmont Drive, police say. Police described Espinoza, who was unarmed, as an intruder and the same person who broke into the home and groped a girl the night before.
No charges have been filed against the alleged shooter, Thomas Pope, the girl’s father, due to the state’s Castle Doctrine law.
On Dec. 7, 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.
The autopsy report is expected to be finished this week, a Central Texas Autopsy official said Tuesday.
Espinoza’s family had no regrets with the judge’s ruling at the Jan. 4 hearing, their attorney said following the ruling.
“We have some certainty set out; we didn’t have that before,” said attorney Chevo Pastrano, who represents Cuevas. “The family was very happy.”
If the family decides to file a civil lawsuit for wrongful death, the family would have the right to conduct depositions sooner than the six-month delay, Pastrano said.
“I think we’ll probably be in a position to start evaluating on whether to file a lawsuit in the next couple of months,” he said. “We’re still trying to figure out a few things. It’s a slow process when you can’t have access to the police files.”
In her petition, Cuevas seeks police reports, photos, video, 911 recordings, and witness statements related to both incidents, as well as her son’s autopsy report. Those materials, in addition to new testimony, would help determine whether a legal claim should be pursued, the petition states.
Both women in the house at the time of the shooting – the girl and her mother – asked the judge to deny Cuevas’ attempt to depose them, saying the plaintiff would conduct depositions if they follow through with a lawsuit.
“This attempt to require Julie and Emma to appear for deposition is unnecessary at this time and borders on harassment,” their attorney, Robert Scheihing, wrote in the filing. “Julie and Emma, by petitioner’s own allegations, were not involved in the alleged crime.”
The Hays County District Attorney’s Office also submitted a motion to quash the Cuevas’ petition and asked for an order keeping evidence gathered in the police investigation from being released until the investigation is completed.
In the motion to quash, Assistant District Attorney David Mendoza says that Cuevas’ petition failed to show that the likely benefits of allowing the depositions outweighs the burden or expense of the procedure. The deposition process would constitute a failure or delay of justice, he says.
In seeking the protective order, Mendoza asked the judge to keep case files off limits until the criminal court resolves all pre-trial discovery and suppression issues.
“The State asks the Court to exercise its discretion and grant a protective order, because it is necessary to protect the State from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional, or property rights,” Mendoza wrote.
The San Marcos Police Department’s investigation into the shooting is completed and that agency will file no charges in the case, Police Chief Howard E. Williams said. Case files were handed over to the district attorney’s office last week, he said.
“We certainly are not going to file anything but we will send it to the district attorney’s office and let them decide,” Williams said previously.
Police believe the shooting is directly related to the break-in the night before at the Belmont Street house, but cannot necessarily prove that Espinoza was the intruder in the earlier incident.
Hays County District Attorney Sherri Tibbe declined to say if she would present the case to the grand jury for possible indictments.
