Mimesis Law
28 March 2017

Former CBP Officer Jose Rodriguez-Elizondo Pleads Guilty to Murder

January 31, 2017 (Fault Lines) – In 2010, Customs & Border Protection Officer Jose Rodriguez-Elizondo shot and killed Fermin Limon, Sr., 49, outside of the nightclub that Limon owned. In 2011, Elizondo was convicted of murder in a Texas court and sentenced to 25 years in prison. In 2014, the Corpus Christi Court of Appeals affirmed the trial court, and Elizondo asked the Texas Court of Criminal Appeals[1] to review the case.

Last April, the Court of Criminal Appeals reversed the case, giving Elizondo a new trial. On January 23, 2017, Elizondo pleaded guilty to murder in exchange for a five-year sentence, the minimum possible.[2] With credit for time served, Elizondo will serve about 3 years, 9 months before he’s released. Let’s look at what happened and what some of the possible motivations were for Elizondo to take the State’s offer.

The facts of the case are pretty simple. Elizondo and his wife were at a nightclub with his brother when the wife said a man pushed her during a scuffle while bar security were ejecting several other people. Then Elizondo and the man (Fermin Limon, Jr.) got involved in a scuffle, and other bar security came over to help Junior. At about that point, Elizondo broke and ran for his truck, where his CBP-issued sidearm and badge were located. As he got to the truck, he managed to get his gun before he was grabbed and pulled out of the vehicle.

Elizondo had been grabbed by Junior and he fought back, pistol-whipping Junior to “protect himself.” He then saw Limon, Sr. approaching holding a gun, and this is where the story diverges. Elizondo said the he told Limon to put the gun down at least two times, but was forced to shoot in self-defense, killing Limon. Bar security, who worked for Limon, said that Elizondo had fired instantly after Limon was trying to calm things down.

The physical evidence was also not clear. Elizondo has a .40 S&W pistol, and there were four fired casings near his position. Limon had a 9mm pistol, and there were five spent shells near where he had been. The Texas DPS trooper who spoke to Elizondo noted that there were no marks or bruises, and he still had his cowboy hat on. Trooper Champion did not believe that Elizondo had been assaulted.

At the trial, as noted above, Elizondo was convicted by the jury and sentenced to 25 years in prison. He appealed, claiming insufficient evidence to reject a self-defense claim, but the intermediate appellate court affirmed the trial court. He also objected to the provocation instruction to the jury.

Self-defense is a risky call. To use it, the defendant has to admit the assaultive act, in this case shooting his pistol at the deceased. It’s basically a guilty plea with a claim that you were justified in shooting the other guy because he was going to kill you. But one of the downsides to such a defense is that it goes away if you provoked the fight, and in this case, that’s what the prosecution was alleging.

And the appellate court believed that there was evidence of provocation, so they affirmed the trial court. Elizondo then petitioned the Court of Criminal Appeals for review, and it was granted. On review, the Court of Criminal Appeals held that the Court of Appeals had not found evidence to support one of the three prongs required by the Smith test,[3] the third prong. That prong requires that the State show that Elizondo had the intent to harm Limon, and the provocation was a pretext to cause that harm, and the Court of Criminal Appeals stated that there was no such evidence that was evaluated. So it reversed.

And now Elizondo faces a choice. Go back to a jury, after having been found guilty and sentenced to 25 years, or take a deal. The State, realizing that it’s case was no better than the defense case, offered the minimum and Elizondo took it. That’s understandable. He had already served a year and three months. He would get out fairly soon.

It’s a reasonable result, for everyone.

[1] In Texas, the Court of Criminal Appeals is the highest court that hears criminal cases, the Texas Supreme Court does not have criminal jurisdiction.

[2] Murder in Texas carries a sentence of 5-99 years or life.

[3] From Smith v. State, 965 S.W.2d 509 (Tex. Crim. App. 1998). The test is that 1) the actor did or said something to provoke the attack, 2) it was calculated to provoke the attack, and 3) it was so the actor would have a pretext to harm the other.

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