McALLEN — The Thirteenth Court of Appeals ruled last week that a former U.S. Customs and Border Protection officer should get a new trial nearly five years after he was convicted of murder.
Jose Guadalupe Rodriguez Elizondo, 37, was sentenced to 25 years in prison in 2011, after a jury found him guilty in the murder of Fermin Limon Sr., a 49-year-old nightclub owner.
On August 9, 2010, Elizondo, his wife, Maria, and his brother, Juan, went to the PuntoTres nightclub around 12:45 a.m. Elizondo and his wife were involved in a confrontation with the owner of the nightclub, Limon Sr., his son, Fermin Limon Jr., and some of the nightclub’s security employees, according to court records.
At some point during the altercation, and in an effort to get away from the club personnel, Elizondo ran to his white Dodge Ram truck, which was parked almost 70 yards away, according to the court records.
He was chased by three men. Elizondo then became involved in a physical struggle with Limon Jr. just outside the driver’s side of his truck — with his CBP-issued gun in his hand, according to court records.
Without warning, Limon Sr. approached Elizondo with a gun in his hand. Each man was pointing his gun at the other. Elizondo claims that he shot Limon Sr. in self-defense, according to court records.
Hidalgo County sheriff’s deputies arrested Elizondo after the Aug. 9, 2010, fatal shooting, alleging that Limon’s slaying was not justifiable under the law.
At question for jurors during trial, which began in November 2011, was whether Limon’s fatal shooting qualifies as murder, or whether Elizondo was justified in killing him in self-defense.
Jurors convicted Elizondo of murder after less than two hours of deliberation Nov. 14, 2011, and the former CBP officer was sentenced to 25 years in prison, according to court records.
Elizondo faced up to life in prison for Limon’s murder and was scheduled to become eligible for parole after half his prison sentence was served — around the year 2023.
Since his conviction, Elizondo has appealed to the Thirteenth Court of Appeals but the murder conviction had been affirmed by the court — that is until Thursday when the court reversed its decision, ruling that Elizondo deserved a new trial based on incorrect wording in the jury charge read to the jurors during his trial, which caused harm to Elizondo at trial.
“The instruction regarding provoking the difficulty was erroneously worded, and it should not have been included in the court’s charge to the jury in the first place. We hold that the inclusion of the provocation instruction in the jury charge caused some harm. We need not address Elizondo’s remaining grounds for review. The judgment of the Thirteenth Court of Appeals is reversed, and the case is remanded to the trial court for a new trial,” the statement reads.
In its ruling, the court stated that the third element in the provoking-the-difficulty instruction to the jury was not met.
The Thirteenth Court of Appeals states that the trial court erred by not addressing whether or not Elizondo’s actions or words were done with the intention of harming Limon Sr.
“The appellate court found that this evidence raised the issue of provocation and supported finding that Elizondo provoked the difficulty and did not abandon the encounter. However, we fail to see how this evidence would support a jury’s finding that Elizondo acted with the intent, and as part of a larger plan, to kill Limon Sr.,” the court states.
Elizondo’s appeals attorney, Brandy Wingate Voss, confirmed the court’s ruling for a new trial but declined comment based on her policy not to comment on pending cases.
At press time no new court hearings had been scheduled for Elizondo.
– Convicted in a 2010 murder case
– Claims he shot man in self defense
– Sentenced to 25 years in 2011
– Ruling was reversed Thursday
