WARNING: The video below includes footage from an altercation that ended a man’s life. Viewer discretion is advised.
By Ed Lavandera, Jason Morris and Nicole Chavez
HOUSTON (CNN) — A night out for two Texas families turned into a deadly fight and now one man’s family argues that justice isn’t being done.
John Hernandez kicked and gasped for air when a deputy’s husband allegedly had him in a chokehold outside a Houston-area Denny’s restaurant, a video shows.
Minutes later, the 24-year-old father was rushed to the hospital and three days later, he was taken off life support.
How the attack unfolded is at the center of what could turn into a criminal case against Terry Thompson, who is the husband of a Harris County Sheriff’s deputy.
Thompson’s attorney said he was acting in self-defense and that a video that was released does not tell the full story of how the altercation unfolded.
Hernandez’s death sparked protests and criticism around this Texas community. Some claim the man who restrained Hernandez could be receiving preferential treatment because his wife is a law enforcement officer.
On Wednesday, Hernandez’s death was ruled a homicide by the Harris County medical examiner’s office, reported CNN affiliate KTRK.
No charges have been filed against Thompson. A grand jury still needs to review all the evidence before anyone might be indicted.
It was just after 11 p.m. on May 28 when Terry Thompson verbally confronted Hernandez for urinating outside a Denny’s restaurant in Northeast Harris County, the sheriff’s office said.
“A physical altercation ensued,” the sheriff’s office said.
“After being confronted with urinating in public, he rushed to my client and struck him in the face. Now, I would consider that an attack,” said Thompson’s attorney, Scot Courtney.
As Thompson, 41, brought Hernandez to the ground, a man walked outside the restaurant and started recording the incident.
A 52-second video shows Thompson on top of Hernandez locking him in a chokehold while his wife, off-duty Harris County Sheriff’s Deputy Chauna Thompson, pins Hernandez’s left arm to the ground.
As Hernandez kicks and gasps for air, Thompson tells Hernandez, “Do you want me to hit you again? Do you want me to hit you again?”
Then two unknown people try to block the bystander from recording more of the scene. At one point a woman screams, “It’s illegal to record.” Several seconds later the recording stops.
Hernandez’s wife, Maria Toral, and her daughter were inside the restaurant when the incident began and rushed outside, yelling at the Thompsons to release Hernandez.
“The little daughter was screaming, ‘Quit hitting my daddy’,” their attorney, Randall Kallinen, said.
Courtney claims Thompson was acting in self-defense and that the video does not tell the full story of how the altercation unfolded.
“My client was trying to subdue him,” Courtney said. “That’s all he was doing.”
When Hernandez stopped resisting, the Thompsons “noticed that he was not breathing,” a statement from the Harris County Sheriff’s Office said.
Before he was taken to the hospital, the statement says, Chauna Thompson performed CPR on Hernandez.
He was taken off life support days later. The autopsy report said Hernandez’s death was a homicide and that he died from anoxic encephalopathy caused by strangulation by chest compression, reported CNN affiliate KPRC.
‘It does raise questions for us’
The case has sparked outrage and allegations that Thompson received preferential treatment from his wife’s law enforcement colleagues.
Kallinen said Hernandez’s wife was put in a police squad car for nearly four hours and had her cell phone taken away by deputies at the scene.
The night of the altercation, deputies considered filing assault charges against Hernandez because the case had been reported as an assault, not a homicide, said Tom Berg, first assistant district attorney for Harris County.
Officers at the scene did not tell prosecutors Hernandez was unconscious and being rushed to a hospital for treatment, according to the district attorney’s office.
Prosecutors say homicide investigators were not called to the scene because Hernandez didn’t die of his injuries until several days later. The prosecutor said homicide investigators are better trained to question witnesses and collect evidence from crime scenes.
“It does raise questions for us,” Berg said. “We are concerned that things happened later than they should have, but we have a complete picture now.”
“We will show no favoritism. We will let the chips fall as the may with the grand jury,” Berg added.
On Wednesday, Harris County Sheriff Ed Gonzalez said the agency has asked the Department of Justice and Texas Rangers to review the investigation.
“From the beginning we have promised a fair, thorough and transparent investigation,” Gonzalez told reporters.
He said Thompson’s wife has been removed from her patrol duties and moved to an administrative job within the department until the investigation concludes.
Hernandez’s family and friends gathered Wednesday in a march and rally to demand justice and urge the arrests of the Thompsons.
“This should not have happened, and the fact that it did happen shows that there are things that need to be fixed within the sheriff’s department,” protester Oscar Hernandez told CNN affiliate KTRK.
Correction: A previous version of this story misspelled the first name of Harris County Sheriff’s Deputy Chauna Thompson