Homicide ruled in man's death after fight with husband of deputy outside Denny's

Carmen Montoya, neighbor of John Hernandez, holds a sign asking for justice. Other family and friends wore gray shirts that read #JusticeforJohn. Carmen Montoya, neighbor of John Hernandez, holds a sign asking for justice. Other family and friends wore gray shirts that read #JusticeforJohn. Photo: Brooke A. Lewis Photo: Brooke A. Lewis Image 1 of / 17 Caption Close Homicide ruled in man's death after fight with husband of deputy outside Denny's 1 / 17 Back to Gallery

The death of a man last month after a struggle with the husband of a Harris County deputy sheriff at a Denny's restaurant has been ruled a homicide, the county medical examiner said Tuesday.

Later Tuesday, law enforcement authorities announced two other developments.

First, Harris County Sheriff Ed Gonzalez confirmed that the deputy, Shauna Thompson, had been removed from patrol duties following the altercation between her husband, Terry Thompson, and John Hernandez, who later died.

The sheriff's office declined to elaborate further on the details of her removal.

READ ALSO: What you need to know about the John Hernandez case

In a statement, the office of District Attorney Kim Ogg said it "has received the evidence the Sheriff's Office has gathered up to this point in the death of John Hernandez. Prosecutors started reviewing that evidence Tuesday evening and will present it to a grand jury of citizens in the near future. Under Texas law, in felony cases, grand jurors determine if a crime has been committed."

Hernandez, 24, died after being removed from life support a few days after the May 28 fight outside the east Harris County eatery.

The medical examiner's ruling came as family and friends of the dead man gathered Tuesday afternoon demanding the arrest Thompson and her husband, 41.

READ ALSO: Family of victim in Denny's choking case files lawsuit

The medical examiner's website makes clear that homicide is not synonymous with murder; it only means that someone's death was caused by the actions of another.

The cause of death was listed as "anoxic encephalopathy due to strangulation with chest compression." That essentially means he died because he was strangled and could not breathe.

Dr. Thomas Kosten, a Baylor College of Medicine professor who teaches pathology, explained in an email that anoxic encephalopathy means the man's brain was deprived of oxygen.

READ ALSO: Protesters expected as ex-deputy, husband appear in court

Strangulation around the neck blocked the arteries that bring fresh oxygen-carrying blood to the brain, Kosten said, while chest compression prevented the lungs from expanding to take in fresh air and get new oxygen into the bloodstream.

A short video released Monday appears to show Terry Thompson, lying on top of Hernandez with an arm around the front of his body, possibly his neck.

Meanwhile, Hernandez's family members and friends gathered Tuesday afternoon to demand the arrest of Deputy Thompson and her husband.

"What are you waiting for?" asked Wendy Maldonado, the aunt of the dead victim. "What more do you need? Kim, Ed, where are you," she asked in reference to D.A. Ogg and Sheriff Gonzalez.

Family, friends and other community members plan to march tomorrow at 11 a.m. from Guadalupe Plaza to the district attorney's office asking for the arrest of both the deputy and her husband, along with an independent investigation of the incident.

Family and friends shouted out "racist" and "Justice for John" during the press conference. They believe the wife's status as a deputy has stopped an arrest of her husband.

"So many people standing there, " said Maldonado about the incident. "No one said stop or pushed him. No one did anything."

READ MORE: New video surfaces in fatal altercation at Denny's

Thompson and his children had pulled into the Denny's parking lot in the 17700 block of the Crosby Freeway in east Harris County, according to Gonzalez. Thompson, later identified as the husband of a sheriff's deputy, allegedly saw Hernandez urinating in public, according to Gonzalez.

When Thompson reportedly confronted Hernandez, a fight ensued. Thompson's wife, an off-duty deputy who arrived in a separate vehicle to meet her family at the restaurant, called for assistance from the sheriff's office and emergency medical services, Gonzalez said. The deputy then helped her husband restrain the man, but the altercation ended with a motionless Hernandez being rushed to LBJ hospital, authorities said.

On Monday, a lawyer released a bystander's one-minute video clip that shows part of the altercation, which apparently lasted about 10 minutes. The medical examiner released its findings the next day.

Randall Kallinen, the Houston-based attorney representing Hernandez' family, welcomed the medical examiner's ruling. He previously said the doctor who treated Hernandez had described the death as a homicide.

"It's not that big of a surprise," he said. "However, we needed to get medical examiner's findings to help with public opinion and to confirm that it was not drugs that killed John. The medical examiner proves John Hernandez died from strangulation by Terry Thompson."

Now Kallinen is calling for the sheriff's office to recuse itself from the investigation and hand it over to the Harris County District Attorney's Office, saying the the involvement of a sheriff's deputy creates a conflict of interest.

During a news conference last week, the sheriff said deputies would wait for the medical examiner's report before considering any arrests in the case, saying it was possible Hernandez could have died from other causes.

Kallinen suggested the sheriff can act now that he has the medical examiner's report.

"This is what the sheriff said he has been waiting for before making an arrest," Kallinen said. "It's time for the sheriff to do what he promised he would do, because if this were anyone else, they would've already been arrested based on all the evidence we have now."

A spokesman for the sheriff, Jason Spencer, said Tuesday afternoon that the sheriff's office had seen the results.

"We're moving forward with the investigation," Spencer said, adding that Internal Affairs would look into the deputy's role while homicide detectives investigate the death. "It remains a top priority. We're aware of the medical examiner's findings today and taking that into consideration as the investigation moves forward."

READ MORE: State, federal officials to probe death at diner

Legal experts say many more details will emerge about what led up to the fight.

Amanda Woog, a University of Texas law professor, said key questions remain: Who started the fight? Was Thompson's use of force justified as self-defense?

Family members and Kallinen have questioned the role of race, which Woog said often gets ignored in such cases.

The law professor said the public should examine how racial bias plays a role in perceptions of danger and the amount of force that is necessary to respond to a particular threat.

"This incident is not just about the charges that can be brought, it's also about a white person acting under color of law to kill a person of color," she said. "That issue too frequently gets lost in questions of legal standards."

Calls to Thompson's lawyer, the sheriff's office and the Harris County DA's office were not returned Tuesday.

Scot Courtney, an attorney for Thompson, previously on Monday said Hernandez was the aggressor and hit his client first.

"This is absolutely not the full footage," Courtney said, referring to the video. "I think the comments made by the other attorneys are a little irresponsible. You need all of the facts before coming to the conclusions they're making."

Before the medical examiner released his report, Courtney said the forensic evidence and the autopsy report are essential to the case.

Law enforcement groups refused to comment on the deputy's involvement and restraint of Hernandez, saying it's a criminal case that is under investigation. They added that they would rather wait until they had more than 50 seconds to review.

St. John Barned-Smith contributed to this report.