New video surfaces in fatal altercation at Denny's

The attorney for the family of John Hernandez, a man allegedly beaten and killed by the husband of a sheriff's office deputy, says a new cellphone video has surfaced of the incident. The attorney for the family of John Hernandez, a man allegedly beaten and killed by the husband of a sheriff's office deputy, says a new cellphone video has surfaced of the incident. Photo: Courtesy Randall Kallinen Photo: Courtesy Randall Kallinen Image 1 of / 10 Caption Close New video surfaces in fatal altercation at Denny's 1 / 10 Back to Gallery

UPDATE: The death of 24-year-old John Hernandez 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. Read the rest of the story here.

ORIGINAL STORY: Twenty-four-year-old John Hernandez spent his last conscious moments kicking, gasping and grunting as he tried to free himself out of a choke hold performed by the husband of a Harris County sheriff's deputy, new cellphone footage released Monday appears to show.

Even before the video came to light, the case had sparked controversy and public outcry that prompted Sheriff Ed Gonzalez last Friday to seek help from the state's Texas Rangers and the U.S. Department of Justice.

The video was made public by criminal offense attorney Jack Carroll, who represents an unidentified man who captured video images of the incident that occurred late on the night of May 28, just outside of the entrance to a Denny's restaurant in east Harris County.

READ ALSO: Harris County DA says grand jury will hear evidence this week in Denny's fatal fight

Carroll said the videographer wishes to remain anonymous because of the parties involved in the case, particularly, the sheriff's office.

The video, which captured what attorneys call a key moment, is under one minute long. However, the unidentified cameraman and another witness, Maria Toral, the mother of Hernandez's daughter, say the entire fight lasted about 10 minutes.

As the video progresses, many unidentified people try to block the camera man's view, telling him that it's illegal to record the fight.

"Why are you recording," one woman yelled.

"If you continue recording, you will go to jail," another man tells the videographer.

Attorneys representing Hernandez and criminal law experts say the video provides enough probable cause evidence to arrest and charge Terry Thompson, 41, the husband of deputy Shauna Thompson, for his role in Hernandez's death.

"First time I saw it over the weekend, I was pretty shocked," Carroll said at a news conference Monday.

"It's a sad video," he contended, "because you're watching a man basically get killed. He was kicking his legs in a helpless fashion ... begging for it to stop."

However, Scot Courtney, the attorney for Thompson, 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."

Courtney said the forensic evidence and the autopsy report are still pending and are essential to the case.

The video does not show what led up to the choke hold, but picks up around the time Thompson, 41, appears to overpower Hernandez, apparently placing his entire weight on the victim's back as he performs the choke hold.

Hernandez died from his injuries last Wednesday night after spending three days in LBJ Hospital on life-support.

Gonzalez said the move to seek federal and state help was to avoid the perception of bias.

In contrast, Toral, the mother of Hernandez's 4-year-old daughter, said the sheriff's office tried to show favoritism to the Thompson family.

"Absolutely not," Gonzalez said last week in dismissing that assertion during a press conference when asked whether there was any favoritism shown in the incident.

The Harris County Medical Examiner has not issued a cause of death, but attorney Randall Kallinen, who represents the Hernandez family, said the unnamed doctor who treated Hernandez concluded that strangulation was the cause.

Gonzalez said he won't make an arrest or charge Thompson until he has all of the evidence surrounding the case.

The Harris County District Attorney's Office has confirmed that once each law enforcement agency has completed their respective investigations, the evidence will be presented to a grand jury, which will determine if anyone should be indicted for a crime.

The video clip depicts deputy Thompson, who was off duty and not in uniform, and her husband restraining Hernandez.

After she arrived at the scene, deputy Thompson yells at Hernandez to "stay the (expletive) down," while her knee is placed on his shoulder.

"Do you want me to hit you again," her husband follows, all the while Hernandez kicks and grunts inaudibly.

The video also shows Hernandez with bruises on his arms and hand, indicating some kind of scuffle prior to the beginning of the video. A woman identified as the Thompson's daughter by attorneys then jumps in front of the cameraman.

"Why are you recording? Stop," she said. "Just stop. It's illegal to record, just stop."

An unidentified man also attempts to block the cameraman's view and threatens the videographer.

"That lady is a sheriff's deputy. If you continue, you will go to jail," he said.

The screen then goes black with one final command of "stop moving" from deputy Thompson.

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

Meanwhile, outside legal experts cautioned against using snippets of an incident to make conclusions.

"Was there anything justified in the altercation? The end result would suggest not, but then again, that's for the investigators to suss out before charging," said Larry Karson a criminal justice assistant professor at the University of Houston-Downtown.

The fight started after Thompson and his children pulled into a Denny's parking lot in the 17700 block of the Crosby Freeway in east Harris County, according to authorities.

Thompson, later identified as the husband of a sheriff's deputy, allegedly saw Hernandez urinating in public. When Thompson reportedly confronted Hernandez, a fight followed, authorities said.

It's still unclear who initiated the fight, but attorneys and the sheriff's office said Thompson was offended by Hernandez's actions.

Authorities then said Shauna Thompson, who arrived in a separate vehicle to meet her family at the restaurant, called for assistance from the sheriff's office and medical services.

The deputy helped her husband restrain the other man, but the altercation ended with a motionless Hernandez being rushed to the hospital, authorities said. Hernandez died from his injuries late last Wednesday.

The incident remains under investigation, and no charges have been filed as of Monday.

St. John Barned-Smith contributed to this report.