John Hernandez died from lack of oxygen to the brain caused by strangulation and chest compression, the Harris County Medical Examiner has ruled.
The autopsy confirmed the 24-year-old man's death was a homicide.
Hernandez died after being beaten and restrained by the husband of a Harris County deputy. It happened last week outside a Denny's in the Sheldon area.
A lawyer for the victim's family released a new witness video Monday that shows the much larger man restraining Hernandez.
"An anonymous concerned citizen brought me the video because he said it shows murder," Carroll said. "I concur."
The video can be seen below.
WARNING: The video contains graphic and violent images.
The man who beat Hernandez saw him urinating outside the restaurant, according to the Harris County Sheriff's Office.
Witnesses say Hernandez was quickly overpowered by the man, who continued to beat him then put him in a chokehold for 10 to 15 minutes. They said Hernandez was too drunk to defend himself.
“It’s a very sad video because you’re watching a man basically being killed,” Carroll said. “He was kicking his legs in a helpless fashion, and you can hear him gargling or gurling, ‘Stop, stop.’”
The other man involved in the incident is the husband of a Harris County Sheriff’s Deputy and has not been arrested or named as a suspect.
His wife, the HCSO deputy, was also present during the incident.
Scot Courtney, the attorney for the HCSO deputy’s husband, said his client acted to subdue Hernandez.
“Mr. Hernandez, after being confronted for urinating in front of the Denny’s entrance in the parking lot after he was told that wasn’t what should be happening, his response was to very quickly approach my client and strike my client in the face. And of course my client went to quickly subdue him," Courtney said.
Hernandez's wife and 3-year-old daughter were begging the man to stop.
“She was crying and telling (the man beating Hernandez) stop and he didn’t even stop,” Hernandez’s wife said. “I told him, 'Please stop. Don’t do that to him. He’s drunk.' He wasn’t in any position to fight. But, he didn’t have any compassion. He was really angry.”
Harris County Sheriff Ed Gonzalez says the deputy helped to restrain Hernandez but then called for help when she noticed he was not breathing.
Eyewitnesses say the deputy did nothing to help and stood by while her husband continued to beat and strangle Hernandez.
“The husband of the off-duty sheriff has the man in what you would call a ‘reverse headlock,’ for lack of a better term,” Carroll said. And he has the man helpless. The husband of the off-duty sheriff’s deputy looks like he weighs at least 300 pounds. Extremely big. He’s very muscular.”
Hernandez was removed from life support three days after the incident.
Family and friends are demanding answers from county officials.
"Even if it was self defense, this act does not merit somebody dying over this," said Cesar Espinosa, executive director of FIEL. "There was a sheriff's deputy involved and her husband was also involved and they should've known better that when Mr. John Hernandez was gasping for air he was already subdued there was need to murder this young man on the street."
The video may not be enough evidence to file criminal charges, according to KHOU 11 News legal analyst Gerald Treece.
He viewed every angle of publicly released surveillance video captured inside the Denny's on Crosby Freeway in east Harris County.
It first showed Hernandez push past his wife to urinate outside. There, Hernandez ran into the husband of a Harris County Sheriff’s deputy. He confronted Hernandez, then “restrained him" investigators said.
“The guy on the bottom really is not resisting/ is he?" Treece asked while watching the videos. "He can’t. That guy (on top) is too big.”
While lawyers for the witness who shot the cell phone video release Monday and Hernandez’s family see a crime.
Treece needs to see more.
“The film, while it’s very interesting, it doesn’t answer the questions a grand jury is going to have to answer," Treece said.
Texas law only allows citizens to use deadly force when facing an imminent threat to their lives, Treece said. In the Hernandez case, that threat is hard to see.
“If so, when did that imminent fear occur?" Treece asked. "Did it ever stop?”
Grand jurors will likely see complete unedited clips of the scuffle, Treece said. However, how they rule is always a question of who and what grand juries believe, he added.
Sheriff Gonzalez said the homicide is still under investigation and stated he is asking for oversight of the HCSO investigation by the Texas Rangers and the U.S. Department of Justice.