Houston deputy and husband indicted for murder in Denny’s chokehold death

HOUSTON - A Houston deputy and her husband could face life in prison after a night out for two Texas families turned into a deadly fight.

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 the criminal case against Terry Thompson and his wife, Harris County Sheriff's deputy Chauna Thompson.

Thompson's attorney said Terry was acting in self-defense and that a video that was released does not tell the full story of how the altercation unfolded.

The couple was indicted on murder charges after Hernandez's death was ruled a homicide by the Harris County medical examiner's office, reported CNN affiliate KTRK.

They were in custody late Thursday night, the Harris County Sheriff's office wrote on Twitter.

What happened?

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, who was off duty, 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.

Under Texas law, individuals are allowed to videotape others without their permission in public spaces with the exception of dressing rooms and bathrooms, but only if it's not for sexual purposes.

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.

"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.

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.

'We are not done'

For Hernandez's aunt, Wendy Maldonado, the indictment is just a first step toward justice, she said. "We are not asking for the death penalty for the Thompson family. We are only asking for life in prison," Maldonado told reporters.

Family and friends will be holding a wake Friday to honor Hernandez. He will be buried Saturday after a mass and graveside service, according to a Houston area funeral home.

Randall Kallinen, an attorney for the Hernandez family, told a crowd of supporters Thursday night they need to remain vigilant.

"We are not done, though, because no one has been convicted of anything," he said. Kallinen told CNN affiliate KTRK that the family was pleased with the district attorney's office, which he praised as swift and thorough.

'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 they 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 Chauna Thompson 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," Oscar Hernandez told CNN affiliate KTRK.