That statement was made by attorney Scot Courtney following the release of a short video shot by an an eyewitness to the incident. Courtney says this video and others are not a complete picture of what occurred.
"They certainly don't show the beginning where Mr. Hernandez attacked my client. He was the initial aggressor," said Courtney, who confirms his client is Terry Thompson. Investigators say Thompson is married to a sheriff deputy.
Hernandez died last week following the May 28 incident at a Denny's near Crosby. Investigators say Hernandez was urinating outside the restaurant and that Thompson had yelled at him to stop. It's not clear whether Thompson or Hernandez initiated the physical confrontation.
But Thompson wasn't arrested or charged. Neither was his wife -- the deputy.
WARNING: Some viewers may find the following video disturbing
New eyewitness video shows close view of deadly Denny's fight
According to the sheriff's office, the deputy's spouse saw John Hernandez urinating outside the restaurant and confronted him before the fight started. He has been identified as Terry Thompson.
"I was pretty shocked. It's a very sad video. You're watching a man basically being killed," Attorney Jack Carroll said. "He was kicking his legs in a helpless fashion, and you could hear him gargling just begging to stop."
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Attorneys pointed out the Harris County deputy who they say appeared to be holding the victim's arm down with her knee.
"She had her right knee on his left shoulder," Carroll said.
Carroll's client who shot the video said he was only able to get the very end of the altercation. During the time he was recording, the witness told Carroll that the daughter of the sheriff's deputy tried to block him from getting more video. Another man was also seen trying to get in front of the witness' cellphone, asking him to stop recording.
It is important to note that no one in this case has been charged yet, however the Harris County Sheriff's Office is asking for oversight from the Department of Justice and Texas Rangers.
ABC13 obtained another piece of video Sunday that showed a different view of the fight and struggle from another eyewitness. They came forward after hearing Hernandez died from his injuries. He was held down by the deputy's spouse, according to witnesses.
"He has this dude in a choke-hold and he cannot breathe," an eyewitness said.
The video is difficult for Hernandez's family to watch. On Sunday, they held a vigil at the Denny's restaurant in his memory. Despite heavy rain, people like Gilberto Garcia brought their families to call for justice and support the Hernandez family.
"It's not fair just because he's Mexican nobody helped him. It is because the other guy was married with the (deputy)," Garcia said.
RELATED: Deadly Denny's fight under investigation
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Susanna Santana, Hernandez's cousin, said the outpouring of support is touching.
"It feels good to be heard," Santana said.
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State and federal authorities have been called in to help in the investigation before the district attorney decides whether to file charges.
"I think if it were the other way around, the guy would be arrested right there," Garcia added.
Hernandez's family attorney said there's enough in the video to convict Thompson for manslaughter, at the very least, if not murder.
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