Police Did Not Knock or Identify Themselves. Austin Police Bust in House Shoot Latino Man

(CBS 42 [HERE])  AUSTIN The wife of a man shot by an Austin police officer responding to a domestic violence call says her husband is a victim, not a criminal.

Just after midnight on March 21, an ex-boyfriend of Rosemary Lozano called 911 claiming the woman was in danger. He called police again a few minutes later and said her husband, David Lozano, had guns and was possibly high on marijuana.

When the police officer responded to the home in North Austin, he parked his patrol car about two houses away. Without waiting for backup to arrive, he knocked once on the front door. He never identified himself as an officer.

According to the arrest warrant, the officer said he heard the distinct sound of a slide being sent forward on a gun. The officer stated he drew his weapon and moved off the porch and took cover behind the porch pillar. He said in the warrant the front door opened and the Lozano fired a shot at him. The officer said he returned fire, firing one shot.

Private investigator Les Johnson, who is investigating the case for Lozano’s attorney, says the evidence tells a different story. He says bullet holes by the door shows the officer fired at least two shots.

Johnson says the pillar the officer claims to have taken cover behind is nothing more than a four-inch wooden post. He says there was total darkness.

Lozano said all he could see was the muzzle flash from the gun. Johnson said Lozano heard the assailant run to the back of the house.

After being fired upon, Lozano said, “I’m going to get you.”

The two exchanged gunfire.

Lozano was shot below the knee, shattering the bone in his leg.

“Lozano cried out I’ve been shot. Call 911,” Johnson said.

Still, he says, the officer, by his own admission, never told Lozano he was a police officer.

Lozano dragged himself back inside the house and locked the door. He phoned 911 and told dispatchers he’d been shot and identified the shooter as his wife’s ex-boyfriend.

Johnson says, shortly after, the dispatcher told Lozano that the police and EMS were in route and to unlock the door.

He opened the door and crawled out and was arrested.

Lozano was taken to Brackenridge Hospital where he was treated for gunshot wounds to the arm, abdomen and leg. His leg was later amputated.

Johnson says the evidence taken from the front porch shows the officer fired the first shots, not Lozano.

“It's impossible for there to have been any gunfire whatsoever coming from David Lozano,” Lozano’s attorney Ryan Deck said. “There are zero gunshots. Anywhere. And there are no casings. We do know one thing. We do know there were shots coming from the area where the police officer was, where the police officer says he was. They match his caliber of gun.”

Deck says Lozano believed the shooter was his wife's ex-boyfriend. Deck says the ex-boyfriend had just made a threatening call to the home from a nearby store.

Lozano first learned an officer was involved in the shooting incident when he was taken to court to be formally charged with attempted capital murder.

Days after the shooting, a grand jury decided there wasn't enough evidence to charge the officer. But Deck says the prosecutor presented the case to the grand jury before his client was ever questioned. He says they only heard the police officer’s version of what happened.

Lozano remains in the Travis County jail on $300,000 bond, charged with attempted capital murder.

The Lozanos hope when both sides are presented, the charges will be dropped.

The case against Lozano is expected to go to the grand jury within the next two weeks.

Under the new Castle Law, which was just signed by the Governor Rick Perry, an individual is entitled to use deadly force to protect himself and his property.