J.B. ATKINSON The man believed to have assaulted J.B. Atkinson, 26, of Port Aransas early Saturday morning, Aug. 30, did so in response to the theft of his bicycle, according to Port Aransas Police Department Executive Lt. Darryl Johnson.

"It is believed by the Port Aransas Police Department that the force was excessive and used after the victim (Ely Joseph Malloy) recovered his property," Johnson said.

As a result, the PAPD is filing a complaint with the Nueces County district attorney's office alleging aggravated assault, Johnson said, adding that he expects the grand jury to hear the case today, Thursday, Sept. 4.

If the grand jury hands down an indictment, Johnson said Malloy will be arrested.

Atkinson was spotted lying in the parking lot of the Salty Dog Saloon,

203 N. Alister St., according to David Wall, a clerk at the neighboring Stripes convenience store. Officer J.D. Hinojosa responded to the call made by Wall at 2:59 a.m., and finding

Atkinson unconscious and with obvious facial wounds, called the Emergency Medical Service, which transported Atkinson to the Mustang Beach Airport where a HALO Flight helicopter air-lifted him to Christus Spohn Hospital Memorial in Corpus Christi.

According to Atkinson's mother, Sandy Atkinson, who flew from her home in Washington, Mo., her son suffered a broken orbital bone (eye socket) and a broken nose and the length of one side of his body is scraped. He was moved from intensive care to a room on Monday, and was expected to have been released on Wednesday, she said.

An investigation by Det. Mark Stokes determined that Atkinson was alleged to have stolen a bicycle belonging to Malloy, 27, of Port Aransas.

"It appears that Atkinson removed Malloy's bicycle from the Stripes parking lot without Malloy's permission," Johnson said.

The convenience store video shows Atkinson getting on Malloy's bike and riding away, but it does not show the assault, Johnson said.

Malloy allegedly gave chase, catching Atkinson in the Salty Dog parking lot next door, and "caused Atkinson's injuries in the process of recovering his property," Johnson said.

The police department, Johnson, said, "has drawn up a complaint alleging that Malloy used excessive force in recovering his property."

Johnson cited the Texas Penal Code, sections 9.41 and 9.42, that address what force is reasonable in the protection of one's property. According to the code, "deadly force or force can be used to protect your property in the night time," Johnson said.

While Johnson said he cannot discuss criminal history of either Malloy or Atkinson, he did say that Atkinson has no history of theft charges.

Atkinson, owner of Paradise Computer Services, is a 2001 graduate of Port Aransas High School. He was an Eagle Scout and recipient of the Jerry McDonald Citizenship Award when he was in fifth grade at H.G. Olsen Elementary School.

An account has been established at American Bank, 216 S. Alister St., to assist in paying Atkinson's medical bills. Also, a benefit dinner is planned for Saturday, Sept. 13, at the Coast Club, 1023 State Hwy. 361 (see related story).

"A lot of people want instant justice, but our legislators in their wisdom have legislated the penal code. This is an area that needs to be reviewed by the prosecutor's office," Johnson said.

Penalty for conviction of aggravated assault, a second-degree felony, is two to 20 years in prison and/or a fine not to exceed $10,000.

No information on Malloy's background was available, and there was no listing under that name in the telephone book.