A Texas judge has denied a retrial for Daniel Perry, a U.S. Army sergeant who was convicted of killing an armed protester during an encounter at a Black Lives Matter protest in Austin, Texas, in 2020.
Perry was found guilty of murder last month after he fatally shot Garrett Foster—who had approached his car while openly carrying an AK-47-style rifle. Perry’s legal team quickly filed a motion for a retrial in the case, arguing they were denied the ability to present key evidence and that the jury was swayed by outside influences and other jury misconduct.
State District Judge Clifford Brown, who presided over the original trial, denied Perry’s retrial request after a brief hearing on Wednesday.
Perry had been working as a part-time ride-share driver on the night that he fatally shot Foster. During the original trial, Perry’s legal team had argued that protesters had surrounded Perry’s car, including Foster, whom Perry’s lawyers claimed raised his AK-47-style rifle at Perry. Prosecution witnesses testified that they did not see Foster raise his weapon, and prosecutors argued that Perry could have simply continued driving instead of shooting Foster.
A jury ultimately ruled unanimously that Perry was guilty.
“Our office continues to stand by the jury’s unanimous decision to convict Daniel Perry for the murder of Garrett Foster,” Travis County District Attorney José Garza said in an emailed statement to NTD News following Judge Brown’s ruling. “We look forward to Mr. Perry’s sentencing on Tuesday so that the family of Mr. Foster may continue to heal.”
With a guilty verdict for murder, Perry faces up to life in prison. His sentencing hearing is scheduled for May 9.
Clinton Broden, an attorney for Perry, did not offer a comment on Judge Brown’s decision on the retrial motion.
“At this point we are focused on preparing for Sgt. Perry’s sentencing hearing,” Broden told NTD News.
Perry’s Retrial Claims
Perry’s retrial motion rested on several claims of errors in his original trial.
In particular, Perry’s attorneys alleged photos, videos, and testimony from three witnesses showing that Foster had unlawfully tried to intimidate cars on public streets during previous incidents.
Another video that Perry’s attorneys sought to introduce during the trial showed Foster speaking during a street interview in which he was asked about his AK-47 and whether he thought he would need to use it. Foster said, “If I use it against the cops, I’m dead, and I think all the people that hate us and want to say [expletive] to us are too big of [expletive] to stop and actually do anything about it.”
Perry’s attorneys argued the evidence would show that Foster was the “aggressor” in his fatal encounter with Perry.
“These incidents show that Mr. Foster and his fellow protestors were not the intimidatees when dealing with cars on the public streets, but, rather, they were the intimidators.
“In other words, the protestors did not swarm Sgt. Perry’s car because they were intimidated by Sgt. Perry’s car, but rather to intimidate Sgt. Perry just like they attempted to intimidate [other motorists.] Likewise, the excluded evidence would have helped show that Foster did not approach Sgt. Perry’s car to protect his fellow protestors, but rather, approached Sgt. Perry to attempt to intimidate him just like he [previously] attempted to intimidate [other motorists].”
Perry’s legal team was also not able to present a report by homicide detective Joe Fugitt, who concluded Perry “had the right to be on the public roadway” and that he “did not provoke an armed encounter with Garrett Foster or engage in criminal activity other than a traffic violation [ran a red light],” and “reasonably acted in self-defense.”
Perry’s legal team argued further in favor of a retrial, claiming a juror conducted his own internet research outside of the trial and shared his findings with the other jurors. Perry’s attorneys argued this outside research would have left the jurors “with a completely wrong view of the law of self-defense as it relates to the burden of proof.”
One of the lawyers arguing for a retrial, Broden, argued that if the court were to permit jurors to do their own outside internet research on a criminal case, “you might as well have internet trials,” Fox 7 reported.
One attorney for the state argued that a juror researching facts or laws outside of court “does not necessarily mean it’s an outside influence under the legal definition, and it does not necessitate a reversal.”
Perry’s attorneys also argued that an alternate juror also influenced jury deliberations by making noises such as “snort, huff, gasp” to express her displeasure with comments made by jurors that “were inconsistent with finding Mr. Perry guilty.”
Texas Gov Seeks Pardon
Republican Texas Gov. Greg Abbott has indicated he would pardon Perry.
“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney,” Abbott said in an April 8 press statement following the guilty verdict.
Unlike a presidential pardon for federal crimes, or pardons from governors in other states, Abbott cannot issue a gubernatorial pardon without a pardon recommendation from the Board of Pardons and Paroles.
“I have made that request and instructed the Board to expedite its review,” Abbott said. “I look forward to approving the Board’s pardon recommendation as soon as it hits my desk. Additionally, I have already prioritized reining in rogue District Attorneys, and the Texas Legislature is working on laws to achieve that goal.”
The Associated Press contributed to this article.