What we know: Daniel Perry murder conviction, prison sentence, Abbott's pardon promise
District Judge Clifford Brown on Wednesday sentenced Daniel Perry to 25 years in prison for the shooting death of Austin protester Garrett Foster in 2020. But if Gov. Greg Abbott pardons Perry, as he has vowed to do, then Perry may serve little time.
A Travis County jury on April 7 found Daniel Perry guilty of murder in the shooting death of Austin protester Garrett Foster after a controversial trial that involved issues of self-defense and that pitted police against prosecutors.
Abbott posted on Twitter on April 8, one day after Perry was convicted, that he would pardon Perry as soon as a request "hits my desk." He cannot pardon Perry unless he receives a request from the Board of Pardons and Paroles to do so.
A prosecutor on Tuesday asked the judge to sentence Perry to at least 25 years in prison, saying Perry was a "loaded gun" who could harm other people. Defense lawyers asked the judge to sentence Perry to 10 years, saying he was an Army veteran with no criminal history and not the racist that prosecutors claimed him to be.
Perry's attorneys said he was defending himself when he shot Foster because Foster raised his rifle at him. Prosecutors said Perry instigated the incident by driving toward a group of marchers and that Foster was defending himself when he approached Perry's car.
Perry, an Army sergeant, was working as an Uber driver in Austin on the night of July 25, 2020, when he ran a red light at the intersection of Fourth Street and Congress Avenue and drove toward a Black Lives Matter march before stopping. Foster, carrying an AK-47 rifle, was among a group of protesters who approached his car. Perry unrolled his window and shot Foster five times with a .357 revolver before driving away and calling 911. Another protester shot at Perry's car three times as he drove away.
The American-Statesman has extensively covered the case and had reporters in the courtroom throughout the trial.
More:Judge sentences Daniel Perry to 25 years in prison but governor has vowed to pardon him
What does Texas law say about self-defense and 'stand your ground?'
State law allows a person to use deadly force if that person "honestly and reasonably" believes the force is necessary to protect himself from another's use of deadly force, said University of Texas law professor Jennifer Laurin.
Texas joins about half of the other states nationally in not requiring a person to retreat from a threat and allows them to "stand their ground," Laurin said.
The law governing use of deadly force as a self-defense has a caveat: A person may not use deadly force that emerged because of that person's "provocation."
Laurin said the law doesn't define "provocation," but courts have described it as when a person acts in a way that is calculated to produce a deadly response and if the person is purposefully creating an opportunity to use deadly force.
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Who was Garrett Foster and why did he have an AK-47 at a Black Lives Matter protest?
Foster, 28, had served in the U.S. Air Force but was discharged at age 19 to be a full-time caretaker for Whitney Mitchell, who later became his wife. Mitchell is a quadruple amputee who uses a wheelchair. Foster was white and Mitchell is black. Issues of racial injustice were extremely important to him and also Second Amendment rights, his relatives said. He and Mitchell were living in Austin and had participated in several protest marches in 2020 after the killing of George Floyd by a police officer in Minneapolis. Mitchell testified during the trial that Foster began carrying an AK-47 at marches after one of his friends had been arrested during a march.
Previously:Trial begins over death of Garrett Foster. Was it self-defense or murder?
What were Daniel Perry's social media statements about protesters?
Perry had conversations with friends on social media and on his phone that showed he was angry at protesters. He told a friend he had watched a video of a protester getting shot in Seattle after pulling someone out of a car. Perry said that since that shooting happened in Seattle the gunman would probably go to prison, but "if it was in Texas he would already be released."
Perry also had another conversation with a friend on social media saying he might be able to "kill a few people on my way to work." "They are rioting outside my apartment complex," his message said. The friend responded saying, "Can you legally do so?" Perry replied, "If they attack me or try to pull me out of my car then yes."
Perry also posted on social media that "I have been publicly declared a racist because I drove around a protest to work." "I am afraid of being attacked by people of this certain movement who happen to compare my people (Jewish people) to termites," he went on to say. In another social media post, Perry said the demands that protesters were making were going to put police officers in danger. "Just keep shooting them until they are no longer a threat," Perry said of the protesters.
Perry also told a friend on social media in May 2020 that he might go to Dallas to "shoot looters." He later texted that friend that he was at a protest in Dallas in June 2020 and was "packing heat." "I wonder if they will let me cut off the ears of people who decide to commit suicide by me," Perry said.
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What did witnesses say about whether Foster raised his gun?
There was no video or photo shown during the trial that captured the exact moment of the shooting. Prosecution witnesses said Foster's gun was pointed down or that he was not holding it right before the shooting. Mitchell said Foster was standing in front of her by Perry's car on Congress Avenue near the Fourth Street intersection and was carrying his rifle in a strap with the barrel pointed down.
Jeremy Lett, Foster's roommate, testified that shortly before the shooting Foster's rifle was across his chest, and he wasn't holding the gun but was gesturing upward with his hands in an open position to indicate he wanted Perry to leave.
An expert defense witness, forensic engineer Jason Evans, said a photo taken right before the shooting showed Foster standing at an angle by Perry's car with his right arm raised as if he were holding something. The photo did not show what Foster was holding or where his left arm was positioned.
What is Perry's defense and did he testify at his trial?
Perry did not testify during his trial. He told police in a videotaped interview after the shooting that he was texting a woman when he turned toward the marchers on Congress Avenue. When he looked up, he said, he was surrounded by protestors hitting his car and banging objects on it. Perry said Foster wanted to talk to him, so he rolled down his window. Foster mumbled something at him and then raised his weapon, Perry said. "That's when I got my weapon and pulled the trigger as fast as I could, and then drove away and called 911," Perry said.
Perry told police he shot five rounds at Foster and "saw him drop" before driving away. He said he shot Foster in the center of his body because that's how he was taught to do it in the Army. He said the protesters shot at him before he drove away. "I didn't even know what they were protesting about," Perry told investigators.
Perry also told police he had never been so scared "in my entire life."
Why was the trial controversial even before it started?
The lead homicide investigator, David Fugitt, accused the district attorney's office of manipulating his testimony to the grand jury. Fugitt said he had been asked to dramatically scale down his presentation of evidence in the case in which he had determined the shooting was a justifiable homicide. District Attorney José Garza and other prosecutors denied the accusations, saying Perry was given a fair grand jury presentation. State District Judge Cliff Brown denied a request from Perry's defense to have the case dismissed on those grounds. Fugitt, who currently works at the Texas attorney general's office, testified at the trial but notably as a witness for the defense and not for the state.