No new trial for Army sergeant convicted of murdering Black Lives Matter supporter despite Texas governor's vow to issue pardon

A judge has denied a request for a new trial for an Army sergeant convicted of murdering a Black Lives Matter supporter at a protest and scheduled him to be sentenced next week. Republican Texas Gov. Greg Abbott has previously vowed to seek a pardon.

Daniel Perry was convicted on April 7 of murder in the fatal shooting of Garrett Foster, who was participating in a Black Lives Matter rally in Austin, Texas, on July 25, 2020, following the death of George Floyd at the hands of police in Minneapolis. Perry claimed Foster, who was legally carrying an AK-47, pointed the gun at him and claimed he fired his pistol in self-defense. Perry sought a retrial partly over claims of improper jury behavior during trial and deliberations, the Associated Press reported.

Austin's Fox4 News reported that the motion for a new trial included information that a juror allegedly printed out research during a break and presented it to the other jurors, which the state argued was not illegal.

"I think if the court was to deny the new trial motion, I think it sends a message to jurors it is OK to do outside research during a trial to try to determine what you can from the internet. You might as well have internet trials," said Clinton Broden, Perry's defense attorney, according to the station.

The judge denied the request and set a sentencing hearing for Tuesday. Perry faces up to life in prison.

The verdict prompted outrage from prominent conservatives, including former Fox News star Tucker Carlson, calling it self-defense and criticizing Abbott, the AP reported.

At the time, Abbott tweeted he requested that the Texas Board of Pardons and Paroles consider expediting a pardon, which the AP said has already begun what legal experts say is a highly unusual move.

"I look forward to approving the Board's pardon recommendation as soon as it hits my desk," he said. "Additionally, I have already prioritized reigning in rogue District Attorneys, and the Texas Legislature is working on laws to achieve that goal."

Foster's younger sister Anna Mayo said she was shocked over Abbott's tweet.

"The jury ultimately came to a decision, and it was unanimous," she told Austin's ABC affiliate KVUE. "That shouldn't be disrespected."

Perry's defense attorney Broden told CNN: "Our focus will be on preparing for the sentencing hearing."

Travis County District Attorney José Garza criticized Abbott's call to pardon Perry.

"In a state that believes in upholding the importance of the rule of law, the Governor's statement that he will intervene in the legal proceedings surrounding the death of Garrett Foster is deeply troubling," Garza said in a statement.

"In this case, a jury of 12 listened to testimony for nearly two weeks, upending their lives to painstakingly evaluate the evidence and arguments presented by both the State and the Defense," he added. "After hearing from civilian eyewitnesses and expert witnesses and deliberating for over 15 hours, they reached the unanimous decision that Daniel Perry did not kill Garrett Foster in self-defense and was guilty of murder beyond a reasonable doubt. I thank them for their service and want them to know that their service and the service of every juror matters. In our legal system, a jury gets to decide whether a defendant is guilty or innocent – not the Governor."

He added that without intervention from the Governor, the defendant's conviction would be reviewed by both state and federal courts, who will examine the record to ensure that no legal errors were made and the evidence supported the conviction.

"Our Constitution has built-in protections to ensure that no defendant is convicted when the law or evidence does not support it, and this is a central tenet of our legal system," the statement said.

Congressman Greg Casar (D-Texas) said in a statement: "There are no winners in a murder trial, but Greg Abbott is abusing this pardon to win a presidential primary."

"After this move, Abbott can never again claim that he's for public safety, a fair criminal justice system, or common sense," the statement continued.

Foster, 28, was killed on July 25, 2020, during a Black Lives Matter protest over the death of Floyd by officers in Minneapolis. Working an Uber shift, Perry approached protesters blocking a road and drove into the crowd. Foster approached Perry's vehicle with an AK-47.

Recordings of 911 calls captured the moments after the shooting.

"I made a wrong turn," Perry told 911, according to KXAN. "A guy pointed a freakin' weapon at me, and I panicked. I don't know what to do. I'm just an Uber driver. I made a wrong turn. I've never had to shoot someone before. They started shooting back at me, and I got out of the area."

Former Austin police officer Joshua Visi, who responded to the scene, testified that Perry was visibly distraught.

"I could hear the nervousness, the quiver in his voice," he said.

A Travis County grand jury indicted Perry in July 2021 on charges of murder and aggravated assault. Perry's trial took place from the end of March to the beginning of April.

Prosecutors argued the shooting was premeditated. They presented evidence that Perry harbored violent attitudes toward people he called "looters" and "rioting."

"I might have to kill a few people on my way to work," he wrote in June 2020, according to The Austin Chronicle. "They are rioting outside my apartment complex."

"I might go to Dallas to shoot looters," he wrote in another post.

In one reported exchange with friend Michael Holcomb, Holcomb chastised Perry about shooting protesters and self-defense.

"We went through the same training … Shooting after creating an event where you have to shoot is not a good shoot," Holcomb said before the night of Foster's death.

Foster's mother, Sheila Foster, told CBS Texas that her son had been pushing his fiancee, a quadruple amputee who lost her limbs after an infection turned septic, in a wheelchair through the streets during the protest after 50 days of protesting police brutality.

"He loved her so much," she told the station. "She's 19 years old, going to school to be a dancer, and they cut off all four of her limbs, and then she had to watch him die in the street."

Law&Crime's Alberto Luperon contributed to this report.