AUSTIN (KXAN) — A homicide investigator with the Austin Police Department has accused the Travis County District Attorney of forcing him to alter his testimony to a grand jury in the case against a man accused of shooting and killing an Austin protester.

In a sworn affidavit, Detective David Fugitt wrote, “I firmly believe the District Attorney’s Office, acting under the authority of José P. Garza, tampered with me as a witness.” However, a district judge reviewing these claims said he didn’t see any behavior in this case rising to the level of criminal conduct by the D.A.

Fugitt’s affidavit was filed as a part of a motion by the defense counsel for Sgt. Daniel Perry — an active duty soldier indicted for murder and deadly conduct for the 2020 shooting death of Garrett Foster. Perry’s defense has asked the judge to dismiss the indictment handed down by a Travis County grand jury earlier this summer.

According to police at the time of the incident, Perry was driving a car in downtown Austin during a Black Lives Matter protest. Police say he turned into a group of protesters when Foster and other protesters surrounded the car. Foster was armed with an assault-style weapon. Police say the driver fired from inside the car, hitting Foster multiple times, but Foster did not fire his weapon.

Perry’s attorney, Clint Broden, has said Perry fired in self-defense from inside the car, claiming Foster raised his gun at him.

The document explains Detective Fugitt was the lead investigator on the case.

In the sworn affidavit, Fugitt claims he had “several conversations” with the District Attorney’s Office regarding evidence that could have been favorable to Perry but “it became clear to me that the District Attorney’s Office did not want to present” this evidence. Fugitt said he was ordered to remove more than 100 slides from his presentation and felt like he “did not have any other options but to comply with their orders.”

For example, he wrote, “The District Attorney’s Office also made me remove an animation from Daniel’s Perry’s driving the night of the incident coordinated with his cell phone records that would have refuted the deadly conduct charge ultimately returned by the grand jury.” Fugitt ultimately said he believed the D.A.’s conduct went from being “highly unethical behavior to criminal behavior.”

In a hearing on Wednesday in the 147th District Court, Judge Clifford Brown responded, “I’m just not prepared to jump with you across the chasm that they committed some kind of criminal conduct.” 

Broden issued a statement Thursday following the judge’s decision to not pursue the claims further, saying in part he was disappointed that a hearing wasn’t ordered to “get to the bottom of Jose Garza’s actions.”

“It is important to recognize that Judge Brown simply concluded that an evidentiary hearing was not needed because prosecutors are not absolutely required to present exculpatory evidence to a grand jury,” Broden’s statement says. “What does not change is that the top homicide detective in the Austin Police Department has now stated unequivocally, under oath that, based upon his 28 years of experience, he believes that Mr. Garza has engaged in the felony offense of witness tampering.”

Judge Brown noted his long-standing relationship and respect for Detective Fugitt, but insisted that prosecutors “get to decide” how a case is presented to a grand jury.

Still, the judge ordered the District Attorney’s office produce the transcripts from the grand jury proceedings and turn them over to Perry’s defense counsel. Judge Brown said the transcripts were of the “utmost importance” to the court and hoped they would “alleviate” some of the defense’s concerns.

Under federal laws, grand jury proceedings are generally secret. They are led by a prosecutor with no judge present, and the records are usually sealed.

Representatives from the District Attorney’s office told the judge they would work to produce the records as soon as possible — hopefully, at least in part, by Friday.

Memorial for Garrett Foster
A memorial for Garrett Foster set up at Congress Ave and 4th Street near where he was fatally shot on July 25. (KXAN Photo/ Alex Hoder).

“We take it very seriously. We are trying to move as quickly as we can,” said Guillermo Gonzalez, director of the Trial Division of the D.A.’s office.

Broden also raised concerns about some statements obtained by the family of Garrett Foster and their attorneys that Fugitt said were “inconsistent” with prior interviews of witnesses and even the video of the incident in question.

Gonzalez responded by pointing out that many of the witness statements were recorded through body camera footage and were made available to the defense for review on July 6. Broden acknowledged that he might not have seen the statements on the body camera footage to which they were referring.

Judge Brown reiterated his request for the D.A.’s office to turn over the evidence and transcriptions to the defense, ahead of another hearing scheduled for Sept. 15. The judge told the defense he was denying their request “without prejudice” — meaning they could bring forward the motion to dismiss Perry’s murder indictment again, after reviewing the transcript and statements.

The judge also told attorneys he wanted to review the emails between Fugitt and the D.A.’s office on the matter, but he would do so “in camera,” or privately.