Click here for the latest information on this trial.

AUSTIN (KXAN) – Day three of the trial for the man accused of shooting and killing Garrett Foster in July 2020 began Thursday morning with testimony from people who were at the protest where it happened.

Daniel Perry, an Army sergeant and part-time Uber driver, was indicted in the case in 2021 on felony charges of murder and aggravated assault with a deadly weapon and a misdemeanor charge of deadly conduct. Perry entered a not-guilty plea Tuesday. 

During opening statements, state attorneys said Foster was out protesting police violence every day in the summer of 2020. Foster was shot and later died while out protesting the night of July 25, 2020. 

The defense’s argument from the beginning is that Perry — swarmed by protesters — had to defend himself. Several witnesses admitted they kicked, hit and even banged on Perry’s car.

Perry’s attorneys released a statement during jury selection earlier this week, saying, “We just ask people to put themselves in the position of being trapped in a car, being swarmed by a crowd of protesters assaulting the car from all sides, while a masked man runs up to the car brandishing an assault rifle, 130 rounds of ammunition, an asp and a knife. Then, picture the rifle starting to raise from an already low-ready position. If people can put themselves in that position, we are confident as to what the verdict will be in this case.”

Several witnesses, who were at the protest demonstration the night Foster died, were called to testify Thursday. They recalled seeing Perry’s car drive forward into a crowd of protesters. The protesters, which included Foster, became “incensed” at the presence of the vehicle, a witness said.  

“I saw the car and the crowd; the crowd was upset and incensed,” said Brandon Keeton, a protester there that night who was friendly with Foster. 

Keeton said he saw the driver, who was wearing a red, white and blue mask, reach to the passenger side of the vehicle, pull out a gun and fire into the crowd of protesters.

“I was hit with the reality of what was happening in front of me and I bolted,” Keeton said.

Another witness called to the stand was Niko Daisy, a trained medic. Daisy was there to participate in the demonstration but also provide medical services if needed.

Daisy also saw Perry’s car pull forward into the crowd of protesters, heard the gunshots go off and then watched the car speed off. Daisy was carrying a pistol at the time and shot three rounds of bullets at Perry’s car as it sped off. When asked why, Daisy, who uses they/them pronouns, said they wanted to mark the vehicle for future investigations and protect themselves and the other protesters.

Daisy then ran into the crowd to see if anyone was injured by the shots. Daisy was told Foster had been shot. By the time Daisy began to attempt to resuscitate Foster, they checked for a pulse and felt nothing. Daisy removed Foster’s shirt with a pocket knife and saw three bullet wounds in his chest.

Brent Cleveland, 16 years with APD, was following the protest with a couple of other Austin police officers the night Foster died. Cleveland and his unit heard gunshots, and their vehicle sped to the source. They arrived within seconds, Cleveland testified. 

There, the officers found an unconscious Foster with multiple bullet wounds. Cleveland, Daisy and two other officers tended to Foster before Austin-Travis County EMS took over. 

Much discussion from the defense surrounded the way Foster carried the rifle when he approached Perry’s vehicle. Several witnesses said they saw Foster carrying the weapon with the barrel pointed down with the strap around his shoulder and his hand holding the pistol grip. 

The defense is suggesting that Foster was “brandishing” his weapon, meaning he was carrying the rifle in a dangerous or threatening way. Cleveland agreed with the defense that the way Foster handled the weapon was dangerous. In fact, Cleveland testified he had seen Foster at prior protests carrying his rifle in a “threatening” way. Cleveland told the court that he previously admonished Foster for the way he carried his weapon. He said Foster ignored these recommendations. 

Cleveland testified if a person was brandishing a weapon toward him then that person would be shot. 

The state posits the way Foster was allegedly carrying the weapon was not unlawful and that Foster would not be arrested. 

On Wednesday, Foster’s fiancee took the stand and told the court her experience that night.

Whitney Mitchell said the car sped toward a group of people that night. She testified that’s when her fiancé jumped in front of her, as she was near the driver’s side of the vehicle.

“I remember Garrett saying, ‘Move on.’ Then all I remember is hearing gunshots, and Garrett just falling over in front of me … and I jumped out of the [wheelchair]. I just remember laying on the ground,” Mitchell said.