AUSTIN (KXAN) — Court documents reveal Daniel Perry’s attorney filed a motion Tuesday for a new trial for Perry after a jury found him guilty of murder last week. Perry shot and killed protester Garrett Foster in July 2020 in downtown Austin. Perry and his attorney said the shooting was in self-defense.
Perry’s attorney requested the new trial based upon grounds of excluded evidence, court documents said. The defense team stated in the documents it attempted to introduce evidence to show Foster’s motive, states of mind and intent.
The documents said there were other incidents in which Foster was the first aggressor and would “unlawfully” scare others who he believed might interfere with his objective to “take the streets.”
The document states attorneys also tried to introduce a video recording of Foster where he admitted he carried his assault rifle as a means to intimidate people who did not share his beliefs. Additionally, documents said the defense attempted to introduce three other incidents where Foster attempted to stop cars on the public streets using his girlfriend’s wheelchair, and protesters would surround the cars.
The Travis County District Attorney’s Office released this statement on the motion to KXAN.
“Our office has full confidence in the guilty verdict reached by the jury in this case. These motions are standard motions filed by the defense following a guilty verdict. We applaud the defense team for making use of the procedural safeguards that are available to defendants in our criminal justice system. However, we continue to stand by the jury’s unanimous decision to convict Daniel Perry for the murder of Garrett Foster.”Travis County District Attorney’s Office statement
Perry was in town from Killeen to make money through Uber in the Austin area.
According to court documents, Perry’s attorneys argue the excluded evidence was “admissible” because it showed Foster’s motive, intent and state of mind when he approached Perry’s car on July 25, 2020. Furthermore, it showed the motive, intent and state of mind of the “multiple assailants” from that night, the documents state.
Would this evidence be allowed in a new trial?
Criminal Defense Attorney Steve Toland said there’s no way of knowing if this evidence would be allowed in a new trial.
“It would start over and judges would have to make decisions again about the admissibility of certain pieces of evidence,” Toland said. “And often the Court of Criminal Appeals is very clear about why they granted a new trial saying that certain evidence should have come in that wasn’t allowed in a trial level the first time.”
Ultimately, a new trial is up to the Court of Criminal Appeals. But Toland said it will be a while before that decision is handed down.
“Oftentimes can take over a year. It can take a long time for an appeal of this type to be ruled upon,” Toland said.
The governor’s pardon proposal
Over the weekend, Texas Gov. Greg Abbott directed the Texas Board of Pardon and Paroles to expedite the review process of a pardon for Perry.
“I am working as swiftly as Texas law allows regarding the pardon of Sgt. Perry,” Abbott said in a tweet Saturday. In the tweet, Abbott said Texas has one of the strongest “Stand Your Ground” laws of self-defense that cannot be nullified.
Texas’ pardon process starts with the Texas Board of Pardons and Paroles. The board can submit a pardon recommendation to the governor, who then can approve the pardon.
On Tuesday, Travis County District Attorney José Garza requested an appointment with the Texas Board of Pardons and Paroles over the review process of a pardon for Daniel Perry.
Toland said the Board of Pardons can’t make a decision until the case is wrapped up. Perry has not been sentenced yet.