Perry’s case has become an explosive political stew of arguments over gun rights, self-defense and racist social media posts. The governor dived in early, saying he would pardon Perry even before a judge handed down the sentence.
A Texas state district judge on Wednesday sentenced Daniel Perry to 25 years in prison for shooting to death a man protesting police brutality. Gov. Greg Abbott has pledged to pardon the former U.S. Army sergeant for the crime.
Perry, 36, shot and killed U.S. Air Force veteran Garrett Foster from his car in downtown Austin in July 2020, two months after a Minneapolis police officer killed George Floyd. Foster, a 28-year-old white man legally carrying an AK-47, was protesting against police violence and racial injustice when Perry drove into the crowd. Perry repeatedly fired his handgun at Foster after Foster approached the car with his rifle. Perry, who is also white, has said Foster raised his rifle toward him; witnesses said he didn’t.
Perry’s murder trial was a difficult and distinctively Texas case that forced jurors to weigh self-defense claims and gun rights. In April, jurors deliberated for about 17 hours after listening to weeks of evidence before convicting Perry of murder.
At a hearing Tuesday before state District Judge Cliff Brown over Perry’s sentence, attorneys for Perry and the state of Texas argued over the relevance of recently revealed racist and threatening comments Perry made on social media and in text messages. And they debated whether developmental disabilities and post-traumatic stress disorder suggested by Perry’s hired psychologist should warrant leniency.
Defense attorneys claimed that Perry’s racist memes and stated desires to kill protesters were often irrelevant to Foster’s death or were “barracks humor” jokes taken out of context. Prosecutors argued that Perry’s own psychological expert deemed the man “basically a loaded gun.”
“He had some kind of complex PTSD, mixed in together with autism, and then you throw in this lethal military training and then he will react to perceived threats immediately and with severe consequences,” Travis County Assistant District Attorney Guillermo Gonzalez said Tuesday. “And he’s going to do it again.”
Perry’s attorneys had asked for a 10-year sentence; prosecutors sought a minimum of 25 years.
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The day after Perry’s conviction, conservatives slammed it on social media and national TV, and Abbott jumped into the fray, saying he would pardon Perry as quickly as possible. He requested that the Texas Board of Pardons and Paroles quickly review Perry’s case and hand him a pardon recommendation, since the Texas governor can’t issue a pardon without such a recommendation.
“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney,” Abbott posted on Twitter.
A day later, new court documents unsealed ahead of sentencing revealed Perry had often made racist comments and regularly made clear his desire to kill protesters in the months before killing Foster. He sent messages about catching “a negro daddy” and hunting Muslims, and he questioned if he would be allowed to “cut the ears off of people who’s decided to commit suicide by me.” The records also showed Perry messaging suggestively with underage girls.
When asked if the new documents changed the governor’s position on pardoning Perry, Abbott’s office shifted the responsibility of any potential pardon onto the parole board members, whom he appoints.
“All pertinent information is for the Board of Pardons and Paroles to consider,” spokesperson Renae Eze said last month.
The board has begun its review, at Abbott’s request, but it is unclear how long its investigation will take. Abbott’s office did not immediately respond to questions about a pardon Wednesday.
Before handing down Perry’s sentence Wednesday, Brown said he didn’t typically speak on sentences but felt compelled to in this case on behalf of the jurors.
“The hard work, the service and the sacrifice of this jury deserves our honor, and it deserves to be respected,” Brown said.
Perry’s hair and beard, grown out since his jury trial last month, were unkempt as he sat shackled in the gray stripes of his jail jumpsuit at his sentencing hearing. His face largely remained expressionless.
Foster’s common-law wife, Whitney Mitchell, told the court how drastically her life has changed since the murder. Mitchell, a 31-year-old Black woman whose four limbs were amputated below her elbows and knees when she was a teenager, had been with Foster since they were in high school, she said in court. They lived together since 2014, and he was not only her husband but her caretaker, she said.
He helped her get into her wheelchair each morning, use the bathroom, shower, eat, even pursue her dream of designing clothing.
“He did all of it,” she cried from the witness stand Tuesday, dressed in a black blouse and beret.
He also helped her to protest after Floyd’s murder. Foster was with Mitchell when Perry killed him. Now, the home they made together in Austin, customized to be more accessible, is a harsh reminder of his absence.
“It’s just hard every day that I’m there. It’s hard to sleep in my bed because he’s not there,” she choked, wiping away the tears streaming down her face. “He was my caregiver for 11 years.”
A former supervisor and several colleagues in the Army testified on Perry’s behalf, saying he was a good soldier with a positive attitude, always willing to help a fellow soldier and treat everyone fairly, regardless of race. They all said they’d eagerly serve with Perry again. (Prosecutors brought forward other negative evaluations from other supervisors, one of whom said Perry was one of the worst examples of leadership.)
Two of Perry’s former colleagues, Black men, told the court they didn’t think of Perry as racist and weren’t offended by the racist social media posts and text messages Perry shared, which became public after he was found guilty of Foster’s murder.
One meme Perry shared the month before Floyd’s murder showed a white woman holding her child’s head under water in the bathtub with the caption, “WHEN YOUR DAUGHTERS FIRST CRUSH IS A LITTLE NEGRO BOY.” After being shown the meme in court, former Army Sgt. Ronald Wilson quickly said he wasn’t offended by it.
“There is a different mindset in the military,” Wilson said from the witness stand. “I laugh at stuff like that. It’s funny to me … and once again that’s coming from a Black guy.”
Doug O’Connell, one of Perry’s attorneys, referred to the text messages and social media posts as “barracks humor.”
“Some of those social media posts are frankly repugnant,” O’Connell said in his closing argument. “But some of them, a lot of them, are taken out of context.”
Perry’s forensic psychologist, Greg Hupp, said it was hard for people who hadn’t been in the military to understand the nature of such humor or the relationship among soldiers deployed into dangerous environments. Perry served in Afghanistan.
“Daniel and his unit don’t see color. They don’t see individual differences because they’re there to protect each other, and so for him to share different memes and different social commentary, he doesn’t know if his friend is an African American or Latino or mixed race or whatever; he doesn’t see that, he sees his battle buddy,” Hupp said.
The comment drew groans from courtroom viewers, the large majority of whom were there in support of Foster.
Prosecutors pushed back on the idea that the racist messages were only jokes, arguing that the messages easily could be interpreted to represent hate. And taken as a whole, they said, the posts were disturbing.
“We can pick it apart and say, ‘Well, this one piece of social media is a crass joke, and this other piece of social media is barracks humor, and this other piece over here is soldiers destressing each other,’ but what we’ve produced to this court is 70 individual pieces of social media …. showing an unhealthy and, frankly, excessive behavior by this defendant on certain issues,” Gonzalez said.
Hupp argued that, in interviews with Perry, the psychologist didn’t believe that he disliked protesters in general, but as a soldier, he was upset by violent protests where people damaged police or community property.
“It’s where people disrespect the community and disrespect the country, what you’re fighting for, and just haphazardly destroying the livelihoods of innocent people, I think that’s what really gets to the soldier,” Hupp said.
On cross-examination, Hupp acknowledged that when Foster was killed, there was no indication of violence as Perry made the fateful turn into the crowd.
In victim impact statements from the stand after Perry’s sentence was announced, Foster’s mother, sister and mother-in-law painted Foster as a loyal and caring person stolen from them by hate. Perry did not look at them, keeping his eyes and face trained on the table in front of him. His parents walked out for a time, his mother sobbing in the hallway outside.
“Daniel asked us to convey his condolences and deepest sympathies to the Foster family and Ms. Mitchell,” defense attorney O’Connell told reporters outside the courtroom Wednesday. “I think it’s clear from the evidence he never intended for this to happen.”
O’Connell said he didn’t believe Perry got a fair trial and confirmed that his team would be appealing the conviction and sentence, as well as pursuing pardon proceedings with the parole board. O’Connell again raised arguments he brought before the court in a push for a new trial last month, claiming Foster was the aggressor in the incident and a juror tainted deliberations by researching state laws on self-defense.
Perry’s lawyers also said jurors were not allowed to hear evidence regarding Foster’s mental health. An undated U.S. Air Force record released by Perry’s attorneys Wednesday showed Foster had at one point been diagnosed with a medical condition that, under military rules, prevented him from being deployed or handling guns and ammunition.
“There have been a lot of comments over the last few weeks regarding the governor and his intent to pardon Daniel Perry and people calling it a political decision,” added Clint Broden, another Perry attorney. “I think that misses the point that this prosecution from the very beginning was a political decision.”
Travis County District Attorney José Garza, a Democrat who has often drawn ire from Abbott, countered that a grand jury thoughtfully considered evidence before deciding to indict Perry.
“Every allegation made by the defendant in this case has been thoroughly considered and rejected by a Travis County judge,” Garza said at a press conference in his office Wednesday. “I think [Brown] did a fantastic job keeping politics out of his courtroom. And at the end of the day, the defendant in this case received … an outcome that was rooted in the facts and the law, as it should be.”
Foster’s family thanked the judge for justice, but his mother also pleaded for people not to lash out hatefully against her family.
“That is the worst thing that we’ve ever had to experience, and it has been the thing that has given us the most grief and heartache through this whole thing,” Sheila Foster said in the prosecutor’s office. “We’re seeing the lack of humanity in this society where people can reach out to a grieving family and make fun of their deceased loved one.”
