Daniel Perry's lawyers seek new trial, say excluded evidence may have proved self-defense

The lawyers for Daniel Perry, who was found guilty of the murder of armed Austin protester Garrett Foster, have filed a motion for a new trial saying evidence was excluded from the trial that could have proved he did not instigate the shooting.

Foster and other protesters routinely harassed vehicles that attempted to interfere with their efforts to "take the streets," according to the motion filed Tuesday. It also says the jury was subject to illegal outside influences, including an alternate juror who did not speak during deliberations but snorted, huffed and gasped "expressing her displeasure with juror comments that were inconsistent with finding Mr. Perry guilty."

The jury on Friday found Perry, 37, guilty of murder in the fatal shooting of Garrett Foster, 28, on July 25, 2020, during a Black Lives Matter march. Perry has not yet been sentenced but could face up to 99 years in prison. Gov. Greg Abbott has said he will grant a pardon to Perry after he gets a request for it from the Texas Board of Pardons and Paroles. Conservative commentators had urged Abbott to make the pardon.

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Perry's attorneys said during the trial that he was defending himself when he shot Foster because Foster raised his rifle at him. Prosecutors said Perry instigated the incident by driving toward a group of marchers and that Foster was defending himself when he approached Perry's car. Prosecutors also said Perry's social media posts showed he was angry at protesters.

Perry, an Army sergeant who was working as an Uber driver, ran a red light at Fourth Street and Congress Avenue and drove toward the march. He was approached by protesters, including Foster, who was carrying an AK-47 rifle. Perry told police he shot Foster out of his car window after Foster raised his rifle at him.

The evidence that was excluded from the trial included a video recording of Foster "in which he admitted that he carried his assault rifle as a means to intimidate (those) who did not share his beliefs," the motion says.

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It said the evidence that was not allowed to be admitted would have shown that Foster scared other drivers during previous protest marches. On July 4, 2020, Foster blocked a driver named Joe Sanchez by standing in front of Sanchez's car and then protesters swarmed the car, Perry's lawyer said.

On June 27, 2020, a Door Dash driver was driving past Austin police headquarters downtown when Foster tried to block the street by using his partner's wheelchair and protesters surrounded the driver's car, the motion says. It says the driver pulled a handgun and protesters backed away from his car.

Perry also was not allowed to introduce a video that showed another protester attacking the grill of a truck with a flagpole after the truck tried to turn onto a street near police headquarters on June 27, 2020. The same protester kicked Perry's car after Perry turned into the crowd of marchers on the night of the fatal shooting, Perry's lawyers said.

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Defense lawyers also said in the motion that they were not allowed to show a video recording of Foster conducted by Hiram Garcia, a prosecution witness, on the same day that Foster was killed. Garcia, who described himself in the trial as an independent videographer documenting the protests, asked Foster in the video why he was carrying an AK-47 that night. "They don't let us march in the streets anymore, so I gotta practice ... some of our rights," Foster said in the video.

Garcia then asked Foster if he felt like he needed to use the AK-47. "Nah," said Foster. "If I use it against the cops, I'm dead. I think all the people that hate us, and you know, wanna say (expletive) to us, are too big of a (expletive) to stop and actually do anything about it."

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Garcia then asked Foster in the video why he started carrying an AK-47 gun.

"Well, my roommate got arrested and they stopped letting us march anywhere, so I started carrying," said Foster.

The prosecution argued through the trial that Perry provoked the incident, the motion said, but the evidence the defense was not allowed to introduce would have proved the protesters instigated it.

"The excluded evidence would have helped show that Foster did not approach Sgt. Perry's car to protest his fellow protesters but rather approached Sgt. Perry in an attempt to intimidate him just like he attempted to intimidate Joe Sanchez and others," the motion said.

The court also did not allow defense attorneys to present homicide detective Joe Fugitt's report that concluded the fatal shooting was justifiable homicide, the motion said. It said prosecutors had pointed out during the trial that items such as Perry's social media posts were missing from the report.

"Sgt. Perry was denied the opportunity to have jurors review the report and determine for themselves what was missing and what was included," said Perry's lawyers.

Illegal outside influence to the jury also occurred when a juror told fellow jurors a document he had printed from the internet that he claimed was taken from the Texas Penal Code said a "defendant has to prove or show" he acted in self-defense," the motion said. It said jurors are not allowed to do outside research and present it to other jurors.

This article originally appeared on Austin American-Statesman: Daniel Perry's lawyers say crucial evidence was excluded from trial