Austin DA says it's 'deeply troubling' that Texas Gov Abbott wants to pardon Army sergeant convicted of murder

Travis County District Attorney José Garza hit back at Texas Gov. Greg Abbott over the weekend, saying it is "deeply troubling" that the governor wants to pardon Sgt. Daniel Perry after he was convicted of murder for shooting and killing a Black Lives Matter protester in the summer of 2020. 

Perry was found guilty on Friday of murdering Garrett Foster, an Air Force veteran who was carrying an AK-47 during a protest in downtown Austin in July 2020. Attorneys for Perry argued that he acted in self-defense after Foster raised the rifle at him, while prosecutors alleged that Perry instigated the shooting. 

"In this case, a jury of twelve listened to testimony for nearly two weeks, upending their lives to painstakingly evaluate the evidence and arguments presented by both the State and the Defense. After hearing from civilian eyewitnesses and expert witnesses, and deliberating for over fifteen hours, they reached the unanimous decision that Daniel Perry did not kill Garrett Foster in self-defense and was guilty of murder beyond a reasonable doubt," Garza said in a statement on Sunday. 

"In our legal system… a jury that gets to decide whether a defendant is guilty or innocent - not the Governor."

Garza's statement came after Gov. Abbott criticized the conviction, saying that he has already asked the Board of Pardons and Paroles to review Perry's case and determine whether he should be granted a pardon. 

"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 said in a statement on Saturday. "I look forward to approving the Board's pardon recommendation as soon as it hits my desk."

Whitney Mitchell, Foster's fiancée, told the Austin American-Statesman that she "felt some sense of justice and relief when the jury rendered its verdict."

"But the governor has immediately taken that away since he announced there are two legal systems in Texas: one for those with power, like Mr. Perry, and one for everyone else," Mitchell told the local newspaper. "I hope the governor never again claims that he stands for victims' rights."

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Perry was working as an Uber driver on July 25, 2020, when he encountered a large Black Lives Matter demonstration in downtown Austin. He told police that a group of protesters encircled his vehicle and that Foster raised the AK-47, prompting him to open fire with a handgun in self-defense. 

Perry drove away from the scene and called police before being released that night. One year later in July 2021, a jury indicted Perry for murder and aggravated assault with a deadly weapon. 

Detective David Fugitt, who has since retired after a three-decade career with Austin police, interviewed Perry on the night of the shooting and was the lead investigator on the case. After the grand jury indicted Perry for murder, Fuggit said in a sworn affidavit that Garza's office forced him to remove exculpatory evidence from his presentation to the grand jury. 

"It became clear to me that the District Attorney’s Office did not want to present evidence to the grand jury that would be exculpatory to Daniel Perry and/or to show that witness statements obtained by the family of Garrett Foster and/or their attorneys were inconsistent with prior interviews such ‘witnesses’ gave the police and/or the video of the incident in question," Fugitt wrote in the affidavit, which was later dismissed by a judge.

Fugitt was called as a witness this week by Perry's defense team and testified that he did not arrest Perry on the night of the shooting because he thought there was a legitimate argument for self-defense. 

He also said in court that there was no evidence Perry accelerated into the crowd, and that Foster's gunshot wounds indicate he was in a bladed tactical stance when he approached Perry's door, according to Fox 7 Austin. 

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Prosecutors keyed in on past messages and social media posts by Perry before the shooting to demonstrate his state of mind. On May 31, 2020, two months before the shooting, Perry sent a message that said, "I might have to kill a few people on my way to work they are rioting outside my apartment complex." Other messages included, "I might go to Dallas to shoot looters," and, "I only shoot the ones in front and push the pedal to the metal," according to Fox 7 Austin. 

Perry faces up to life in prison when he is sentenced. Garza said Sunday that the judge "will be able to consider and evaluate additional evidence" during the sentencing hearing. 

Abbott, meanwhile, said he has "prioritized reining in rogue District Attorneys, and the Texas Legislature is working on laws to achieve that goal." Texas Attorney General Ken Paxton also lashed out at Garza after the conviction.

"This week has shown us how rogue prosecutors have weaponized the judicial system," Paxton said. "They must be stopped!"

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Garza was first elected in 2020 and faces reelection next year, has been condemned for what critics say are soft-on-crime policies. 

An investigation by local news outlet KVUE in 2021 found that Garza's office had dismissed numerous felony cases for serious crimes, including aggravated robbery and assault of a pregnant woman. 

Fox News Digital's Kyle Morris and Andrew Mark Miller contributed to this report.