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Army sergeant who was promised pardon by Gov. Abbott is sentenced to 25 years


Neena Satija
San Antonio Express-News
(TNS)

A judge on Wednesday sentenced Daniel Perry to 25 years in prison for the murder of an armed Black Lives Matter protester in Austin. The decision is the latest development in a case that has garnered national attention since Gov. Greg Abbott announced last month that he planned to pardon Perry.

BACKGROUND: Daniel Perry, convicted of murder, wrote of wanting to kill protesters, Muslims, Black people, new court docs show

In handing down the sentence, Travis County District Judge Clifford Brown cited the “devastating impact” of the killing and said he rarely gives remarks during sentencing, but felt “obliged” to do so in this case.

“The hard work, the service and the sacrifice of this jury deserves our honor and it deserves to be respected,” Brown said — making what appeared to be a veiled shot at Abbott for threatening to issue a pardon.

Perry, a 36-year-old Army sergeant, did not appear to react to Brown’s ruling. His attorneys told reporters afterward that he was “devastated” and that they plan to file an appeal within 30 days, as the law requires.

The sentencing adds to a building standoff between the Republican governor and liberal Travis County District Attorney José Garza. Garza’s office indicted Perry even though Austin police declined to arrest or charge him. The office also has indicted more than a dozen police officers for using excessive force on protesters during the summer of 2020.

“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,” said Clint Broden, one of Perry’s attorneys. “I think that misses the point that this prosecution from the very beginning was a political decision.”

RECENT: New trial denied for Army sergeant convicted of murdering Austin protester

Criminal appellate courts often take months, if not years, to hand down decisions. But Abbott’s extraordinary promise of a pardon injected a political wild card into Perry’s fate.

Abbott can’t pardon Perry without a recommendation from the state Board of Pardons and Paroles. He appoints all six members of the board and can fire them at any time. The board has vowed to conduct a “thorough investigation” into Perry’s case.

Perry was driving for Uber on the night of July 25, 2020, when he made a right turn into an intersection full of protesters in downtown Austin. One of those protesters, 28-year-old Garrett Foster, approached the driver’s side of Perry’s car while carrying an AK-47 rifle. Perry rolled down the window and, seconds later, used a revolver next to him to shoot and kill Foster.

Both men were legally armed, and both were on opposite sides of a protest movement that had reached a crescendo after the police killing of Floyd. Perry’s defense team attempted to portray the protesters as an angry mob and said Foster, an Air Force veteran, was carrying his rifle in a threatening manner, which meant Perry had the right to shoot him under Texas’ self-defense laws. Prosecutors contended that Perry deliberately drove into a group of peaceful protesters and lost his right to self-defense by provoking the confrontation with Foster.

Dueling portraits of Perry

Perry’s indictment made him a celebrity among conservatives, with parallels to Kyle Rittenhouse, who was acquitted of fatally shooting two men during protests in Kenosha, Wis., in 2020.

Fox News host Tucker Carlson suggested on his April 7 show that Abbott pardon the sergeant. Less than 24 hours later, Abbott tweeted that he intended to do so.

But Abbott’s office took a more muted approach after newly unsealed court documents showed that Perry, who is white, previously had written about wanting to kill protesters, Muslims and Black people.

“All pertinent information is for the Board of Pardons and Paroles to consider, as this is part of the review process required by the Texas Constitution,” his spokeswoman, Renae Eze, told CNN in a statement the day after the documents were unsealed.

Abbott didn’t issue any immediate public statements about the sentencing on Wednesday.

In a news conference Wednesday, Garza said the board assured him that prosecutors would be allowed to make a presentation regarding the case before any recommendation is made. He also said that the board “committed to hear from the family of the victim in this case.”

“The Texas Governor made the decision to insert politics into this case,” Garza said, adding that his office “is not done fighting for Garrett and for the integrity of that process here in Travis County.” He added that the pardon board also promised to hear from Foster’s family.

During an hours-long hearing on Tuesday, Perry’s defense lawyers had pushed for a 10 year sentence, noting he had no previous criminal record and had been ostracized since childhood. A forensic psychologist who evaluated Perry shortly before the recent murder trial said the Army sergeant exhibited classic signs of complex post-traumatic stress disorder, and that Perry’s time in the military and autism spectrum disorder caused him to see the world with an “us versus them” mentality.

Four people who served with Perry in the Army described him as a hard worker who never complained and was always willing to help out, no matter the task.

Prosecutors said Perry had suggested for months before the July 2020 killing that he wanted to get into an armed confrontation with a Black Lives Matter protester. They pointed to private messages and social media postings by Perry as evidence, and they also revealed other messages and social media postings by Perry that contained overtly racist statements.

Whitney Mitchell, who considered Foster her husband and who had been protesting with him the day he was killed, also testified at the hearing. She said Foster was her sole caregiver for more than a decade after a medical condition forced her to have all her limbs amputated. He helped her pursue a career in costume design, even attending classes with her at the Parsons school of design in New York City. They two bought a house together in Austin about a year before his death.

“It’s extremely hard to be in that house,” she said. “It’s just hard every day that I’m there. It’s hard to sleep in my bed because he’s not there.”

neena.satija@houstonchronicle.com

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