Judge delays decision on whether to dismiss deadly conduct charge against Daniel Perry
Perry's lawyer, Doug O'Connell, argued during the hearing that the deadly conduct charge should be dismissed because of prosecutorial misconduct that happened both before and after the grand jury proceedings.
Former Austin police homicide detective David Fugitt testified Friday that prosecutors told him he could not include evidence in his grand jury testimony that would prove Perry did not run a red light and did not drive intentionally into a group of Black Lives Matter protesters in downtown Austin in July 2020.
Prosecutorial misconduct also occurred after the grand jury indicted Perry when Travis County District Attorney Jesus Garza held a news conference saying Perry had declined to testify, O'Connell said. What Garza said violated Perry's Fifth Amendment right to remain silent, O'Connell said.
More: Judge to rule on lesser charge for Daniel Perry, who was pardoned after murder conviction
Assistant County Attorney Alexandra Gauthier objected to almost everything O'Connell and Fugitt said at the hearing Friday. She said that most of what they were talking about involved secret grand jury proceedings. Barrera overruled most of her objections. Almost an hour after the hearing started, the county attorney's office tried to stop it by filing a writ of mandamus with the 3rd Court of Appeals.
The writ asks the appeals court to order Barrera to "reverse his ruling eliciting secret grand jury information during this evidentiary hearing." Barrera didn't stop the hearing after Gauthier told him the writ was being filed but said he would wait for a ruling from the appeals court Monday before making a decision on whether the indictment should be dismissed. The judge also said he hadn't been allowing anything in the hearing that violated grand jury secrecy.
More: Daniel Perry released from Texas prison within an hour after Gov. Abbott's pardon
A district judge already had decided there was no prosecutorial misconduct regarding Fugitt's testimony, Gauthier said at the hearing Friday. Fugitt didn't know what the other witnesses said at the grand jury hearing, she said. Prosecutors also are not required to present exculpatory evidence at a grand jury proceeding, Gauthier said.
Perry was charged with the Class A misdemeanor in 2021 at the same time he was charged with murder and aggravated assault in the death of Black Lives Matter protester Garrett Foster in July 2020 in downtown Austin. A jury in April 2023 convicted Perry of the murder of Foster, but he was pardoned by the governor in May 2024 and released from prison. He was acquitted of the aggravated assault charge.
The deadly conduct indictment said that Perry, who was an Uber driver at the time, placed a group of marchers walking on Congress Avenue on July 25, 2020, in danger of serious bodily injury by texting while driving and turning right at a red light without coming to a complete stop. It also said Perry turned into an intersection where pedestrians were visible in the crosswalk and in the intersection, and that he drove into a group of people in the street.
A Class A misdemeanor is punishable by up to one year in a county jail and a fine of up to $4,000.
Court records that a judge unsealed after Perry was convicted of murder showed that Perry made several disparaging remarks about the Black Lives Matter movement on social media. The posts included messages such as "Black Lives Matter is racist to white people."
O'Connell said Fugitt's testimony Friday did not violate the secrecy of grand jury proceedings.
"You don't have to call a witness (in a grand jury proceeding) if you don't want to but what you can't do is tell them they are prohibited from talking about certain types of evidence," he said.
Fugitt testified Friday that prosecutors told him before the grand jury met to take out certain slides from his presentation that would have shown Perry was not texting while driving.
Fugitt also said police threatened him with an internal investigation if he didn't remove the exculpatory evidence from his presentation to the grand jury. Police threatened Fugitt after they received an angry phone call from Garza, O'Connell said.
Gauthier said she couldn't cross-examine Fugitt because he was testifying about grand jury proceedings, which are secret.
"He's saying that his stuff was not presented to the grand jury, but he was not in the grand jury for any other testimony," she said. "That's why I will not assume that the grand jury did not hear whatever he was told not to show."
This article originally appeared on Austin American-Statesman: Travis County judge delays decision on charge against Daniel Perry
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