Daniel Perry to face trial for deadly conduct after being pardoned for murder conviction
A Travis County judge said he won't dismiss a deadly conduct charge against Daniel Perry, who was pardoned last year by Gov. Greg Abbott after Perry was convicted of murder in the Austin shooting death of a Black Lives Matter protester in 2020.
"I will be preparing legal findings of fact and conclusions of law which will explain the decision," County Court-at-Law No. 8 Judge Carlos Barrera said Thursday in an email to the American-Statesman. "The defense wants to submit proposed findings, and the state wants to respond; so I will wait to see those before I finish mine."
Defense lawyer Doug O'Connell declined to comment Thursday on the judge's decision. The Travis County attorney's office does not comment on pending cases, spokeswoman Diana Melendez said.
More: Judge delays decision on whether to dismiss deadly conduct charge against Daniel Perry
Barrera said he sent attorneys for both sides an email Tuesday about his decision not to dismiss the indictment.
O'Connell had argued during a hearing Jan. 24 that the indictment should be dismissed because of prosecutorial misconduct that happened both before and after grand jury hearings.
Former Austin police homicide Detective David Fugitt testified at the hearing 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 intentionally drive into a group of Black Lives Matter protesters on Congress Avenue downtown in July 2020.
More: Daniel Perry released from Texas prison within an hour after Gov. Abbott's pardon
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 District Attorney José Garza, O'Connell said.
Prosecutorial misconduct also occurred after the grand jury indicted Perry when Garza held a news conference saying Perry had declined to testify, O'Connell said during the hearing last week. What Garza said violated Perry's Fifth Amendment right to remain silent, O'Connell said.
Assistant County Attorney Alexandra Gauthier objected to most of what Fugitt said during the hearing, saying it violated rules about the secrecy of grand jury proceedings. The judge overruled most of her objections.
Gauthier also said that a district judge already had decided there was no prosecutorial misconduct regarding Fugitt's testimony. 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, the assistant county attorney said.
During the hearing, Gauthier also submitted a writ of mandamus to the 3rd Court of Appeals asking the appeals court to order Barrera to "reverse his ruling eliciting secret grand jury information during this evidentiary hearing." Barrera said in his email to the Statesman on Thursday that the state had withdrawn its request for a writ of mandamus.
O'Connell filed a court document Wednesday that said the county attorney's office in previous filings had offered Perry a plea bargain of six months in jail with no credit for the one year and one week Perry had spent in jail before being pardoned by the governor.
"This plea deal appears to be retaliating for the Defendant successfully exercising his legal rights to seek a pardon," the document said. "If true, this constitutes additional Prosecutorial Vindictiveness, yet another type of Prosecutorial Misconduct."
Perry was charged with the Class A misdemeanor of deadly conduct 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. A jury in April 2023 convicted Perry of murder, but he was pardoned by the governor in May 2024 and released from prison. He was acquitted of the aggravated assault charge.
In announcing the pardon, Abbott pointed to the state's "Stand Your Ground" laws of self-defense and said that Garza "demonstrated unethical and biased misuse of his office in prosecuting Daniel Scott Perry."
Shortly after Abbott's announcement, a state district judge unsealed court records that contained Perry's previously unreleased messages and social media posts, which contained racist rhetoric. During Perry's murder trial, prosecutors argued that he had sought out confrontation.
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.
This article originally appeared on Austin American-Statesman: Judge won't dismiss deadly conduct charge against Daniel Perry
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