A Travis County grand jury has indicted an active-duty former Fort Hood Army sergeant on charges of murder, deadly conduct and aggravated assault in the 2020 shooting death of an armed Austin protester.
The slaying of Garrett Foster — an Air Force veteran remembered by family and friends as a man dedicated to exercising his Second Amendment rights, stamping out racial injustice and caring for his fiancée — brought national attention and deepened debates over issues, such as protester safety, self-defense and the right to openly carry guns.
Prosecutors presented over 150 evidence exhibits as well as testimony from 22 witnesses over the course of the three-week grand jury hearing, Travis County District Attorney José Garza said.
“Our heart goes out to all those impacted by this immeasurable loss, in particular Mr. Foster’s family and friends,” Garza said. “We take our responsibility to present all of the evidence in any given case to a grand jury very seriously.”
Sgt. Daniel Perry turned himself into the Travis County Jail at 2:21 p.m. Thursday and was released about 15 minutes later on $300,000 bail. His attorney said Perry was defending himself when he shot Foster and expressed disappointment that his client was charged.
“Sgt. Perry again simply asks that anybody who might want to engage in a hindsight review of this incident picture themselves trapped in a car as a masked stranger raises an AK-47 in their direction and reflect upon what they might have done if faced with the split-second decision he faced,” Clint Broden, a Dallas lawyer, said in a statement Thursday.
A fixture in Austin’s protests over equality and police brutality last year, Foster was marching in a crowd in downtown Austin on July 25. The 28-year-old was carrying an assault-style rifle, which is legal under Texas open carry laws.
Perry was working as an Uber driver the night of the shooting, and at 9:50 p.m., he honked his horn while on Fourth Street and then turned onto Congress Avenue, into the crowd of marchers, according to police. Foster’s fiancée — Whitney Mitchell, a quadruple amputee who uses a wheelchair — was in the crowd near Foster.
Police have said Foster approached Perry’s car and Perry drew his own weapon and fired, mortally wounding Foster, before driving away and calling 911.
Police detained Perry but did not arrest him in the immediate aftermath of the shooting.
A key issue in the case is whether Foster raised his weapon at Perry. Some witnesses have said that Foster never pointed the rifle, keeping it down, but an attorney for Perry has said that police have interviewed several people who corroborated his client’s account that Foster pointed the gun at him.
Foster grew up in Plano and had been living in Austin with Mitchell for about two years at the time of his death. The couple had been attending downtown Austin protests against police violence since at least late May, and Foster often had his rifle with him, according to protesters and Foster’s family.
Legal experts previously interviewed by the Statesman had said that criminal charges in the case could be unlikely because of state laws giving people wide leeway to protect themselves in the face of perceived danger.
In his statement, Broden accused Garza of a politically motivated prosecution, and Broden said prosecutors refused to allow him to present evidence favorable to Perry.
Garza called Broden’s statements false.
“The facts were presented by career prosecutors in our office to a Travis County grand jury,” Garza said. “A grand jury is a collection of our community — our friends and our neighbors who have sworn an oath to be independent from the district attorney’s office; to hear all the facts, evidence and law; and to make their best determination.”
Garza added that Broden shared a packet of evidence with the DA’s office, and prosecutors presented the “overwhelming majority” of that evidence. Prosecutors only withheld evidence that “wouldn’t be permitted in a trial,” Garza said.
Prosecutors run grand jury proceedings, which are private and do not determine guilt or innocence, but only whether there is sufficient evidence for a trial. Subjects of grand jury investigations have no right to present a defense.
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