Travis County judge delays decision on charges against Daniel Perry

After a lengthy and contentious hearing Friday, Travis County Court Judge Carlos Barrera said he will announce Tuesday whether he will dismiss a deadly conduct charge against Daniel Perry, who was pardoned by Gov. Greg Abbott after Perry was convicted of murder in the shooting death of a protester in Austin.

Perry’s attorney, Doug O’Connell, argued during the hearing that the deadly conduct charge should be dismissed because of prosecutorial misconduct that occurred both before and after the grand jury proceeding.

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 show Perry ran a red light and did not intentionally drive 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 refused to testify, O’Connell said. What Garza said violated Perry’s Fifth Amendment right to remain silent, O’Connell said.

Deputy County Attorney Alexandra Gauthier objected to almost everything O’Connell and Fugitt said at Friday’s hearing. He said most of what they were talking about involved secret grand jury proceedings. Barrera overruled most of their objections. Nearly an hour after the hearing began, the county prosecutor’s office attempted to stop it by filing a writ of mandamus with the Third Court of Appeals.

The order asks the appeals court to order Barrera “to reverse his ruling in obtaining secret information from the grand jury during this evidentiary hearing.” Barrera did not stop the hearing after Gauthier told him the order was being filed, but said he would wait for an appeals court ruling on Monday before making a decision on whether the indictment should be dismissed. The judge also said he had not allowed anything in the hearing that violated grand jury secrecy.

A district judge had already decided there was no prosecutorial misconduct regarding Fugitt’s testimony, Gauthier said at Friday’s hearing. Fugitt did not know what the other witnesses said at the grand jury hearing, he said. Prosecutors are also not required to present exculpatory evidence in a grand jury proceeding, Gauthier said.

Perry was charged with a 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. In April 2023, a jury convicted Perry of Foster’s murder, but the governor pardoned him in May 2024 and released him. He was acquitted of the charge of aggravated assault.

The deadly conduct charge said Perry, who was an Uber driver at the time, put a group of protesters walking along Congress Avenue on July 25, 2020, in danger of serious bodily injury by texting while driving and turn right at a red light without coming to a complete stop. He also said Perry turned into an intersection where pedestrians were visible in the crosswalk and in the intersection, and crashed into a group of people in the street.

A Class A misdemeanor is punishable by up to one year in 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 derogatory comments 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’re prohibited from talking about certain types of evidence,” he said.

Fugitt testified Friday that prosecutors told him before the grand jury convened to remove 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 did not remove exculpatory evidence from his grand jury presentation. Police threatened Fugitt after receiving an angry phone call from Garza, O’Connell said.

Gauthier said he could not question Fugitt because he was testifying about grand jury proceedings, which are secret.

“He’s saying his stuff wasn’t presented to the grand jury, but he wasn’t on the grand jury for any other testimony,” he said. “That’s why I won’t assume the grand jury didn’t hear what they were told not to show.”

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