Unless Abbott Interferes, Daniel Perry to Serve 25 Years

Daniel Perry during his trial (Photo by Jana Birchum)

Daniel Perry has finally received his sentence. On the morning of May 10, State District Judge Cliff Brown gave Perry 25 years in prison for murdering Black Lives Matter protester Garrett Foster.

Directly after the sentence was pronounced, Foster’s mother, Sheila Foster, spoke to the court about who her son was. She described how he and his common-law wife, Whitney Mitchell, had marched for Black lives and fed the unhoused in Downtown Austin for 50 days straight, before Perry shot Foster to death on July 25, 2020.

“The unhoused community, the transgender community – whoever it was, Garrett didn’t discriminate,” Foster told the court. “He loved everybody. And he loved everybody like Jesus would – he got down on the ground and got to know them and met their needs. My son was literally out there following Christ. He knew sacrifice. He knew selflessness. And my son knew how to love, most of all.”

Perry, an Army sergeant, was convicted of Foster’s murder on April 7. At his trial, his attorneys argued that Perry had mistakenly turned his car into a group of Black Lives Matter demonstrators and then fired in self-defense when Foster approached him, legally carrying an AK-47. Travis County prosecutors responded by showing text messages Perry had written in which he fantasized about killing a protester: “I might go to Dallas to shoot looters,” among them. After two days of deliberation, jurors decided Perry had provoked the confrontation with Foster, invalidating his self-defense claim.

After the sentence, Perry’s attorneys, Doug O’Connell and Clint Broden, promised to appeal the guilty verdict to the Texas Court of Criminal Appeals and submit a clemency appeal to the Texas Board of Pardons and Paroles. There is already a clemency appeal for Perry before the board, however, courtesy of Gov. Greg Abbott. The governor promised to pardon Perry on April 8, less than 24 hours after the guilty verdict, ordering the board to begin an investigation of Perry’s case and quickly recommend a pardon, a legal necessity before the governor may take action. O’Connell and Broden had no comment on Abbott’s pardon request, saying they would “leave the politics to the politicians.”

O’Connell had asked District Judge Cliff Brown to sentence Perry to no more than 10 years at a hearing on May 9, saying that he suffers from autism and PTSD, conditions that make it difficult for him to react calmly to threats. “We’re asking the court to craft a sentence that doesn’t crush any hope Daniel may have that he will one day be able to get out of prison, rejoin his family, and hug his mom,” O’Connell said. He also argued that Perry’s racist and violent text messages and social media posts, presented earlier in the hearing, had been taken out of context.

Travis County prosecutor Guillermo Gutierrez had an incisive response to the notion that Perry isn’t culpable for his actions because of his autism and PTSD. “What this [tells] you,” Gutierrez said, “is that Perry is basically a loaded gun. With this complex PTSD, mixed together with autism – and then you throw in this lethal, military training – he will react to perceived threats immediately and with severe consequences.” Gutierrez called Perry a threat to the community and asked Brown to sentence him to a minimum of 25 years in prison, the sentence Brown ultimately pronounced.

Earlier in the hearing, Mitchell, a quadruple amputee, had described all the ways that Garrett Foster helped her in the 11 years that he was her primary caretaker. She said Foster carried her to her wheelchair in the morning, brushed her teeth, washed her face, applied her makeup. She said he fed her and bathed her and helped her sew the clothing she designed.

Mitchell also described how things have changed, now that Foster is gone. “It’s hard to sleep in my bed, because he’s not there,” she told the court in fits and starts, her voice breaking. “And I have friends that have been taking care of me, and have to do all that stuff that Garrett was doing for me, and it’s hard to get comfortable with being vulnerable…. I know it’s never going to be the same again.”

Perry avoided eye contact with Mitchell and Sheila Foster during their testimony. He had hobbled into court in leg shackles as the hearing began, wearing a striped black and gray jail uniform, his hair and beard grown out. His parents sat behind him, appearing weary. On the opposite side of the courtroom, Garrett Foster’s family hugged one another and whispered. Behind them sat some of the protesters who marched with Foster and Mitchell in 2020’s Black Lives Matter protests.

The state kicked off the May 9 testimony with Stephanie Dyess, an analyst with the district attorney’s office who pulled a large body of texts and posts from Perry’s phone and social media sites. One text chain came up repeatedly in the testimony that followed. It was a conversation between Perry and a friend in which Perry claimed, “I might have to kill a few people on my way to work they are rioting outside my apartment complex.” After comments back and forth, his friend asks, “Can you catch me a negro daddy?” Perry responds: “That is what I am hoping.”

A meme Perry had reposted was also referenced repeatedly. In it, a 1950s mom prepares to push her blonde kindergartner’s head into a bathtub full of water, to drown her. The text below reads, “When your daughter’s first crush is a little negro boy.”

Dr. Greg Hupp, a forensic psychologist who specializes in veterans’ mental health, testified on Perry’s behalf, explaining that the “negro daddy” comment was an example of the dark humor used by combat veterans, something he referred to as “the GI mentality.” He said it isn’t fair for civilians to judge such things because the soldier’s worldview is different. He described interviews he conducted with Perry that led him to believe he is on the autism spectrum and suffers from PTSD. These two conditions are synergistic, Hupp said, and created a thoughtless response in Perry when he felt threatened. “He has no ability to think ahead,” Hupp said. “He’s robotic and reactive. The higher the stress, the lower the thought process.”

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