A Texas prosecutor wants the state’s highest criminal court to review the governor’s pardon of a man convicted of killing a Black Lives Matter protester.
Travis County District Attorney Jose Garza said Tuesday his office would file a request with the Texas Court of Criminal Appeals for a writ of mandamus, a ruling that would overturn the pardon.
As of mid-afternoon Tuesday, the application had not been filed, but it would be filed shortly, Garza’s office said.
Last year, Daniel Perry, then 35, was convicted of fatally shooting Garrett Foster, 28, during a Black Lives Matter protest in Austin in 2020. Perry was sentenced to 25 years from prison.
The day Perry was convicted, Gov. Greg Abbott said he would pardon him as quickly as legally possible. Last month, Abbott’s office announced the pardon, suggesting Perry should have been exonerated under the state’s “Stand Your Ground” laws.
Perry was released from prison shortly afterward.
Under Texas law, people can open fire when human lives or property, including homes and vehicles, are threatened with serious violence, kidnapping or theft.
A shooter who has legitimate reasons to use deadly force has no obligation to retreat, according to Texas law. The law requires a defendant in such a situation to provide evidence and an affirmative defense explaining that he or she was in the right during such a confrontation.
“Texas has one of the strongest ‘Stand Your Ground’ self-defense laws that cannot be overturned by a jury or a progressive district attorney,” Abbott said in a statement announcing the pardon on May 16.
On the day of the shooting, July 25, 2020, Perry was an Army sergeant based in Ford Hood, about 70 miles north of the Austin protest.
He was driving through downtown Austin, where a Black Lives Matter protest was taking place. It was one of many activities held that summer following the killing of George Floyd by Minneapolis police officers.
Perry stopped at an intersection and police said he told them he opened fire from his vehicle in self-defense after Foster pointed a semi-automatic rifle at him. Foster legally carried the rifle.
More than a year later, a Travis County grand jury indicted Perry for murder. Prosecutors said there was no evidence Foster pointed the gun. And, citing texts and social media posts, prosecutors tried to portray Perry as a racist who could have simply been kicked out.
On April 7, 2023, Perry was convicted of murder. The jury acquitted him of charges of aggravated assault with a deadly weapon.
The governor sought and received a unanimous recommendation for clemency from the Texas Board of Pardons and Paroles.
On Tuesday, the Travis County district attorney, speaking at a news conference announcing his office’s challenge to the pardon, said Abbot’s decision was intended to “circumvent the process.”
“The coded process to support a claim of innocence was not followed,” the prosecutor said.
Garza suggested that pardons could not be granted on a whim or to curry favor with populists, but had to be approved through a process that he said the governor had not carried out. term.
“Not only did he circumvent the pardon process, but he exceeded his authority and violated the doctrine of separation of powers,” the prosecutor said.
Perry’s attorney, Clint Broden, said in a statement Tuesday that the governor had full authority to issue a pardon, and did so legally.
“Governor Abbot used pardon powers similar to those granted to almost every other state governor in the United States, as well as those granted to the President of the United States,” he said.
The lawyer accused Garza, a Democrat from a progressive community, of using the case to challenge the Republican governor’s conservative policies.
“The prosecution of Daniel Perry was political from the beginning,” he said.
He called the attempt to overturn a pardon a “frivolous lawsuit.”
Foster’s mother, Sheila Foster, spoke at Tuesday’s news conference, saying “we got justice for Garrett” shortly before the governor’s pardon.
She noted her son’s service in the U.S. Air Force before saying, “My own child was killed on American soil for doing nothing more than practicing his First and Second Amendment rights.” “And our governor just said it’s OK, it’s acceptable, as long as he doesn’t like the victim or what she says.