A criminal appeals court has denied a Texas district attorney’s attempt to reverse what he says is an “unlawful” pardon by Gov. Greg Abbott of an Army sergeant convicted of murdering a Black Lives Matter protester.
In its one-line order issued on Wednesday, the nine Republican members of the Texas Court of Criminal Appeals “denied without written order motion for leave to file the original application for writ of mandamus” by Travis County District Attorney José Garza, who was seeking to overturn the pardon for Daniel Perry, 37, convicted of killing Garrett Foster, 28, in the summer of 2020.
The decision comes after Texas Attorney General Ken Paxton’s office wrote to the court opposing Garza’s writ of mandamus, saying the court lacked jurisdiction to issue a mandamus relief against the governor.
“Even if the Court had jurisdiction to issue a writ, it nevertheless would still lack jurisdiction over this writ because — as this Court has consistently recognized for more than a century — the decision to grant a pardon is a power the Constitution expressly reserves to the Governor,” the June 14 document reads. “The Separation of Powers Clause thus forbids the judiciary to second-guess his exercise of that power. Because this Court is jurisdictionally barred from issuing the relief Garza requests at least twice over, the Court should deny leave to file his mandamus petition, which is without merit in any event.”
Garza’s office did not have immediate comment when reached by Law&Crime.
Perry’s defense attorney, Clinton Broden, did not immediately respond to a request for comment from Law&Crime.
As Law&Crime reported earlier this month, Garza said on Facebook the Texas Board of Pardons and Paroles and the governor “put their politics over justice and made a mockery of our legal system.”
“They should be ashamed of themselves,” he said. “Their actions are contrary to the law and demonstrate that there are two classes of people in this state where some lives matter and some lives do not. We will not stop fighting for justice.”
The prosecutor said Abbott violated the separation of powers clause in the Texas Constitution by interfering with a lawful jury verdict and the appellate process.
“Here in Texas, it is up to our judicial system to determine whether a person is guilty or innocent and what the outcome should be,” Garza said. “And there is a lengthy appellate process that should be followed in every case. Here, the executive, the governor, interceded, intervened in that process, and prohibited the judiciary from doing their work.”
Abbott reacted on X at the time, saying:
“NOT GONNA HAPPEN”
“The Texas Constitution provides: In all criminal cases, the Governor shall have power, after conviction, on the written signed recommendation and advice of the Board of Pardons and Paroles, to grant pardons,” Abbott also wrote in the statement.
Perry’s defense attorney, Clinton Broden, previously said in a statement that Perry defended himself against Foster, who had been discharged from the Air Force for mental health issues. Broden said Foster had been illegally carrying an assault rifle on the streets of Austin. He said Abbott’s pardon was lawful and called Perry’s prosecution political, saying Garza was “making a mockery of our constitutional system of government.”
Perry was working as an Uber driver when he approached protesters blocking a road and drove into the crowd at the rally. He fired his pistol at Foster and claimed Foster pointed an AK-47 at him. Perry was indicted by a grand jury on July 16, 2021, and was found guilty of the murder in April 2023.
At his trial, prosecutors argued the killing was premeditated and presented evidence they claimed showed he harbored violent attitudes toward “rioting” and people he called “looters.”
His defense attorney said the posts were taken out of context and were protected by the First Amendment. The lead police investigator also testified that he didn’t arrest Perry the night of the shooting due to the possibility of self-defense. Despite that, Perry was sentenced to 25 years in prison the following month.
Following his pardon, Perry walked free on May 16.
On May 29, 14 Democratic state attorneys general wrote a letter to U.S. Attorney General Merrick Garland, urging the Justice Department to open a civil rights investigation into the murder of Foster, who they said was exercising his First Amendment right to protest amid broader protests against police brutality and racial injustice in the summer of 2020.
“The facts of the case were egregious,” New York Attorney General Letitia James wrote on behalf of the state AGs. “Mr. Perry shot and killed Mr. Foster, after having googled the locations of protests and sent a text message that he was considering traveling to another city to ‘shoot looters.’ His internet search history includes evidence that he intended to cover up his crime (including a search for whether ‘the federal government [has] the ballistics of every firearm sold legally). He also sent and shared racist and anti-Muslim messages and memes advocating vigilante murder.”
The attorneys general said they were concerned that Abbott’s pardon on Texas’ “stand your ground” self-defense laws would encourage vigilantes to attend protests “armed and ready to shoot and kill those who exercise their First Amendment rights.”
“The Department of Justice plays an important role in ensuring that those who violate the civil rights of their fellow Americans are held to account, and that is especially the case when state or local jurisdictions refuse to do so,” the letter continued. “From prosecuting the Klan members who conspired to murder three civil rights workers in rural Mississippi in 1964 to more recently prosecuting the man who murdered Heather Heyer in Charlottesville in 2017, the Department of Justice has used federal civil rights laws to ensure accountability for acts of hate.
“We urge the Department to open an investigation into whether Mr. Perry violated federal criminal law, including specifically several federal criminal civil rights laws. We note that whether or not Texas law gives Mr. Perry a defense to state prosecution for his actions here, Texas law does not prevent a federal prosecution for Mr. Perry’s act of killing someone for racial reasons in order to prevent him from exercising constitutional rights.”
A media representative from the U.S. Attorney’s office did not immediately respond to a request for comment from Law&Crime.