Daniel Perry entered the Travis County Justice Center for the sentencing phase of his trial on Tuesday, May 9, in Austin, Texas.
CNN  — 

A US Army sergeant who was convicted of murdering a protester at a Black Lives Matter rally in 2020 was sentenced to 25 years in prison Wednesday morning – even as Texas’ governor pushes to pardon him.

Daniel Perry, 35, faced between five and 99 years in prison for fatally shooting 28-year-old Air Force veteran Garrett Foster at an Austin, Texas, racial justice rally two months after the murder of George Floyd in Minneapolis.

The defense asked the judge to sentence him to 10 years, citing his lack of criminal history, his psychological issues, including complex post-traumatic stress disorder, and praise from several of his military colleagues.

In contrast, the prosecution asked that he be sentenced to at least 25 years in prison. They highlighted a stream of racist and inflammatory social media posts Perry wrote prior to the shooting and the defense’s own analysis of his mental disorders and mindset.

“This man is a loaded gun ready to go off on any perceived threat that he thinks he has to address in his black and white world and his us versus them mentality,” a prosecutor said.

The judge said he will reconvene court at 10 a.m. Wednesday.

The sentencing comes nearly three years after Perry killed Foster in a case that, like that of Kyle Rittenhouse in Kenosha, Wisconsin, touched on fraught political issues of gun rights, open-carry laws, self-defense and Black Lives Matter protests. Perry and Foster are White.

Prosecutors said Perry, who was stationed at Fort Hood, initiated the fatal encounter when he ran a red light and drove his vehicle into a crowd gathered at the protest. Foster was openly carrying an assault-style rifle – legal in Texas – and approached Perry’s car and motioned for him to lower his window, at which point Perry fatally shot him with a handgun, prosecutors said.

“I believe he was going to aim it at me,” Perry said in a police interview after the shooting, according to CNN affiliate KEYE. “I didn’t want to give him a chance to aim at me, you know.”

Perry’s legal team argued his actions were justified as self-defense. He told police during an interview that he believed Foster was going to aim the firearm at him, according to CNN affiliate KEYE.

He was indicted by a grand jury nearly a year after the killing. In April, a Texas jury convicted Perry of murder but found him not guilty on a charge of aggravated assault with a deadly weapon. A deadly conduct charge is still pending.

Shortly after Perry’s April 7 conviction, Texas Gov. Greg Abbott said he wanted to pardon Perry and issued an unusual request for the state Board of Pardons and Paroles to expedite a review of the case before a sentence was handed down.

“Texas has one of the strongest ‘Stand Your Ground’ laws of self-defense that cannot be nullified by a jury or a progressive District Attorney,” the governor said in a statement on Twitter.

The governor can only pardon Perry if the Board of Pardons and Paroles recommends it, according to Texas law.

“The board will be commencing that investigation immediately” and will report to the governor with recommendations when it’s done, board spokesperson Rachel Alderete said following Abbott’s request. She didn’t specify how long the review would take. The board said Tuesday the investigation is ongoing and declined further comment.

Victim’s fiancée says life is hard without him

Garrett Foster, left, pictured with his fiancee Whitney Mitchell, was fatally shot at a Black Lives Matter protest in July 2020.

For the prosecution, Whitney Mitchell, Foster’s fiancée, testified through tears Tuesday how her life had changed since his death.

Mitchell is a quadruple amputee and said Foster had been her sole caretaker for the past 11 years, helping her get ready for the day, eat and work as a costume designer. They had bought a house in Austin together, and she said it’s difficult to stay there without him.

“It’s hard every day that I’m there. It’s hard to sleep in my bed because he’s not there,” she said. “He was my main caregiver for 11 years and I’ve had friends who have been taking care of me and have to learn how to do all that stuff that Garrett was doing for me for a decade, and it’s hard because I had to get comfortable being vulnerable.”

For the defense, Greg Hupp, a forensic psychologist who examined Perry twice earlier this year, testified he diagnosed him with complex post-traumatic stress disorder and autism spectrum disorder.

Combined with his military experience, Perry had an “us versus them” mentality in which his mindset was, “I protect myself. I am ready for any imminent attack and anything out there can be a potential threat,” Hupp said.

On cross-examination, the prosecution noted that military records did not indicate either of these psychological issues.

Perry made comments about killing protesters on social media, documents show

Daniel Perry vpx
New docs show racists comments from Perry amid possible pardon by Texas Gov.
03:15 - Source: CNN

Documents related to the case that were unsealed by a Travis County judge following Perry’s conviction show he had a yearslong history of making racist comments in messages and social media posts.

In a Facebook message from May 2020, just weeks before the shooting, Perry told a friend he “might have to kill a few people” who were rioting outside his apartment.

The documents also contain a May 2020 text sent by Perry that said, “I might go to Dallas to shoot looters.” Some messages included “white power” memes.

Perry wrote in a 2019 message that it was “to bad we can’t get paid for hunting Muslims in Europe.”

In a June 1, 2020, social media comment, Perry compared the Black Lives Matter movement to “a zoo full of monkeys that are freaking out flinging their sh*t,” the documents show.

Clint Broden, Perry’s attorney, criticized the release of the documents in a statement to CNN, calling it a political decision by prosecutors.

Broden said Foster also made social media posts advocating for violence and supporting riots, most of which can’t be made public due to Texas discovery rules. A few posts are public, however, including a post praising the burning down of a Minneapolis police station in 2020.

CNN reached out to the governor’s office for comment on the social media posts. An attorney for the Foster family declined to comment on the unsealed documents.

CNN’s Rosa Flores, Andy Rose and Alisha Ebrahimji contributed to this report.