Perry is facing charges of murder and aggravated assault in the 147th District Court at the Blackwell-Thurman Criminal Justice Center in Austin, where Democratic Judge Clifford Brown presides. The courthouse is right down the street from the Capitol and only a few miles from where Perry killed Foster on July 25, 2020. The office of Democratic District Attorney Jose Garza convinced a grand jury to indict Perry in 2021.
Prosecutors Guillermo Gonzalez, Efrain De La Fuente, and Elizabeth Lawson are presenting the government’s case against Perry, who is represented by defense attorneys Doug O’Connell and Clint Broden.
One of the primary issues in the case is whether Foster pointed his AK-47 at Perry before the gunfire started. Perry shot Foster, who was an Air Force veteran, with a .357 Magnum revolver.
Texas has a strong self-defense law that does not require someone to attempt to retreat before resorting to deadly force if one reasonably believes it is necessary to defend against such a threat when in places such as one’s home, vehicle, or workplace. This law is commonly referred to as a “stand your ground” law or the “castle doctrine.”
The government presented evidence that Perry had posted on social media and had private conversations over Facebook about a possible confrontation with demonstrators.
In one conversation, Perry wrote, “I might have to kill a few people on my way to work they are rioting outside my apartment complex.”
Perry sent another text that said, “I might go to Dallas to shoot looters.”
This week, jurors heard emotional testimony from demonstrators, law enforcement, and rideshare drivers who were also at the intersection of 4th and Congress that night.
Michael Garrett, another Uber driver at that intersection, said everything happened in a “split second” and that he had “never” experienced something as frightening.
Defense attorneys asked Garrett if he would have pulled a gun on Foster if he had been in a situation similar to Perry’s.
“I would probably be sitting where he’s sitting right now,” Garrett said, looking at Perry in the courtroom.
The state called Travis Bonnet, another Uber driver at 4th and Congress when the killing took place, who told jurors protesters “swarmed” Perry’s car like “ants on a piece of candy.”
Some of the most emotional moments in the courtroom happened during the testimony of Whitney Mitchell, Foster’s partner who identified herself as his wife. Mitchell said she had been with Foster since attending high school in Richardson. While she was with Foster, she became ill in 2010 and lost her arms and legs, and Foster became her caregiver from that point forward.
“I remember seeing a car coming very quickly towards us, and it just jerked toward us …” Mitchell said, describing Perry’s vehicle approaching demonstrators.
Mitchell, who said she was holding a transgender rights flag, testified, “The flag that I was holding was pretty much the distance between me and the car.”
She wept as she described “instinctually” jumping out of her wheelchair and being helpless on the ground when Perry shot Foster.
Jeremy Lett, a friend of Mitchell and Foster who lived with them at the time, sparred with Broden over his reenactment of the way Foster approached Perry’s vehicle, calling it a “terrible” demonstration. Lett also admitted to kicking Perry’s vehicle and lying to the Travis County District Attorney’s Office about it for fear of “harassment.”
Niko Daisy, an EMT who attended the demonstration and helped provide first aid to Foster, told the jury he carried an ankle pistol that night. When Perry drove toward demonstrators, he drew the handgun and fired at Perry’s car. He claimed he shot Perry’s car out of fear and to “mark” it for police, which defense attorneys later suggested could have constituted the crime of deadly conduct.
Another witness, 23-year-old Julian Gawel, said he thought he had died when Perry fired his weapon.
Gawel admitted he kicked the front bumper of Perry’s car, testifying, “This person just almost drove into a bunch of people.” He said he observed Perry’s revolver and a “bright burst.”
“All of the sudden there’s a pistol sitting on the window sill,” Gawel said, testifying he never saw Foster’s finger on the trigger of the rifle.
“I couldn’t see nor hear anything, so I wasn’t sure what was going on,” he added, describing the moments after the shooting.
Austin police arrested Gawel after another protest in June 2020 on suspicion of desecrating the U.S. and Texas flags, per a CBS Austin report.
Witness Haven Trahan told the jury about the protest, including its movement toward the W Austin hotel.
“We were yelling at Steve Adler about Prop A police funding,” Trahan said.
Like many of the witnesses the state called, Trahan described Perry as aggressively driving toward demonstrators.
“There was a car that sped around the corner … I heard the engine accelerate and the tires squeal,” Trahan said.
Later in the week, former Officer Joshua Vici, who responded to Perry’s 911 call, said his car had “initial evidence there was some kind of attack on his vehicle,” including the bullet holes left by Daisy. The officer further testified he believed Foster was the “primary aggressor,” though he conceded to prosecutors a vehicle can be used as a deadly weapon.
Senior Officer Brent Cleveland, who responded to the shooting, testified Foster was apparently “not receptive” when those around him advised him to stop carrying the rifle in front of him, which multiple law enforcement witnesses testified would be alarming to them in a confrontation.
The state’s witnesses painted varying pictures of the confrontation between Perry and Foster, including how demonstrators reacted. Some insisted Foster “gestured” toward Perry with the rifle and urged him to keep moving, without conceding that Foster pointed the gun at him.
Jurors heard the 911 call Perry made after shooting Foster and driving away from the scene of the killing.
“He aimed an AK-47 at me and I don’t know what to do,” Perry told the operator, repeatedly saying, “I’ve never had to defend myself before.”
The jury saw body camera footage of Vici and Officer Matthew Jones, who also responded to Perry’s 911 call that night.
Perry used “four-letter language to describe how scared he was,” Vici testified. Perry told the officers Foster “aimed” the rifle at him.
On the video, Perry can be heard saying “I thought he was gonna kill me,” and asking officers whether Foster was okay.
“I’ve been in Afghanistan and I’ve never been this scared,” Perry said.
He also told police, “I didn’t even know if I had been shot. That’s how scared I was.”
On Friday, jurors saw graphic photographs of Foster’s body on a table in the Travis County medical examiner’s office. Dr. Jennifer Dierksen, a deputy medical examiner who performed the autopsy, explained there was gunfire stippling on Foster’s face and other parts of his body, indicating an “intermediate range of fire” of 18 to 36 inches.
Throughout the proceedings, attorneys have used a plastic replica of Foster’s AK-47, though the actual weapon and Perry’s revolver have also been displayed.
The Texan observed multiple outbursts in the gallery at certain points in the trial, with a woman calling O’Connell a “f—ing bigot” and another onlooker complaining that observers should “stop laughing” because it’s “not f—ing funny” when those present laughed at an attorney’s joke. It was unclear if the judge or deputies guarding the courtroom heard the comments.
The trial is expected to last about two weeks. Testimony was still underway Friday afternoon at the time of publishing.
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Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."