Jury Misconduct Shifted Self-Defense Burden in Texas Army Sergeant’s BLM-Protest Murder Trial, Say Attorneys

Photo: U.S. Army Sgt. Daniel Perry
Photo: U.S. Army Sgt. Daniel Perry

Defense attorneys in the Daniel Perry murder trial state that jurors were subjected to outside influence during the deliberation that led to the Army sergeant’s eventual conviction for murder last week. Court documents filed this week reveal that a juror allegedly did his own legal research outside of the jury room and then used that research to influence other jurors.

On Friday, a Travis County jury convicted Army Sgt. Daniel Perry in the 2021 murder of Garret Foster, an armed protester in a Black Lives Matter protest in Austin, Breitbart Texas reported. Perry’s defense team claimed Foster pointed an AK-47 at Perry after protesters stopped his car as he attempted to move through the protest group.

Subsequent to the conviction, defense attorneys learned that one of the jurors allegedly did research on what he believed the Texas penal code says about “self-defense” in the use of deadly force. The juror then allegedly used that research and his interpretation of that research to shape his own opinion in the case and to influence other jurors, according to court records obtained by Breitbart Texas.

In a motion for new trial, defense attorneys quoted a juror as saying:

During the trial, another Juror, [Name Redacted] , arrived in the jury room and stated words to the effect of “You know guys, I like to research things.” [Name Redacted] further informed me and other jurors that he printed out a document from the internet that he claimed was taken from the “Texas Penal Code.” [Name Redacted] then went on to tell me and other jurors that, based on this document he printed from the internet, the “defendant has to prove or show” he acted in self-defense.

“Clearly, a juror doing outside research on the Texas Penal Code and sharing that research with one or more jurors constitutes an ‘outside influence’ as that term
has been interpreted by the Court of Criminal Appeals…” Perry’s defense team wrote in the motion for new trial. “The only question that remains under McQuarrie v. State is whether that “outside influence” may have had a prejudicial effect on a “hypothetical average juror.”

The motion states that the juror did the research outside the jury room and outside of deliberations during an overnight break.

“Certainly, a juror doing outside research and concluding that the burden of proving self-defense is on the defendant and sharing that outside research with one or more jurors could have had a prejudicial effect on the “hypothetical average juror,” counsel wrote in the motion.

Based on this and other matters raised in the motion, Perry’s defense team asked the court to grant a new trial. The motion is signed by attorneys F. Clinton Broden and Douglas K. O’Connell.

“Judges admonish all jurors in writing that they are not to conduct independent investigations, research, or experiments,” Breitbart Texas Legal Analyst Lana Shadwick explained. “Jurors are to consider only the testimony and exhibits at trial. Even a juror’s notes taken during the proceedings are not to be shown or read to other jurors.”

Shadwick said the jury instructions (jury charge) help guide deliberations to give a criminal defendant constitutional due process.

“A jury charge also instructs jurors to rely on their independent recollection of the evidence and not be influenced by the fact that another juror has or has not taken notes,” Shadwick continued. “Undoubtedly, the rouge juror committed misconduct by injecting outside ‘legal research.’ The fact that this ‘legal research’ shifted the burden of proof on self-defense denied Sgt. Perry a fair trial and is ‘prejudicial error.’ The judge should order a new trial.”

Houston criminal defense attorney and legal analyst Carmen Roe told Breitbart Texas after examining the motion, “Defendant Daniel Perry’s counsel asserts in a motion for new trial that one of the deliberating jurors improperly, and against the Court’s specific instructions, performed online legal research on the burden of proof of a self-defense claim.  Defendant’s counsel claims that this alleged juror’s legal research amounts to an injected ‘outside influence’ that affected not only the jury’s deliberations but also the ultimate jury verdict and murder conviction. ”

Roe explained that the juror’s outside research and the use of that research to instruct other jurors on the burden of proof in a self-defense claim is “wholly inconsistent with the Court’s specific instructions on this issue.”

“Assuming the truthfulness of this juror’s sworn testimony, there is no question that an ‘outside influence’ occurred,” Roe stated. She added that once a credible allegation of “outside influence” has been made, the trial court must determine whether it could have impacted the jury’s verdict.

“If a juror performed legal research and instructed the other jurors on the burden of proof that was inconsistent with the Court’s specific instructions, then there can be little doubt that this amounted to an improper ‘outside influence’ that reasonably impacted the jury’s verdict on a critical issue in a murder trial – defendant’s self-defense claim,” Roe concluded.

Following the jury’s return last week of a guilty verdict, Texas Attorney General Ken Paxton sharply criticized Travis County District Attorney José Garza who he described as a “Soros-backed” prosecutor, Breitbart Texas reported.

“Self-defense is a God-given right, not a crime,” Attorney General Paxton told Fox News on Saturday morning. “Unfortunately, the Soros-backed DA in Travis County cares more about the radical agenda of dangerous Antifa and BLM mobs than justice.”

Subsequently, Governor Greg Abbott released a statement that he has asked the Texas Board of Pardons and Paroles for a recommendation regarding the issuance of a pardon to Sgt. Perry.

“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,” Governor Abbott wrote in a tweeted statement on Saturday.

“I have made that request and instructed the Board to expedite its review,” Governor Abbott stated. “I look forward to approving the Board’s pardon recommendation as soon as it hits my desk.”

Bob Price serves as associate editor and senior news contributor for the Breitbart Texas-Border team. He is an original member of the Breitbart Texas team. Price is a regular panelist on Fox 26 Houston’s What’s Your Point? Sunday-morning talk show. Follow him on Twitter @BobPriceBBTX.


Defense Motion for New Trial in Texas v Daniel Perry


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