The murder victim’s mother was desperate for answers on Wednesday, May 15, when she logged on to a Zoom meeting with the prosecutor whose office convinced a jury to convict her son’s killer. Travis County district attorney José Garza had promised Sheila Foster an update on the clemency request for Daniel Perry, the former Army sergeant and Uber driver who shot her son Garrett Foster. In 2020, Perry had run a red light and driven into a crowd of Black Lives Matter protesters, when Foster, an Air Force veteran who was in legal possession of a rifle, approached his car. Perry then shot him five times. No witnesses testified that Foster raised his gun at Perry, and, when questioned by the authorities following the shooting, Perry also indicated that Foster never aimed at him. A jury determined Perry was not acting in self-defense and convicted him of murder. But Governor Greg Abbott disagreed, and promised to pardon him.  

For months, Garza had been hopeful the Texas Board of Pardons and Paroles, a state agency that must recommend clemency before the governor can grant it, would not make that recommendation. Now, on the Zoom, however, he sounded worried. The bookish district attorney warned Foster, a 54-year-old Republican and Dallas-area resident who worked at a manufacturing company before her son’s death, that she should brace herself for Perry to be freed. “Be prepared to scream bloody murder to anyone who will listen,” Foster recalls Garza advising her. 

The next morning, she received a phone call from a pardons board victim liaison, who delivered the news she had been dreading. Foster collapsed on the floor and screamed. It felt like reliving the same nightmare she experienced on the evening her son was killed. “This is going to kill me,” Foster told me later. Abbott “just nailed my coffin shut. There’s no way in the world I’m going to be able to recover now.”

The board’s pardon recommendation came as a shock to many familiar with the Perry case. All seven members of the board, appointed by Abbott, were respected by pardons lawyers in the state. “We entered this process believing that the members of the Board of Pardons and Paroles were people of integrity who would put the law above politics,” Garza told Texas Monthly. “We were wrong.” 

Almost from the start, Perry’s case proceeded through the board in an unusual manner. A day after the guilty verdict, in April 2023, Abbott publicly called for Perry’s clemency and announced that he had instructed the board to expedite the review process, even though Texas law states that a full pardon will not be considered for anyone currently in prison except under “exceptional circumstances.” (Unlike full pardons, commutations can be considered without “exceptional circumstances” for those serving prison sentences.) Typically, exceptions apply to cases in which new evidence of innocence is presented. Here, however, what appears to have been exceptional was the pressure from Abbott. Although the governor has the legal authority to request a pardon, Abbott had never done so in his then eight-plus years in office. “The board hasn’t voiced or identified any [exceptional circumstances], so the only thing that comes to mind is the special intrusion of a craven politician in the pardon process,” said Gary Cohen, a parole attorney who has been practicing for more than thirty years and who has consulted with the board on its parole system.

Less than a week after Abbott’s promise, Texas district court judge Cliff Brown, who presided over the trial, released a trove of social media posts and texts written by Perry ahead of his sentencing. These documents revealed racist comments and fantasies of killing Black Lives Matter protesters, as well as messages to apparent minors. “No nudes until you are old enough to be of age,” Perry wrote to a girl who claimed to be sixteen years old. “I am going to bed come up with a reason why I should be your boyfriend before I wake up.”

Many legal experts speculated that the board would drag its feet and provide political cover for Abbott. The governor could claim to his right-wing supporters that he’d tried to pardon Perry, without actually having to do so. Garza, however, wanted assurances. He called Bettie Wells, general counsel for the Texas Board of Pardons and Paroles. Normally, when the board reviews cases, input from the involved parties is given through written statements, not in-person meetings. But given the political nature of the pardon, Garza wanted a face-to-face conference. He says Wells told him on the call not to worry about showing up yet. The review of Perry’s pardon was going to take a while, she said, which Garza took as a sign that the board wasn’t making the case a priority, despite Abbott’s public pronouncement that he was “working [on it] as swiftly as Texas law allows.” 

Wells and David Gutiérrez, the chairman of the pardons board, declined requests for interviews but responded with a statement. “Pursuant to Governor Abbott’s request, the Board of Pardons and Paroles conducted a thirteen-month investigation, after which, the Board recommended the Governor grant a full pardon,” they wrote. “By statute, the information obtained and maintained concerning the investigation is privileged and confidential.” 

When Garza checked back in on the case in late January 2024, he learned on a phone call with Wells that the board had met with Perry’s defense counsel. It had also heard testimony from Detective David Fugitt, the lead investigator on the case, who did not arrest Perry the night of the killing because he believed the Uber driver could have acted in self-defense. Perry’s lawyers had argued in front of the board that Garza had committed witness tampering by forcing Fugitt to remove exculpatory evidence from his presentation to the grand jury, a claim that Brown, the judge, had dismissed during pretrial arguments. Also distressing to Garza was the revelation by Wells that the defense counsel had provided the board with the grand jury transcripts, presumably to dispute the grand jury’s decision to indict Perry, based on the allegation that Garza tampered with one of the witnesses. Garza told Wells he felt the transcripts should be secret and were potentially unlawful for the defendant to distribute. 

During that same call, Wells asked that Garza come in for a presentation during the last week of February. This troubled the district attorney, because the timing overlapped with the early voting period in his contentious reelection bid. When Garza pressed Wells on why she insisted the meeting take place at that time, he says she told him the board was ready to make its decision. Garza threatened to write an open letter to Gutiérrez, the board chairman, claiming the agency was trying to interfere in his election. At that point, Wells relented, he says. Shortly thereafter, she agreed to let him appear in April instead.

When Garza made his presentation to the board, on April 5, all of his hope vanished. Gutiérrez, Wells, and board members Marsha Moberley, a former probation officer, and Linda Molina, a former Bexar County prosecutor, attended the meeting. Garza says he was told only three of the seven voting members were present to avoid the meeting being subjected to the Open Meetings Act. Under that statute, if a quorum of board members were to attend, the gathering and any records produced would be available to the public. 

During Garza’s presentation, board members challenged the district attorney about evidentiary and prosecutorial decisions during the grand jury proceedings that led to Perry’s indictment. Garza argued that those matters were for an appellate court to consider, not the board members. Over the ensuing weeks, documents obtained by Texas Monthly show that Garza refused to hand over additional grand jury transcripts unless the board issued a subpoena. The board did so on April 12, and again on May 8, and Garza complied. 

Experts say it’s highly unusual for the board to examine such documents. In the absence of new evidence, the members generally limit their reviews to determining whether an individual has been rehabilitated and earned the right to another chance, not whether his or her case was properly heard—a task left for appellate courts. “The handling of this case is sui generis,” or one of a kind, said parole attorney Roger Nichols, who served as assistant general counsel for the board from 2003 to 2009. “Before now, pardons were not considered until an applicant had extinguished all of his available legal remedies,” Nichols explained. Perry “had not extinguished all his available legal remedies. In fact, in this case he’d barely begun.”

On May 16, the board made a unanimous recommendation that Abbott pardon Perry and restore his right to own firearms. Less than an hour later, Abbott swiftly granted a full pardon. When Texas Monthly reached out to Rachel Perry, Perry’s mother, for an interview, she declined. Perry’s attorney Doug O’Connell thanked Abbott and the board in a statement, writing that the board “took the time needed to get to the truth behind what really happened when Mr. Foster illegally threatened Daniel.” 

Without much recourse to restore the justice a jury briefly afforded her, Sheila Foster fears she will now live in perpetual hopelessness. “I literally googled the question, ‘Did I die and go to hell and don’t know it,’’’ she said between sobs on a phone call with Texas Monthly this week. “Am I in hell? Because it sure feels like it. Garrett deserves much better than what he’s getting.”