Lead detective: I didn't arrest Daniel Perry because self-defense was possibility

The lead police investigator in the Daniel Perry murder case testified Wednesday that he didn't arrest Perry the night the Army sergeant fatally shot Austin protester Garrett Foster because an argument could be made that it was in self-defense.

"I felt I needed to do more investigation," David Fugitt, who was a homicide detective at the time of Foster's death, told jurors Thursday. Fugitt, the final witness in the eight-day trial, now works for the Texas attorney general's office. He testified Wednesday as a defense witness.

Closing arguments in the 2020 murder case will be made Thursday morning.

Fugitt said there was a photo taken by a witness at the protest that shows Foster with a raised AK-47 rifle standing at Perry's car door. A defense witness showed a 3D representation of the photo on Tuesday with Foster standing at an angle by the driver' s window. The representation showed Foster's right arm bent and raised as if he was holding something, but it doesn't show Foster's rifle or his left arm because those details were not in the photo.

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One of the key issues in the trial has been that there were no videos or photos taken immediately before Perry shot Foster.

Witnesses previously have said in the trial that Foster did not raise his rifle before Perry shot him from Perry's car window.

Perry was traveling on Fourth Street on the night of July 25, 2020, and turned onto Congress Avenue, where a crowd was marching downtown to support Black Lives Matter. Perry stopped, and several protesters approached his car, including Foster, police have said. Protesters have said they feared they were being attacked by someone in a car. Perry told police he feared for his life because Foster lifted his rifle at him, so he fired five shots at Foster.

Perry faces up to life in prison if convicted.

A witness testified this week that the shooting happened within several seconds after Perry stopped his car.

Fugitt also disputed some of the descriptions of the scene that prosecution witnesses described that suggested Perry was in a hurry to drive into the protest.

He said a witness who testified that Perry maneuvered around other cars on Fourth Street before he made a right turn on Congress was wrong. A video shot from a nearby building showed that Perry did not do that, Fugitt testified. Witnesses had also said Perry accelerated when he made the turn onto Congress, but the video showed he slowed down, said Fugitt. He also said Perry left no skid marks or tire marks at the scene.

Fugitt said Foster had been shot five times but that one bullet was stopped by a cellphone.

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Defense attorney Doug O'Connell asked Fugitt why previous witnesses testified that they only heard three or four shots. Fugitt said since it was "pretty traumatic" event, it wasn't unusual for there to be discrepancies in how many shots people said they heard.

Fugitt also said the four bullets that wounded Foster traveled in a downward trajectory because Foster was standing at an angle while pointing his rifle.

Foster was the only person carrying an AK-47 at the event and had 30 rounds of ammunition loaded in the rifle and 90 rounds of ammunition in his backpack, Fugitt said.

On cross-examination, prosecutor Guillermo Gonzalez asked Fugitt if he requested anything in Perry's car, such as a black box that could have shown the speed Perry was traveling right before the shooting happened. Fugitt said he did not.

More: Trial in death of Austin protester Garrett Foster begins. Was it self-defense or murder?

Gonzalez also said Foster could have been pointing his gun down when a photo was taken of him at the side of Perry's car because Foster was shorter than Fugitt had calculated. Gonzalez said Fugitt calculated that Foster was 6 feet tall as reported in his driver's license. The medical examiner's office said Foster was 5 feet 7 inches tall, Gonzalez said.

Fugitt said Foster's height did not make a difference in what happened.

Gonzalez also asked Fugitt if he had ever been wrong before about a murder case. Fugitt said he had charged the wrong man once but dropped the charge when he found out more information.

This article originally appeared on Austin American-Statesman: Detective: I didn't arrest Perry because self-defense was possibility