Editor's note: This article was updated to reflect the two attorneys who were present at Daniel Perry's pretrial hearing.
AUSTIN (KXAN) — In less than three weeks, a Travis County judge will determine whether the third and final criminal charge of misdemeanor deadly conduct will be dismissed against Daniel Perry for his alleged actions during a racial justice protest in July 2020.
Perry and his attorneys, Doug O'Connell and Andrew Rountree, appeared in Travis County court Tuesday for a pretrial hearing to present motions to drop the pending misdemeanor case against Perry.
The hearing came nearly seven months to the day after Texas Gov. Greg Abbott granted Perry a full pardon after he was convicted of the murder of Black Lives Matter protestor Garrett Foster on July 25, 2020 in downtown Austin.
In addition to the initial murder charge, Perry was also indicted on felony aggravated assault against one specific protester as well as a misdemeanor charge of deadly conduct for his alleged actions in July 2020.
Video re-enactment played by Daniel Perry's defense attorney during trial in 2023 showing the circumstances resulting in aggravated assault and deadly conduct charges against Daniel Perry.
Perry was ultimately acquitted of the aggravated assault charge. However, the deadly conduct case against him has remained open since June 2021.
According to the deadly conduct indictment, Perry is being accused of placing a group of pedestrians walking in the street in "imminent danger of serious bodily injury" by allegedly engaging in the following reckless conduct:
Perry's attorneys presented their arguments for one of two separate motions claiming the current allegations against Perry violate his U.S. and Texas constitutional rights.
The arguments revolved around double jeopardy, a Fifth Amendment clause that protects people from being prosecuted twice for the same conduct, and claims of the state's indictment being vague without adequate information necessary to prepare for trial.
According to Perry's attorneys, the double jeopardy clause relates to the acquittal of the aggravated assault charge brought against Perry, which identified an alleged victim.
The defense argued that because the deadly conduct indictment doesn't specifically identify who amongst the crowd of pedestrians are the complainants of the alleged crime, there's no way of knowing if the person identified in the aggravated assault charge is also associated with the same alleged conduct in this case.
In response to these claims, the state focused on the legal interpretation of a "conduct crime," which focuses on the action itself being the crime as opposed to a "result crime" where a specific outcome or harmful consequence results from the conduct.
According to the state, because the current charge against Perry is considered a "conduct crime," any of the pedestrians present during the night of the protest could have been at risk, therefore the state is not required to identify a specific person impacted by Perry's alleged actions.
Perry's attorneys didn't dispute the state's technical interpretation of the law, however, they argued the specific circumstances related to this case such that the previous acquittal of a felony charge stemming from the same conduct constitutes a dismissal.
The judge overseeing the case told the court he would have a ruling on the defense's motion by Jan. 3.
Depending on the judge's ruling, the next hearing is scheduled for Jan. 9.
