AUSTIN (KXAN) — More than 75 pages of newly-unsealed documents filed by the State in the murder trial of Daniel Perry show 259 examples of his texts, social media messages and search history. A jury convicted Perry of shooting and killing a protester, Garrett Foster, in 2020.
But what is the significance of this document release? KXAN asked Jeremy Sylestine, a former Travis County District Attorney’s Office prosecutor-turned-defense attorney, for insight.
“I think that anytime your own words can be used to show your thoughts and your impressions, your ideas of what’s going on in your head. That is stuff that’s not readily available to a Fact Finder,” Sylestine said. “Even in the cleanest jury trial, you don’t have ready access to that kind of material. So for the state to have this at their disposal now, and they’re moving into the punishment phase, is a big deal.”
The documents were not used in the trial and were unsealed late Thursday evening by Judge Cliff Brown, who will decide Perry’s punishment, not a jury. Sylestine said selecting the judge to decide punishment is a possible strategic move made by Perry’s defense team.
“This particular judge, Judge Brown, is a very respected and honestly just a fantastic jurist. He is trusted. He’s thoughtful. And my opinion of him is that he would take his time and consider the evidence before making a decision. It wouldn’t be just a knee-jerk reaction. He’s going to study, he’s going to listen and consider and be thoughtful in his decision about what the sentence should be,” he said.
A hearing for the punishment phase of the trial has not been set. Gov. Greg Abbott has already requested the Texas Board of Pardons and Paroles review the case so he can pardon him.
Watch the full Q&A above or read the transcript below:
Sally Hernandez: Jeremy, you have been on both sides of cases, once an assistant district attorney to the DA’s office here in Travis County, now a defense attorney. What are your first thoughts after reading 75 pages of evidence that the state presented?
Jeremy Sylestine: Yeah, it’s a really impressive filing. And it’s standard. It’s not something that you don’t see in every case. But the length and volume of it really stand out to me. A lot of it seems to come from social media posts and the cell phone extraction that the state presented some evidence of at the trial during the past couple of weeks.
Hernandez: Yeah, we’re talking about 259 examples of what the state says come from Daniel Perry’s text messages, social media postings, things like that. Anything surprising you in those messages that you think might be problematic for the defense?
Sylestine: Well, yeah, I think that anytime your own words can be used to show your thoughts and your impressions, your ideas of what’s going on in your head, that is stuff that’s not readily available to a Fact Finder, even in the cleanest jury trial, you don’t have ready access to that kind of material. So for the state to have this at their disposal now, and they’re moving into the punishment phase, is a big deal.
Hernandez: So they were unsealed to these documents recently by the judge. Does that mean that they weren’t allowed to during the first part of the trial? And can they be used during the punishment phase?
Sylestine: Yeah, so that’s an interesting thing that happened. This document is normally filed ahead of trial to give the defense notice of what the state intends to produce, either at the punishment phase of trial or in rebuttal to evidence in the guilt phase of trial, and for it to be unsealed tells me that the court and maybe even the parties were concerned about this document being available to the public and possibly tainting the jury pool for the guilt/innocence phase.
Hernandez: You mentioned the jury. The jury is not going to decide the punishment of Daniel Perry, in this case. That is up to the judge. In your experience, is that unusual to ask the judge to issue a sentencing?
Sylestine: Not necessarily. And that’s very much a particular decision for each case that comes through, the defense only gets to decide that. That’s not a decision the state gets to make. The decision’s typically made up front, you choose either the jury or judge for punishment. And in this case, my understanding is that that decision had switched at some point in time during trial. And that can only happen with the agreement of the state. But now that the — that is in the punishment phase, it is going to the court and it’s not unusual, necessarily, but there must be some reason strategically for that to happen, in my opinion.
Hernandez: You as a defense attorney, why would you request the judge to issue that sentencing and not a jury?
Sylestine: Well, this particular judge, Judge Brown is a very respected and honestly just a fantastic jurist. He is trusted. He’s thoughtful. And my opinion of him is that he would take his time and consider the evidence before making a decision. It wouldn’t be just a knee-jerk reaction. He’s going to study he’s going to listen and consider and be thoughtful in his decision about what the sentence should be.