Devonte Amerson, waiting. Photo by Ursula Rogers.

In March of 2018, San Marcos police officers traveled to Houston, Texas, to arrest Cyrus Gray and Devonte Amerson. According to them, the two young men had taken part in the 2016 robbery that ended with the shooting and killing of 20-year-old Texas State student Justin Gage. At the time of his arrest, Amerson and his two-year-old son were visiting Amerson’s mother, Chelesta. Officers waited until father and child were leaving her house to surround them, guns drawn. 

Amerson would spend the next 5 and a half years incarcerated in the Hays County Jail, awaiting trial, unable to afford bail or an attorney, all for a crime he says he never committed. While in jail, Amerson turned 30. His son grew from a toddler to a kindergartener to a seven-year-old. His beloved younger sisters both graduated high school. 

Now, Amerson’s attorney has filed a motion to dismiss the charges against him, based on the accusation that the authorities lost evidence that could have proven Amerson’s innocence.

In December of last year, after supporters had raised money to hire local criminal attorney David Sergi, Amerson was finally released on bond to await trial. The case against his co-defendant Gray, who had been released on bond the previous fall, had been dismissed without prejudice in July of 2023.

Since then, Amerson’s case has continued to progress fitfully, although not as slowly as before he was released. In October, Amerson’s attorney successfully argued that his ankle monitor, which he’d worn since his release, should be removed. The courtroom was packed with supporters — his family, including his sister Mya and her infant daughter; Pastor Darius Todd, who has provided both spiritual counsel to Amerson as well as a place to stay in San Marcos; and several members of the local activist community. Amerson was nattily attired in a dark green suit with neatly braided hair and a necklace of Muslim prayer beads. 

Witnesses, including Todd, who testified on behalf of Amerson’s character, described a hardworking and conscientious man. One witness, an employee of the city of Dallas, had taken time off work and made the trip to San Marcos in order to testify on behalf of Amerson’s work ethic, and the problems caused by his sometimes malfunctioning ankle monitor. (Amerson has stayed busy since his release from jail, and spends much of every week in Dallas, where he works in the construction industry, assisting contractors with permitting and even recently starting his own demolition business.) 

Judge Boyer ultimately ruled in favor of removing Amerson’s ankle monitor. While the mood was celebratory, it was a bit bittersweet — although the hearing had also been intended to include a motion to dismiss, that portion had been rescheduled after Assistant Criminal District Attorney Daniel Sakaida argued that an amended version had been filed by the defense too late for the state to respond. The hearing on the motion to dismiss was rescheduled for November 20th.

I first became acquainted with Amerson in the spring of 2022, when I was working with a local nonprofit to look into claims that his co-defendant Gray was innocent and wrongfully incarcerated. Since the charges against Gray and Amerson accused them of being together on the night of the murder, it seemed logical that if Gray was innocent, so was Amerson. I began talking with Amerson and his friends and family in order to learn more about him and his situation. While Gray’s outgoing personality had made him something of a leader during his time in the Hays County Jail, I found Amerson to be a bit more diffident. But like Gray, Amerson impressed me with his thoughtfulness, kindness, and natural instinct to help and to advocate for the other people he was incarcerated with. 

In the May issue of this paper, I revisited the transcripts from Gray’s trial, which took place in June and July 2022 and ended in a mistrial due to a hung jury. While the lengthy trial revealed what I consider to be several serious problems with the investigation of Gage’s murder, I chose to focus in that article on a few key issues, including evidence that revealed that there was a strong lead on another set of suspects that investigators had bafflingly failed to pursue. 

Amerson’s motion to dismiss also focuses on that portion of the investigation, using material his legal team received in discovery to paint a much fuller picture, and arguing that “because of the loss/destruction of this evidence, Defendant’s due process rights under both the United States and Texas Constitutions are violated […] Hays County District Attorney’s Office and/or San Marcos Police Department who had sole access and control of this evidence, have intentionally, negligently or recklessly destroyed at least potentially exculpatory and mitigating evidence in this matter. This action has the effect of denying Defendant the right to present a defense by denying him access to evidence that may prove his innocence.” They conclude, “Because this evidence cannot be obtained from any other source, the proper remedy should be the dismissal of this case with prejudice.”

Outlined in the motion is just how much evidence SMPD had gathered suggesting another culprit, and how thoroughly that evidence has been either lost, damaged, or mishandled by the department. Altogether it points toward a devastating miscarriage of justice in the case of Justin Gage’s murder.

Gage had been visiting the apartment of his friend, T.M. (initials used in this story to avoid associating people with a crime they have not been charged with), when he was shot repeatedly during what T.M. told investigators was a robbery gone wrong. T.M. said that Gage had dropped by in order to buy some weed, which T.M. sold in small amounts, when three masked men came into the apartment and demanded T.M. give them the weed. One of the men was armed with what T.M. described as a “Wild Wild West gun,” which looked fake to him. T.M. testified that because he thought the gun was fake, he refused to hand over the weed. A scuffle ensued, and someone fired the gun, hitting Gage. He would later die of his wounds at Brackenridge Hospital in Austin. 

T.M.’s description of the men’s physical characteristics could be boiled down to that the three of them were Black, not especially tall, and that he couldn’t recognize any of them under their hoodies and masks. 

In early 2016, two acquaintances of Gage contacted SMPD to tell them that they thought a friend of theirs, C.H., may have been involved in the robbery. According to Amerson’s motion, a video recording of an interview between SMPD investigators and one of the men, C.E., from Feb. 19, 2016, has been either lost or deleted. Only a memo written by SMPD Officer Tommy Villanueva remains. C.E. told investigators that he’d spoken with C.H. the night before the murder and that they’d talked about going to San Marcos to rob drug dealers (like the victims, C.H. and his friends were from Cibolo, Texas). In a report that included a paragraph describing the interview, Villanueva wrote “[C.E.] further advised that he knew [C.H.] to hang around a group of young black males who routinely robbed low level drug dealers at gunpoint at their residences. [C.E.] said he had never accompanied [C.H.] in these robberies, but he knew that [C.H] was specifically going to be in San Marcos the night/morning of the murder of Justin Gage. [C.E.] told investigators that when he found out about Justin Gage being murdered, he immediately thought [C.H.] was involved.” C.E. told investigators that when he asked C.H. about it, he “replied something to the effect of ‘are you crazy,’ but never denied being involved.”

C.E. gave his phone to SMPD, which performed a data extraction, “but there are no reports that indicate the extraction was reviewed as part of the investigation into the murder of Justin Gage,” according to Amerson’s motion. His defense team, which did review the material, writes that on Jan. 7, 2016, a number believed to be C.H.’s “texted [C.E.] ‘I’m dead ass no more licks,’” i.e., robberies.

On the same day they interviewed C.E., investigators also interviewed H.S. Video of this interview has also been lost or deleted. According to a memo by Villanueva and lead Detective Sandra Spriegel, H.S. told SMPD that C.H. was part of a Cibolo-based “rap group known as ‘The Savages’ that were known to rob low-level drug dealers at gunpoint” and that they’d sometimes go to San Marcos to do so. According to Amerson’s motion, H.S. showed the detectives videos he said were of the Savages that “depicted a group of young black males committing a staged home invasion robbery on what is believed to be a low-level drug dealer. SMPD detectives failed to collect copies of the videos [H.S.] showed them, and defense counsel has not received any recording of this interview. A brief paragraph in Det. Spriegel and  Villanueva’s reports is the only record of this interaction that remains.”

Amerson’s motion raises another — and alarming — concern in addition to the harm done to the defendants and the victims in failing to pursue this lead. H.S. told investigators that he “had been receiving threats from ‘The Savages’ because they believed he was a snitch.” He said that, in fact, he “had a direct conversation with [C.H.] after the homicide, and that [C.H.] admitted to him that [C.H.] was present during the shooting of Justin Gage and that they were there to rob him. [H.S.] described receiving threats from ‘The Savages’ via messages on Twitter and that these threats directly mentioned the Justin Gage murder.” Although H.S. gave his phone to investigators, there’s no indication they reviewed the material that was extracted from it.

At a certain point, SMPD investigators lost contact with H.S. His whereabouts appear to be unknown to them to this day. One can’t help but wonder how scary and discouraging it must have been to try to assist law enforcement with investigating a murder and then to be threatened by the suspects, only for investigators to fail to review the evidence provided or to otherwise further pursue a solid lead.

If nothing else, Amerson’s legal team was finally able to review what little information from H.S.’s phone they received in discovery earlier this year. The messages recovered demonstrate that H.S. and his friends believed the threat posed by C.H. and the Savages was real. 

In a message between H.S., J.D. — who had previously been robbed by C.H. — and another friend, B.R., “[B.R.] asks [J.D.] why he didn’t tell him that [C.H.] tried to rob him recently. [J.D.] responds that he didn’t find it important to ‘flaunt’ being robbed, and [B.R] responds, ‘Don’t fuck with nobody in that circle them n****s will set anybody up all them savage n****s strapped don’t sell them shit foreal’ ‘They killed jgage  n****.’ [J.D.] responds “No Fuckinhway,” and [B.R.] continues ‘Yes n**** they was robbing people in San mo for weeks before Jay got shot and they were out there that night trust me [C.H.] told me it was an accident. & I don’t tell [C.H.] none of my business. All them n****s shady & heartless.’”

Finally, Amerson’s motion reveals a twist to the investigation of C.H. that wasn’t raised during Gray’s trial. On Feb. 12, 2016, another friend of the victims, C.D., told SMPD officer Cat McDonald that it was in fact C.E. who had shot Gage. C.D. said C.E. “had killed Gage by  accident and that [C.H.] was also involved in the murder.” [C.D.] also mentioned the robbery of J.D. by the same group, which had occurred in Schertz. “That same day, Spriegel contacted the Selma and Live Oak Police Departments with the limited information she had to see if she could find additional info related to [J.D.] being robbed.” She was told that J.D. had signed a non-prosecution statement, and the case wasn’t investigated. However, because the robbery took place at an ATM, Spriegel was able to recover video of the incident. 

According to the defense, “Spriegel later conducted an interview with [J.D.] at his home in Cibolo, Tx, but there is no recording of this interview and only two sentences about it in her report. The footage she received of the robbery at the USAA ATM has not been received by defense counsel.” 

As I reported in my previous article, both C.H. and C.E. are currently serving prison terms for crimes they were convicted of that took place after Gage’s murder. Investigators have never been able to convincingly explain why they failed to investigate C.H. and his friends, or why they were so committed to pursuing Amerson and Gray, despite the lack of evidence against them. As Spriegel stated during Gray’s trial, they were never able to find a connection between the defendants and the victims, there was no DNA evidence, and no murder weapon was ever recovered.

At 10 o’clock in the morning of November 20th, Sergi, Amerson, and Amerson’s supporters once again gathered in Boyer’s courtroom for the rescheduled motion to dismiss hearing. Amerson’s mother had once again traveled from Houston to San Marcos, a trip she has made countless times since 2018. Altogether, there were about two dozen friends, family, and assorted community members. We sat as a visibly and audibly frustrated Boyer presided over an unexpectedly contentious civil case. Ten am came and went. Finally Sergi, Sakaida, and Amerson were up, but once again, there would be no hearing on the motion to dismiss. This time the alleged culprit for the delay was a response by the state, which had not been filed until that very morning, despite a month’s time having passed since they’d received Amerson’s amended motion to dismiss.

As they waited for the clerk to find a mutually agreeable date to once again reschedule, Sergi and Sakaida laughed and joked with Boyer about the earlier civil case that had gotten him so worked up. Finally a date was agreed upon — 1:30 pm on December 18th. Out in the lobby, Sergi spoke to Amerson’s supporters, expressing confidence that this next date would be the one where it would finally happen.

The failure to adequately pursue justice for the murder of Justin Gage is deeply tragic, and has done a great deal of harm to a great deal of people. Gage’s family and friends have been denied the closure of knowing what happened to him. Amerson and Gray lost years of their lives to incarceration while their friends and family suffered the collateral damage. They will always be viewed with suspicion by those who believe that an accusation equals guilt. Gray, whose case was dismissed without prejudice, continues to feel the effects of that decision. 

Gray told the Examiner, “The only right solution for this case is for it to be dismissed with prejudice. Otherwise Devonte will forever have a capital murder pending further investigation on his name, like me. And, like me, he will continue to be harassed, threatened and targeted by the state or Texas for no logical reason other than the fact that he and I did not bow down to a faulty system.”

Of course, no case takes place in a vacuum. It is unlikely that Gage’s murder is the only case in Hays County where this failure to preserve vital evidence exists. I asked local attorney Shannon FitzPatrick, who has been a tireless advocate for a Hays County Conviction Integrity Unit, if she could comment on the implications of the case. She wrote:

“We do law enforcement no justice when we act as if they cannot make mistakes. They of course can, and do make errors that not only alter lives of the accused, but their families and communities as well. A quick rush to judgment and broad assumptions have sent many to prison who should not be there. One such person in San Marcos is Bobby Joe Harper, wrongfully convicted of murder in Hays County in 1999. The police did not look beyond what they found easily. A false confession not backed up by evidence linking him to the crime. A slacker court-appointed attorney who got his cash & got out. We let this happen with Bobby and now with DJ Amerson & Cyrus Gray. It is time to demand more.”

For updates on Amerson’s case, including more detailed information about attending his December 18th hearing, visit the Examiner on Facebook and Instagram.

BY AMY KAMP