DA files to dismiss murder case against Gray

Cyrus Gray, 28, and Devonte Amerson, 30, had been awaiting trial in Hays County on capital murder charges in connection to the death of 19-year-old Justin Gage in 2015. Gage was a student at Texas State University at the time of his death.

Both men were charged in 2018.

On Wednesday, Hays County District Attorney Kelly Higgins confirmed that his office filed a motion to dismiss Gray’s case, which was scheduled to go to trial Monday in Hays County District Court. He also stated that he was “unaware whether the court has signed that motion as yet.”

He said while the motion leaves open the possibility the case could return, it is unlikely.

“The import of a Motion to Dismiss Pending Further Investigation is that if new evidence arises, the case could be presented to a new Grand Jury,” Higgins said, “Effectively, it is probably over.”

While Gray’s case appears to be finished, Higgins also stated that he could not comment on the pending case against Amerson. There is no trial date set for Amerson, but a non-evidentiary pre-trial motion has been reset in his case for Aug. 1, according to Hays County court records.

After approximately five years incarcerated, Gray has been out of jail since Nov. 10, 2022 after posting a $250,000 bond. That is not the case for his co-defendant, Amerson, who remains in jail.

Both men have maintained their innocence since 2018.

Hays County had charged Gray with capital murder. The charges against Amerson include capital murder, possession of marijuana and burglary of a vehicle, remain in place. If found guilty, conviction for capital murder is punishable by life in prison without parole or the death penalty in Texas.

Criminal defense attorney Jeremy Rosenthal, a founding partner at Rosenthal, Kalabus & Therrian, practicing principally in Collin County, has no connection to this case. Rosenthal said the fact that Amerson has been in jail that long without a trial is unusual.

“These cases are very work intensive and you would expect to see some delays in these types of cases. Four years is pretty extensive, I think, by any stretch,” Rosenthal said.

Amerson stated in a letter received Monday by The Daily Record–correspondence gained after his response to numerous communication requests initiated by the newspaper, which included telephone and written correspondence–that he was incarcerated for four and half years before receiving the opportunity to post a bond, which is currently set to $250,000.

“I’ve been incarcerated five years, and it will be [five years and] five months Aug. 5.

Though my next court date is Aug. 1, there is no trial date set. For the past four to five months, my attorney has been telling me the DA’s planning to have the case dismissed,“ Amerson stated.

Both cases have gone through a lengthy series of court dates and motions.

According to Hays County Jail records, Gray’s court dates were: May 16, 2022–jury trial canceled by defendant’s request; June 27, 2022– jury trial resulted in mistrial; Oct. 31, 2022 jury trial canceled and reset; Feb. 21, 2023–jury trial canceled and reset; May 1, 2023–jury trial canceled and reset; June 6, 2023 motion pro se writ for dismissal with prejudice due to speedy trial rights violation; June 26, 2023 jury trial canceled and reset; June 26, 2023– order requesting hearing for speedy trial motion; and a hearing that was set for Thursday which has also been dismissed as well as the scheduled jury trial Monday, July 24.

“The U.S. Constitution and Texas law guarantees a right to a speedy trial. It exists for several reasons,” Rosenthal said. “Not the least of which, cases, unlike fine wine, do not age particularly well. It impairs our ability to defend ourselves from accusations, and it can be a form of oppression if allowed to linger too long.”

Amerson stated he wrote a letter to the court in 2019 in which he informed the court that he was unwilling to consider any offers.

“I wanted to go to trial and clear my name of the false allegations against me, and as you know, I can’t even get them to take me to trial,” Amerson stated.

Gray and Amerson are not alone in their plight– in Hays County or Texas– when it comes to lengthy pretrial incarceration.

The Texas Judicial Council states that almost 20% of felony cases are pending for over one year before a judgment, and 56% of misdemeanors are pending for over six months.

According to the Hays County website, as of July 15, there were 561 inmates in the Hays County Jail, and 82%, or 459 inmates, were being held pretrial. Of those pretrial inmates, 7.6% were held less than a week, 15.5% for one week to under one month, 45.8% for one to under six months, 15.9% six months to under a year, 12.4% for one year to under three years and 2.8% for more than three years.

Rosenthal said he found Hays County's statistics for pretrial detainees concerning.

“Frankly, what needs to happen is judges need to be throwing out cases on speedy trial grounds or appeals courts need to be doing it,” Rosenthal said, adding the courts and judges often enable these types of delays.

“If it takes a capital murder case to get acquitted for them to learn you can’t do this, that’s what they need to learn. When a DAs Office or agency loses the case for a reason like this, that’s their punishment … [They] have to explain to the voters why they screwed this up,” Rosenthal said.

Hays County officials and the district attorney are on record that they are well aware of the problem and have been working to address the situation.

The Hays County Commissioners Court met in regular session March 28 and approved a request by Assistant District Attorney Gregg Cox, who was asking for two new staff attorneys, a legal assistant, a victim assistant coordinator and a paralegal to assist in clearing up a backlog of casework with 5,600 unfiled cases– some going back to Fall 2021–which far exceeded the standard for the office of 1,200 unfiled cases.

It is a backlog that began well before either Higgins and Cox were sworn into office in January.

In March, Cox said that a backlog this large creates potential harm for those needing assistance, including plaintiffs and defendants, and contributes to jail overcrowding, as cases are not able to be brought to trial in a timely fashion.

Cox said that the priority was given to defendants who are in jail and not those that are out on bond.

Hays County Commissioners Court Judge Ruben Becerra said, at that time, “Whether people are guilty or innocent, we need to give them their time in court.”

Amerson stated he has made little headway with pretrial motions.

“I’ve been denied every motion I have ever put in, which is three speedy trials, [a] pretrial motion, [a] bond hearing motion, a motion to quash indictment and about three or four other motions I put them all in myself and was denied every single one,” Amerson stated.

The American Civil Liberties Union has a Texas Jails Data Dashboard that provides data on Texas pretrial detainees. In April 2022, there were 61,685 people in jail, and of those 67%, or 45,535, people were held pretrial.

Higgins stated, in an email to The Daily Record Wednesday, that long pretrial incarceration was one of the motivating factors in his decision to run for office.

“We have made very strong efforts to remedy this problem, among many others. Our office is working to bring these cases to resolution. Since most of the long-term incarcerated people are awaiting a jury trial, we are somewhat subject to the court’s pace in our efforts,” Higgins stated.

Higgins added the 5,600 case-backlog that the county faced was another of his office’s most important priorities.

“We have re-organized our intake division. The backlog, as of last week, was 4200 cases. Still a lot of cases but I see that as remarkable progress. While we have been working on reducing the backlog, crime continued. So the 1400 case reduction was achieved while simultaneously keeping up with new cases. It is a major point of pride for us,” Higgins stated. “I credit the staff in our office for working to find new ways to address intake generally, and the lawyers in the office for taking intake cases home and working off hours to bring the backlog down. I am very proud of this. It is difficult to project, but I believe we will have the backlog reduced to a normal number within one year from now. By the way, a normal number would be somewhere around six or seven hundred cases, awaiting lab results or other investigatory progress. That’s totally normal and acceptable.”

Gray has been out of jail on bond for six months.

“I’ve gone to court probably over five times since I’ve been out of jail, and the prosecutor [Hays County Assistant District Attorney] Gregg Cox has been saying, everytime I go to court, ‘I don’t see this going to another trial. I’m going to dismiss the case,’” Gray said. “All of this could have been resolved months ago.”

According to the Constitution Annotated website, the Sixth Amendment to the U.S. Constitution states in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. In the 1972 decision Barker v. Wingo, the U.S. Supreme Court said to determine whether a delay between accusation and conviction violates the speedy trial right, there must be a balance between the following factors and it is done on a case by case basis: the length of the delay, the reason for the delay, whether the defendant asserted his speedy trial right and to what extent and the prejudice to the defendant caused by the delay.

Rosenthal said he agrees with the Supreme Court in that a speedy trial is a difficult concept to analyze.

The Speedy Trial Act of 1974 said that information or indictment must be provided 30 days after arrest and the trial must begin within 70 days of indictment. However, there are exemptions to the rigid time limits for various types of delay including delays resulting from pretrial motions and continuances that serve the ends of justice.

Rosenthal said that many times cases are delayed because of requests by the defense which can occur for various reasons.

“Courts can come back and say that you have waived your right to a speedy trial. Now, I don’t know that you can permanently waive that right, but you can take actions that can be used against you if you’re ever arguing for your right to a speedy trial,” Rosenthal said.

When it comes to delays due to the prosecution, Rosenthal said this can create a better argument for having one's speedy trial right violated.

“I find that in cases where the government– either federal or state–if they delay out of strategy, if they delay out of incompetence, if they delay out of malice, and it causes some real damage then you’re looking at a better claim,” Rosenthal said.

The Cornell Law School website states if a defendant’s Sixth Amendment speedy trial right is denied, the remedy is dismissal of the charges with prejudice, which means that the plaintiff cannot refile the same claim again in that court.

Amerson stated he believes the situation he finds himself in is bigger than he and Gray.

“It’s become more political than criminal,” Amerson stated. “Our lives have been ruined and tossed around the courtroom like a game of trashcan basketball. Are we not still human? Are we not people in the eyes of the law?”

Rosenthal said Texas is notoriously tough on crime.

“Frankly, courts in Texas don’t like people getting away with crimes on what they consider to be technicalities,” Rosenthal said. “We elect our judges here, and not many judges get elected on the platform of ‘I’m going to go easy on crime.’” Rosenthal said the remedy is to file a motion to dismiss for the lack of a speedy trial, and the judge would engage in that Barker v. Wingo analysis. He noted that the inherent issue here is that a lot of the blame will be placed on the court itself.

Amerson stated he has expected on several occasions over the years to be released, as each time a court date arrives, he felt he was told that it would only be another 30 days.

“I feel like as long as they can keep me in this state of limbo, they will because I’m still where they want me,” Amerson stated.

Gray said both he and Devonte have been represented by court-appointed attorneys throughout the process.

“How could you possibly expect somebody that’s appointed by the same court that is accusing you and trying to convict you of something to actually have your best interest?” Gray said.

Rosenthal said of the four prongs of the Barker v. Wingo analysis for a speedy trial dismissal, the prejudice to the defendant is the most important to make the case.

“What have you lost because of this? The courts have said, ‘Financial strain can be enough. Emotional strain can be enough.’ But, it's really, really problematic when we’re losing witnesses,” Rosenthal said.

Gray said being incarcerated and waiting for his trial has negatively impacted his life, calling it “destroyed.” Part of Gray’s argument looking for the dismissal of his case rested on his belief that his life was turned upside down.

Beyond the hardships caused by being incarcerated for approximately five years, there were additional issues affecting Gray.

He said that his family has suffered as well.

“My mom has gotten in car accidents coming down here just to come see me and make sure that I’m okay. My mother has lost her home going through this process just because life is not easy–we’re not rich people. I was a big supporter for my mother and my younger sister in the household,” he said.

Gray said when it comes to pretrial incarceration, he feels that the concept of innocent until proven guilty goes out the window.

“Once you’re accused of a crime, you’re guilty– now you have to prove your innocence. Everything you’re supposed to have as resources–that stops. They treat you like you’ve actually gone to trial and have been convicted of something and now you’re in prison. That’s not how it’s supposed to be,” Gray said.