SAN MARCOS — After numerous resets, 22nd District Judge Bruce Boyer declined to dismiss the capital murder case of DeVonte Amerson at a Jan.13 motion hearing.
Amerson was arrested on March 5, 2018 for the 2015 murder of Justin Gage, 20. According to the San Marcos Police Department, Gage was shot multiple times in the early hours of Dec. 6, 2015 in what was labeled as a “robbery gone bad.” Court documents noted that Gage’s friend and witness described that three Black men, between 5’8" and 5’10" and wearing masks, attacked him and the late 20-year-old.
Amerson’s childhood friend, Cyrus Gray, was also arrested for the murder, but received a dismissal, without prejudice, in July 2023.
Initially indicted with capital murder in 2018, the state filed a superseding indictment on Dec. 31, 2024, which included charges of murder, aggravated robbery and burglary of a habitation, intended other felony.
According to the motion to dismiss filed by the defense, between December 2023 and January 2024, it was realized that evidence crucial to the case was missing, including videotaped interviews of eight witnesses and a phone extraction, the latter of which was from Herman Small.
This phone data, defense attorney David Sergi stated, is crucial to proving his client’s innocence, as there are text message exchanges between Small and two other individuals which incriminate another suspect — Calvin Hopkins — in the death of Gage.
“Don’t f[***] with nobody in that circle [they] will set anybody up all them savage n[****]s strapped don’t tell them [anything] foreal.”
“They killed jgage …”
“No f[*******] way”
” … They was robbing people in San mo for weeks before Jay got shot and they were out there that night trust me [Hopkins] told me it was an accident.”
These messages, along with others, discuss a local rap group called “The Savages,” which Hopkins allegedly has ties to, that had been robbing low-level drug dealers, according to the court documents.
“It is indisputable that the rest of Mr. Small’s cell phone, while it was downloaded [and] recovered, was lost by the state,” explained Sergi, who stated that only 3% is available. “The exculpatory nature of this proves Amerson’s innocence … The loss and destruction of this evidence by the Hays County [District Attorney’s] Office and the San Marcos Police Department denies Amerson the right to present a full defense and it’s irreplaceable. The evidence cannot be obtained in any [way], making a dismissal with prejudice the only remedy to neutralize the harm.”
Sergi said that, as testified by SMPD detective Sandra Spriegel at Grey’s trial in 2022, the files containing various interviews and more were wiped, as they were mistaken for music files after SMPD upgraded their computers.
“What the state did was stop investigating three people who we now know were talking about the murder in the appropriate time frame and simply switched directions [to Amerson and Gray],” the defense attorney said, explaining that Gage’s phone pinging near Houston, where the defendants were from, made the investigation switch to them, rather than the initial suspects of Small, Hopkins and Bennet Ritter.
Despite the evidence missing, prosecutor Daniel Sakaida referred to the Court of Criminal Appeals of Texas opinion Ex Parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010) in case law. According to Sakaida, there are two parts that must occur when discussing loss of potentially exculpatory evidence: that the state acted in “bad faith” and that the evidence is useful.
“This requires a specific showing of animus from the police department,” said Sakaida. “I don’t think there’s any way to show that [the audio recording of interviews] were potentially useful because the actual contents of the interviews were recorded in the officer’s notes and reports, even if they were potentially useful, there’s no showing that there’s bad faith involved in any of those deletions.”
As far as the text messages from Small’s phone, Sakaida noted that there are no actual admissions from Hopkins, only discussions of alleged admissions. He also stated that they are still actively trying to get a complete copy of the file, but that it is currently corrupted.
Sergi argued that the reason that Small turned over his cellphone is because there was a confession from Hopkins, but Judge Boyer noted that what may be on the cellphone is a “common sense issue for the jury.”
This, along with the belief that there was no bad faith from the state, led to Judge Boyer ultimately denying the dismissal.
The Amerson case will continue, with a motion to quash, or reject, the superseding indictment scheduled for Jan. 29 at 1:30 p.m.
