Cyrus Gray Hasn’t Been Convicted of a Crime, but He Spent Years in Jail
Now he is an advocate for the rights of the accused
By Brant Bingamon, Fri., March 3, 2023
Cyrus Gray climbed to the stage with slow, measured steps. It was Jan. 2, the beginning of a new year, and he had joined the family of Joshua Wright for a press conference in downtown San Marcos. Attorney Ben Crump stood waiting to hand him the microphone. Members of the city's progressive community quieted their conversations.
The Wright family was demanding answers from the leaders of the Hays County Jail. One month before, Joshua Wright, an inmate at the jail, had been killed by Corrections Officer Isaiah Garcia while receiving treatment at a local emergency room. Wright's family had learned that he had been shot six times in the back while shackled at the feet and shuffling away from the officer.
Cyrus Gray was uniquely useful in this moment. He knew a great deal about the jail. He shook hands with Crump and Wright's brother, Chris Clark. He embraced Wright's mother, Beverly. He took the mic and faced the audience: "I'm Cyrus Gray and I've had experience with Officer Garcia. I just recently was released from Hays County Jail. I was incarcerated for five years, wrongfully. And I'm still fighting my case."
Then, in the same measured fashion with which he'd ascended to the podium, Gray told the audience what he knew. He said Garcia had arranged for him to be beaten by fellow jail inmates during his incarceration. He said he'd witnessed Garcia rush into an adjoining cell to beat a young autistic Black man who'd been attacked by a white inmate. He said he wasn't surprised when he'd heard it was Garcia who had killed Wright. "Garcia is quick to deal with African Americans very aggressively," Gray said.
Gray didn't tell the audience that day what Hays County had accused him of – capital murder. He didn't tell them that the county had already tried and failed to convict him of the crime, at a trial six months earlier. He didn't explain why he is currently free. And he didn't talk about the thing that enters his thoughts many times each day – that Hays County, as of this writing, has not dropped the capital murder charges against him. A prison sentence of life without parole still hangs over his head.
He also didn't say how frightened he is to speak out for Joshua Wright and others who have been hurt at the jail, when he knows that Hays County law enforcement is watching. "It scares me, honestly, because I'm still going through this situation," Gray said. "And I've learned very well how corrupt this county is. I feel like I'm putting a target on myself, in a bad way. But also, at the same time, I feel like I have to do it."
The Arrest and Jail
Cyrus Gray was born in Liberia and moved with his family to Chicago when he was 7. The family moved again when he was 13, to Houston. Gray finished his childhood there, living in a lower-middle-class neighborhood, playing football and running track. He was 23 years old on March 5, 2018, with a job as a physical therapist technician, when deputies with the Department of Public Safety swarmed through his workplace, aimed guns at him, and took him into custody.
"It looked terrible because I was the only Black kid that worked at my job," Gray said. "And they came in like I was America's most wanted, and they walked me through the building. So everybody saw me get walked out by a bunch of guys with Army gear and assault rifles. I can only imagine what people were thinking, seeing this happen."
Gray's friend since high school, Devonte Amerson was arrested later that evening in the same way. Like Gray, Amerson had a strong family and a steady job, working a night shift at Walmart so he could care for his 1-year-old son by day. Both men were taken to the Hays County Jail with no clear idea of what they had been arrested for. The next day they were charged with capital murder – "the worst crime imaginable," Gray remembers thinking – and told they would be receiving no bond.
Gray and Amerson say they didn't know the man they were accused of killing – Texas State student Justin Gage. Gage had been shot to death on Dec. 6, 2015, at the age of 20, at an apartment complex near downtown San Marcos. News reports at the time said Gage was killed after three masked African American men tried to rob him and his friend Tony Marlowe of an ounce of marijuana. One of the men pulled a pistol, there was a struggle, Gage was shot, and the men ran from the apartment. The case had gone unsolved for two years.
After the arrests, Gray's and Amerson's families searched for attorneys. None would take the case for less than $75,000. The men were assigned court-appointed attorneys.
Gray saw his attorney for the first time five months later. He said that, in four interactions over a year and a half, the attorney never discussed the evidence in his case. Instead, he pressured Gray to admit his guilt. "The whole time he was trying to convince me to take a 45-year sentence, pretty much," Gray said. "He told me, 'Look at me. You're still young. I'm like 46, 47, I'm still out here having fun, [having sex with] girls. By the time you're out you'll be my age and have a lot of life left to live.'"
This disgusted Gray. He insisted he was innocent. But the assumption of his guilt was the same in the jail. "The guards and the nurses, they believe that if you're in jail, you're guilty," he said.
Though he and Amerson had no history of violence and no criminal background, they were held in the most secure section of the jail, with inmates who started fights on the slightest provocation. Amerson described the atmosphere: "The gang activity and the gang violence is kinda heavy at this jail. ... You gotta constantly be on point, you gotta be aware 24/7. It's like a constant chess match that never ends. From the time you wake up until you go to sleep, you have to be thinking about this."
Gray never got used to the violence and degradation, but he survived. By the end of his first year he understood how fortunate he was to have a supporting family because it was necessary to buy extra food from the commissary to supplement the small meals provided by the jail. He recognized the futility of requesting medical care after watching fellow inmates suffer and, in one case, almost die while pleading for help. He realized he would be held longer than he had thought possible after meeting inmates who had waited as long as seven years for their trials to begin, due to Hays County's backed-up court system.
Like Gray, Amerson rarely heard from his first attorney. Both men began reading law books, learning their rights and how to file their own motions in court. Both got new attorneys. Gray wrote to the Innocence Project, the Texas Commission on Jail Standards, the NAACP, and the Hays County judges, trying to find someone who would take an interest in his case and in the conditions at the jail. But he noticed problems with his mail – letters that arrived months after their postmarked dates.
"I got a letter that was dated three months before the date that they gave it to me and I asked to speak to somebody about it," Gray said. "And the guard got upset. And as a result he told them to move me out to another tank."
The guard Gray had annoyed put him in a cell with six members of the Hispanic prison gang Tango Blast. "When I got in there, I let him know, 'Hey man, these guys are gonna try to jump me. I fear for my life and at this point you're supposed to move me somewhere or something.' And that guard ignored me. And I told him multiple times and he didn't do anything. And sure enough, these guys end up jumping me." Gray said the gang members beat him to the ground. He curled into a defensive position as they kicked and stomped him.
Every morning since the attack, Gray massages his jaw for five minutes to get it to open and close. He still feels pain in his back and neck. But this, he said, is how he became acquainted with Corrections Officer Isaiah Garcia, the jailer who, two years later, would be accused of shooting Joshua Wright six times in the back.
The (First?) Trial
San Marcos Police Department Detective Sandra Spriegel testified at Cyrus Gray's murder trial that after two years of investigation she and her team had no evidence that Gray and Amerson had ever been inside the apartment where Justin Gage was killed. "We have no idea how they ended up at Tony Marlowe's apartment," the detective told the court. "We have no idea what the connection is."
Her investigation went on for another year but Spriegel never found that evidence. She never learned if Gray and Amerson had a motive for killing Gage. She had cellphone records showing that Gray and Amerson were in the vicinity of the murder when it occurred, but she never found DNA, or fingerprints, or eyewitnesses, or video footage connecting the pair to Gage. She never found the murder weapon.
Without this evidence, Hays County prosecutors couldn't make an argument that it was Gray, or Amerson, who shot Gage. So they indicted them under a controversial Texas statute known as "the law of parties," which holds that when two or more people plan a crime, each can be held responsible for whatever happens during its commission. This meant that to convict Gray of capital murder, and send him to prison for life without parole, the prosecutors had to convince the jury that he and Amerson had agreed to rob Tony Marlowe, and that Gage was killed as a result.
The trial got underway in June of 2022. It lasted for two weeks. Though the defendant and victim were Black, the jury had no Black members. Tony Marlowe, the man who had been beside Gage when he was murdered, repeated what he'd originally told police: Gage, at around 3:20am on Dec. 6, 2015, had come to Marlowe's apartment to buy an ounce of marijuana. He had been followed inside by three masked African American men between 5 feet, 8 inches and 5 feet, 10 inches tall, whom Marlowe did not recognize. One had a strange, old-fashioned gun that Marlowe thought was a toy.
Marlowe challenged the men; one punched him and he fought back. The man with the gun shot three times, hitting Gage twice. The masked men ran. Marlowe and Gage chased them. Gage collapsed in the parking lot. A friend of Gage who had been waiting in a car outside called 911. Paramedics arrived and took Gage to the emergency room. He died around midday.
Detective Spriegel processed the crime scene on the night of the murder. She later testified that she saw a pool of blood in the parking lot but did not take samples of it. She did not dust for fingerprints on the doorknobs or other surfaces of the apartment. She did not examine Gage's and Marlowe's clothing for DNA from the attackers. She did not scrape under Marlowe's fingernails for DNA from the man he fought with.
In the weeks that followed, she and Texas Ranger Jimmy Schroeder found no one who had seen anything useful. They found no surveillance video. With the investigation stalled, they got a search warrant for Marlowe's phone, which had gone missing on the night of the murder. The warrant would show the phone numbers and cell towers it had connected with.
Over the next few months, Spriegel's team pieced together information showing that Marlowe's phone had traveled to Houston after the murder. They learned that phones belonging to Gray, Amerson, and an unidentified third person had traveled from Houston to San Marcos that night. Then these phones went back to Houston at the same time as Marlowe's phone.
Gray has never disputed that he and Amerson were in San Marcos on the night of Gage's murder. He visited the city often to see friends he'd made while attending Texas State University in 2014, when he was hoping to join the Bobcats football team. He told the Chronicle that he smoked cannabis with different people in his car that night – some that he didn't know – but he didn't see any strange phone.
Gray's attorney, Paul Parash, cross-examined SMPD's phone expert at the trial. She admitted that the cell tower evidence put Gray's phone only within 10 miles of the murder when it occurred, or almost anywhere in the San Marcos city limits. Parash said the evidence showing that Marlowe's and Gray's phones traveled to Houston was suggestive but that it didn't prove Gray was in the apartment at the time of Gage's murder or that he had entered into a conspiracy to rob Marlowe. "It showed something," Parash said. "But it didn't show a murder was committed. So that was where the three other people came in."
The "three other people" Parash refers to were friends of Gray who had been identified by SMPD's phone research. They were among a small group of Texas State football players whose reputations were damaged as a result of their proximity to the case. To try to spare further damage, the Chronicle has chosen not to name them.
One, a person with whom Gray was particularly close, had three interviews with Spriegel in the months after Gage's murder. In the first, in April of 2016, he denied knowing anything about it. The next day, after Spriegel met with Texas State football coaches and Gray's friend was kicked off the team, he told her that Gray, in a 40-second phone call, had mentioned "a robbery gone bad" 10 hours after the murder. In June, he repeated the story but said the call happened at about 1:30am on the night of the murder – before the murder had actually occurred.
Two years later, after the arrests of Gray and Amerson, Spriegel and SMPD Detective Patrick Aubry found a second friend who said Gray had mentioned a robbery gone bad. The corroboration came at the end of a 90-minute interrogation, after Aubry had repeatedly accused the friend of lying when he denied knowledge of the murder. Aubry lied himself, saying that SMPD had incontrovertible evidence of Gray's guilt – that he was "fucked." Aubry also implied that police knew who the third robber was. The friend – who later said he feared he was being framed – told Aubry what he wanted to hear: that in early 2018, Gray had told him of a robbery gone bad. The friend repeated the story to a grand jury and his younger brother corroborated it.
The story went up in flames at Gray's trial. Both brothers recanted their grand jury testimony on the stand, despite knowing that the recantations could lead to perjury charges. "I lied because I felt – I was afraid," the older brother testified. "I just figured if I went in and told them what they wanted to hear that, you know, I wouldn't have to, like – I don't want to say 'worry about it anymore.' But I thought I – I thought I would be clear. Figured they would just let me go, and that would be that." And, he added, that was what happened.
At the end of the trial, the state's case against Gray consisted almost exclusively of the phone evidence and the testimony of one witness who had, as Parash says, "told different stories."
For juror Melinda Rothouse, the cell tower record showing that Marlowe's phone traveled to Houston in tandem with Gray's was the state's best evidence. But she agreed with Parash that it didn't prove Gray was in the room when Gage was killed or that he was part of a plan to rob or murder him. "They kept saying, 'Is there sufficient evidence to prove beyond a reasonable doubt that this person is guilty of this crime?'" Rothouse said. "And to my mind, absolutely not. Absolutely not. And I think about half the jury felt the same way."
Half of the jury did feel the same way. At the end of each of four days of deliberations they voted 8-4, 7-5, 6-6, and then 7-5 for Gray's acquittal. After the fourth day, several jurors tested positive for COVID-19 and the proceedings were declared a mistrial. The Hays County District Attorney's Office immediately declared its intention to retry Gray.
The Advocates
Cyrus Gray and Devonte Amerson were housed apart during their years in the Hays County Jail, but both acquired reputations for comforting their fellow inmates, for helping them advocate for themselves, and for defusing violence.
"We have a lot of people that really rock with us," Amerson said. "Sometimes people just need conversation. Sometimes people just need somebody to talk to. You might see somebody lashing out, going crazy, but all they need is somebody to talk to. You just gotta lend an ear."
Shawn Jackson, held in the jail from 2019 to 2020, was one of those who learned from Gray. "Cyrus is a big part of why I changed my life and also became a Christian," Jackson said. "He just has a really good attitude about him. When you're in there, you can't talk about things because everything is recorded. But one thing Cyrus always did was maintain his innocence. So when I got out, I started doing a little bit of research myself, helping him out with his case."
Jackson found support for Gray in a small social justice organization called Mano Amiga. With three core members at the time, the group was too busy to take on Gray's case. But Jackson kept pushing and Mano Amiga created a spinoff group, the Hays County Jail Advocates. They brought on former Austin Chronicle News Editor Amy Kamp to lead it.
Kamp remembers trying to decide whether to make Gray the centerpiece of a public relations campaign in the months before his trial, when no one knew what kind of evidence the state had. "Trying to get a sense of Cyrus, how do you do that when somebody's in jail?" she asked. "The risk, to me, was if we decide to support Cyrus and we go to a trial and it turns out that there's actually a ton of evidence that Cyrus is guilty, what have we done, psychologically, to Justin Gage's family?"
Kamp eventually made the commitment. She attended every day of Gray's trial, despite having just become pregnant, and was astounded at the case Hays County brought. "It blew my mind. It felt just insane. And this was my first trimester of pregnancy so I was watching this trial and feeling physically sick. And I was like, 'How is this being allowed to happen?'"
After the trial, Kamp worked to get Gray out of jail on bond – neither he nor Amerson had ever received a bond hearing in their years behind bars. Initially, Gray's bond was set at $250,000 and Amerson's at $500,000. In November, a blue-wave election in Hays County swept out the prosecutors who had tried to convict Gray. The next day, the judge who had presided over the trial set Gray's bond at $70,000. He was released on November 10, after four years and eight months behind bars. Amerson remains locked up.
The terms of Gray's bond required him to live in San Marcos until his case was resolved. Shannon Fitzpatrick, a retired attorney with 25 years of experience at the Hays County D.A.'s Office and at Texas State University, offered him a spare bedroom. Gray has lived there for four months. "He is an amazing young man," Fitzpatrick said. "I mean, he is so respectful, so thoughtful. It's been such a pleasure having him around the house. He says, 'Oh, let me take out the trash' – he's the first to do things around the house."
Two months after his release, Gray spoke at the demonstration in support of Joshua Wright, knowing it could impact his case. Kamp was unsurprised by Gray's advocacy. She recalled their first meetings, where he "made it bigger than himself," urging her to look into the cases of inmates Myles Martin (later acquitted at trial after three years in jail), Daniel Castillo, Joey Vargas, Lamount Harvey, and Melvin Nicholas. Now Kamp wants to get these inmates' stories out as well.
"Just the amount of knowledge and the connections that he has, it's a real gift," Kamp said. "Because I worked at the Chronicle, I wrote about jails, but to find somebody who's been in jail for this many years, making all these connections with people, learning all these things – it's a once-in-a-lifetime organizing opportunity."
Before devoting herself to these cases, Kamp must finish her work for Gray and Amerson. Amerson has not yet faced a trial and none is on the horizon. Gray's retrial has been scheduled for May. However, at a hearing on March 1, Assistant D.A. Gregg Cox told Judge Bruce Boyer his office wants to quickly resolve the case, without mentioning a retrial. "Cox said he needs time to finish reviewing the documents," Kamp said after attending the hearing. "But the office appeared confident they'll have a resolution within three weeks. Whether it's the resolution that Cyrus wants, we don't know."
Cox's comments have amplified speculation that the charges against Gray and Amerson could soon be dropped. If they are, it will be a watershed moment for Hays County and a bold decision by D.A. Kelly Higgins, who won a convincing election in November as a reform candidate but has refused to answer questions about the cases.
Until a decision on the charges is formally announced, the assumption must be that Gray's retrial is going forward. Parash said he is ready to defend Gray once again. Gray is cautiously optimistic that won't be necessary; the prospect of a retrial fills him with dread. He remembers the anxiety he felt in the courtroom last summer, his deep sense of isolation, how he scribbled notes hour after hour to try to control his emotions. "It was terrifying for me," he said. "And you look out in this room and no one looks like me, except the people sitting behind me and the family of the victim. I mean, I was scared. I was really terrified."
Gray knows, however, that if Hays County goes forward with the retrial it will be different this time. The weakness of the state's case will be widely known. Gray's supporters will pack the courtroom. People throughout Central Texas will be watching.
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