Kevin DeWayne Shepard, Jr. v. the State of Texas

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00085-CR
KEVIN DEWAYNE SHEPARD, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2020F00207
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
MEMORANDUM OPINION
Margaret Thomas testified that she witnessed Kevin DeWayne Shepard, Jr., kill Cynthia
Renae Arnold and Donnie Monroe Combs and dispose of their bodies by fire. After hearing
Thomas’s testimony, a Cass County jury convicted Shepard of capital murder. Following a
bench trial on punishment, the trial court sentenced Shepard to life imprisonment, without the
possibility of parole, and ordered him to pay $562.00 in court costs.
On appeal, Shepard argues that Thomas was his accomplice, that there was insufficient
corroboration of Thomas’s testimony, and that, as a result, he was egregiously harmed by the
trial court’s failure to include an accomplice-witness instruction in the jury charge. Shepard also
argues that the trial court erred by allowing Arnold’s daughter, Laura, to testify after she
allegedly violated the witness sequestration rule and that the judgment imposed unauthorized
court costs.
We conclude that neither corroboration of Thomas’s testimony nor an accomplice-
witness instruction was required because Thomas was not an accomplice to Shepard’s crime.
We also find that Shepard was unharmed by Laura’s testimony but conclude that court costs
must be reduced. As a result, we modify the trial court’s judgment and bill of costs to reduce the
court costs assessed and affirm the judgment, as modified.
I. Factual Background
The evidence at trial showed that methamphetamine fueled the victim’s final interaction
with Shepard. Laura described Arnold as a great mother who never consumed alcohol or drugs
until she experienced a divorce and lost her job. According to Laura, Arnold “developed a drug
2
addiction, fairly overnight.” Laura testified that Arnold started using methamphetamine when
she was almost forty but remained close to her three children and spoke to Laura “very
regularly.” Arnold began dating Combs who, according to his mother, also struggled with a
methamphetamine addiction and smoked marihuana.
Laura testified that she last spoke with Arnold on September 25, 2018, and soon became
concerned after discovering that no one else in the family had spoken to her since. To locate
Arnold, Laura contacted Combs’s family, realized they had filed a missing person report for
Combs, and decided to file a missing person report for Arnold. Combs’s mother said she knew
something was awry because Combs lived behind her home but never returned after September
25. Elizabeth Buhay, a telecommunication crime analyst with the Texas Department of Public
Safety (TDPS), testified that the last outgoing activity from Arnold’s cellphone occurred on
September 25 at 11:52 p.m., and the last outgoing activity from Combs’s cellphone was at 12:21
a.m. on September 26. A search for the missing couple ensued.
On September 30, Elisha Riehl, a sergeant with the Marion County Sheriff’s Office, was
dispatched to the scene of a burning red truck on a remote county road. Riehl found it unusual
that the driver’s side door was open, white spray paint was haphazardly applied above the back
driver’s side tire, and the fire had burned hot for so long that the truck’s rims had melted to the
road. Photos of the charred truck showed that “[t]here wasn’t anything left in the cab of the
truck” except for twisted metal and ash. Because the license plate was intact, Riehl soon
confirmed that the truck belonged to Arnold, but it contained no clue as to Arnold’s or Combs’s
whereabouts.
3
News spread of the search and on October 29, 2018, Gracie Beeler called the police to
report suspicious items found on her property. Beeler reported that the items might belong to the
missing persons. Chad Wilder, a deputy with the Cass County Sheriff’s Office, went to Beeler’s
property. Beeler found a metal feed bucket, a saw blade, white cloth gloves, a pair of brown
leather cowboy boots with unique tan stitching, and a Mitchell & Ness, adjustable-fit baseball
cap that “had all been burnt.”
Texas Ranger Joshua Mason testified that he was commissioned to assist the Cass County
Sheriff’s Office with the missing persons investigation. He also spoke with Beeler on October
29, 2018, although apparently at separate times.1 According to Mason, Beeler said that Shepard
rented a trailer located on her property quite a distance from her home. Mason described Beeler
as being initially hesitant to provide information because she was scared of Shepard. Beside the
trailer, Mason saw a “burn pit [with] . . . a hole that [wa]s the size of a small room,” but Mason’s
visual examination yielded nothing except for a wheelbarrow that had little significance to
Mason at the time. The physical evidence did not yield a DNA match.2 Mason would go on to
make several trips to Beeler’s property, among them was a December 2018 trip during which
Mason took aerial photographs of the area.
In speaking to others in the area about Shepard, Mason heard a rumor that Shepard
decided to retaliate against Combs because he had talked to the police about Shepard’s uncle,
Gary Shepard, who was arrested for theft of heavy equipment.
1
Mason testified that “[t]he [C]ounty had already been out there at some point . . . .”
2
Kristen Cossota, a crime laboratory analyst with the TDPS, performed DNA analysis of the cloth gloves, boot, and
baseball cap, but reported that there was insufficient data to reach any conclusion.
4
It was not until July 1, 2019, that Mason received a call from a Dallas County
investigator who reported that a recent arrestee, Thomas, told someone that Arnold and Combs
were dead and that she had witnessed their murder. Mason interviewed Thomas, who said that
Arnold and Combs “were killed [with firearms] and put in the burn pit and burned, completely
burned” by Shepard. Mason did not believe that Thomas had a part in Arnold’s or Combs’s
death and found Thomas to be credible based on her account, which included several details that
were not disclosed to her. For example, according to Mason, Thomas said Shepard had used a
wheelbarrow to transport Arnold’s body to the burn pit and that Shepard had burned his boots in
a bucket. She described the vehicle used by Arnold and Combs as a “maroon, single-cab pickup
truck” and said Shepard had tried to change the appearance of the truck by using spray paint. In
Mason’s estimation, Thomas’s account “fill[ed] in the blanks.” As a result of the interview,
Mason decided to return to Beeler’s property again.
An initial dig of the burn pit revealed no evidence. As a result, the Federal Bureau of
Investigation became involved. Dianna Strain, a former special agent for the FBI and a forensic
evidence specialist was tasked with completing a “sifting operation of a burn pit” in the summer
of 2020. Strain found bone fragments, bullet casings, wheelbarrow parts, and an earring and sent
the items to the FBI laboratory in Quantico.
Richard Thomas, a forensic examiner at the FBI laboratory, received the bones from the
burn pit, which all showed “postmortem damage from . . . heat.” Richard testified that he
identified a radius bone fragment, scaphoid bone, distal first metatarsal, and distal phalanx as
decidedly human, and a cranial fragment and portion of a right third metacarpal consistent with
5
human anatomy. Because of the size and conditions of the bone, Richard was unable to
determine if the human bones were of male or female origin. Amy Quila, a firearms and
toolmarks examiner at the FBI laboratory, received 300 cartridge casings from the burn pit
matching “eleven different types of firearm[s] that these cartridges were designed to be fired in.”
As for the earring, Arnold’s daughter, Madeline Carol, testified that the jewelry belonged to
Arnold.
Thomas testified that she met and befriended Shepard in September 2018. Even though
their friendship was new, Thomas went toward the end of the month with Shepard to a trailer he
rented from Beeler to get high on methamphetamine. Thomas testified that the trailer was “out
in the country” in an area that was heavily forested.3 Thomas testified that the trailer had “a
bunch of old stuff in it” and looked abandoned. Photos of the trailer, which were admitted into
evidence, showed that there was a mattress in one of the rooms, but otherwise, there was no
furniture. There was no electricity and no running water. According to Thomas, Shepard, who
always carried a firearm on his person, took Thomas’s phone and pulled it apart after informing
her that she would not need it. Thomas testified that she and Shepard spent approximately one
week in the trailer bingeing on drugs.
Thomas said that Arnold and Combs, who knew Shepard because Combs worked for
Shepard’s uncle, joined them in the trailer on more than one occasion to get high on
methamphetamine. Thomas identified Arnold’s truck as the one that transported the couple to
3
Wilder testified that the Beeler property was in a “wooded, wooded area” that was “probably approximately twelve,
thirteen miles from any city.” On cross-examination, Wilder conceded that there was a nearby “community” of
Bivins. In any event, the closest homes to the trailer were approximately five hundred yards away.
6
the trailer. She said that, on a “late evening,” Shepard and Combs were building a fire in the
burn pit and shooting guns when Arnold excused herself from the group, retreated to her truck to
sleep, and left the truck door open. Thomas tearfully testified that, while the boys were shooting
guns, “[Shepard] said, ‘Watch this,’ and he shot into the truck, and [Arnold] fell over.”
According to Thomas, Shepard turned toward Combs and said, “I’ve got something for you too.”
He then shot Combs. Combs initially fell but got up and ran, prompting Shepard to chase him.
When Thomas heard gunshots, she knew the chase had ended. Thomas testified she did nothing
because she was scared and in shock.
According to Thomas, Shepard explained that he killed Combs for his uncle who “was
looking at doing time because [he and Combs had] done some dirty work together” and Combs
“had snitched.” Thomas said Shepard returned to the trailer with a carpet and asked her to help
him collect Combs. After Thomas refused to help, Shepard drug a rolled carpet containing
Combs’s body and tossed it into the blazing burn pit. Thomas watched in horror as Shepard
retrieved Arnold’s body from her truck using a wheelbarrow, rolled her into the burn pit, and
piled more trash into the fire. According to Thomas, Shepard stoked and tended to the fire for
the rest of the night and into the following morning.
Thomas said that, on the following day, Shepard asked her to search the burn pit for
bones and teeth, but she refused the request. According to Thomas, Shepard assumed the task
himself, sifted through the burn pit, and placed into a cooler anything he believed to be human
remains.
7
Shepard then turned his attention to removing Arnold’s truck from the scene. He spray
painted Arnold’s truck in a failed attempt to disguise it, then asked Thomas to get in his car so
she could follow him as he disposed of Arnold’s truck. Thomas complied with that request
because she was afraid Shepard would hurt her. Thomas considered driving away in Shepard’s
car but decided not to attempt escape because Shepard knew where her family lived, and she was
scared for their safety. Thomas testified that she witnessed Shepard park Arnold’s truck on a
remote country road, pour gasoline over it, and set it on fire. Thomas confirmed that she did not
get out of Shepard’s car to help in any way and said they drove back to the trailer afterward.
Once they were back on Beeler’s property, Thomas overheard Shepard tell someone, “It’s done,”
over the phone and assumed he was talking to his uncle. Thomas said Shepard took off his
clothes, placed his cowboy boots and hat into a bucket, and lit them on fire.
After the crime, Shepard told Thomas that he had a job in Oklahoma and drove them
there. Thomas testified that she lived with Shepard in Oklahoma and started a job at Pizza Hut.
She was able to use Shepard’s phone, but never told anyone about the murders out of fear.
Thomas testified that a casual observer would believe they were dating and admitted she would
“tell him things that [she] thought he’d want to hear because [she] didn’t want him to” kill her
too. After months of quiet, Shepard returned Thomas to Texas and introduced her to a woman
Thomas believed was Shepard’s wife. The woman eventually dropped Thomas off in Dallas,
where she was arrested.4
4
The record does not specify the crime for which Thomas was arrested.
8
Thomas testified that she could no longer cope with the weight of what she had witnessed
and revealed information about the murders to a “lady at the jail that was teaching [her] religion
classes.” Thomas spoke to Mason on two occasions and was offered immunity from the district
attorney after she agreed to cooperate with authorities. Thomas clarified that she had stopped
using methamphetamine after Shepard murdered the couple, had been sober for three years by
the time of the June 2022 trial, and had maintained steady employment.
The only witness called by Shepard was Mason. Mason was questioned about Thomas’s
social media messages. Specifically, Mason was questioned about whether Thomas, in her initial
interview with Mason, had been forthcoming about her access to guns while in the presence of
Shepard and about whether Thomas’s social media messages contradicted Thomas’s testimony
that she was just “going through the motions” with Shepard following the murders. Mason
testified that he did not believe that Thomas was involved in the actual shootings.
After hearing the evidence, the jury convicted Shepard of capital murder.
II. Thomas Was Not an Accomplice Witness
“An accomplice is an individual who participates with a defendant before, during, or after
the commission of the crime and acts with the requisite culpable mental state.” Cocke v. State,
201 S.W.3d 744, 748 (Tex. Crim. App. 2006) (citing Paredes v. State, 129 S.W.3d 530, 536
(Tex. Crim. App. 2004)). Shepard’s first two points of error on appeal assume that Thomas was
an accomplice witness. Specifically, Shepard argues that there was insufficient corroboration of
Thomas’s testimony and that he was egregiously harmed by the trial court’s failure to include an
9
accomplice-witness instruction in the jury charge. Because we find that Thomas was not an
accomplice to Shepard’s crime, we overrule his first two points of error.
“Texas law requires that, before a conviction may rest upon an accomplice witness’s
testimony, that testimony must be corroborated by independent evidence tending to connect the
accused with the crime.” Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007). Also,
because “a defendant has a right to an instruction on any defensive issue raised by the evidence,”
a defendant is entitled to an accomplice-witness instruction to “remind[] the jury that it cannot
use the accomplice’s testimony to convict the defendant unless there also exists some non-
accomplice testimony tying the defendant to the offense.” Cocke, 201 S.W.3d at 747 (citing
Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)). “If the evidence presented by the
parties is conflicting and it remains unclear whether the witness is an accomplice, the trial judge
should allow the jury to decide whether the inculpatory witness is an accomplice witness as a
matter of fact under instructions defining the term ‘accomplice.’” Druery, 225 S.W.3d at 498–
99.
However, neither corroboration nor an accomplice-witness instruction is required “when
the evidence is clear that the witness is neither an accomplice as a matter of law nor as a matter
of fact.” Cocke, 201 S.W.3d at 748 (citing Gamez v. State, 737 S.W.2d 315, 322 (Tex. Crim.
App. 1987) (“If a State’s witness has no complicity in the offense for which an accused is on
trial, . . . her testimony is not that of an accomplice witness whatever may have been h[er]
complicity with the accused in the commission of other offenses.”)); see Druery, 225 S.W.3d at
498. To determine whether corroboration of Thomas’s testimony is required or whether the trial
10
court was required to give an accomplice-witness instruction in this case, we must examine the
record to decide whether Thomas was Shepard’s accomplice either as a matter of law or as a
matter of fact.
“[A] witness is an accomplice as a matter of law in the following” three circumstances:
(1) “[i]f the witness has been charged with the same offense as the defendant or a lesser-included
offense,” (2) “[i]f the State charges a witness with the same offense as the defendant or a lesser-
included of that offense, but dismisses the charges in exchange for the witness’s testimony
against the defendant” or (3) “[w]hen the evidence is uncontradicted or so one-sided that no
reasonable juror could conclude that the witness was not an accomplice.” Ash v. State, 533
S.W.3d 878, 886 (Tex. Crim. App. 2017); see Davison v. State, 602 S.W.3d 625, 643 (Tex.
App.—Texarkana 2020, pet. ref’d); Phelps v. State, 532 S.W.3d 437, 442 (Tex. App.—
Texarkana 2017, pet. ref’d). Here, because Thomas was never charged with any crime in
connection with the murders and the evidence did not strongly establish that Thomas was an
accomplice to the murders, as opposed to a bystander, she was not an accomplice as a matter of
law.
As a result, we must examine whether Thomas was an accomplice as a matter of fact,
which requires us to review the record for evidence that she participated with Shepard “before,
during, or after the commission of the crime and act[ed] with the requisite culpable mental state,”
regardless of whether she was charged or prosecuted for the participation. Cocke, 201 S.W.3d at748 (citing Paredes, 129 S.W.3d at 536). “Participation requires an affirmative act that promotes
the commission of the offense with which the defendant is charged.” Id. (citing Paredes, 129
11
S.W.3d at 536). For this reason, “[m]ere presence at a crime scene does not make an individual
an accomplice, nor is an individual an accomplice merely because [s]he has knowledge about a
crime and fails to disclose that knowledge.” Id. (citing Blake v. State, 971 S.W.2d 451, 454
(Tex. Crim. App. 1998) (“[O]ne is not an accomplice for knowing about a crime and failing to
disclose it, or even concealing it.”)); see Easter v. State, 536 S.W.2d 223, 229 (Tex. Crim. App.
1976) (acting only as an accessory after the fact does not alone make a witness an accomplice).
Also, “[t]hat the individual is complicit with the accused in committing an offense other than the
one charged is insufficient to make him or her an accomplice.” Evens v. State, 476 S.W.3d 743,
746 (Tex. App.—Texarkana 2015, pet. ref’d). “Rather, there must be affirmative proof
establishing the . . . witness willingly participated in the act . . . upon which the prosecution is
based.” Phelps, 532 S.W.3d at 449 (citing Druery, 225 S.W.3d at 498 (“To be considered an
accomplice witness, the witness’s participation with the defendant must have involved some
affirmative act that promotes the commission of the offense with which the defendant is
charged.”)).
It comes down to this: as the culpable mental state standard requires, Shepard asserts that
“a fact[-]finder could determine that Thomas acted with the intent to commit the murders.” We
disagree. Nothing supports a finding that Thomas intended to assist in the murders of Arnold
and Combs. Therefore, there was no error by the trial court; an accomplice witness instruction
was not required.
This holding is bolstered by its similarity to the facts of Druery, which supports our
analysis in this case. Marcus Druery was convicted of murdering Skyyler Browne, a known drug
12
dealer that was carrying drugs, cash, and a gun at the time of his death. Druery, 225 S.W.3d at495–96. At trial, Joquisha Pitts testified that Druery and Browne picked her up and also picked
up Marcus Harris, along with some drugs, on their way to a club. Id. at 496. After leaving the
club, the group headed to a rural property owned by Druery’s family, where the group took turns
shooting guns at bottles thrown into a stock pond. Id. Druery told Pitts and Harris that he was
going to kill Browne because he “wanted [Browne’s] ‘stuff,’” but they thought “Druery was
‘tripping’ on embalming fluid that he had smoked.” Id. When Druery shot Browne, Pitts and
Harris cried and screamed, causing Druery to attempt to calm them by giving them forty dollars
each. Id. Druery poured gasoline over Browne’s body, set him ablaze, and instructed Pitts and
Harris on how to respond to any questions about Browne’s whereabouts. Id. at 496–97. The
following day, Druery and Pitts returned to the scene, burned Browne’s body a second time, and
threw his remains in the pond. “Harris assisted Druery in disposing of the murder weapon.” Id.
at 497. Eventually, Pitts reported the incident to police. Id. Both Pitts and Harris said they were
afraid of Druery. Id.Druery argued that Pitts and Harris were accomplices because they knew he was going to
kill Browne but did nothing to warn Browne, they assisted Druery after the murder, and they
kept the money Druery gave them. Given the facts in Druery, the Texas Court of Criminal
Appeals determined that neither Pitts nor Harris were accomplice witnesses as a matter of law or
fact. Id. at 499. The court reasoned that their presence at the scene did not make them
accomplices, that “neither Pitts nor Harris [were] accomplice witness[es] merely because [they]
knew of the planned offense but did not disclose it,” and that assisting Druery, after the fact, did
13
not transform them into accomplice witnesses for the murder. Id. at 500. As a result, the Texas
Court of Criminal Appeals concluded that the “evidence d[id] not indicate that either Pitts or
Harris performed any affirmative act to assist in the commission of the capital murder or a lesser-
included offense of the capital murder.” Id. at 499–500.
In this case, Thomas had even less culpability than Pitts and Harris did in Druery. For
example, nothing in the record showed that Thomas had any indication that Shepard intended to
murder Arnold or Combs. There was no evidence at trial showing that she was anything other
than an onlooker who happened to be present during the murders and incineration of Arnold’s
and Combs’s bodies. While she assisted Shepard in disposing of Arnold’s truck, Thomas
testified she complied out of fear, and even if she had intended to assist Shepard in tampering
with evidence, it did not establish that she acted with intent to promote capital murder or a lesser-
included offense since that crime was already complete. Even though Thomas moved to
Oklahoma with Shepard and failed to disclose the crime for many months, those facts “did not
transform [her] into an accomplice witness[]” for the murder of Arnold or Combs. Id. at 500.
As in Druery, the facts in this case do not suggest that Thomas performed any act to
assist Shepard in committing capital murder or any lesser-included offense of capital murder.
Because this finding is dispositive of Shepard’s first two points of error on appeal, we overrule
them.
III. Shepard Was Not Harmed by Admission of Arnold’s Daughter’s Testimony
In his third point of error, Shepard argues that the trial court erred by admitting Carol’s
statement that an earring found in the burn pit belonged to her mother. According to Shepard,
14
Carol should have been silenced under the witness-sequestration rule, commonly referred to
simply as “the Rule.” TEX. R. EVID. 614. Even assuming error, we find that Shepard was
unharmed by Carol’s testimony.
Our review of the record shows that the Rule was invoked by the State but that the State
and the defense had agreed to exempt “family members of the victims that [were] testifying as to
. . . the identity of who their loved ones, the victims, [were],” including Carol. Defense counsel
stated that he had no objection to exempting Carol from the Rule based on that agreement, and as
a result, Carol remained in the courtroom during much of the State’s case-in-chief. Yet, when
Carol was called to identify her mother’s jewelry, defense counsel objected because Carol’s
exemption from the Rule was premised on the understanding that “they weren’t going to talk
about any type of evidentiary value.” After the trial court said that “the rule was invoked
previously with an agreement of parties that the family members could stay in as long as their
testimony was limited to identification,” the State withdrew further questioning of Carol at that
time, but she was later recalled and testified that the earring found in the burn pit belonged to her
mother, over Shepard’s objection.
Because of the unique facts of this case, we assume error, with a brief explanation of why
we are doing so. Appellate courts review a trial court’s admission of testimony from a witness
who has violated Rule 614 under an abuse-of-discretion standard. Guerra v. State, 771 S.W.2d
453, 474 (Tex. Crim. App. 1988); Harris v. State, 122 S.W.3d 871, 882 (Tex. App.—Fort Worth
2003, pet. ref’d). Here, Carol was exempted from the Rule by agreement, but with an
15
understanding that she would not testify to anything that had substantive evidentiary value. As a
result, the typical analysis here is skewed.
For example, in Guerra, the Texas Court of Criminal Appeals set forth a process for
determining whether the trial court abused its discretion in allowing testimony in violation of the
Rule, but the facts here do not squarely fit into that process. Guerra, 771 S.W.2d at 475–76; see
Harris, 122 S.W.3d 882. The first step of the process requires us to determine what kind of
witness was involved among two categories, but Carol has one foot in both categories. Harris,
122 S.W.3d at 882 (citing Guerra, 771 S.W.2d at 476).
The first category is a witness “who had no connection with either the State’s case-in-
chief or the defendant’s case-in-chief and who, because of a lack of personal knowledge
regarding the offense, was not likely to be called as a witness.” Guerra, 771 S.W.2d at 476.
There is no abuse of discretion when this category of witness is allowed to testify. Id.; Webb v.
State, 766 S.W.2d 236, 240 (Tex. Crim. App. 1989); see Harris, 122 S.W.3d at 882. The second
category of witness is “one who had personal knowledge of the offense and who the party clearly
anticipated calling to the stand.” Guerra, 771 S.W.2d at 476; see Harris, 122 S.W.3d at 882,
Minor v. State, 91 S.W.3d 824, 830 (Tex. App.—Fort Worth 2002, pet. ref’d); Loven v. State,
831 S.W.2d 387, 399 (Tex. App.—Amarillo 2002, no pet.). If the witness is a category-two
witness, certain steps are required to determine whether a defendant was harmed by the
admission of the witness’s testimony. Like a category-one witness, Carol had no personal
knowledge of the offense but, like a category-two witness, was expected to testify since she was
16
listed as a witness in the State’s case-in-chief. As a result, we assume error and move to a harm
analysis.
Shepard’s brief applies a harm analysis under Rule 44.2(b) of the Texas Rules of
Appellate Procedure, which we believe is the proper measure for harm instead of the typical
analysis applied to violations of the Rule. Typically, “[i]njury to the defendant is shown” for a
Rule 614 violation if “the witness actually conferred with or heard testimony of other witnesses”
and “the witness’[s] testimony contradicted testimony of a witness from the opposing side or
corroborated testimony of a witness with whom he or she had conferred or heard.” Bryant v.
State, 282 S.W.3d 156, 161–62 (Tex. App.—Texarkana 2009, pet. ref’d) (quoting Wilson v.
State, 179 S.W.3d 240, 248 (Tex. App.—Texarkana 2005, no pet.); see Franklin v. State, 459
S.W.3d 670, 680 (Tex. App.—Texarkana 2015, pet. ref’d). “If both prongs are met, then the
error ‘most likely resulted in harm.’” Franklin, 459 S.W.3d at 680 (quoting Allen v. State, 436
S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref’d)). This type of harm analysis is
specifically designed to address an express violation of the Rule by a category two witness.
Here, however, Carol was exempted from the Rule, but her testimony simply exceeded the scope
of the agreement that allowed her to remain in the courtroom. As a result, whether she heard
testimony from other witnesses should have no bearing on the harm analysis in this case, and
evaluating harm based on whether she contradicted or corroborated testimony makes little sense.
Moreover, non-constitutional error is disregarded unless the defendant’s substantial rights
were affected. TEX. R. APP. P. 44.2(b); Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App.
2021). Thus, “we need not reverse if, after examining the record as a whole, we have fair
17
assurance that the error did not influence the jury’s deliberations to appellant’s detriment or had
but a slight effect.” Franklin, 459 S.W.3d 670, 681 (quoting Allen, 436 S.W.3d at 824 (quoting
Ladd v. State, 3 S.W.3d 547, 566 (Tex. Crim. App. 1999))).
Here, we conclude that Carol’s answer to a single question—that the earring belonged to
her mother—had but a slight effect, if any, on the jury’s verdict. Because she was not present
during the crime and had no information about how it occurred, the jury knew that Carol had no
personal knowledge of the offense. The fact that Arnold’s earring was found, alone, was not
directly probative of whether Shepard had murdered Arnold and Combs. Also, because the
earring had a common design and was highly damaged and discolored, the weight of Carol’s
testimony was lower than the weight it would have carried had the earring been of a unique
design or color. As a result, Carol’s testimony did not have high evidentiary value.
Moreover, by the time Carol testified, the jury had already heard ample evidence from
other sources supporting Shepard’s conviction. The jury heard that both Arnold and Combs
went missing around September 25, 2018, and Buhay testified that the last outgoing calls from
their cellphones were made around that time. Wilder testified to the remoteness of the area. He
also testified that Beeler had reported suspicious items on her property, items that she thought
might belong to the victims. Mason had testified that he was called in to assist in the search for
Arnold and Combs and to investigate the nature of their disappearance. Mason testified that
registration records showed the burned pickup belonged to one of the victims and opined that
those circumstances indicated foul play. Mason said his investigatory interviews revealed
“rumors” or “street talk” linking Combs to Shepard and Shepard to Beeler’s property and
18
provided potential motive for Shepard to harm Combs. Beeler confirmed to Mason that Shepard
was indeed her renter at the time Arnold and Combs disappeared. Thomas testified that Shepard
shot Arnold and Combs and burned their bodies. She detailed the events occurring before,
during, and after the murders. The evidence showed that the burn pit next to the trailer Shepard
had rented contained parts of a wheelbarrow, which was consistent with Thomas’s statement that
Shepard used a wheelbarrow to transport Arnold into the pit after her murder. Most importantly,
the burn pit contained human remains. Given this highly incriminating evidence, we find that
Shepard’s substantial rights were not affected by Carol’s testimony and overrule his third point
of error on appeal.
IV. Court Costs Must Be Reduced
In his last point of error, Shepard argues that the assessment of $562.00 in court costs
must be reduced. We agree.
The trial court imposed the following court costs:
STATE CONSOLIDATED COURT COST-2020 185.00
LOCAL FEES:
CLERKS FEE 2020 192.00
COUNTY RECORDS MANG & PRESER FD2020 25.00
COUNTY JURY FUND-2020 1.00
COURTHOUSE SECURITY FUND 10.00
C & D COURT TECH FUND-2020 4.00
COUNTY SPECIALITY COURT ACCT-2020 25.00
TIME PAYMENT REIMBURSEMENT FEE-2020 15.00
SHERIFFS REIMBURSEMENT FEE -2020 105.00
TOTAL COST OF CAUSE 562.00
19
“[W]e review the assessment of court costs on appeal to determine if there is a basis for
the cost . . . .” Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
In 2019, the Texas Legislature passed an Act, which we refer to as the Cost Act, relating
to the consolidation and allocation of state criminal court costs, which increased the amount of
some court costs and reduced the amounts of other court costs. See Act of May 23, 2019, 86th
Leg., R.S., ch. 1352, § 1.05, sec. 134.101, 2019 Tex. Gen. Laws 3981, 3984–85 (codified at TEX.
LOC. GOV’T CODE § 134.101). The Cost Act took effect on January 1, 2020, and provided,
Except as otherwise provided by this Act, the changes in law made by this Act
apply only to a cost, fee, or fine on conviction for an offense committed on or
after the effective date of this Act. An offense committed before the effective
date of this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that purpose.
Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01, 2019 Tex. Gen. Laws 3981, 4035.
Because Shepard’s offense was committed in 2018, we apply the law in effect at that time and
examine each item assessed in the bill of costs.
The first item in the bill of costs is a state consolidated court cost of $185.00. The Cost
Act increased that fee from $133.00 to $185.00. Act of May 23, 2019, 86th Leg., R.S., ch. 1352,
§ 1.03, 2019 Tex. Gen. Laws 3981, 3982 (codified at TEX. LOC. GOV’T CODE § 133.102).
Because the Cost Act did not apply to the 2018 offense, the State concedes that the state
consolidated court costs should be $133.00 instead of $185.00.
With respect to local fees, based on the fee statutes in effect in 2018, the State concedes
that the clerk’s fee should be $40.00 instead of $192.00 and that the county specialty court
account fee should be deleted. See Act of May 28, 2005, 79th Leg., R.S., ch. 804, § 4, sec.
20
102.041(2), 2005 Tex. Gen. Laws 2775, 2776 (effective June 17, 2005). Of the remaining local
fees that were assessed, the allowable amounts for those fees in 2018 were (1) $25.00 for records
management and preservation services,5 (2) $5.00 for the security fund fee,6 (3) $4.00 for the
jury fund fee,7 and (4) $4.00 for the county and district court technology fund fee.8,9
Next, the bill of costs contains a $15.00 time payment fee. See TEX. CODE CRIM. PROC.
ANN. art. 102.030 (Supp.). The Texas Court of Criminal Appeals has concluded that a time
payment fee like the one imposed here “must indeed be struck for being prematurely assessed
because a defendant’s appeal suspends the duty to pay court costs and therefore suspends the
running of the clock for the purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129,
129 (Tex. Crim. App. 2021). “As a consequence, even now, assessment of the time payment fee
in this case would be premature because appellate proceedings are still pending.” Id. The State
concedes that, pursuant to Dulin, the time payment fee should be struck without prejudice.
The last fee in the bill of costs is the sheriff reimbursement fee. In challenging this fee,
Shepard makes a single-line argument that “Texas law does not currently appear to support the
5
Act of May 28, 2005, 79th Leg., R.S., ch. 804, § 2, 2005 Tex. Gen. Laws 2775, 2775–76 (effective June 17, 2005).
6
Act of May 22, 1993, 73d Leg., R.S., ch. 818, § 1, art 102.017(a), 1993 Tex. Gen. Laws 3258, 3258 (effective
Sept. 1, 1993).
7
Act of May 27, 2005, 79th Leg., R.S., ch. 1360, § 5, art. 102.0045(a), 2005 Tex. Gen. Laws 4255, 4256 (effective
Sept. 1, 2005).
8
Act of May 31, 2009, 81st Leg., R.S., ch. 1183, § 1, art. 102.0169(a), 2009 Tex. Gen. Laws 3753, 3753 (effective
September 1, 2009).
9
The State seeks to add additional fees that were not assessed by either the bill of costs or the trial court’s judgment.
We decline to do this.
21
assessment of a Sheriffs Reimbursement Fee.”10 Shepard is incorrect. Both the current and 2018
version of Article 102.011 of the Texas Code of Criminal Procedure, titled “Reimbursement Fees
for Services of Peace Officers,” authorize sheriff reimbursement fees. TEX. CODE CRIM. PROC.
ANN. art. 102.011 (Supp.); see Act of May 13, 2009, 81st Leg., R.S., ch. 87, § 6.008, 2009 Tex.
Gen. Laws 208, 231 (effective Sept. 1, 2009). As a result, we overrule Shepard’s complaint
about this fee.
This Court has the authority to modify incorrect judgments when it has the information
necessary to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex.
Crim. App. 1993); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.).
In accordance with our findings, we sustain Shepard’s last point of error and modify the trial
court’s bill of costs as follows:
STATE CONSOLIDATED COURT COST-2020 133.00
LOCAL FEES:
CLERKS FEE 2020 40.00
COUNTY RECORDS MANG & PRESER FD2020 25.00
COUNTY JURY FUND-2020 4.00
COURTHOUSE SECURITY FUND 5.00
C & D COURT TECH FUND-2020 4.00
COUNTY SPECIALITY COURT ACCT-2020 0.00
TIME PAYMENT REIMBURSEMENT FEE-202011 0.00
SHERIFFS REIMBURSEMENT FEE -2020 105.00
TOTAL COST OF CAUSE 316.00
10
Shepard makes no argument that the record was not sufficient to support the amount of sheriff fees imposed.
Nevertheless, the State has painstakingly included record reference citations supporting the amount assessed by the
bill of costs.
11
The time payment reimbursement fee is struck without prejudice.
22
We also modify the trial court’s judgment to reflect that the amount owed for courts costs
is $316.00 instead of $562.00.
V. Conclusion
We modify the trial court’s judgment and bill of costs to reflect that the correct amount of
court costs is $316.00. As modified, we affirm the trial court’s judgment.
Jeff Rambin
Justice
Date Submitted: May 2, 2023
Date Decided: May 19, 2023
Do Not Publish
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