Shepard v. State

1

KEVIN DEWAYNE SHEPARD, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 06-22-00085-CR

Court of Appeals of Texas, Sixth District, Texarkana

May 19, 2023

Do Not Publish

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

Rambin Justice.

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 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.

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.

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 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 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...