Tyrone Shepard v. the State of Texas

Court of Appeals
                  Tenth Appellate District of Texas

                             10-25-00100-CR


                             Tyrone Shepard,
                                Appellant

                                     v.

                            The State of Texas,
                                 Appellee



                          On appeal from the
              272nd District Court of Brazos County, Texas
                     Judge John L. Brick, presiding
               Trial Court Cause No. 23-03774-CRF-272

JUSTICE HARRIS delivered the opinion of the Court.

                      MEMORANDUM OPINION

     Tyrone Shepard was convicted of possession of a controlled substance in

an amount less than one gram. He was sentenced to 12 years in prison. We

modify the trial court’s judgment and affirm the judgment as modified.

BACKGROUND

     During a traffic stop, Shepard was arrested on an active warrant. He

was handcuffed and searched. While being searched again at the jail, a small
methamphetamine pill was found in his pocket. Shepard eventually claimed

the pill was heart medicine. He was booked into jail and remained there until

his trial. A jury found Shepard guilty on December 11, 2024, and the trial

court assessed punishment on February 26, 2025.

JURY CHARGE ERROR

       In Shepard’s first issue, he complains that the trial court erred in

including an instruction to the jury that the State need only prove possession

of the pill within the statute of limitations because it “uncoupled Shepard’s

uncontested possession of the controlled substance on June 27, 2023 [the date

alleged in the indictment] from the required culpable mental state resulting in

the State’s argument that criminal liability attached regardless of Shepard’s

knowledge of the possession of the controlled substance on or about that date.”

Specifically, however, Shepard contends the instruction was improper “in light

of the state of the evidence” and was a comment on the weight of the evidence.

       A claim of jury charge error is reviewed using the two-step procedure set

out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). First, we

review alleged charge error by determining whether error exists in the charge.

Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022). If no error exists,

our analysis ends. See Balentine v. State, 71 S.W.3d 763, 774 (Tex. Crim. App.

2002). But if error exists, we then analyze that error for harm. Kirsch v. State,

357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

Shepard v. State                                                         Page 2
       Throughout the trial, Shepard asserted as a defense that, although he

possessed the pill, he did not knowingly or intentionally possess the pill on the

date alleged in the indictment—the date the jailer searched him. He objected

to the following instruction which was included in the charge to the jury:

       The State is not required to prove the exact date alleged in the
       indictment but may prove the offense, if any, to have been
       committed at any time prior to the presentment of the indictment
       so long as said offense, if any, occurred within three (3) years prior
       to the date of the presentment of the indictment. The indictment
       in this case was presented on September 21 , 2023.

       State of the Evidence

       Shepard first asserts that the submission of this instruction was

improper “in light of the state of the evidence.”         Initially, we note that

Shepard’s reference to this instruction as a “limitations” instruction is

inaccurate.        There was no dispute in this case about whether Shepard’s

possession occurred within the statute of limitations of the offense. Rather,

the dispute centered on the language that the State was not required to prove

the exact date alleged in the indictment, i.e., the “on or about” date.

       It is well-settled that the State is not required to prove an offense was

committed on the date alleged in the indictment; the date alleged merely puts

an accused on notice to prepare for proof that the event alleged occurred any

time within statutory limitations for the offense. State v. West, 632 S.W.3d

908, 913 (Tex. Crim. App. 2021). See Munos v. State, No. 10-18-00035-CR, 2019


Shepard v. State                                                           Page 3
Tex. App. LEXIS 9718, at *9 (Tex. App.—Waco Nov. 6, 2019, pet. ref'd) (not

designated for publication) (“The State is not required to prove an offense was

committed on or about the date alleged in the indictment and can prove the

offense was committed on any date prior to the return of the indictment and

within the period of limitations.”). Counsel for Shepard recognized this at trial.

       On appeal, Shepard presents no authority, and we have found none,

which holds that, in a possession case such as this one, the State is limited to

proof of possession only on the date alleged in the indictment.          Instead,

Shepard cites to case law where courts have held that an “on or about”

instruction included in the jury charge erroneously presented the jury with a

much broader chronological perimeter than permitted by law. See Taylor v.

State, 332 S.W.3d 483 (Tex. Crim. App. 2011); Kelley v. State, 429 S.W.3d 865

(Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). Shepard’s reliance on these

cases is misplaced because there are no facts in this record to show possession

at a time which would expand the chronological perimeter of Shepard’s

possession of the methamphetamine pill beyond what is permitted by law.

Accordingly, as to this part of Shepard’s issue, the trial court did not err in

submitting the instruction.

       Comment on the Evidence

       Shepard also asserts that the instruction was erroneously submitted

because it commented on the weight of the evidence. Generally, an instruction

Shepard v. State                                                          Page 4
constitutes a comment on the weight of the evidence if the instruction is not

grounded in statute, is covered by the general charge to the jury, and focuses

the jury on a specific type of evidence that may support an element of an offense

or defense. Morales v. State, 357 S.W.3d 1, 5 n.15 (Tex. Crim. App. 2011) (citing

Walters v. State, 247 S.W.3d 204, 212) (Tex. Crim. App. 2007)) (emphasis

added). However, a correct statement of the law by the trial court is generally

not reversible as a comment on the weight of the evidence. Aschbacher v. State,

61 S.W.3d 532, 538 (Tex. App.—San Antonio 2001, pet. ref'd). In this regard,

only "[a] charge that 'assumes the truth of a controverted issue' is an improper

comment on the weight of the evidence." Wilson v. State, 419 S.W.3d 582, 595

(Tex. App.—San Antonio 2013, no pet.) (quoting Whaley v. State, 717 S.W.2d

26, 32 (Tex. Crim. App. 1986)).

       Here, the trial court's instruction was a correct statement of the law. See

State v. West, 632 S.W.3d 908, 913 (Tex. Crim. App. 2021); TEX. CODE CRIM.

PROC. art. 21.02; TEX. HEALTH & SAFETY CODE § 115(b). Further, it did not

assume the truth of a controverted issue, that being, Shepard’s mental state.

Consequently, it did not constitute a comment on the weight of the evidence.

See Goode v. State, No. 06-24-00172-CR, 2025 Tex. App. LEXIS 4666, *11-12

(Tex. App.—Texarkana July 2, 2025, no pet.) (not designated for publication)

(‘on or about’ instruction not a comment on weight of evidence); Thibodeaux v.

State, No. 09-09-00174-CR, 2010 Tex. App. LEXIS 7437, *15-16 (Tex. App.—

Shepard v. State                                                          Page 5
Beaumont Sept. 8, 2010, no pet.) (not designated for publication) (same); Nava

v. State, No. 08-08-00197-CR, 2010 Tex. App. LEXIS 4514, *7-8 (Tex. App.—El

Paso June 6, 2010, pet. ref'd) (not designated for publication) (same); Simmons

v. State, Nos. 02-05-00172-CR, 02-05-00173-CR, 2006 Tex. App. LEXIS 6359,

*17 (Tex. App.—Fort Worth July 20, 2006, pet. ref’d) (not designated for

publication) (same).

        Accordingly, the trial court did not err by including the instruction in the

charge to the jury, and Shepard’s first issue is overruled. 1

RE-OPENING BY THE STATE

        In his second issue, Shepard asserts the trial court abused its discretion

by allowing the State to reopen its case-in-chief to present evidence of

Shepard’s 2019 Milam County extraneous arrest. Specifically, Shepard argues

the trial court erred because the State did not show that the extraneous arrest

evidence was material under Peek v. State, 106 S.W.3d 72 (Tex. Crim. App.

2003) or Article 36.02 of the Texas Code of Criminal Procedure. We disagree

with Shepard.



1
  As for the recurring assertion that the State would be allowed to “uncouple” the mental state from
possession if the State was not limited to proof of possession on the date alleged in the indictment, we
disagree with this assertion. First, Shepard cites to no authority that would support his assertion.
Second, if, in this case, the State happened to prove Shepard knew about the pill and intended to
possess it at a different time within the statute of limitations than the date Shepard was caught in
actual possession of the pill, then, according to the definition of possession included in the jury charge,
Shepard would still be in possession of the pill at that other time because he would be “aware of his
control over the [pill] for a sufficient time to permit him to terminate his control.” No “uncoupling”
would occur. To the extent this assertion is another part of Shepard’s first issue, it is also overruled.

Shepard v. State                                                                                 Page 6
       Article 36.02 of the Texas Code of Criminal Procedure states that a "court

shall allow testimony to be introduced at any time before the argument of a

cause is concluded, if it appears that it is necessary to a due administration of

justice." TEX. CODE CRIM. PROC. art. 36.02. The Court of Criminal Appeals

has interpreted article 36.02 as requiring a trial court to allow reopening if the

additional evidence "would materially change the case in the proponent's

favor." Peek, 106 S.W.3d at 79. Article 36.02 does not impose a limit on a trial

court's discretion to allow reopening. Garcia v. State, 630 S.W.3d 264, 267

(Tex. App.—Eastland 2020, no pet.). Further, the factors expressed in Peek

only apply when a trial court refuses to reopen a case. Id.

       Thus, because the trial court granted the State's request to reopen, the

reasoning in Peek and article 36.02 are inapplicable to this case, and the trial

court did not abuse its discretion by granting the State’s request to reopen the

evidence without a showing of materiality. See id. Shepard’s second issue is

overruled.

SPEEDY TRIAL

       In his third issue, Shepard contends the trial court erred in denying his

motion to dismiss for lack of a speedy trial under the United States and Texas

Constitutions. He asserts that the delay from his arrest to the date the trial

court heard his motion for speedy trial is presumptively unreasonable, the

delay was attributable to the State, and he was prejudiced by the delay.

Shepard v. State                                                          Page 7
       The Sixth Amendment to the United States Constitution guarantees the

accused in a criminal prosecution the right to a speedy trial. State v. Lopez, 631

S.W.3d 107, 113 (Tex. Crim. App. 2021); Hopper v. State, 520 S.W.3d 915, 923

(Tex. Crim. App. 2017) (citing U.S. CONST. amend. VI; Vermont v. Brillon, 556

U.S. 81, 89, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009)). The Texas Constitution

provides the same guarantee. TEX. CONST. art. 1, § 10. As the Court of

Criminal Appeals has explained, an evaluation of a speedy trial claim includes

a consideration of "the length of delay, the reasons for delay, to what extent

the defendant has asserted his right, and any prejudice suffered by the

defendant." Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 33 L. Ed.

2d 101 (1972); Lopez, 631 S.W.3d at 113; Hopper, 520 S.W.3d at 924. The

length of delay is, to some extent, a triggering mechanism of the remaining

Barker factors, so that a speedy trial claim will not be heard until passage of a

period of time that is, on its face, unreasonable under the circumstances.

Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).

       Once the Barker test is triggered, courts must analyze the speedy-trial

claim by first weighing the strength of each of the Barker factors and then

balancing their relative weights in light of the conduct of both the prosecution

and the defendant. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008).

No one factor is either a necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial. Id. Rather, the four factors are

Shepard v. State                                                          Page 8
related and must be considered together, along with any other relevant

circumstances. Id.

       Dismissal of the charging instrument with prejudice is mandated only

upon a finding that an accused's speedy-trial right was actually violated. Id.

Because dismissal of the charges is a radical remedy, courts must apply the

Barker balancing test with common sense and sensitivity to ensure that

charges are dismissed only when the evidence shows that a defendant's actual

and asserted interest in a speedy trial has been infringed.             Id.   The

constitutional right is that of a speedy trial, not dismissal of the charges. Id.

       We apply a bifurcated standard of review: an abuse of discretion

standard for the factual components and a de novo standard for the legal

components. State v. Lopez, 631 S.W.3d 107, 113-14 (Tex. Crim. App. 2021).

While an evaluation of the Barker factors includes fact determinations and

legal conclusions, "the balancing test as a whole is a purely legal question that

we review de novo." Balderas v. State, 517 S.W.3d 756, 767-68 (Tex. Crim.

App. 2016) (citing Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App.

1997). Because the State did not request findings of fact and conclusions of

law, we imply all findings necessary to support the trial court's ruling if those

findings are supported by the record. Lopez, 631 S.W.3d at 114.

       Length of Delay

       The length of delay is measured from the time the defendant is arrested

Shepard v. State                                                          Page 9
or formally accused until the time of trial or a defendant's demand for a speedy

trial.    Gonzales v. State, 435 S.W.3d 801, 809 (Tex. Crim. App. 2014). In

general, courts deem a delay approaching one year to be "unreasonable enough

to trigger the Barker" inquiry. Balderas v. State, 517 S.W.3d 756, 768 (Tex.

Crim. App. 2016). The extent to which the delay exceeded the minimum needed

to trigger judicial examination factors into our assessment of the first Barker

factor.    Id.     In this case, a little over seventeen months passed between

Shepard’s arrest on June 27, 2023 and his trial on December 9, 2024. The

parties agree that this delay triggers the Barker inquiry. Thus, the first Barker

factor weighs against the State. See id.

         Reason for Delay

         In assessing the reason for the delay, different weights should be

assigned to different reasons for the delay. Id. Some reasons are valid and

serve to justify an appropriate delay. Id. Deliberate delay intended to hamper

the defense weighs heavily against the State, while more neutral reasons, such

as negligence or overcrowded courts, weigh less heavily. Id. Delay attributable

to the defendant may constitute a waiver of a speedy trial claim. State v.

Munoz, 991 S.W.2d 818, 822 (Tex. Crim. App. 1999)

         The record in this case shows that much of the delay was attributable to

Shepard. Shepard’s first appointed attorney filed a Motion for Speedy Trial on

October 26, 2023, but Shepard soon afterward requested the removal of his

Shepard v. State                                                         Page 10
counsel and chose to represent himself. Shepard did not bring the speedy trial

motion to the trial court’s attention until February 2, 2024 where, at a hearing

on the motion, the trial court granted the motion and set Shepard’s trial for

April 29, 2024.    Thus, the delay from the end of October of 2023 to the

beginning of February of 2024 was attributable to Shepard.            Moreover,

between November of 2023 and April 25, 2024—the last pretrial hearing before

the trial set on April 29, 2024—Shepard continued to delay the proceedings by

objecting to the trial court’s jurisdiction, appealing the court’s ruling on that

jurisdictional challenge, refusing to “consent” to the proceedings in the trial

court, and claiming to want to review discovery in the State’s possession but

refusing to do so when offered the opportunity.

       Ultimately, Shepard’s case was not reached on April 29, 2024, due to a

preferentially-set murder trial. The next trial date for Shepard was set for

July 29, 2024.     At a June 1, status hearing, Shepard accepted appointed

representation again. At a docket call hearing on July 1, 2024, all parties,

including the newly-appointed counsel, announced ready for trial on July 29,

2024. Shepard’s case was not reached on that date either due to a competency

trial where the defendant had been in jail for five years.

       On September 24, 2024, Shepard filed a second speedy trial motion in

which he requested a dismissal of the charges against him. At the hearing on

October 31, 2024, the trial court found that there was not enough evidence to

Shepard v. State                                                         Page 11
warrant a dismissal.

       On appeal, Shepard contends the delay was the State’s fault. There is

nothing in the record to indicate that the State sought an intentional delay to

Shepard’s trial. The State and the trial court acknowledged the court’s full

trial docket. Shepard contends that because the State did not request lab

testing of the pill found in Shepard’s pocket until May of 2024, the delayed

testing request delayed the proceedings. Again, there is nothing in the record

to indicate that the State was not ready for trial whenever called to announce

or that the alleged delay in testing had any effect on when Shepard’s case was

scheduled for trial. Accordingly, in light of the record, this factor weighs

against Shepard.

       Assertion of the Right

       Whether and how a defendant asserts his right is closely related to the

other Barker factors. Gonzales v. State, 435 S.W.3d 801, 810 (Tex. Crim. App.

2014). Consequently, this factor “‘is entitled to strong evidentiary weight in

determining whether the defendant is being deprived of the right [to a speedy

trial].’” Id. at 810-811 (quoting Barker v. Wingo, 407 U.S. 514, 531-32, 92 S.

Ct. 2182, 33 L. Ed. 2d 101 (1972)). Filing for a dismissal rather than a speedy

trial will generally weaken a speedy-trial claim.     See Cantu v. State, 253

S.W.3d 273, 283 (Tex. Crim. App. 2008).

       Shepard was arrested in late June of 2023. His first request for a speedy

Shepard v. State                                                        Page 12
trial was not asserted until February 2, 2024. Although trial counsel had filed

a motion in October of 2023, by mid-November, Shepard opted to represent

himself and did not assert the motion until the next February. The motion was

granted. Shepard expressed no opposition to the April 29, 2024 trial setting.

After this, however, Shepard challenged the trial court’s jurisdiction,

demanded a dismissal, and refused to “consent” to the proceedings. Further,

there is nothing in the record to show Shepard ever opposed any of the other

trial settings including the trial setting for July 29, 2024. Shepard’s newly re-

appointed trial counsel announced ready on July 1, 2024, informing the court

that, “We have been keeping an eye on the case, so we’ll be ready… .” 2 It was

not until September 24, 2024 that Shepard again asserted his right to a speedy

trial when trial counsel filed a motion to dismiss. Shepard was tried a little

over three months later. Accordingly, we cannot say this factor weighs in favor

of Shepard.

          Prejudice

          In determining prejudice, we consider the delay's effect on three

categories of interests:            (1) preventing oppressive pretrial incarceration;

(2) minimizing anxiety and concern of the accused; and (3) limiting the

possibility that the defense will be impaired. Dragoo v. State, 96 S.W.3d 308,




2
    After Shepard was allowed to represent himself, counsel was appointed as stand-by counsel.

Shepard v. State                                                                            Page 13
315 (Tex. Crim. App. 2003). A defendant has the burden to make some showing

of prejudice, but a showing of actual prejudice is not required. Balderas v.

State, 517 S.W.3d 756, 772 (Tex. Crim. App. 2016). If the defendant makes a

prima facie showing of prejudice, the burden shifts to the State to show that

the prejudice did not exceed that which occurs from the ordinary and inevitable

delay. State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999). The

possibility of prejudice is not sufficient to support a defendant's position that

his speedy trial rights were violated. United States v. Loud Hawk, 474 U.S.

302, 315, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986).

       Shepard’s argument regarding prejudice focuses on his pretrial anxiety.

He does not allege that his defense was impaired. He points to his testimony

that he lost his car, his personal property, and his apartment while he was

confined as evidence of prejudice. Shepard testified that “losing everything”

put him “in deep stages of depression and stressed [him] out.”     However, he

also testified that he woke up “in deep sweats” and suffered nightmares from

this case because he was facing an enhanced range of punishment. He also

testified that he was “very paranoid schizophrenic” from being shot in the

stomach two months before his arrest and that his resulting health issues

made him “very stressed out [and] depressed.” Although Shepard testified that

he thought additional surgeries would remove the bullet from his body and

that medical treatment would reduce his pain, he offered nothing to show that

Shepard v. State                                                         Page 14
he was denied any medical treatment due to his pretrial confinement or that

he would have obtained additional treatment if his case had proceeded to trial

sooner. Shepard acknowledged that he communicated his medical issues to

jail personnel and that he was “constantly” receiving medical treatment in the

jail, including treatment for high blood pressure, depression, and stress.

       Shepard also testified that he had missed his daughter’s graduation, but

he confirmed that he had not communicated to the court that his daughter

would be graduating. He also testified that he had lost family members and

“severed relations with people that are close to [him],” but he did not explain

how his pretrial confinement contributed to the stress of those events, if at all.

       The time from Shepard's arrest for this offense until his trial was a little

over seventeen months. The judgment indicates he received 611 days credit

on his sentence for his pretrial confinement which is not oppressive. See Porter

v. State, 540 S.W.3d 178, 184 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd)

(41-month delay not oppressive when, among other things, defendant received

credit for time spent in confinement); United States v. Casas, 425 F.3d 23, 34-

35 (1st Cir. 2005) (holding defendants' allegations of anxiety and concern

during 41-month pretrial confinement insufficient to show a violation of the

speedy-trial right when time served credited against sentences received upon

conviction). Further, the length of his pretrial confinement was less than his

minimum sentence.       See TEX. HEALTH & SAFETY CODE § 481.115(b); TEX.

Shepard v. State                                                           Page 15
PENAL CODE § 12.425(b).          Additionally, Shepard’s testimony did not

demonstrate anxiety or concern beyond what would be expected for someone

charged with a felony and facing up to twenty years in prison. See Cantu v.

State, 253 S.W.3d 273, 286 (Tex. Crim. App. 2008) (evidence of defendant's

generalized anxiety, although relevant, "is not sufficient proof of prejudice

under the Barker test, especially when it is no greater anxiety or concern

beyond the level normally associated with a criminal charge or investigation").

       Accordingly, Shepard has not shown sufficient prejudice, and this factor

weighs against him.

       Conclusion

       After reviewing the record and weighing all of the factors, we find the

trial court did not err in denying Shepard’s motion to dismiss for lack of a

speedy trial. His third issue is overruled.

NON-REVERSIBLE ERRORS IN THE JUDGMENT

       The State asserts that the trial court’s judgment incorrectly reflects that

Shepard waived his right to a jury trial, that he pled guilty, and that the trial

court received Shepard’s plea and adjudged Shepard guilty. The State requests

that we modify the trial court’s judgment to “speak the truth.” See TEX. R. APP.

P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We

agree with the State’s requested modifications. Accordingly, we modify the

trial court's judgment to reflect that the recitation that Shepard waived his

Shepard v. State                                                          Page 16
right to trial by jury is deleted; the plea to the offense was “Not Guilty;” and

the verdict of the jury was “Guilty.”

CONCLUSION

       Having found no reversible error but only non-reversible error in the

trial court’s judgment, we affirm the trial court's judgment as modified.




                                            LEE HARRIS
                                            Justice

OPINION DELIVERED and FILED: April 23, 2026
Before Chief Justice Johnson,
       Justice Smith, and
       Justice Harris
Affirmed
Do Not Publish
CR25




Shepard v. State                                                        Page 17