NUMBER 13-25-00532-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
WILFRED WARREN SHEPPARD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 426TH DISTRICT COURT
OF BELL COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Tijerina and Justices Cron and Fonseca
Memorandum Opinion by Justice Fonseca
Appellant Wilfred Warren Sheppard was convicted of indecency with a child by
contact, a second-degree felony, and he was sentenced to twenty years’ imprisonment.
See TEX. PENAL CODE § 21.11(a)(1). 1 On appeal, he argues: (1) his double jeopardy rights
1 This appeal was transferred from the Third Court of Appeals in Austin pursuant to an order issued were violated because the “event upon which the conviction is based was used against
him at sentencing in another trial”; and (2) the trial court erred by denying his motion for
mistrial after a witness testified as to an extraneous offense. We affirm.
I. BACKGROUND
In 2014, a Bell County grand jury returned an indictment alleging that on or about
December 31, 2009, Sheppard committed aggravated sexual assault against Carla, 2 a
child under fourteen years of age, by causing the penetration of her anus with his finger.
See id. § 22.021(a)(1)(B)(i). Prior to trial, Sheppard filed several pro se motions to
dismiss, some of which alleged in part that his prosecution on this charge violated his
double jeopardy rights. Later, he was appointed counsel, and counsel also filed a motion
to dismiss on double jeopardy grounds. All of the motions to dismiss were denied.
Carla was twenty-six years old at the time of trial in June of 2025. She testified
that, when she was in elementary school, she lived with her mother Karen and her
sixteen-year-old brother Fred. During that time, Karen would “trade sex for money” and
Sheppard was a frequent customer. According to Carla, around Christmas of her thirdgrade year, she woke up to realize her pajama pants had been taken off, and she was
“fighting” and “kicking” Sheppard, attempting to prevent him from removing her
underwear. She knew Sheppard had been at the family’s house that night because his
black car was parked in the driveway. After the incident, she saw Sheppard “stumble” to
his car naked. She then went to Fred’s room and told him Sheppard “just tried to rape
by the Texas Supreme Court. See TEX. GOV’T CODE § 73.001. We are required to follow the precedent of the transferor court to the extent it differs from our own. TEX. R. APP. P. 41.3.
2 We use pseudonyms to refer to the alleged victim and her family members. See TEX. CONST. art.
I, § 30(a)(1) (providing that a crime victim has “the right to be treated . . . with respect for the victim’s dignity and privacy throughout the criminal justice process”); TEX. CODE CRIM. PROC. ch. 58, subch. C (“Confidentiality of Identifying Information of Sex Offense Victims”).
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me.” Fred then went to get Karen, and Carla told Karen what happened, but Karen
insisted that Carla was “dreaming” and started hitting her. Sheppard and Karen brought
Carla back to her room, at which point Sheppard started touching Carla’s thigh and
assured her that “he would never hurt [her].” Sheppard and Karen left the room, but Carla
could not sleep. “[E]ventually,” Sheppard came back into the room and “tr[ied] to convince
[Carla] to open [her] legs.” He “touched [Carla] everywhere,” including on her legs and
“vaginal area,” and said he would “offer [her] [$]1[,]000.00 to open [her] legs.” 3 Then, “one
of his middle fingers penetrated [her] anus.” Carla said Sheppard came into and out of
her room at least ten times that night; at trial, she speculated he was going to the
bathroom to urinate because he was heavily intoxicated. After the last time he left the
room, Carla escaped to Fred’s room and slept there. 4
The next morning, Carla told Karen what happened. She then went to take a
shower, and when she returned, Sheppard was sitting at the dining room table. Carla then
told Sheppard about what happened the previous night. Carla testified: “He listened to
me tell him what he did to me. And he accepted it and he cried and apologized.” According
3 Carla said Karen later gave her $100. She assumed Karen kept whatever other money Sheppard
gave to her.
4 Fred testified Carla came into his room crying and terrified and said Sheppard “touched [her].” He
then went outside his room and saw Sheppard “by the front door . . . naked [and] putting on his pants.” He went back to his room and got a knife to confront Sheppard. When he returned, he saw Sheppard and Karen conversing outside near Sheppard’s car. Karen began yelling at Fred. Sheppard then left in his car and Fred initially pursued him on foot before realizing the chase was futile. Carla later told both Fred and Karen that “she woke to [Sheppard] being in her room and he had put a finger in her butt.” Fred noted both Karen and Sheppard were heavily intoxicated that night.
The next morning, Karen arranged a meeting with Sheppard “to go over exactly what just happened last night.” According to Fred, Karen said “[b]asically if we figure out what happened is valid, he’s going to pay for [Carla]’s college.” Karen directly accused Sheppard of penetrating Carla’s anus; Sheppard did not deny it but said he “was drunk” and he “must have . . . thought it was [Karen].” Fred testified that Sheppard gave Karen $1,000, and in exchange, Karen agreed not to go to the police.
When asked why he did not go to the police himself, Fred testified: “My dad died when I was around [Carla’s] age so I didn’t want my sister going into foster care [be]cause I lost [our] mom.” He said that he told Carla that if she ever wanted to “come forward,” he would “support [her] wholeheartedly.”
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to Carla, Sheppard said he would never “intentionally” do something like that—she
assumed he meant he would not have done that if he was sober. He denied remembering
what happened but did not deny doing it. When asked why she did not go to law
enforcement, Carla explained Karen told her “on multiple occasions” that “if I ever did
something to leave my mother behind, she would kill herself.” Karen promised Carla she
would never have to see Sheppard again, but Karen continued her relationship with
Sheppard; the two agreed to collaborate on a real estate business, and Sheppard came
to the family’s house at least once.
Several years later, Carla told Fred’s wife Debra about the abuse. 5 Debra
contacted police and Carla later submitted to interviews with investigators and the school
counselor, at which she reported physical abuse by Karen and sexual abuse by
Sheppard. She also underwent a sexual assault examination, which because of the timing
did not reveal any physical evidence of trauma. 6
The jury found Sheppard not guilty of the charged offense but convicted him of the
lesser-included offense of indecency with a child by contact. See id. § 21.11. The trial
court sentenced him as set forth above, and this appeal followed.
II. DISCUSSION
A. Double Jeopardy
At the sentencing phase, Carla stated she previously testified against Sheppard at
5 Debra testified that she married Fred in 2013. At some point after that, she went to visit Karen,
but Carla said Karen was at Sheppard’s house. Carla then told Debra something about Sheppard which resulted in her contacting the school counselor. The counselor, in turn, directed her to contact law enforcement. Subsequently, Carla was removed from Karen’s custody and placed with Debra and her parents.
6 A report from the exam contains a patient history reported by Carla which is consistent with her
trial testimony.
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the sentencing phase of a criminal mischief trial in 2016. She explained that the earlier
case was “about a man who was being attacked by [Sheppard] and in the process his
motorcycle or property was damaged.” Carla did not testify as to the content of her 2016
testimony. Copies of the pre-sentence investigation report and final judgment in the 2016
case were entered into evidence, showing Sheppard was sentenced to twelve months in
state jail for the criminal mischief offense. See id. § 28.03.
On appeal, Sheppard argues without reference to the record that Carla “testifying
against him concerning the allegation in this case during the sentencing phase of his 2016
state jail theft [sic] trial barred his prosecution here for the same conduct.” He cites
authority generally setting forth basic double jeopardy principles, e.g., Ex parte Garrels,
559 S.W.3d 517, 522 (Tex. Crim. App. 2018), but he does not apply any such law to the
facts of this case. 7 See TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to “contain a
clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record”). Further, though Carla acknowledged she testified at the
punishment phase of the 2016 trial, Sheppard directs us to nothing in the record
demonstrating that she gave any testimony concerning any of the events giving rise to
7 In his brief, Sheppard states he “incorporates by reference his arguments from his many pro se
filings.” He cites Davis v. State, in which the Texas Court of Criminal Appeals noted the appellant’s “verbatim duplication of material from [a previous] unpublished opinion without proper citation to the case does not conform to our briefing requirements” but nevertheless addressed the merits of his arguments “in the interest of justice.” No. AP-77,031, 2016 WL 6520209, at *39 (Tex. Crim. App. Nov. 2, 2016) (mem. op., not designated for publication). We note that unpublished opinions from the Texas Court of Criminal Appeals “have no precedential value and must not be cited as authority by counsel or by a court.” TEX. R. APP. P. 77.3. Moreover, the rules of appellate procedure do not permit the incorporation of trial court arguments by reference. See, e.g., RH White Oak, L.L.C. v. Lone Star Bank, No. 14-16-00840-CV, 2018 WL 4925118, at *8 (Tex. App.—Houston [14th Dist.] Oct. 11, 2018, pet. granted, judgm’t vacated w.r.m.) (mem. op.) (“Were we to allow parties before this court to merely reference in their appellate brief a filing in the trial court as a stand-in for argument, analysis, and citation to the record, Rule 38.1 would be meaningless.”); cf. TEX. R. APP. P. 9.7 (“Any party may join in or adopt by reference all or any part of a brief, petition, response, motion, or other document filed in an appellate court by another party in the same case.”).
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this case. 8 His first issue is overruled as inadequately briefed. See id.
B. Motion for Mistrial
By his second issue on appeal, Sheppard argues the trial court erred by denying
his motion for mistrial after Karen testified regarding an extraneous offense.
“A mistrial is a device used to halt trial proceedings where error is so prejudicial
that expenditure of further time and expense would be wasteful and futile.” Guerrero v.
State, 528 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2017, no pet.). It is an
appropriate remedy only “in ‘extreme circumstances’ for a narrow class of highly
prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)), abrogated
on other grounds by Becerra v. State, 685 S.W.3d 120, 139 (Tex. Crim. App. 2024);
Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). We review the denial of
a mistrial for abuse of discretion. Archie v. State, 340 S.W.3d 734, 738–39 (Tex. Crim.
App. 2011). The ruling will be upheld if it was in the zone of reasonable disagreement.
Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). In determining whether the
trial court abused its discretion in denying a mistrial, we consider (1) the severity of the
misconduct, (2) the measures adopted to cure the misconduct, and (3) the certainty of
conviction absent the misconduct. Archie, 340 S.W.3d at 739. Because it is an extreme
remedy, a mistrial should be granted only when residual prejudice remains after less
8 In any event, as the State notes, this Court has previously held “[d]ouble jeopardy does not apply
when subsequent extraneous offenses are used during the punishment stage for a prior unrelated offense because consideration of subsequent criminal activity does not equate to a trial, conviction, or punishment for the unadjudicated offenses.” Ortiz v. State, No. 13-01-374-CR, 2004 WL 1146485, at *3 (Tex. App.— Corpus Christi–Edinburg May 13, 2004, no pet.) (mem. op., not designated for publication) (first citing Ex parte Broxton, 888 S.W.2d 23, 28 (Tex. Crim. App. 1994); then citing Davis v. State, 839 S.W.2d 147, 148 (Tex. App.—Beaumont 1992, no pet.); and then citing Lester v. State, 824 S.W.2d 775, 778–79 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d)).
6
drastic alternatives are explored. Ocon, 284 S.W.3d at 884–85; see Bauder v. State, 921
S.W.2d 696, 698 (Tex. Crim. App. 1996) (en banc) (noting that even if inadmissible
testimony comes before the jury, “our law prefers that the trial continue” unless the
evidence “is so emotionally inflammatory that curative instructions are not likely to prevent
the jury being unfairly prejudiced against the defendant”).
The following colloquy occurred during Karen’s testimony at the guilt-innocence
phase:
Q. [Prosecutor] So at some point you decided to make it right, right.
How do you mean, did you ask [Sheppard] for
anything?
A. [Karen] Oh for one, I wanted payment. Oh, my God you offered
a nine[-]year-old money. She is asleep, how dare you.
Okay, you need to give her a [thousand dollars] then.
You need to give her a damn [thousand dollars] on top
of the one I was suppose—my children didn’t know the
details of every time we got together.
Just like the cat was out of the bag a little bit in my
world, I lost my family after that.
Q. So you said you are going to pay [Carla] a [thousand
dollars]?
A. Yes, ma’am.
Q. And in addition to that, did you ask him for anything?
A. Yeah, he needs to be responsible for her counseling.
She is going to need it. I’m 52 and I’m still messed up.
She is going to need it.
Q. Did you tell him anything else that you wanted him to
pay for?
A. I knew I couldn’t sleep with him, again, so we are trying
to come up with ways I can get money from him; other
than the transaction of sex and there is no way. So it
was back to real estate where it started kind of. We
made a contract and everything and, yeah, that did not
come to fruition.
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That was gonna help—I was going to get three percent
of every sale in real estate like commission from like I
was the realtor. He had a felony, he couldn’t become a
licensed builder. I did all the paperwork, the name[,]
paid for everything so.
At that point, defense counsel objected, requested an instruction to disregard, and moved
for mistrial. After hearing argument outside the presence of the jury, the trial court denied
the motion for mistrial but admonished Karen not to discuss Sheppard’s criminal history.
When the jury returned, the trial court gave the following instruction:
Ladies and gentlemen of the jury, before we took a break the witness made
statements. The last two statements made by the witness were nonresponsive to the question and I am directing you to not consider them in
your deliberations. Any of the last two statements you heard from the
witness, you are not to consider in your deliberations.
We cannot conclude the trial court abused its discretion by denying a mistrial under
these circumstances. See Archie, 340 S.W.3d at 738–39. The prosecutor did not ask
Karen any question which could reasonably be anticipated to lead to testimony about
Sheppard’s criminal history. Karen did not provide any details about the extraneous felony
offense, nor did she specify whether it was a conviction or merely a charge. The offense
was not mentioned again in the remainder of the trial. 9 The severity of the misconduct
was therefore low. See id.; Perez v. State, 187 S.W.3d 110, 112–13 (Tex. App.—Waco
2006, no pet.) (considering, in evaluating the first Archie factor, whether the mistake was
repeated and whether it seemed inadvertent or intentional).
As to curative measures, Sheppard argues without reference to authority that the
court’s instruction to the jury was inadequate because (1) it was made after a 25-minute
9 Sheppard argues his counsel renewed his motion for mistrial after “another [S]tate witness also
insinuated there was other extraneous conduct by [Sheppard] concerning domestic violence.” We have reviewed the cited portions of the record and can locate no such testimony.
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break in the trial and (2) it merely said not to consider the testimony “in your deliberations.”
We disagree. “A witness’s inadvertent reference to an extraneous offense is generally
cured by a prompt instruction to disregard.” Rojas v. State, 986 S.W.2d 241, 250 (Tex.
Crim. App. 1998). Here, the instruction to disregard was clear and unambiguous, it was
given at the first possible opportunity, and it was the first thing the jury heard after the
complained-of testimony. “We generally presume the jury follows the trial court’s
instructions in the manner presented.” Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim.
App. 1998). This presumption is rebuttable, but Sheppard directs us to nothing in the
record in rebuttal. See id.
Finally, as to certainty of conviction absent the misconduct, Sheppard emphasizes
that the jury convicted only on a lesser-included offense, and he notes “[i]t was essentially
undisputed that [Carla]’s family tried to extort [him].” However, whether Karen tried to
extract money from Sheppard after learning about his abuse of her daughter does not
bear upon the elements of the offense, which Carla testified to consistently and which
were corroborated by her accounts to investigators and medical personnel. 10 Overall, the
record does not demonstrate the subject testimony was “so emotionally inflammatory”
that it prejudiced the jury notwithstanding the curative instruction. See Bauder, 921
S.W.2d at 698.
We overrule Sheppard’s second issue.
10Sheppard argues without reference to the record that Carla’s testimony regarding “the surrounding events [was] wildly inconsistent with the recollections of [Karen] and [Fred].” We disagree. Sheppard points to no specific conflicts in their testimonies, and we find nothing significant in that regard.
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III. CONCLUSION
The trial court’s judgment is affirmed.
YSMAEL D. FONSECA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed on the
17th day of September, 2026.
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