Opinion filed January 24, 2014




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-12-00045-CR
                                     __________

             KINDRELL MONIQUE SANDERS, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR35446

                      MEMORANDUM OPINION
    The jury convicted Kindrell Monique Sanders of the offense of arson and
assessed her punishment at confinement for fourteen years and a fine of $3,000.
The trial court sentenced Sanders accordingly and ordered her to make restitution
in the amount of $160,000. We affirm.
      In this appeal, Sanders first argues that the trial court erred when it admitted
evidence of extraneous offenses. In the same point of error, Sanders claims that
the trial court erred when it failed to properly instruct the jury during both phases
of the trial on the burden of proof related to such evidence.
      Dwain Rotan owned a four-unit apartment complex located at 201
Edgewood in Midland. At the time of the fire, all four units were rented. Janice
Robinson and her son lived in a downstairs unit, and seven members of the
Whitfield family occupied the other downstairs unit. Naomi Delarosa Sanchez and
her son lived in one of the upstairs units, and Joseph Grace occupied the other.
Appellant had been in a relationship with Grace; Grace was also known as “Po
Pimp.”
      Somewhere around 3:00 a.m. on December 10, 2006, the entire apartment
complex was completely destroyed by fire. Alan Kilgore worked in the Fire
Marshal’s office for the City of Midland. During a subsequent investigation as to
the cause of the fire, Kilgore determined that the fire originated on the front porch
of Grace’s apartment and “quickly burned from the front door, front window area
up into the attic, and it spread through the rest of the building from there.” The
building was completely destroyed, as were some of the vehicles that were parked
nearby. Kilgore noticed that all four tires on Grace’s vehicle had been slashed, the
windows had been broken, and there were several wooden matches on and around
the car. Kilgore concluded that the person who started the fire had used some type
of flammable or combustible liquid.
         After talking to witnesses, the investigators seized and impounded
Appellant’s car. In their subsequent search of the car, the investigators found a can
of charcoal lighter, a box of wooden matches, several lighters, and a tire iron.
They searched Appellant’s home but did not find a grill or anything else that


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required the use of lighter fluid. In Kilgore’s opinion, the matches from the car
and those found at the scene appeared “to be identical.”
      Latoya Whitfield testified that, two weeks before the fire, she saw Appellant
go upstairs to Grace’s apartment, and she heard the sound of breaking glass. She
did not see Appellant throw anything, but she heard the glass break and knew that
no one else was in the apartment. She also saw Appellant leave the apartment.
Latoya testified that Appellant broke the window to Grace’s apartment on a second
occasion as well. The landlord repaired the window the first time but required that
Grace repair it the second time. Robinson, the other downstairs tenant, testified
that, on one occasion as she was standing in the doorway to her unit, she saw a
woman park her car, remove a tire tool from the trunk of her car, and go up the
stairs. Robinson then heard the sound of breaking glass coming from Grace’s
apartment and, after that, saw the woman running back to her car. Robinson
testified that the tire tool that had been seized from Appellant’s car was similar to
the one she saw the female carrying.
      About six weeks before the apartment fire, someone set fire to Grace’s car.
Kimberly Whitfield, a downstairs tenant, testified that Appellant admitted that she
had set Grace’s car on fire and that Appellant laughed about it. Pictures of that car
were admitted at trial. Kimberly also testified that, on yet another occasion, Ap-
pellant sprayed pepper spray into Grace’s eyes during an argument.
      On the night that the arson occurred, Kimberly saw Grace with another
woman. In fact, Appellant had called her friend, Dominica Glover, from outside a
local nightclub called “Kings” and told Glover that Grace “was with another girl or
did something at Kings.” Appellant told Glover that “she was fighting this demon
not to go off on him” and that “[h]e going to make me take a trip to 201
Edgewood.” After Appellant said that “[e]verybody better evacuate the building,”
Glover, because she knew the Whitfield family, tried to call and warn them.
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      Meanwhile, Arthur Ray Hubbard and his grandmother were preparing to
deliver newspapers early that morning, and they saw Appellant at a nearby gas
station. Hubbard saw Appellant put gas into a glass bottle. Hubbard noticed that
Appellant was driving a maroon car, and he later saw the same car about a block
from the apartment building around the time of the fire. Hubbard’s grandmother
told the jury that she saw the maroon car “speeding away” from the apartment
complex. Hubbard also testified that he knew Grace and that he previously had
seen Appellant attack Joseph with a tire iron.
      One of Appellant’s complaints about the admission into evidence of the
extraneous offenses is that those acts did not “relate to other acts by the accused
against the complainant.” Appellant concedes that “there was some connection
between Joseph Grace and the [apartments] where the fire occurred.” But she
argues that, because Grace “is neither the victim nor the complainant identified in
the indictment,” the trial court erred “in allowing evidence of extraneous offenses
allegedly committed by appellant against a third party in this case.” Specifically,
Appellant complains about allowing witnesses to testify that she had set fire to
Grace’s car, that she had used a tire iron to break the windows in Grace’s
apartment, and that she had used pepper spray during an argument with Grace.
The State counters that the connection must be one in which the offense committed
is connected with the extraneous conduct.
      Whether evidence of an extraneous act is relevant apart from character
conformity is a question for the trial court. De La Paz v. State, 279 S.W.3d 336,
343 (Tex. Crim. App. 2009). We review a trial court’s ruling on the admissibility
of an extraneous offense for an abuse of discretion. Id. There has not been an
abuse of discretion as long as the trial court’s ruling is within the zone of
reasonable disagreement. Id. “The threshold inquiry a court must make before
admitting similar acts evidence under Rule 404(b) is whether that evidence is
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probative of a material issue other than character.” Huddleston v. United States,
485 U.S. 681, 686 (1988); see TEX. R. EVID. 404(b). If so, “such evidence should
be admitted if there is sufficient evidence to support a finding by the jury that the
defendant committed the similar act.” Id. at 685.
      Evidence of prior bad acts is admissible “if such evidence logically serves to
make more or less probable an elemental fact, an evidentiary fact that inferentially
leads to an elemental fact, or defensive evidence that undermines an elemental
fact.” Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005); see also
Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991). Rule 404(b)
prohibits a trial court from admitting evidence of an extraneous offense to prove
that the defendant acted in conformity with the character that he demonstrated
when committing the previous bad act. Santellan v. State, 939 S.W.2d 155, 168
(Tex. Crim. App. 1997); see TEX. R. EVID. 404(b). It must be “relevant to a fact of
consequence apart from its tendency to show conduct in conformity with
character.” Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
      Appellant’s first contention is that evidence of the extraneous offenses
should not have been admitted to show her motive because the extraneous offenses
were not directed toward the victim identified in the indictment.         Appellant
correctly asserts that, to be admissible to prove motive, extraneous offense
evidence generally must relate or pertain to other acts by the accused against the
victim of the charged offense. See Foy v. State, 593 S.W.2d 707, 709 (Tex. Crim.
App. [Panel Op.] 1980). However, Appellant cites to no authority in support of her
contention that the extraneous offense must have been committed against the
complainant that was actually named in the indictment. Rotan, the owner of the
apartment complex in which Grace lived, was named in the indictment as the
complainant. There can be no question, however, that Grace was also a victim of
the indicted offense even though he was not named in the indictment.
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      At trial, Appellant argued that she did not start the fire and that the
investigators were not able to rule out an accident as the cause of the fire. In order
to show that Appellant had a motive and to indicate the lack of accident, evidence
of Appellant’s volatile relationship with Grace and evidence that she had set fire to
his car on a previous occasion is relevant apart from showing conformity with
character. In this case, it does not matter that Grace was not named as the victim
or the complainant in the indictment.         Additionally, without eyewitnesses, a
confession, or other direct evidence, the State’s need for the extraneous offense
evidence “raise[s] an inference in favor of the existence of a motive on the part of
the accused to commit the alleged offense.” See Rodriguez v. State, 486 S.W.2d
355, 358 (Tex. Crim. App. 1972).
      Appellant’s second contention is that the trial court erred when it allowed
Robinson to testify that an unidentified female used a tire tool to break the
windows in Grace’s apartment because Robinson’s testimony “failed to even show
that an offense was committed, let alone that appellant was the perpetrator of this
extraneous offense.”    In addition to Robinson’s testimony, Latoya Whitfield
identified Appellant as the person who had broken the windows in Grace’s
apartment on two separate occasions. Additionally, Hubbard testified that, on
another occasion, he saw Appellant try to hit Grace with a tire iron. We conclude
that this evidence is sufficient to support a finding that Appellant was the
unidentified female that Robinson observed breaking the window.                   See
Huddleston, 485 U.S. at 685. We hold that the trial court did not abuse its
discretion when it admitted evidence of the extraneous offenses.
      Next, Appellant claims that the trial court erred when it failed to “give a
limiting instruction on extraneous offenses” during the “guilt-innocence” phase of
the trial. Appellant contends that the trial court should have admonished the jurors
to “limit their consideration of [extraneous offense] evidence to determining the
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motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident of the defendant in connection with the offense alleged against
her in the indictment and for no other purpose.”
      The State argues that Appellant “received the relief of which she claims
error” because there was such an instruction in the charge. The court’s charge
during the guilt/innocence phase of the trial included the following instruction:
             With regard to any evidence of conduct or acts of Defendant
      other than the accusation in the indictment, you are instructed that you
      cannot consider such other evidence unless you first believe beyond a
      reasonable doubt that she actually engaged in such other conduct, and
      if you do so believe then your consideration of such other evidence is
      limited to the issue of motive and for no other reason.

Because the jury charge that the trial court submitted to the jury during the
guilt/innocence phase of the trial contains the very instruction that Appellant
complains was missing, we find no error in that regard.
      Appellant also argues that such an instruction should have been included in
the charge during the punishment phase of the trial. The State argues that, because
such an instruction was given during the guilt/innocence phase and because the
State “did not put on any evidence during the punishment phase of trial,” it was not
error to exclude such an instruction from the charge on punishment. The State
further argues that, even if it was error not to include the instruction, “the failure to
give such an instruction did not cause the appellant egregious harm” because
“[t]here was substantial evidence of her guilt” in light of the evidence that
Appellant knew that Grace was with another woman earlier that evening, that she
was going “over to the apartment because a demon encouraged her,” and that
eyewitnesses saw her filling a glass container with gasoline and saw her near the
scene later that evening.



                                           7
      If evidence of extraneous acts is admitted at trial, “regardless of whether
such evidence was introduced at the guilt-innocence or punishment phase,
article 37.07, section 3(a) requires that the jurors be instructed not to consider such
[evidence] in assessing the defendant’s punishment unless they find the defendant
culpable for such offenses or acts under the statutorily prescribed reasonable-doubt
standard.” Allen v. State, 47 S.W.3d 47, 50 (Tex. App.—Fort Worth 2001, pet.
ref’d). Although the State offered evidence of the extraneous offenses only during
the guilt/innocence phase to prove motive, the jury must have been satisfied
beyond a reasonable doubt that such offenses were attributable to Appellant before
it could consider the extraneous offense evidence to assess punishment. See id.
No such instruction was given during the punishment phase of this trial. However,
because Appellant did not object to the missing instruction, we apply the Almanza
standard to assess harm. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.
1985). When a defendant fails to object to jury charge error, we examine the entire
record to determine whether the error was so egregious and created such harm that
the defendant did not receive a fair and impartial trial.          Id.   Under these
circumstances, “the actual degree of harm must be assayed in light of the entire
jury charge, the state of the evidence, including the contested issues and weight of
probative evidence, the argument of counsel and any other relevant information
revealed by the record of the trial as a whole.” Id. at 171. The harm must be
actual and not merely theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim.
App. 1999).
      Appellant does not argue that the evidence of her extraneous misconduct
was insufficient to support a conviction, lacking in credibility, or materially
impeached. Nor did Appellant provide authority, evidence, reasoning, or other
considerations indicating that, if an instruction had been given, the jury would
likely have disregarded the extraneous offense evidence or imposed a lighter
                                          8
sentence. Appellant faced up to ninety-nine years’ imprisonment and up to a
$10,000 fine, see TEX. PENAL CODE ANN. §§ 12.32, 28.02(d)(2) (West 2011), but
the jury assessed a fourteen-year sentence and a $3,000 fine. Appellant has failed
to demonstrate that she suffered egregious harm as a result of the trial court’s
failure to instruct the jury during the punishment phase that the State must prove
extraneous offenses beyond a reasonable doubt. Appellant’s sole point of error is
overruled.
      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE

January 24, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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