                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00008-CR



          VALERIE LEE STANTON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



      On Appeal from the County Court at Law No. 3
                  Travis County, Texas
           Trial Court No. C-1-CR-17-500300




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Burgess
                                     MEMORANDUM OPINION
           Valerie Lee Stanton was convicted by jury of the Class A misdemeanor offense of deadly

conduct 1 and was sentenced by the trial court to two days’ confinement in the Travis County Jail.2

Stanton appeals, claiming that (1) the evidence is insufficient to sustain the conviction, 3 (2) the

trial court erred when it admitted certain expert testimony over her objection, and (3) she is entitled

to a new trial pursuant to Rule 34.6(f) of the Texas Rules of Appellate Procedure. Because we

find that the evidence is sufficient to support the conviction, Stanton’s complaint regarding the

admission of certain expert testimony is not preserved, and Stanton is not entitled to a new trial,

we affirm the trial court’s judgment.

I.         Background

           On February 22, 2017, James Etuale, a resident of the Forest Hills Apartments, was coming

home from lunch when he saw Stanton walking from a mattress fire behind a dumpster at the back

of the apartment complex. When Etuale spotted Stanton, she was about ten yards from the fire,

which was then relatively small. Etuale approached Stanton and asked her if she had called the

fire department. Stanton replied that she had not and told Etuale to let the fire burn a little longer,

that the trash was overflowing, that the complex would do nothing about it, and that someone had



1
    See TEX. PENAL CODE ANN. § 22.05(a).
2
 Originally appealed to the Third Court of Appeals in Austin, this case was transferred to this Court by the Texas
Supreme Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 73.001.
We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
3
 Stanton also appeals from a judgment of conviction for criminal mischief in cause number 06-19-00009-CR. Our
opinion in that cause number is issued of even date herewith.

                                                         2
to deal with it. Stanton expressed disregard for the houses in close proximity to the fire. When

Etuale called 9-1-1, Stanton asked Etuale to tell investigators that she was with him “during the

incident.” In addition to the mattress and other rubble, the fire burned a tree and a six-foot privacy

fence at the back of the complex that separated a residential neighborhood from the complex.

        Kenneth Beerbower, also a Forest Hills resident, testified that there was no security gate at

the back of the complex where mattresses, sofas, and all types of furniture had been dumped.

According to Beerbower, this “mountain” of refuse had been there three or four months, and people

were living in it. Although Beerbower did not see the fire, he testified that on two different

occasions, Stanton threatened to burn the pile of refuse. Approximately six weeks before the fire,

Stanton had been drinking and said that she was going to burn the refuse. Beerbower thought it

was a joke. According to Beerbower, Stanton was very upset about the refuse pile on the day of

the fire and told him that she was going to burn it. Beerbower thought Stanton was joking again.

The fire happened later that same day.

        Lieutenant Reynold Elmore and Captain Andy Reardon, 4 fire and arson investigators with

the Austin Fire Department, investigated the fire. Reardon conducted the scene investigation and

Elmore conducted the scene interviews. After speaking with Beerbower, Elmore decided to

interview Stanton. Stanton told him that on the day of the fire, she was going to meet a friend for

lunch at around 1:30. She told Elmore that as she was leaving for lunch, she saw Etuale and they




4
 Reardon had been with the fire department for twenty-four years and had been a captain for nine and one-half years.
When Reardon was a lieutenant, he participated in a 180-hour fire investigator course and became a certified fire
investigator. When he was promoted to the rank of captain, he underwent training at the police academy and became
a certified peace officer. His fire investigator certification was then upgraded to that of arson investigator.

                                                         3
both noticed the fire together. When Elmore pressed her on the issue of how the fire started,

Stanton then claimed that she was not there.

       When Reardon arrived to conduct the origin and cause investigation, the fire was still

smoldering. The fire, located in the corner of the apartment complex next to a dumpster,

encompassed approximately 200 square feet.          Reardon discovered the remains of burned

mattresses and a wooden privacy fence. Reardon opined that a discarded cigarette would not have

caused the fire because a cigarette does not generate sufficient heat to ignite wood or mattresses.

Although electricity can cause a fire, there was no evidence that electrical service lines were

damaged or would have thrown sparks that could have ignited the mattresses and the fence. In

Reardon’s opinion, the fire was caused by an open flame such as a lighter or a match. Reardon

opined that the fire was not accidental and that it was dangerous because it was located

approximately thirty feet from a housing area behind the apartment complex.

II.    The Evidence Is Sufficient to Sustain the Conviction

       In evaluating legal sufficiency of the evidence supporting Stanton’s conviction, we must

review all the evidence in the light most favorable to the jury’s verdict to determine whether any

rational jury could have found, beyond a reasonable doubt, that Stanton committed the offense of

deadly conduct. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863

(Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007)). We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the


                                                4
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of

liability, and adequately describes the particular offense for which the defendant was tried.” Id.;

see Allen v. State, 436 S.W.3d 815 (Tex. App.—Texarkana 2014, pet. ref’d).

        A person commits the offense of deadly conduct if she “recklessly engages in conduct that

places another in imminent danger of serious bodily injury.” TEX. PENAL CODE ANN. § 22.05(a).

Stanton claims that the evidence is insufficient to sustain her conviction because there is no

evidence that anyone was ever placed in imminent danger of serious bodily injury. 5 In Garcia v.

State, the Texas Court of Criminal Appeals stated, “although the Texas Penal Code does not define

‘imminent,’ this Court has defined that term to mean ‘ready to take place, near at hand, impending,

hanging threateningly over one’s head, menacingly near.’” Garcia v. State, 367 S.W.3d 683, 689

(Tex. Crim. App. 2012) (citing Devine v. State, 786 S.W.3d 268, 270 (Tex. Crim. App. 1989)). In

Garcia, the Court of Criminal Appeals held that there was no evidence to establish that a mother

who took her child outside dressed only in a diaper on a fifty-eight-degree evening placed her child

in imminent danger of serious bodily injury. Id. The Court of Criminal Appeals noted that there


5
 “‘Serious bodily injury’ means bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” TEX.
PENAL CODE ANN. § 1.07(a)(46) (Supp.). The Texas Penal Code does not define the term “imminent.”

                                                         5
was no evidence of how long the child had been exposed to the weather, that she was not crying,

and particularly noted that the arresting officer—who had five years’ experience as an EMT—did

not feel it was necessary to call an ambulance for the child. Id. Accordingly, the Court of Criminal

Appeals affirmed the lower court’s decision reversing the mother’s conviction for endangering a

child. Id.

       While we have not found a case addressing the question of imminent bodily injury in an

arson context, in Pruett v. State, the Texas Court of Criminal Appeals discussed whether a

defendant charged with arson had used a deadly weapon when setting fire to a house. Pruett v.

State, 510 S.W.3d 925, 926 (Tex. Crim. App. 2017). The court’s reasoning in Pruett is helpful in

analyzing the issue in this case. In ruling that fire was a deadly weapon in Pruett, the Court of

Criminal Appeals held, “Fire is inherently dangerous . . . and it is capable of inflicting serious

bodily harm, especially when it is intentionally started in a residential neighborhood.” Id. at 929.

The Texas Court of Criminal Appeals also stated,

       This fire was dangerous because it was left unattended and because appellant used
       an accelerant. As a result, the fire endangered not only the lives of the firefighters
       who responded to the call but also the lives of neighbors who could have been killed
       or seriously injured if the fire continued to spread.
Id.

       In this case, the jury heard testimony that due to the large amount of debris in the area, the

fire grew rapidly from the size of a computer monitor to an area covering approximately 200-

square feet in the corner of the apartment complex in no more than ten minutes. The fire consumed

the six-foot-tall wooden privacy fence at the back of the complex, along with mattresses and other

debris. The privacy fence was all that separated the fire from the residential housing area located


                                                 6
only thirty feet behind the complex. The fire also burned a large tree situated along the fence in

front of the residential housing area. The fire crew worked to ensure that the fire did not spread to

the nearby houses, which they considered “exposure” buildings and a priority for protection from

the fire.

        Using the court’s reasoning in Pruett, in deciding whether anyone was in imminent danger

of serious bodily injury in this case, we note that fire is inherently dangerous, especially when it is

set in a residential neighborhood. Moreover, imminent harm of serious bodily injury is not limited

to its imminent impact on neighboring residents, but also must be measured by its imminent impact

on the firefighters charged with extinguishing it. Furthermore, in addition to the evidence cited

above, the State’s photograph exhibits taken after the fire was extinguished suggest that the fire in

question was extensive. Given the photographic evidence, the close proximity of the fire to

residential structures, the degree to which the fire spread in ten minutes, the exposure of the

firefighters to serious bodily injury in extinguishing the fire, and the witness testimony, and

viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury

could have found that the fire posed an imminent danger of serious bodily injury to the residents

of the homes in close proximity to it. We overrule this point of error.

III.    Stanton’s Complaint Regarding the Admission of Certain Expert Testimony Was Not
        Preserved for Appellate Review

        There was no dispute at trial that Reardon was qualified as an expert witness. Stanton

claims, however, that the trial court erred in permitting Reardon to testify that the fire was not

accidental and was started by an open flame. Reardon testified without objection that an open

flame would had to have been used to start the fire and that the most common sources of open

                                                  7
flames are matches and lighters. Reardon was then asked, “[I]n your experience as an arson

investigator, a match, lighter, something like that -- generally speaking, is that an accident?”

Stanton objected, stating that this testimony was “outside of [Reardon’s] scope of experience and

call[ed] for speculation.” Before ruling on Stanton’s objection, the trial court permitted Stanton

to voir dire Reardon on this issue.

         On voir dire outside of the jury’s presence, Reardon testified that he was not aware of any

specific training for what amounts to the accidental lighting of a match or a lighter as opposed to

the intentional lighting of a match or a lighter. Reardon simply opined that one cannot accidentally

light a match or a lighter. He further opined that starting a fire with an open flame such as that

generated by a match or a lighter is an intentional rather than accidental act. Reardon testified that,

based on his experience in investigating hundreds of fires, he had never seen somebody

accidentally light a mattress on fire. He conceded that it was possible for somebody to pass out

on a mattress and set it on fire with a crack pipe or a cigarette or by knocking over a candle;

however, he stated that he had never personally seen that happen.

         At the conclusion of voir dire, Stanton told the trial court that Reardon was not “going to

be able as an expert to say whether . . . he can look through the forensics and say this mattress was

set on fire with a lighter intentionally versus accidentally.” 6 The court overruled Stanton’s


6
 Reardon’s credentials and opinions were thoroughly vetted at a pretrial Daubert hearing, following which Stanton
requested that the State not be permitted to present expert testimony regarding the cause of the fire. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Stanton’s reasoning for this request was that Reardon’s opinion
was based, at least in part, on inadmissible hearsay. The hearing judge overruled the request. Stanton did not raise
any appellate complaints regarding that ruling. Stanton re-visited this issue at trial in front of a different judge. The
trial court ruled that an expert opinion can only be based on evidence that has been introduced at trial and that Reardon
could not give an opinion on whether the fire was intentionally or knowingly set.


                                                           8
objection and determined that Reardon could state his opinion, based on his training and

experience. When the jury returned to the courtroom, Reardon testified that based on his training

and experience, he did not believe that the fire could have been an accidental fire and that an open

flame had been used to set the fire.

           On appeal, Stanton specifically complains that the trial court erred in permitting this

testimony because it failed to apply the Kelly 7 test. She complains that the record lacks any

indication that the trial court determined whether the underlying scientific theory supporting the

claim that the fire was caused by an open flame was a valid scientific theory, whether the technique

applying the theory was valid, or whether the technique was properly applied to the facts presented.

At trial, however, Stanton objected to the testimony at issue on the basis that it was outside of

Reardon’s scope of expertise and that it was speculation. She did not advise the trial court that her

objection was based on the validity of the underlying scientific theory, the validity of the technique

applying the theory, or the validity of the application of the technique to the facts presented.

Because Stanton’s appellate complaint was not made at trial, we may not address it on appeal.

“The point of error on appeal must correspond or comport with the objection made at trial.” Wright

v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (citing Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1998) (op. on reh’g)). “Where a trial objection does not

comport with the issue raised on appeal, the appellant has preserved nothing for review.” Id.; see

TEX. R. APP. P. 33.1. We overrule this point of error.




7
    Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).

                                                           9
IV.       Stanton Is Not Entitled to a New Trial

          Because the punishment phase proceedings were not recorded, Stanton seeks a reversal and

remand for a new trial pursuant to Rule 34.6 of the Texas Rules of Appellate Procedure. Rule

34.6(f) provides:

                 (f)     Reporter’s Record Lost or Destroyed. An appellant is entitled to a
          new trial under the following circumstances:

                         (1)     if the appellant has timely requested a reporter’s record;

                         (2)     if, without the appellant’s fault, a significant exhibit or a
                 significant portion of the court reporter’s notes and records has been lost or
                 destroyed . . .

                         (3)       if the lost, destroyed, or inaudible portion of the reporter’s
                 record . . . is necessary to the appeal’s resolution; and

                        (4)     if the lost, destroyed or inaudible portion of the reporter’s
                 record cannot be replaced by agreement of the parties . . . .

TEX. R. APP. P. 34.6(f). We abated this matter to the trial court for an evidentiary hearing pursuant

to Rule 34.6, subsections (e) and (f), for the purposes of (1) determining whether all portions of

the record to which the parties were entitled had been provided to them and filed with this Court

and (2) identifying and correcting, if possible, any inaccuracies or deficiencies in the reporter’s

record.

          Following a hearing, the trial court issued findings of fact and conclusions of law in which

it determined that, at the punishment hearing, both sides requested that the court reporter record

the proceedings, but the court denied their respective requests and asked each party what sentence

they sought. The trial court further found that (1) the State requested community supervision and

Stanton requested that she be sentenced to time served, (2) the trial court sentenced Stanton to two

                                                   10
days’ confinement in the county jail in each case, 8 (3) the trial court gave Stanton credit for time

served, and (4) the trial court ordered the sentences to be served concurrently. Finally, the trial

court concluded that both “parties agreed that [Stanton] received the sentence that she sought,

[and] any error made by the Court’s refusal to have the court reported [sic] record [of] the hearing

is harmless.” Consequently, the trial court found that a new punishment trial was not required.

We agree.

            Even assuming a record of the punishment hearing were necessary to the resolution of this

appeal, the parties have agreed to the course of events that took place at the punishment trial and

have further agreed that Stanton received the sentence that she requested. Consequently, Stanton

is not entitled to a new trial. See TEX. R. APP. P. 34.6(f).

V.          Conclusion

            We affirm the trial court’s judgment.




                                                        Ralph K. Burgess
                                                        Justice

Date Submitted:              October 16, 2019
Date Decided:                November 5, 2019

Do Not Publish




8
    Stanton was also sentenced for her criminal mischief conviction.

                                                           11
