Opinion filed January 24 , 2014



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 12

- 00045

- C R

__________ 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

M E M O R A N D U M O P I N I O N 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 order ed her to make restitution
i n the amount of $160,000. We affirm.2 In this appeal , Sanders first argues that the trial court erred when it admitted
evidence of extraneous of fenses

. 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 occup ied the other downstairs unit. Naomi Delarosa Sanchez and
he r 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 a ll 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.
Aft er 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 that3 required the use of lighter fluid. In Kilgore’s opinion, the matches from the car
and those found at the sce ne 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 leav e 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 door way to her unit , she saw a

woman park her car
, remove a tire tool from the trunk of her car, a nd go up the
stairs. Robinson then heard the sound of breaking glass coming fro m 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 on e 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 testifi ed 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.” Aft er Appellant said that “ [ e ] verybody better evacuate the building,”
Glover , because she knew the Whitfield family
, tried to call and warn the m

.4 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 iro n. One of Appellant ’s complaints about the admission into evidence of the
extraneous offense s is that those acts did not “ relate to other acts by t he accused against the complain ant .” Appellant concedes that “there was some connection between Joseph Grace and the [apartment s] where the fire occurred

. ” B ut 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 p arty 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 act s evidence under Rule 404(b) is whether that evidence is5 probative of a material issue other than character.” Huddleston v. United States
, 485 U.S. 681, 686 (1988) ; see T EX

. R. E VID

. 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, 4 66 (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 act ed 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 T EX

. R. E VID

. 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 ha ve 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 mu st 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 al so a victim of the indicted offense even though he wa s not named in the indictment.6 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 tha t 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, i t 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 i n 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.” I n addition to Robinson’s testimony, Latoya Whitfield identified Appellant as the person who had broken the windows in Grace’s

apar tment 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
d iscretion 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 the7 motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accide nt 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 co urt’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 e vidence 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 instruct ion, “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.8 If evidence of extraneous acts is admitted at trial, “ regardless of whet her 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 pr ove 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.
N o such instruction was given during the punishment phase of this trial. However,
b ecause 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. 3 d 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 lighter9 sentence. Appellant faced up to ninety

- nine years ’ imprisonment and up to a $10,000 fine
, see T EX

. P ENAL C ODE A NN

. §§ 12.32, 28.0 2 (d)(2) (West 2011 ), but the jury assessed a fourteen

- year sentence and a $3,000 fine

. Appellant has failed
to demonstrate that s he 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 T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.