Benny James Phennel v. THE STATE OF TEXAS

• Court: Court of Appeals of Texas
• Decided: August 6, 2024
• Docket: 05-23-00860-CR
• Status: Published

Opinion

Affirm and Opinion Filed August 6, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00860-CR

BENNY JAMES PHENNEL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-81562-2021

MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Molberg A jury found appellant Benny Phennel guilty of continuous sexual abuse of a

child and assessed punishment at forty-five years’ confinement. On appeal, he

argues the trial court erred in overruling his Sixth Amendment objection to the

admission of an audio recording of a conversation between appellant and members

of his family. Because we find this issue was not preserved for appellate review, we

affirm the trial court’s judgment.

Following voir dire, the trial court invited the parties to discuss certain pretrial

matters, including the admissibility of the aforementioned audio recording. Defense counsel objected to the recording, stating, “We would object to anybody else’s voice

that’s giving testimony for the State for hearsay and Crawford.” The trial court

indicated it did not believe appellant’s objections had merit but also stated, “I don’t

like to pre-admit exhibits, so I am not. It will be introduced. I will entertain probably

the same objections as I have now, but I did want to give you a heads-up of where

the Court was going with it.” Later, during trial, the State offered the recording into

evidence, and defense counsel stated, “Your Honor, we renew our previous

objections to hearsay and confrontation on any witnesses on this that is not going to

testify in front of the jury.” The trial court overruled appellant’s objections.

As stated above, in his sole issue, appellant contends the trial court erred in

overruling his objection to the recording. He argues the trial court’s ruling violated

his Sixth Amendment confrontation rights. As a prerequisite to presenting a

complaint for appellate review, however, the record must show that, among other

things, the complaint was made to the trial court by a timely request, objection, or

motion that stated the grounds for the ruling the complaining party sought from the

trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context. See TEX. R. APP. P.

33.1(a)(1)(A). When evidence is offered, a part of which is admissible and a part of

which is not, it is incumbent on the party objecting to the admissibility of the

evidence to specifically point out the inadmissible part to preserve any alleged error.

See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009); Abdullah v.

–2– State, No. 05-23-00163-CR, 2024 WL 1154151, at *2 (Tex. App.—Dallas Mar. 18,

2024, pet. filed) (mem. op., not designated for publication).

Here, during the pretrial hearing, appellant objected to the recording, citing

hearsay and Crawford, and when the recording was offered, he objected generally

“to hearsay and confrontation” as to individuals who speak in the recording who are

“not going to testify in front of the jury.” Thus, appellant only objected to portions

of the recording, but he failed to identify what specific portions or statements within

the recording violated his right to confrontation. Accordingly, we conclude

appellant failed to preserve error in the admissibility of statements made in the

recording. See Whitaker, 286 S.W.3d at 369 (“On this record, we decide that

appellant’s trial objections were insufficient to preserve any error in the admission

of any portion of the audiotapes because these objections did not specifically point

out which portions of the audiotapes were objected to as inadmissible.”); Abdullah,

2024 WL 1154151, at *2 (concluding appellant failed to preserve error when he

failed to “specifically identif[y] any statements within the recording that violated his

right to confrontation on appeal”).

–3– Having overruled appellant’s sole appellate issue, we affirm the trial court’s

judgment.

/Ken Molberg/ KEN MOLBERG JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b). 230860F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BENNY JAMES PHENNEL, On Appeal from the 296th Judicial Appellant District Court, Collin County, Texas Trial Court Cause No. 296-81562- No. 05-23-00860-CR V. 2021. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Molberg. Justices Nowell and Kennedy participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered August 6, 2024

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