                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                      No. 07-17-00006-CR


                          SHONNIE FAY SMALLEY, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 69th District Court
                                     Hartley County, Texas
                    Trial Court No. 1219H, Honorable Ron Enns, Presiding

                                      October 10, 2018

                              MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


       Appellant Shonnie Fay Smalley appeals her conviction for the second-degree

felony offense of injury to a child1 following her plea of guilty and assessment of

punishment by the court.         Through one issue, appellant contends the trial court

erroneously admitted and considered for punishment purposes two audio recordings. We

will affirm the judgment of the trial court.



       1TEX. PENAL CODE ANN. § 22.04(e) (West 2018). This offense is punishable by
imprisonment for any term of not more than 20 years or less than 2 years and a fine not
to exceed $10,000. TEX. PENAL CODE ANN. § 12.33 (West 2018).
                                       Background


       Appellant was charged by indictment with the first-degree felony offense of injury

to a child. She filed a motion to suppress that was denied after a hearing. Subsequently,

pursuant to an agreement with the State, appellant pled guilty to the lesser-included

second-degree felony offense of injury to a child causing serious bodily injury by reckless

conduct.   Thereafter, the court, with no recommendation from the State, held a

punishment hearing. During that hearing, the State introduced two audio recordings of

interviews between a police lieutenant and appellant that were the subject of appellant’s

motion to suppress, and had previously been heard during the suppression hearing.

Appellant objected to their admission. After some discussion, the court admitted the

audio recordings.


                                         Analysis


       On appeal, appellant does not complain of the trial court’s denial of her motion to

suppress. Rather, she poses the question, “Is evidence admitted in a suppression

hearing properly before the court for a subsequent punishment hearing?”


       We review the trial court’s decision to admit or exclude evidence under an abuse

of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011)

(citation omitted). An abuse of discretion occurs when the trial court acts arbitrarily,

unreasonably, or without reference to guiding rules or principles. Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1991) (op. on reh’g).


       Texas Code of Criminal Procedure article 37.07, § 3(a) governs the admissibility

of evidence at a trial’s punishment phase and gives to the trial court broad discretion to


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admit evidence that it believes relevant to sentencing. Erazo v. State, 144 S.W.3d 487,

491 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1)). In

establishing what is relevant to sentencing, the focus is on what is helpful to a factfinder

in deciding an appropriate sentence for a defendant. Id.


       After review of the record, we believe appellant derives the issue she poses on

appeal from remarks the trial court made when it overruled her punishment-stage

objection to the recordings. At the end of the discussion over their admission, the court

said, “those have already been introduced before the Court and the Court has already

examined those exhibits. I’ll go ahead and . . . admit [the recordings] at this time.” From

this remark, appellant reasons that the court admitted the recordings only because it had

reviewed them during the suppression hearing. Her brief states, “The court admitted the

audio recordings because the court had already examined them and they had been

admitted previously in a suppression hearing.” Citing authority that the rules of evidence

do not apply to a suppression hearing to determine a preliminary question regarding the

admissibility of evidence, see Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App.

2002), appellant asserts the undisputed position that evidence admitted for purposes of

a suppression hearing is not necessarily admissible at trial.


       We must overrule appellant’s issue on appeal. To begin with, the complaint she

raises on appeal, i.e., that the trial court overruled her objection to the recordings for the

wrong reason, was not raised with the trial court. See TEX. R. APP. P. 33.1 (objection in

trial court is prerequisite to appellate review); Martinez v. State, 91 S.W.3d 331, 336 (Tex.

Crim. App. 2002) (“appellate courts may uphold a trial court’s ruling on any legal theory

or basis applicable to the case, but usually may not reverse a trial court’s ruling on any


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theory or basis that might have been applicable to the case, but was not raised”) (italics

in original); see Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006) (also

stating rule). The record reflects no objection raised by appellant that the court should

not admit the recordings merely because it already had reviewed them at the suppression

hearing. Appellant raised a procedural objection to admission of the recordings at the

punishment hearing, but her appellate brief contains no argument, authority or analysis

explaining why the procedural objection she raised had merit. See Lucio v. State, 351

S.W.3d 878, 900 (Tex. Crim. App. 2011) (citation omitted) (point of error on appeal must

comport with objection at trial).


       Further, even were we to sustain appellant’s contention the recordings should not

have been admitted, we could not order a new punishment hearing because the record

does not show their admission affected appellant’s substantial rights. See TEX. R. APP.

P. 44.2 (standard for reversible error in criminal cases); Oprean v. State, 238 S.W.3d 412,

415 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (error affecting substantial rights in

punishment stage). The recorded interviews might have shown appellant was untruthful

and lacked remorse, but the same facts were demonstrated by the testimony of a medical

doctor who saw appellant after the events that led to her prosecution. See Lane v. State,

151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (error, if any, in the admission of evidence

is cured where the same evidence comes in elsewhere without objection).


       For those reasons, we overrule appellant’s issue on appeal and affirm the trial

court’s judgment.

                                                        James T. Campbell
                                                           Justice
Do not publish.
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