NOS. 12-13-00116-CR

 12-13-00117-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TRACY LYNN HARRIS, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

§

APPEAL FROM THE 114TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Tracy Lynn Harris appeals his convictions of manufacture or delivery of between four 

and two hundred grams of cocaine in a drug free zone and tampering with physical evidence, for 

which he was sentenced to imprisonment for forty years and ten years respectively. In one issue, 

Appellant argues that the trial court improperly ordered that his two sentences run consecutively. 

We affirm.

BACKGROUND

Appellant was charged by separate indictments with manufacture or delivery of between 

four and two hundred grams of cocaine in a drug free zone and tampering with physical 

evidence. Appellant pleaded “guilty” as charged to each offense, and the matter proceeded to a 

trial on punishment. 

At the trial on punishment, Appellant pleaded “true” to the enhancement allegation that 

he committed the offense in a “drug free zone.” Ultimately, the trial court found Appellant 

“guilty” as charged of each offense and sentenced him to imprisonment for forty years for 

manufacture or delivery of cocaine and imprisonment for ten years for tampering with physical 
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evidence. The trial court further ordered that Appellant’s sentences for these offenses run 

consecutively. This appeal followed.

ORDER OF CONSECUTIVE SENTENCES

In his sole issue, Appellant argues that the trial court improperly ordered that his two 

sentences run consecutively because it improperly interpreted the language of Texas Health and 

Safety Code, Section 481.134. 

The offense of which Appellant was charged is a first degree felony, the minimum 

punishment for which is imprisonment for five years. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.112(d) (West 2010); TEX. PENAL CODE ANN. § 12.32(a) (West 2011). Texas Health and 

Safety Code, Section 481.134(c) states in pertinent part, as follows:

The minimum term of confinement or imprisonment for an offense otherwise punishable 

under . . . Section 481.112 . . . (d) . . . is increased by five years and the maximum fine for the 

offense is doubled if it is shown on the trial of the offense that the offense was committed . . . in, 

on, or within 1,000 feet of the premises of a school, the premises of a public or private youth 

center, or a playground[,] or . . . on a school bus.

TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (West Supp. 2013). Accordingly, Appellant’s 

minimum sentence for manufacture or delivery of between four and two hundred grams of 

cocaine was increased to imprisonment for ten years under Section 481.134(c) as a result of the 

trial court’s finding that the offense was committed in a drug free zone. Moreover, Section 

481.134(h) states that “[p]unishment that is increased for a conviction for an offense listed under 

this section may not run concurrently with punishment for a conviction under any other criminal 

statute.” TEX. HEALTH & SAFETY CODE ANN. § 481.134(h) (West Supp. 2013).

In his brief, Appellant states that his forty year sentence was well above the minimum 

punishment of imprisonment for five years for a first degree felony or the increased minimum 

punishment of imprisonment for ten years. As a result, according to Appellant, his punishment 

was not “increased,” and his sentences should not have been ordered to run consecutively 

pursuant to Section 481.134(h).

Preservation of Error

The State initially responds that Appellant’s objection at trial does not comport with his 

argument on appeal. In order for an issue to be preserved on appeal, there must be a timely 
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objection that specifically states a legal basis for the objection. See TEX. R. APP. P. 33.1; Fultz v. 

State, 940 S.W.2d 758, 760 (Tex. App.–Texarkana 1997, pet. ref'd) (citing Rezac v. State, 782 

S.W.2d 869, 870 (Tex. Crim. App. 1990)); see also Moore v. State, 371 S.W.3d 221, 226–27 

(Tex. Crim. App. 2012) (complaints concerning cumulation of sentences forfeited under Rule 

33.1(a) unless they concern sufficiency of evidence). An objection stating one legal basis may 

not be used to support a different legal theory on appeal. Rezac, 782 S.W. at 870; Fultz, 940 

S.W.2d at 760. Instead, an objection must draw the court’s attention to the particular complaint 

raised on appeal. Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App 1988). Thus, when an 

appellant’s trial objection does not comport with his argument on appeal, he has not preserved 

error. See Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996). 

At Appellant’s trial on punishment, the trial court admonished him concerning the range 

of punishment under Section 483.112(d) and the potential for an increased minimum sentence 

under Section 481.134(c). After pronouncing Appellant’s sentence, the trial court noted that “the 

law requires these sentences not run concurrently” and ordered that Appellant’s sentences run 

consecutively. Appellant objected to the trial court’s order, and the following exchange 

occurred:

[APPELLANT’S COUNSEL]: Your Honor, I'm going to make an objection. It's my 

reading of the law that the sentences themselves don't have to run concurrently as in A and then B. 

I think that the 5 years has to be served consecutively to any other sentence. And where one 

sentence is 30 years longer than the other, it's going to run beyond the scope of that 10 years 

anyway and therefore it's not mandatory that it be run concurrent -- consecutively or stacked as we 

sometimes say.

THE COURT: Well, I'm just reading from the Health and Safety Code 481.134

subsection H or section H. Punishment for an offense listed under this section may not run 

concurrently with punishment under any other criminal statute.

[APPELLANT’S COUNSEL]: The question becomes what is this section. And I think 

this section deals with the school zone --

THE COURT: I agree.

[APPELLANT’S COUNSEL]: -- allegation.

THE COURT: I agree.

[APPELLANT’S COUNSEL]: And so that's our objection, Your Honor.

THE COURT: All right. It's overruled.
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Based on our reading of the record and Appellant’s brief in this matter, it is apparent that 

Appellant made a very different argument to the trial court than he now makes on appeal. At 

trial, Appellant argued that only the five year increased portion of his punishment was required 

to run consecutively under Section 481.134(h). As set forth above, Appellant now argues that 

because his forty year sentence was greater than the ten year minimum punishment, his 

punishment was not “increased. Therefore, because Appellant’s objection at trial does not 

comport with his argument on appeal, we hold that he has forfeited his right to raise the issue on 

appeal. 

Statutory Construction

Even had Appellant preserved error, the outcome of this appeal would not differ. We 

review questions of statutory interpretation under a de novo standard of review. See Williams v. 

State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008). Under the canons of statutory construction, 

we are to construe a statute according to its plain language, unless the language is ambiguous or 

the interpretation would lead to absurd results that the legislature could not have intended. Id. 

Section 481.134(c) plainly states that the minimum term of confinement is increased by five 

years if certain circumstances are demonstrated. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.134(c). Moreover, Section 481.134(h) states that punishment that is increased for a 

conviction listed elsewhere in that section may not run concurrently with punishment for a 

conviction under any other criminal statute. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.134(h). Appellant argues that we should construe Section 481.134(h) as dictating that the 

punishment ultimately pronounced at sentencing must be increased as a result of the 

enhancement of Section 481.134(c) in order for mandatory cumulation of sentences to be 

triggered under Section 481.134(h). Stated another way, Appellant contends that Section 

481.134(h) requires consecutive sentences only when the trial court imposes the minimum 

increased punishment. We disagree. 

The unambiguous wording of Section 481.134(h) indicates the legislature’s intent to 

require consecutive sentences when the punishment available to the trial court is increased for a 

conviction for an offense listed under that section. Nowhere in Section 481.134 is there a 

reference to punishment “pronounced” or punishment “received.” But we note that Section 

481.134 generally relates to increases to the punishment range the trial court must consider in 

determining a defendant’s sentence. To interpret the statute as Appellant contends––only 
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requiring consecutive sentences when the trial court imposes the minimum increased 

punishment––we would have to disregard the literal, unambiguous meaning of the statutory text 

and add language the legislature excluded. Doing so would cause us to reach a result that the 

legislature could not have intended. Therefore, we hold that the trial court did not err in ordering 

that Appellant’s sentences run consecutively pursuant to Section 481.134(h). 

Appellant’s sole issue is overruled.

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgments.

BRIAN HOYLE

Justice

Opinion delivered February 28, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 28, 2014

NO. 12-13-00116-CR

TRACY LYNN HARRIS,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court 

of Smith County, Texas (Tr.Ct.No. 114-1485-12)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 28, 2014

NO. 12-13-00117-CR

TRACY LYNN HARRIS,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 114th District Court 

of Smith County, Texas (Tr.Ct.No. 114-1486-12)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.