                                                                WITHDRAWN 2-13-14
                                                                   REISSUED 2-13-14

                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00155-CR
                                No. 10-12-00156-CR
                                No. 10-12-00157-CR

CONNER BENJAMIN POLEN,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 66th District Court
                              Hill County, Texas
                   Trial Court Nos. 37,113, 37,114 and 37,115


                         MEMORANDUM OPINION


      In these three cases, Appellant Conner Polen pleaded guilty without the benefit

of a plea bargain to aggravated robbery, two counts of tampering with evidence, and

possession of cocaine (over one gram but less than four grams), enhanced by being

committed in a “drug-free zone” (a school). After a punishment hearing, the trial court
sentenced Polen to twenty-five years on the aggravated robbery conviction (with a

deadly-weapon finding) and to the maximum sentences of ten years on the remaining

convictions, with all three sentences to be served concurrently. No fines were assessed.

Raising five issues, Polen appeals.

        In his first issue, in Cause No. 10-12-00157-CR (Trial Court No. 37,115), Polen

asserts that the evidence is insufficient to prove that he possessed cocaine in a drug-free

zone—within 1,000 feet of a school, which enhanced the minimum sentence five years.

The indictment alleged that the possession offense was committed “in or on or within

1,000 feet of the premises of a school, to-wit: Hill College.”

        In this case, Polen signed a generic written stipulation that included that the

“enhancement charges … are in fact true.” Generally, a defendant’s plea of “true” to an

enhancement allegation relieves the State of its burden of proving that allegation and

the defendant cannot challenge the sufficiency of the evidence, but an exception exists

when “the record affirmatively reflects” that the enhancement is itself improper. Ex

parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006).

        We agree with the State’s concession that the enhancement was improper and

that the evidence is insufficient; Hill College is not a “school” for purposes of enhancing

punishment for certain drug offenses committed within a statutorily defined drug-free

zone. See TEX. HEALTH & SAFETY CODE ANN. § 481.134(a)(5) (West Supp. 2012) (defining

“school” as “a private or public elementary or secondary school or a day-care center”);

id. § 481.134(c)(1) (increasing the minimum sentence by five years if offense was

committed within 1,000 feet of a school); see also id. § 481.134(a)(2) (defining “institution

Polen v. State                                                                         Page 2
of higher education” to include a “junior college”). Accordingly, the seven-to-ten year

punishment range considered by the trial court for this third-degree felony was

incorrect; without enhancement, the correct punishment range was two to ten years.

TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2010); TEX. PENAL CODE ANN. §

12.34(a) (West 2011).

         Because Polen did not object to the trial court’s incorrect punishment range and

because the ten-year sentence was not an illegal sentence, we agree with the State’s

contention that we should review the error for egregious harm. See Jones v. State, 300

S.W.3d 93, 100 (Tex. App.—Texarkana 2009, no pet.); see also Cartwright v. State, 833

S.W.2d 134, 137 (Tex. Crim. App. 1992). Errors that result in egregious harm are those

that affect “the very basis of the case,” deprive the defendant of a “valuable right,” or

“vitally affect a defensive theory.” Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim.

App. 1985) (op. on reh’g). Egregious harm is a difficult standard to meet and must be

determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App.

2002).

         We conclude that Polen did not suffer egregious harm in the nonjury

punishment hearing. All three cases were heard in the same punishment hearing. The

evidence showed that Polen robbed a store at knifepoint to buy the drugs, and that,

while being apprehended by police, he tried to hide the drugs, which led to the

tampering counts. Just a few weeks before, Polen committed aggravated robbery with a

gun at a store in Johnson County and used the money to buy drugs.             There was

evidence that Polen had been provided numerous opportunities for drug rehabilitation.

Polen v. State                                                                     Page 3
In closing argument, the State did not mention the drug-free zone aspect of the

possession charge; instead the State focused on the aggravated robberies and Polen’s

previous rehabilitation opportunities.

        Considering the case as a whole, along with the fact that the trial court gave

Polen the maximum ten-year sentences for both the possession charge and the

tampering charge, with those sentences to be served concurrently with the twenty-five

year aggravated robbery sentence, we cannot say that Polen suffered egregious harm

where the trial court incorrectly considered the minimum sentence to be seven years,

instead of two years, on the possession charge because of the improper drug-zone

enhancement. Issue one is overruled.

        In issues two, three, and four, Polen asserts that his maximum sentences for

tampering with evidence, possession of cocaine, and aggravated robbery constitute

cruel and unusual punishment under the Eight Amendment, article I, section 13 of the

Texas Constitution, and article 1.09 of the Code of Criminal Procedure because the

sentences are grossly disproportionate to the offenses.1

        A defendant must complain or object in the trial court about an allegedly

disproportionate sentence to preserve his complaint for appeal.                      Ham v. State, 355

S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref’d); Gertz v. State, No. 10-11-00008-


1
  Generally, a sentence within the statutory range of punishment for an offense is not excessive, cruel, or
unusual punishment. See Winchester v. State, 246 S.W.3d 386, 389 (Tex. App.—Amarillo 2008, pet. ref’d);
Alvarez v. State, 63 S.W.3d 578, 580 (Tex. App.—Fort Worth 2001, no pet.). A narrow exception to this rule
is recognized where a sentence is grossly disproportionate to the offense. See Moore v. State, 54 S.W.3d
529, 542 (Tex. App.—Fort Worth 2001, pet. ref’d); see also Harmelin v. Michigan, 501 U.S. 957, 1004-05, 111
S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring); Solem v. Helm, 463 U.S. 277, 290-92, 103
S.Ct. 3001, 3010-11, 77 L.Ed.2d 637 (1983); McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992).

Polen v. State                                                                                       Page 4
CR, 2012 WL 3799146, at *2 (Tex. App.—Waco Aug. 30, 2012, no pet.) (mem. op., not

designated for publication) (citing Wynn v. State, 219 S.W.3d 54, 61 (Tex. App.—

Houston [1st Dist.] 2006, no pet.); and Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—

Houston [1st Dist.] 1997, pet. ref’d)). Because Polen did not raise his complaint about

his sentences in the trial court, issues two, three, and four are not preserved and are

thus overruled. TEX. R. APP. P. 33.1.

        Issue five asserts that the evidence is insufficient to prove that Polen had

adequate financial resources to pay his court-appointed attorney’s fees.         In each

judgment, the trial court ordered Polen to pay the fees for his court-appointed attorney

in an amount to be determined later, although the trial court had found Polen to be

indigent for trial and appeal.

        The State concedes that the “TBDL” (to be determined later) assessment of

attorney’s fees was erroneous but notes that, after Polen’s appellate brief was filed, the

trial court amended all three judgments by striking “TBDL” from each judgment.

Accordingly, we dismiss issue five as moot.

        We affirm the trial court’s judgment in each case.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed October 3, 2013

Polen v. State                                                                      Page 5
Do not publish
[CRPM]




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