TENTH COURT OF APPEALS
JAMES W. HARMS,
THE STATE OF TEXAS,
From the 13th District Court
Navarro County, Texas
Trial Court No. 32197
Appellant pled guilty to the offense of theft of property valued at less than $1,500
and enhanced by two prior theft convictions to a state jail felony. TEX. PENAL CODE
ANN. § 31.03(e)(4)(D) (West Supp. 2010). Appellant also pled true to two enhancement
paragraphs which alleged sequential, final felony convictions that occurred prior to his
current offense. These enhancement paragraphs made the case a second degree felony.
TEX. PENAL CODE ANN. § 12.42(a)(2) (West Supp. 2010). Appellant entered his pleas
without any agreement as to his sentence.
After a hearing, the trial court found
appellant guilty, found the enhancement paragraphs true and assessed appellant’s
punishment at 18 years in prison. Appellant appeals.
During the night of August 11, 2008, appellant drove a pickup truck to the back
of a business. He stole two light stands, a jack stand, a screw jack, a section of chain
wire mesh and some other items of scrap metal worth a total of between $50 and $1,500.
The owner of the business had been plagued by a rash of thefts. He had just installed a
video surveillance system on his property which captured the crime on video.
Appellant’s criminal history included the two prior theft convictions used to enhance
his conviction and the two burglary of a habitation convictions used to prove the two
Neither the voluntariness of appellant’s plea nor the
sufficiency of the evidence is challenged.
In a single issue, appellant contends that his punishment exceeded the statutory
punishment range. He contends that the burglary of a habitation convictions were not
available for enhancement because they are a “grade of theft.”
Thus, the correct
punishment range should have been for a state jail felony rather than a second degree
Initially, the state argues that appellant has not properly preserved the issue
because it was not raised at the trial court. The rules of appellate procedure require,
under most circumstances, that an appellant show that a proper “complaint was made
to the trial court.” TEX. R. APP. P. 33.1. Appellant made no such complaint to the trial
Indeed, at trial, appellant’s attorney specifically acknowledged that the
enhancements were “statutorily authorized.” However, on appeal, appellant complains
Harms v. State
that his punishment exceeded the statutory punishment range.
A sentence that is
outside the maximum or minimum range of punishment is unauthorized by law and
therefore illegal. Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). Unlike
most trial errors which are forfeited if not timely asserted, a party is not required to
make a contemporaneous objection to the imposition of an illegal sentence. Id. at n.6.
Accordingly, in this case, appellant was not required to preserve his complaint.
Appellant’s contention, nevertheless, is totally without merit. Appellant relies
exclusively on Rawlings v. State, 602 S.W.2d 268 (Tex. Crim. App. 1980). Rawlings held,
as a basis of statutory construction, that when a misdemeanor theft conviction is
enhanced to a felony by the use of two or more previous theft convictions, it cannot be
further enhanced by felony theft convictions. Appellant wants to expand the Rawlings
holding by arguing that burglary of a habitation is also a type of theft. This argument to
expand Rawlings has been repeatedly rejected. E.g. Shaw v. State, 794 S.W.2d 544, 545
(Tex. App.—Dallas 1990, no pet.) (forgery conviction allowed for enhancement);
Coleman v. State, 947 S.W.2d 586 (Tex. App.—Texarkana 1997, no pet.) (aggravated
robbery conviction allowed for enhancement). The argument has been specifically
rejected in regards to burglary enhancements – the identical argument to the one
appellant makes here. Chambers v. State, 736 S.W.2d 192, 196 (Tex. App.—Dallas 1987,
no pet.); Lackey v. State, 881 S.W.2d 418 (Tex. App.—Dallas 1994, pet. ref’d). Appellant’s
issue is overruled.
Harms v. State
Having overruled appellant’s sole issue, the judgment is affirmed.
Before Chief Justice Gray,
Justice Scoggins and
Opinion delivered and filed June 8, 2011
Do not publish
Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the
Chief Justice of the Texas Supreme Court pursuant to Section 74.003(h) of the Government Code. See TEX.
GOV’T CODE ANN. § 74.003(h) (West Supp. 2010).
Harms v. State