                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00226-CR

JAMES W. HARMS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 13th District Court
                             Navarro County, Texas
                              Trial Court No. 32197


                          MEMORANDUM OPINION


      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

enhancement paragraphs.        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

felony.

         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

court.     Indeed, at trial, appellant’s attorney specifically acknowledged that the

enhancements were “statutorily authorized.” However, on appeal, appellant complains

Harms v. State                                                                     Page 2
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                                                                      Page 3
       Having overruled appellant’s sole issue, the judgment is affirmed.



                                               KEN ANDERSON
                                               District Judge


Before Chief Justice Gray,
       Justice Scoggins and
       Judge Anderson1
Affirmed
Opinion delivered and filed June 8, 2011
Do not publish
[CR25]




1Ken 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).

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