                                       The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-12-00544-CR
                               NO. 09-12-00545-CR
                               NO. 09-12-00546-CR
                              _________________

                  KEVIN ARTHUR LARSON, JR., Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 359th District Court
                         Montgomery County, Texas
               Trial Cause No. 12-10-11018 CR (Counts I, II, III)
________________________________________________________________________

                           MEMORANDUM OPINION

      On motion for rehearing, we withdraw our opinion of December 18, 2013,

and issue this substitute opinion.

      Kevin Arthur Larson, Jr. appeals his convictions for tampering with physical

evidence (Count I) (Appeal No. 09-12-00544-CR), burglary of a building (Count

II) (Appeal No. 09-12-00545-CR), and evading arrest (Count III) (Appeal No. 09-

12-00546-CR). See Tex. Penal Code Ann. § 30.02 (West 2011), §§ 37.09, 38.04
                                        1
(West Supp. 2013). 1 The grand jury indicted Larson for tampering with physical

evidence, burglary of a building, and evading arrest or detention with a vehicle.

Larson pled guilty to all three offenses and pled true to four enhancement

allegations. In Count I, the trial court found the evidence sufficient to find Larson

guilty of the tampering with physical evidence, a third degree felony, which the

court enhanced to a second degree felony. The trial court assessed punishment at

ten years confinement. In Count II, the trial court found the evidence sufficient to

find Larson guilty of burglary of a building, a state jail felony, which the trial court

enhanced to a third degree felony. The trial court assessed punishment at ten years

confinement for this offense. In Count III, the trial court found the evidence

sufficient to find Larson guilty of evading arrest detention with a vehicle, a third

degree felony, which the trial court enhanced to a second degree felony offense.

The trial court assessed punishment for this offense at twenty years confinement.

      Larson argues his convictions for burglary of a building and for evading

arrest are void because the punishment exceeds that permitted by statute. Larson

also argues he received ineffective assistance of counsel because his trial counsel

failed to challenge his enhancements, which resulted in the trial court imposing



      1
         We cite to the current version of section 38.04, as the amendments do not
affect the issue set forth in this appeal.
                                           2
illegal sentences. Larson presents no challenge on appeal of his conviction for

tampering with physical evidence in Count I.

                         I. Enhancement of Punishment:
                              Burglary of a Building
                                    Count II

      In his first issue, Larson argues that the trial court unlawfully enhanced the

punishment of his burglary of a building conviction in Count II. He contends that

his sentence is illegal and therefore, void. The State responds that the trial court

properly enhanced Larson’s sentence because Larson used a deadly weapon–a

vehicle–during the commission of the burglary.

      Larson pled guilty to the offense of burglary of a building, which the trial

court enhanced to a third degree felony after Larson pled “true” to four prior felony

convictions, including solicitation of a minor to commit murder, possession of

stolen property, taking a motor vehicle without permission, and attempting to elude

police officers. Burglary of a building is a state jail felony, punishable by

incarceration for not more than two years or less than 180 days, in addition to a

fine not to exceed $10,000. Tex. Penal Code Ann. § 12.35(a), (b) (West Supp.

2013), § 30.02(c)(1) (West 2011). It is true that the punishment range for a state

jail felony is enhanced to the punishment range for a third degree felony if it is

shown that the defendant knowingly used or exhibited a deadly weapon during the

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commission of the offense or during the immediate flight following the

commission of the offense. See Tex. Penal Code Ann. § 12.35(c)(1). However, the

trial court did not make a finding that Larson used a deadly weapon during the

commission of the burglary of a building. Section 12.35 also provides for

enhancement of punishment to a third degree felony if the defendant was

previously convicted of one of several felonies identified in the statute. Tex. Penal

Code Ann. § 12.35(c)(2). There is no evidence in the record that Larson has any

felony convictions that qualify for enhancement under section 12.35(c)(2).

Therefore, section 12.35 is not available to the State to enhance Larson’s

punishment for his burglary of a building conviction. However, section 12.425 of

the Penal Code provides:

             If it is shown on the trial of a state jail felony punishable under
      Section 12.35(a) that the defendant has previously been finally
      convicted of two felonies other than a state jail felony punishable
      under Section 12.35(a), and the second previous felony conviction is
      for an offense that occurred subsequent to the first previous conviction
      having become final, on conviction the defendant shall be punished
      for a felony of the second degree.

Tex. Penal Code Ann. § 12.425(b) (West Supp. 2013). As noted above, the

indictment alleged Larson had four prior felony convictions, which Larson

admitted were true. Because Larson has two prior felony convictions, where one

occurred subsequent to the first having become final, we conclude that Larson’s

                                          4
punishment range for a state jail felony is properly enhanced to the punishment

range for a second degree felony. See id. We modify the judgment in Count II,

Appeal No. 09-12-00545-CR, to remove “State Jail Enhanced to Fel 3” from the

section of the judgment entitled “Degree of Offense[]” and substitute “State Jail

Enhanced to Fel 2” in its place. The trial court assessed ten years of confinement,

which is within the range of punishment for a second degree felony. See Tex. Penal

Code Ann. § 12.33 (West 2011). We overrule Larson’s first issue as it applies to

his conviction for burglary of a building.

                       II. Enhancement of Punishment:
                   Evading Arrest or Detention with a Vehicle
                                   Count III

      Larson also argues that the trial court unlawfully enhanced the punishment

of his evading arrest or detention with a vehicle conviction in Count III. He

contends that his sentence is illegal and therefore, void. The State responds that

the trial court properly enhanced Larson’s sentence because “[e]vading arrest is a

third degree felony when the defendant uses a vehicle in the commission of the

offense[]” and because Larson had a prior felony conviction, the trial court

properly enhanced his punishment to a second degree.

      Larson pled guilty to the offense of evading arrest or detention with a

vehicle, as a third degree felony, which the trial court enhanced to a second degree

                                             5
felony after Larson pled “true” to four prior felony convictions. Evading arrest or

detention is a third degree felony if the defendant uses a vehicle while in flight.

Tex. Penal Code Ann. § 38.04(b)(2)(A). Based on the record before us, we

conclude that Larson was correctly charged with evading arrest or detention with a

vehicle, as a third degree felony.

      Section 12.42 of the Penal Code sets forth the penalties for repeat and

habitual felony offenders on trial for a third degree felony. See Tex. Penal Code

Ann. § 12.42 (West Supp. 2013). It provides:

      [I]f it is shown on the trial of a felony of the third degree that the
      defendant has previously been finally convicted of a felony other than
      a state jail felony punishable under Section 12.35(a), on conviction the
      defendant shall be punished for a felony of the second degree.

Id. § 12.42(a). Larson pled true to four enhancement allegations. The enhancement

paragraphs in the indictment contained language that the prior convictions

occurred subsequent to the other convictions becoming final, which increased

Larson’s punishment range for his evading arrest or detention with a vehicle from a

third degree felony to a second degree felony. See id. Therefore, the trial court did

not err in enhancing Larson’s conviction from a third degree felony to a second

degree felony in Count III. The trial court assessed twenty years of confinement,

which is within the range of punishment for a second degree felony. See Tex. Penal


                                         6
Code Ann. § 12.33. We overrule Larson’s first issue as it applies to his conviction

for evading arrest or detention with a vehicle.

                       III. Ineffective Assistance of Counsel

      Larson contends in his second issue that his trial counsel was ineffective

because he failed to challenge the indictment’s incorrect penalty range and

enhancement allegations. The standard of review for evaluating claims of

ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S.

668, 687 (1984). Strickland requires a two-step analysis whereby an appellant must

show both that (1) his counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms, and (2) but for his

counsel’s unprofessional error, there is a reasonable probability the result of the

proceedings would have been different. Id. at 687-88, 694; Perez v. State, 310

S.W.3d 890, 892-93 (Tex. Crim. App. 2010). An appellant has the burden to prove

ineffective assistance. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston

[1st Dist.] 1996, no pet.).

      Having concluded that Larson received sentences within the range of

punishment for his offenses, we conclude that Larson cannot establish the second

prong of the Strickland test. See Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at

893. We resolve Larson’s second issue against him.

                                          7
      We, therefore, modify the trial court’s judgment in Count II, Appeal No. 09-

12-00545-CR, to remove “State Jail Enhanced to Fel 3” from the section of the

judgment entitled “Degree of Offense[]” and substitute “State Jail Enhanced to Fel

2” in its place and affirm the judgment as modified. We affirm the judgments in

Count I, Appeal No. 09-12-00544-CR and Count III, Appeal No. 09-12-00546-CR.

      COUNTS I AND III AFFIRMED.

      COUNT II AFFIRMED AS MODIFIED.



                                            ______________________________
                                                   CHARLES KREGER
                                                        Justice

Submitted on December 2, 2013
Opinion Delivered January 29, 2014
Do not publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




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