CourtListener 10368108•Foman, Daniel Lavoid
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-95,831-01
EX PARTE DANIEL LAVOID FOMAN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1788156-A IN THE 486TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
Under a plea agreement, Applicant pleaded guilty to theft of a firearm and was sentenced in
accordance with the terms of the plea agreement to two years’ imprisonment in the Texas
Department of Criminal Justice. Through counsel, Applicant filed this application for a writ of
habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX.
CODE CRIM. PROC. art. 11.07. Applicant claims his sentence is unauthorized by statute because theft
of a firearm, with no punishment enhancement, is a state jail felony offense with a punishment range
of 180 days to two years in the state jail, not TDCJ. On remand, the trial court adopted the State’s
proposed findings and recommended that this Court grant habeas relief. The record supports the
findings.
2
A person guilty of a state jail felony shall be punished by confinement in a state jail for any
term of not more than two years or less than 180 days. See TEX. PENAL CODE § 12.35 (a). The
person will face third-degree felony punishment and confinement in TDCJ if he has a prior final
felony conviction listed in article 42A.054(a) of the Texas Code of Criminal Procedure or a prior
final felony conviction in which the judgment included an affirmative deadly weapon finding. See
TEX. PENAL CODE § 12.35 (b). A person may also face third-degree felony punishment for other
reasons inapplicable to Applicant’s prosecution. Applicant has a prior conviction for robbery, but
this offense is not listed in article 42A.054(a), and there was no affirmative deadly weapon finding.
There could be no punishment enhancement.
Relief is granted. The judgment in cause number 178815601010 in the 486th District Court
of Harris County is set aside, and Applicant is remanded to the custody of the Sheriff of Harris
County for a new punishment hearing.1 The trial court shall issue any necessary bench warrant
within ten days from the date of this Court’s mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and the Board of Pardons and Paroles.
Delivered: March 26, 2025
Do not publish
1
Applicant’s case, which only concerns where he is to be confined, is distinguished from
Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). Applicant’s guilty plea remains intact.
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