Foman, Daniel Lavoid

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Do not publish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.