Opinion
WR-95,831-01
11-13-2024
EX PARTE DANIEL LAVOID FOMAN, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1788156-A IN THE 486TH DISTRICT COURT FROM HARRIS COUNTY
ORDER
PER CURIAM.
Under a plea agreement, Applicant was convicted of theft of a firearm and sentenced to two years' imprisonment in the Texas Department of Criminal Justice. Through habeas 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 illegal because theft of a firearm is a state jail felony offense with a punishment range of 180 days to two years in the state jail, not TDCJ. See Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006).
Applicant's judgment confirms his conviction of a state jail felony offense, yet he was sentenced to imprisonment in TDCJ. This would exceed the statutory punishment range for an unenhanced state jail felony. See TEX. PENAL CODE 12.35(a). The plea papers suggest that Applicant had a prior felony conviction that could have been used to enhance the punishment range, but the record is ambiguous and incomplete. See Tex. Penal Code 12.35(c)(2). The indictment and judgment do not reference any prior convictions, and there is no punishment enhancement notice in the record provided to this Court. See Brooks v. State, 957 S.W.2d 30 (Tex. Crim. App. 1997). Further, the trial court's docket sheet contains conflicting information about where Applicant was to serve his sentence.
Habeas counsel cites a prior robbery conviction from 2015. He says, "[Applicant] was improperly enhanced because of a previous charge of aggravated robbery. The fictitious enhancement altered [Applicant's] range to 2-10 years. [Applicant] had been charged with aggravated robbery on September 12, 2015, and subsequently pleaded guilty to robbery on December 16, 2015." If this prior conviction was for aggravated robbery or robbery with an affirmative deadly weapon finding, it could potentially have been used to properly enhance the punishment range of the theft of a firearm offense. See TEX. PENAL CODE § 12.35(c)(2). However, there are no documents in the habeas record concerning any prior conviction, making it impossible to verify this information or its potential impact on the sentencing.
Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). The trial court shall make findings of fact and conclusions of law resolving the following disputed issues.
1. Whether there was a punishment enhancement notice and whether a prior felony conviction was used to enhance the punishment range for Applicant's
theft of a firearm offense. See TEX. PENAL CODE 12.35(c)(2). If so, provide details of this prior conviction and how it was used to enhance the punishment.
2. If not, whether Applicant had a prior felony conviction at the time he committed the theft of a firearm offense and whether that prior conviction was for an offense listed in Article 42A.054(a), Code of Criminal Procedure, or for which its judgment contained an affirmative deadly weapon finding. See id.; Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013) (a habeas applicant must prove harm to obtain relief in a writ of habeas corpus premised on an illegal-sentence claim, and harm is not shown when the record demonstrates the existence of prior convictions that could have properly supported the punishment range).
3. If a judgment from a prior conviction exists and was not for an offense listed in Article 42A.054(a), Code of Criminal Procedure, and did not contain an affirmative deadly weapon finding, whether the State could have successfully sought such an affirmative finding with a nunc pro tunc motion. See Guthrie-Nail v. State, 506 S.W.3d 1 (Tex. Crim. App. 2015) (trial judges have discretion in making a deadly weapon finding).
4. Whether the trial court intended to sentence Applicant to the Institutional Division of TDCJ or a state jail facility for the theft of a firearm conviction.
5. Whether Applicant understood the offense for which he was charged and the proper punishment range, including whether he would be confined in the
Institutional Division of TDCJ or a state jail facility under his agreement to plead guilty.
The trial court may make any other findings that it deems relevant and appropriate and may recommend to this Court whether Applicant is entitled to relief.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.