Foreman, Dennis Dean, WR-81,429-01

Background

Defendant Dennis Dean Foreman was indicted for aggravated assault alleging he shot Laura Foreman (a family member) with a shotgun, causing serious bodily injury.
The jury charge submitted to the jury applied the second-degree prong of Tex. Penal Code § 22.02 (a)(1),(2) (2–20 years), and the jury returned a guilty verdict under that law.
At punishment, the trial court instructed the jury using the first-degree § 22.02(b)(1) punishment range (5 years–life), and the jury assessed life imprisonment.
Foreman contends the indictment used the phrase “a member of the defendant’s family” without specifying the Family Code provision, creating ambiguity as to whether the jury found the § 22.02(b)(1) family-relationship element required for first-degree punishment.
Foreman argues the life sentence is void because it exceeds the maximum punishment authorized by the offense the jury actually found (second-degree), invoking due process and Apprendi-type rules requiring jury findings of any fact that increases the statutory maximum.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the life sentence is void because it exceeds the punishment authorized by the offense the jury found	Foreman: jury convicted under the second-degree prong; punishment under first-degree prong (5–life) therefore unauthorized and void	State: (not briefed in the memorandum) would assert the family-relationship/family-violence element justified first-degree punishment or that sentencing procedure was proper	Not decided in this memorandum — petitioner requests reversal and resentencing; no court ruling in the record provided
Whether the indictment adequately alleged the family-relationship element required for § 22.02(b)(1) enhancement	Foreman: phrase “a member of the defendant’s family” lacks specificity (Family Code citation), failing fair notice and making first-degree enhancement improper	State: (implicit) the indictment was sufficient to put Foreman on notice of family-violence allegation	Not decided here; petitioner asks the Court to set precedent requiring specific pleading of the Family Code relationship for enhancement
Whether the jury charge must include a special finding on the victim’s relationship to defendant before first-degree punishment may be imposed	Foreman: relationship is an element that must be submitted to the jury beyond a reasonable doubt (Apprendi/Ring principles); a special finding is necessary when the same facts could support two penalty groups	State: (implicit) the relationship may be treated as a sentencing factor or otherwise sufficiently presented to jury/judge	Not decided; petitioner requests a holding that special jury findings are required when enhancement facts overlap penalty groups
Whether § 22.02, as applied, raises due process/double jeopardy or notice problems when identical facts can support different penalty groups	Foreman: statute’s structure permits same elements to appear in both penalty groups and thus creates notice and jury-trial problems; Apprendi requires jury finding of any fact increasing statutory maximum	State: (implicit) statute is valid and properly applied	Not decided; memorandum urges Court of Criminal Appeals to address and set precedent

Key Cases Cited

Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006) (void-sentence claims may be raised anytime)
Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002) (same)
Mizell v. State, 119 S.W.3d 804 (Tex. Crim. App. 2003) (sentence outside statutory range is illegal/void)
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (pleadings approach controls lesser-included-instruction analysis)
Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) (trial court must correctly charge the jury on applicable law)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact that increases the penalty beyond the statutory maximum must be proven to a jury beyond a reasonable doubt)
Ring v. Arizona, 536 U.S. 584 (2002) (jury must find facts that increase maximum punishment)
Jones v. United States, 526 U.S. 227 (1999) (distinguishing elements from sentencing factors with respect to jury trial and reasonable doubt)