State of Louisiana v. Thomas Calvin Henson, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-881

STATE OF LOUISIANA

VERSUS

THOMAS CALVIN HENSON, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 13071-17
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

CONVICTIONS AFFIRMED; SENTENCES
FOR THEFT AND POSSESSION OF A
FIREARM BY A CONVICTED FELON
AFFIRMED; CONVICTIONS FOR
AGGRAVATED BURGLARY AND HOME
INVASION REVERSED AND REMANDED
FOR RESENTENCING.

John Foster DeRosier
Fourteenth Judicial District Court District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Elizabeth Brooks Hollins
Assistant District Attorney
901 Lakeshore Drive Ste 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Meghan Harwell Bitoun
639 No. Alexander St.
New Orleans, LA 70119
(504) 470-4779
COUNSEL FOR DEFENDANT/APPELLANT:
Thomas Calvin Henson, Jr.

Thomas Calvin Henson, Jr.
Dixon Correctional Institute Unit 1/D. E
P.O. Box 788
Jackson, LA 70748

EZELL, Judge.

On July 12, 2017, Defendant, Thomas Calvin Henson, Jr., was charged by bill

of information with theft between $750 and $5,000, in violation of La.R.S.

14:67(B)(3); theft of a firearm, in violation of La.R.S. 14:67.15; cruelty to the

infirmed, in violation of La.R.S. 14:93.3; and false imprisonment with a dangerous

weapon, in violation of La.R.S. 14:46.1. Two codefendants, Lea Diane Pence and

Michael Nelson Helmer, were also charged with the same offenses; additionally, Ms.

Pence was charged with home invasion where a person under twelve years of age or

a person sixty-five years of age or older is present, in violation of La.R.S.

14:62.8(B)(3).1 On October 23, 2018, an amended bill of information was filed

charging Defendant with theft between $750 and $5,000, in violation of La.R.S.

14:67(B)(3); home invasion where a person under twelve years of age or a person

sixty-five years of age or older is present, in violation of La.R.S. 14:62.8(B)(3);

aggravated burglary, in violation of La.R.S. 14:60; and possession of a weapon by a

convicted felon, in violation of La.R.S. 14:95.1. Michael Helmer was dropped from

the bill of information, and the charges against Ms. Pence remained the same from

the prior bill of information.

On November 13, 2018, voir dire began for Defendant’s trial on all four

charges arising out of the amended bill of information. Following trial, Defendant

was found guilty as charged on all four counts. On January 8, 2019, Defendant filed

a “Motion to Set a New Trial,” claiming his convictions were “contrary to the law

and evidence” and additionally that new evidence had been uncovered by

1
The enhanced penalty provision of La.R.S. 14:62.8 related to a victim being present whose
age is under twelve or is sixty-five or older was deleted in 2017 (effective on August 1, 2017). See
2017 La. Acts No. 281, § 1.

Defendant’s mother after trial which allegedly established Defendant could not have

been involved in the crimes. The evidence was alleged testimony from Mr. Helmer,

initially a codefendant in this case. The motion was heard and denied on January 9,

2019.

On January 11, 2019, Defendant’s sentencing hearing was held. Defendant

reurged his motion for new trial on the ground that his mother had uncovered new

evidence, which was again denied. Defendant stated he was ready to be sentenced

at that time. Defendant was then sentenced to two years at hard labor for theft;

eighteen years at hard labor without benefit of probation, parole, or suspension of

sentence for home invasion; twelve years at hard labor without benefit of probation,

parole, or suspension of sentence for aggravated burglary; and eight years at hard

labor for possession of a firearm by a convicted felon. The sentences for aggravated

burglary and possession of a weapon by a convicted felon were ordered to run

concurrently to each other; the sentences for theft and home invasion were likewise

to run concurrently to each other. The sentences for aggravated burglary and home

invasion were to run consecutively; however, amounting to a total sentence of thirty

years. Defendant asked if the court would reconsider running the consecutive

sentences concurrently, which the trial court declined to do.

On January 30, 2019, Defendant filed a “Motion to Reconsider Sentence,”

which requested the trial court “reconsider [Defendant’s] sentence of thirty (30)

years [D]epartment of [C]orrections as [Defendant] believes it to be excessive.” The

motion was heard on April 17, 2019, with Defendant noting his long history of

substance abuse and asking the court “to have mercy on him and consider lightening

the sentence from the 30 years, or from the 18 and the 12 consecutively, to consider

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reducing it, Your Honor.” The trial court denied the motion, stating “I’ve thought

about it some more, but I don’t think I need to change my mind on it.”

Following appellate counsel’s January 8, 2020 filing of a “Motion to

Supplement Record on Direct Appeal of Conviction and Sentence,” this court

ordered the record supplemented on January 10, 2020. As the requested transcript

had originally been included in the record, appellate counsel was informed

Defendant’s brief was due on February 7, 2020. On February 14, 2020, counsel

requested leave to file a supplemental brief due to her untimely receipt of the

February 7, 2020 briefing date. Additionally, Defendant filed a brief assigning two

assignments of error without argument: (1) the trial court erroneously denied the

motion for new trial and (2) the trial court erroneously denied the motion to

reconsider sentence. In a supplemental brief timely filed on February 21, 2020,

Defendant now asserts two assignments of error: (1) the trial court erred in granting

a for cause challenge by the State on potential juror Evelina Johnson, resulting in the

State being allowed to exercise thirteen peremptory challenges and (2) the trial court

erred in denying the motion to reconsider sentence because the consecutive

sentences are unconstitutionally excessive.

In light of Defendant’s failure to brief his original assignment of error that the

trial court erred in denying the motion for new trial, we consider this claim

abandoned. See Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4).

Accordingly, we will only address the claims asserted in the supplemental brief. The

second supplemental assignment of error corresponds to the original second

assignment of error, as both allege the sentence is excessive.

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FACTS

Defendant’s convictions arise out of an incident wherein the victim, Mr.

Samuel Johnson, was attacked in his sleep by two men who tied him to his bed,

robbed his home, then left him tied up until he was found several hours later by two

Meals on Wheels employees. This incident occurred on April 24, 2017. Law

enforcement traced Mr. Johnson’s stolen phone to Defendant’s mother’s home in

Orange, Texas, where it was discovered in a bedroom. Defendant was on the bed in

said bedroom, and codefendant Ms. Pence was found hiding in the closet. Numerous

items taken from the victim’s residence, including a Titan .25 caliber handgun, were

also located at the home in Orange, Texas.

ASSIGNMENT OF ERROR NUMBER ONE

In Defendant’s first assignment of error he contends the trial court erred in

granting a for cause challenge made by the State against potential juror Mrs. Evelina

Johnson. As the State exhausted its peremptory challenges, Defendant contends this

ruling granted the State more peremptory challenges than allowed by law. As such,

he contends his convictions should be reversed and he should be entitled to a new

trial.

Initially, we note the transcript of voir dire does not identify potential jurors

by name, so we will present what we believe are all of Mrs. Johnson’s statements.

When the court asked if anyone had family in law enforcement, Mrs.. Johnson noted

she had a niece and a great niece who worked for the Calcasieu Parish Sheriff’s

Office, but testified she had no experience with or information about the current

case.

Mrs. Johnson stated she was sixty-eight years old, had three children, five

grandchildren, and two step-grandchildren. She noted she had been married for fifty

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years and was a retired LPN. When asked if she had ever been the victim of a crime,

Mrs. Johnson stated, that “Yes, I have been. I’ve had a lot of people in my family

that have committed crime. I’m not good with it.” She stated she had never been

charged with a crime but had served on a civil jury.

When the State began discussing the fact that a defendant did not have to

testify and asked if “anybody would be interested in hearing both sides?” Mrs.

Johnson answered affirmatively. She testified that she had a nephew serving twenty

years in prison and did not feel like his sentence was fair. When the State

subsequently asked if anyone “would need to know all the answers, even the things

that are beyond the elements of the crime,” Mrs. Johnson again answered

affirmatively.

Mrs. Johnson stated she watches the news in the afternoons and stated the

more she looked at Defendant, the more she felt she had seen him on TV but could

not remember the connection. She stated that she does jump to conclusions “when

[she] see[s] it and hear[s] the connection of the crime.” When asked if she viewed

the Defendant differently because he was the defendant, she stated “I -- I have to

because when I walked in I thought he was one of the attorneys; but after it was

presented, then, you know, I had to look at him differently, you know. I have to

know who not to talk to outside of the courtroom.” Mrs. Johnson also noted that she

would have to have an iron transfusion before Friday.2

When defense counsel questioned the voir dire about hearing from Defendant,

Mrs. Johnson stated she would “have a problem making a decision if all the evidence

that [she] need[ed] [wa]s not presented.” Asked if she would hold it against

2
This conversation took place on Wednesday, November 14, 2018.

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Defendant if she believed he had the last piece of evidence she needed to hear, Mrs.

Johnson noted “the jurors that I’m with would have to influence me to go a certain

way.” Furthermore, she noted she would have a problem making a decision if she

did not have every piece of information she felt she needed presented to her.

The trial court and the attorneys met with Mrs. Johnson individually to discuss

her feelings regarding the treatment of her nephew who was serving a twenty-year

sentence. She testified that her nephew was a prankster who was not dangerous but

was frequently in trouble. The story that she heard from her family was that her

nephew “was driving a car with no license, and the -- the person -- the owner of the

car had a gun under the seat, and he ran a red light, I think, and hit a police bike.”

She acknowledged she never got the full story but felt it was improper that he

received a twenty-year sentence when he did not kill anyone. She also

acknowledged that he had a criminal record that likely caught up with him. Despite

this acknowledgment, however, she stated she had a problem with someone’s past

being used to increase their sentence, asking “how can they go back and pick up all

the stuff you served time for and add that, throw that -- you know, add that to your

new charge?” Mrs. Johnson expressed frustration that her nephew “was never given

a chance in life,” noting that by the time he serves his sentence he will be too old to

train for a new life and will “have to sell drugs.”

Mrs. Johnson stated she would not feel sympathy for Defendant because of

her nephew’s situation, stating “No, I would not compare the two; and I would try

to be as fair as I can; but it – it seems like a serious crime; and it’s already plain to

me that I’m not going to get all the evidence I need, you know.” She seemed unsure

that either side would be able to give her all the information she wanted in order to

make her decision. Additionally, when asked whether she would feel sorry for

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Defendant because the charge of being a felon in possession of a firearm could

enhance his penalties because of a prior conviction, she paused before admitting it

may make her feel it was unfair. She elaborated that she hated “sentencing you now

for what you did and we’re going to resentence you for what -- the time you spent

for the other stuff you did.” Although Mrs. Johnson stated she would not hold the

Defendant’s possible decision to not testify against him, she expressed that it would

be difficult to come to a conclusion without his testimony.

The State then challenged Mrs. Johnson for cause:

I would move to strike Ms. Evelina Johnson, 144, for cause with
whom we just spoke with for compounded reasons, for the health issue
-- and I know she seemingly kind of rehabilitated herself there at the
end when she spoke about how she could be fair; but I think the length
of time she spent talking about her concerns about the justice system
and how upset she is about her nephew, I -- I know she says she can be
fair, Judge. I don’t think that she can. And she seems just -- I was just
a little concerned she anticipated there to be gaps in what we have to
show, and she also kind of mentioned being concerned if Mr. Henson
doesn’t testify which is [sic], in a way, unfairly prejudices him; and I
know, again, she came back from that, when confronted with that issue.
But I just don’t -- I think she -- I just don’t see her being a fair juror,
and I don’t think she could be good for either side.

Defense counsel objected to Mrs. Johnson’s removal:

Judge, my only take on her is she said she sat on another one
were [sic] someone was found innocent or not guilty and that’s kind of
how the jury leaned and she didn’t like that the jury leaned that way,
that somebody else wasn’t held accountable for their actions. You
know, while I think she has issues with her nephew and the way his
case was handled, she also has three members of her family that’s in
law enforcement; and then she indicated the other way that she doesn’t
-- she didn’t agree with the way one jury went when he was found not
guilty. So, I think she would be someone who would probably hold
someone accountable if she was presented with enough evidence to
prove beyond a reasonable doubt.

The trial court explained its decision to grant the challenge:

You know, it is a close one on this one, you know. This young
lady, she’s a little older than I am. Believe it or not, there are people
older than me. But I am a little concerned about whether or not she

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really could factor in the actual evidence in this case. But, honestly,
Dustan, again, I’d never second guess you. That’s not my job here, but
I have a feeling that Charles did make a valid point that somebody has
to pay for the injustice that’s been served at this time. All of that being
said, I am going to excuse her for cause, Juror No. 144.

The number of peremptory challenges allowed to each side is dictated by

La.Code Crim.P. art. 799, which states, “In trials of offenses punishable by death or

necessarily by imprisonment at hard labor, each defendant shall have twelve

peremptory challenges, and the state twelve for each defendant. In all other cases,

each defendant shall have six peremptory challenges, and the state six for each

defendant.” Additionally, La.Code Crim.P. art. 800 restricts when a defendant may

complain about a for-cause challenge:

A. A defendant may not assign as error a ruling refusing to
sustain a challenge for cause made by him, unless an objection thereto
is made at the time of the ruling. The nature of the objection and
grounds therefor shall be stated at the time of objection.

B. The erroneous allowance to the state of a challenge for cause
does not afford the defendant a ground for complaint, unless the effect
of such ruling is the exercise by the state of more peremptory challenges
than it is entitled to by law.

Defendant contends that nothing about Mrs. Johnson justified her removal for

cause; additionally, he argues the State used all of its peremptory challenges, thus

Mrs. Johnson’s removal acted as a thirteenth peremptory for the State. We agree

that the State did use all of its peremptory challenges. The general grounds

supporting a for-cause challenge are found in La.Code Crim.P. art. 797:

The state or the defendant may challenge a juror for cause on the
ground that:

(1) The juror lacks a qualification required by law;

(2) The juror is not impartial, whatever the cause of his partiality.
An opinion or impression as to the guilt or innocence of the defendant
shall not of itself be sufficient ground of challenge to a juror, if he

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declares, and the court is satisfied, that he can render an impartial
verdict according to the law and the evidence;

(3) The relationship, whether by blood, marriage, employment,
friendship, or enmity between the juror and the defendant, the person
injured by the offense, the district attorney, or defense counsel, is such
that it is reasonable to conclude that it would influence the juror in
arriving at a verdict;

(4) The juror will not accept the law as given to him by the court;
or

(5) The juror served on the grand jury that found the indictment,
or on a petit jury that once tried the defendant for the same or any other
offense.

Additionally, La.Code Crim.P. art. 798(1) declares the State may challenge a

juror for cause if “[t]he juror is biased against the enforcement of the statute charged

to have been violated, or is of the fixed opinion that the statute is invalid or

unconstitutional.” This ground is a large part of the issue with Mrs. Johnson. In

State v. Dotson, 16-473, p. 17 (La. 10/18/17), 234 So.3d 34, 45, writ denied, 18-177

(La. 12/17/18), 295 So.3d 340 (alterations in original), the supreme court stated:

As noted in State v. Miller, 99-0192 (La. 9/6/00), 776 So.2d 396,
because of the “complicated and oftentimes daunting” task faced by a
trial court in deciding “challenges for cause of prospective jurors who
give equivocal . . . responses during voir dire,” “an appellate court
should accord great deference to the [trial] court’s ruling on a challenge
for cause, which is necessarily based, in part, on the court’s personal
observations during questioning.” Id. 99-0192 at 14, 776 So.2d at 405-
06.

Looking at the entirety of Mrs. Johnson’s answers during voir dire, we find

the trial court did not abuse its great discretion in granting the State’s for cause

challenge of Mrs. Johnson. Although she ultimately said she could be fair, Mrs.

Johnson demonstrated a particular dislike for the notion of punishing someone, or

enhancing their punishment based upon a prior crime for which the individual had

previously been convicted and sentenced. One of Defendant’s charges was for being

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a felon in possession of a firearm, a crime which by its very nature punishes someone

for having previously been convicted of a felony. When asked about this charge,

Mrs. Johnson initially gave no response. She then admitted that she would likely

feel sympathy for the Defendant based upon this charge. Considering the entirety

of Mrs. Johnson’s voir dire, we cannot say the trial court abused its discretion in

granting the State’s challenge for cause regarding Mrs. Johnson. Accordingly, this

assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In Defendant’s second and final assignment of error, he contends the trial

court erroneously denied his “Motion to Reconsider Sentence,” given the excessive

nature of Defendant’s consecutive sentences totaling thirty years at hard labor. As

previously noted, Defendant contended in his motion that his consecutive sentences

were excessive. As Defendant points out, his charges all arise from a single act or

transaction. The general rule for concurrent versus consecutive sentences is set out

in La.Code Crim.P. art. 883:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

We note the following regarding consecutive versus concurrent sentences:

When two or more convictions arise from the same act or
transaction, or constitute parts of a common scheme or plan, the terms
of imprisonment shall be served concurrently unless the court expressly
directs that some or all be served consecutively. La.C.Cr.P. art. 883. It
is within a trial court’s discretion to order sentences to run
consecutively rather than concurrently. State v. McCray, 28,531

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(La.App.2d Cir.8/21/96), 679 So.2d 543; State v. Derry, 516 So.2d
1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

Concurrent sentences arising out of a single cause of conduct are
not mandatory, State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.
1993); State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985), and
consecutive sentences under those circumstances are not necessarily
excessive. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449
U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Williams, 445
So.2d 1171 (La.1984); State v. Mills, 505 So.2d 933 (La.App. 2d
Cir.1987), writ denied, 508 So.2d 65 (1987).

Among the factors to be considered are the defendant’s criminal
history, State v. Ortego, supra; State v. Jacobs, 493 So.2d 766
(La.App. 2d Cir.1986); the gravity or dangerousness of the
offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986), writ
denied, 496 So.2d 355 (La.1986); the viciousness of the crimes, State
v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the harm done to the
victims, State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ
denied, 435 So.2d 433 (La.1983); whether the defendant constitutes an
unusual risk of danger to the public, State v. Jett, 419 So.2d 844
(La.1982); the defendant’s apparent disregard for the property of
others, State v. Parker, 503 So.2d 643 (La.App. 4th Cir.1987); the
potential for the defendant’s rehabilitation, State v. Sherer, 437 So.2d
276 (La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d
Cir.1987); and whether the defendant has received a benefit from a plea
bargain, State v. Jett, supra; State v. Adams, supra.

When consecutive sentences are imposed, the court shall state
the factors considered and its reasons for the consecutive terms. State
v. Green, 614 So.2d 758 (La.App. 2d Cir.1993). A judgment directing
that sentences arising from a single course of conduct be served
consecutively requires particular justification from the evidence of
record.

State v. Coleman, 32,906, pp. 41-42 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, 1247-

48, writ denied, 00-1572 (La. 3/23/01), 787 So.2d 1010.

Prior to imposing sentence, the trial court discussed how Defendant’s drug

addiction had dissolved into something beyond addiction, noting:

You’ve digressed into something that is horrible. You’re
obviously not the person that your mother worries about. On the good
side, if there is such a thing, is that he didn’t die as a consequence of
what you did.

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You’re lucky. You’re lucky those people were there the next
morning to find him. At that age, under those conditions, he could have
died. And then the sentencing would have been a lot easier here this
morning, been very simple; you’d be going away for the rest of your
life.

Your criminal record is quite extensive; burglary, robbery,
unauthorized use of a moveable, theft.

Based on what the Court has seen, based on the record, based on
the facts that were presented at the trial I have no choice but to sentence
you as follows[.]

As this court noted in State v. Bethley, 12-853, p. 11 (La.App. 3 Cir. 2/6/13),

107 So.3d 841, 850, “[t]he imposition of consecutive sentences, however, requires

particular justification beyond the standard sentencing guidelines, justification

which must be articulated by the trial court at sentencing.” Any such articulated

justification is lacking in the instant case. The last sentence of the trial court’s lead-

in to the actual imposition of sentence cannot be described as particular justification;

the language speaks only in generalities. The trial court did not elaborate during the

hearing on Defendant’s motion to reconsider, simply stating “I’ve thought about it

some more, but I don’t think I need to change my mind on it.” We hold the trial

court’s failure to articulate why it felt Defendant’s sentences for aggravated burglary

and home invasion should be run consecutively, despite being based upon the same

entry into the victim’s home, renders Defendant’s sentences improper as imposed.

Accordingly, Defendant’s sentences for theft and possession of a firearm by a

convicted felon are affirmed. Defendant’s sentences for aggravated burglary and

home invasion are reversed and the case is remanded to the trial court to either

impose concurrent sentences or to articulate justification for the consecutive

sentences.

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CONCLUSION

Defendant’s convictions are affirmed. Further, his sentences for theft and

possession of a firearm by a convicted felon are affirmed. However, Defendant’s

sentences for aggravated burglary and home invasion are reversed and the case is

remanded to the trial court for resentencing, at which time the trial court shall either

run Defendant’s sentences concurrently or articulate justification for running them

consecutively.

CONVICTIONS AFFIRMED; SENTENCES FOR THEFT AND

POSSESSION OF A FIREARM BY A CONVICTED FELON AFFIRMED;

CONVICTIONS FOR AGGRAVATED BURGLARY AND HOME

INVASION REVERSED AND REMANDED FOR RESENTENCING.

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