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State v. Breaux

Court of Appeals of Louisiana, Third Circuit

March 13, 2019

STATE OF LOUISIANA
v.
DAVID ALAN BREAUX

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 16149-16 HONORABLE GUY E. BRADBERRY, DISTRICT JUDGE.

          MS. HOLLI HERRLE-CASTILLO ATTORNEY AT LAW COUNSEL FOR APPELLANT DAVID ALAN BREAUX

          MS. SHELLEY A. DEVILLE MS. KAREN C. MCLELLAN ASSISTANT DISTRICT ATTORNEY MR. JOHN F. DEROSIER DISTRICT ATTORNEY PARISH OF CALCASIEU COUNSEL FOR APPELLEE STATE OF LOUISIANA

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry, Judges.

          JONATHAN W. PERRY, JUDGE.

         Defendant, David Alan Breaux, appeals his jury convictions for attempted first degree murder (two counts), violations of La.R.S. 14:27 and 14:30.1; aggravated flight from an officer, a violation of La.R.S. 14:108.1; and possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. Relying on an alleged improper denial of a challenge for cause, Defendant seeks to reverse his convictions. He further contends his sentences for attempted first degree murder (two counts) were constitutionally excessive. [1] For the following reasons, we affirm Defendant's convictions, but vacate Defendant's sentences for attempted first degree murder and remand for resentencing, order the trial court to correct the Defendant's sentence for his conviction of aggravated flight from an officer, as reflected in this opinion, and remand this matter to the trial court to correctly advise Defendant of the provisions of La.Code Crim.P. art. 930.8.

         FACTS

         None of Defendant's assignments of error involve the facts which led to his convictions. Accordingly, we find it is only necessary to provide a thumbnail sketch of the facts that led to Defendant's arrest.

         On June 24, 2016, Defendant and Kayla Demary ("Kayla") were romantically involved. At that time, Kayla was five months pregnant with Defendant's child. As Kayla and her father, Harry Bertrand ("Harry"), were driving from the grocery store, they noticed Defendant following them. While Kayla and Harry exited their vehicle, but before they were able to enter their home, Defendant arrived in the front yard armed with a hand gun and shouted that he was going to kill them. Defendant then fired three shots at Kayla and Harry; one shot wounded Kayla. When Harry attempted to go to Kayla's aid, Defendant pointed the hand gun at him, cautioned him not to move toward Kayla, and then told him that he would get him this time. When the neighbors saw what was happening and headed toward Kayla and Harry, Defendant sped away in his vehicle. Eventually, Kayla was airlifted to a Lafayette hospital and was treated for wounds to her chest and arm. After fleeing from police at speeds of greater than 100 miles per hour, the police captured Defendant and these criminal charges were brought against him.

         After a unanimous jury convicted Defendant, the trial court sentenced him to forty-five years at hard labor for each of the attempted murder convictions to be served without benefit of probation, parole, or suspension for the first ten years [2] and five years at hard labor for the aggravated flight from an officer conviction to run consecutively to the sentence imposed on each conviction of attempted first degree murder and further imposed a fine of $2, 000.00. Lastly, for possession of a weapon by a convicted felon, he was sentenced to ten years at hard labor without benefit of probation, parole, or suspension of sentence, to run concurrently to the sentences imposed on each conviction of attempted first degree murder and aggravated flight from an officer.

         ASSIGNMENTS OF ERROR

         Defendant raises two assignments of error: (1) the trial court erred in denying the defense's challenge for cause as it relates to prospective juror Diana Mays ("Mays"); and (2) the trial court erred in imposing an excessive sentence for his attempted murder convictions.

         DENIAL OF CHALLENGE FOR CAUSE

         Defendant contends the trial court erred when it failed to excuse Mays, a prospective juror, for cause. Defendant argues that Mays' responses showed she was unable to be attentive and she could not render a fair verdict. Defendant claims he should receive a new trial because he ...


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