DuBose sentenced to maximum, fined $10,000

James DuBose, found guilty on Friday of two felony counts, will spend the next 12 years behind bars and must pay a $10,000 fine for the February 2011 assault of Gonzales County Sheriff’s Sgt. Patrol Deputy Floyd Toliver.

A day expected to be a sprint as attorneys petitioned the jury regarding punishment for DuBose turned into a marathon Monday during a fifth day of testimony.

On Friday, after four arduous days of selecting a jury, testimony by various witnesses and painstakingly thorough – and often heated – cross-examinations, proceedings dealing with DuBose’s assault of Toliver ended with the jury finding DuBose guilty of two felonies.

The jury found DuBose guilty of assault on a public servant and attempting to take a protective chemical dispensing device from a public servant (pepper spray).

The first offense is a third-degree felony that could result in DuBose being incarcerated for 2-10 years. The second offense is a state jail felony that could put DuBose behind bars 180 days to 2 years.

The offenses of which DuBose was convicted are lesser charges petitioned by defense attorneys that 25th District Court Judge Dwight Peschel agreed were appropriate for the offenses.

DuBose was found not guilty of aggravated assault on a peace officer, and not guilty of attempting to take the weapon of a peace officer.

When the jury was charged on Monday afternoon with determining DuBose’s punishment, the six men and six women returned after less than an hour of deliberations and saddled DuBose with the maximum penalty — 10 years in the penitentiary on the assault conviction and two years in state jail on the conviction for attempting to take Toliver’s pepper spray. DuBose was also fined $10,000 on the assault conviction.

“We are pleased with both verdicts,” said Assistant District Attorney Jessie Allen. “We appreciate the jury’s service. We felt like they put a significant amount of effort in reflection coming to their decisions, which we feel were appropriate decisions.”

In closing arguments, Allen recalled the trial to the jury in its entirety, and made a point that he believed DuBose should be given 10 years in prison. Assistant District Attorney Michael Mark concurred, adding that if DuBose didn’t learn how to “play by the rules” when he was in the U.S. Marine Corps, then there is no way he’s going to learn how from 10 years’ probation.

Defense attorney Michael Hinton made the case that any additional testimonies made by witnesses who had already taken the stand last week should be taken with a grain of salt because the new information could have been given last week, thus, lending the testimonies no credence.

Toliver was pleased with the sentences DuBose received, and believes the jury reflected the conscience of the community.

“[The sentences] should send a message, that besides assaulting a public servant, that the community isn’t going to stand for this kind of thing,” Toliver said.

DuBose, 25, was charged with five separate felony counts overall related to the Toliver encounter that occurred Feb. 9, 2011, and another in 2010. In addition to the charges currently before the court, additional charges are two counts of assault with bodily injury to a family member/house member (two within 12 months).

On the February 2011 date, Toliver responded to a 911 family violence call at the Harwood residence of DuBose’s estranged wife Jessica, where DuBose was attempting to exercise scheduled visitation with his daughter.

While trying to diffuse an emotional situation and after multiple instructions to DuBose to leave the home, Toliver attempted to arrest DuBose.

According to Toliver and witnesses in the home, DuBose then attacked Toliver, striking him repeatedly and knocking him to the floor. Toliver sustained injuries to his face, head and back during the altercation.

The beating continued for several minutes until DuBose’s brother-in-law, Jason Torres, pulled a gun on DuBose and ordered him to stop. Witnesses said DuBose attempted to remove Toliver’s gun and mace from his belt several times during the attack.

During its closing arguments before Peschel, the defense told the jury that Toliver failed to control the situation, and that DuBose was, for all intents and purposes, coaxed into walking into what turned out to be a “hornet’s nest.”

The prosecution, however, told the jury that DuBose knew what he was doing and chose to continue the assault.

“You’ve got to be able to prove [DuBose’s guilt] within a reasonable doubt, and if you can’t do that, then the verdict is ‘not guilty’,” defense attorney Michael Hinton admonished the jury. “Toliver lost control of the situation that day. It was his job to [to take control]. Is that the defendant’s fault? Should the defendant pay for that?”

The jury determined that as the charges applied to aggravated assault and attempting to take the weapon of a peace officer, that it was not DuBose’s fault.

But Assistant District Attorney Michael Mark maintained that Toliver was doing his job until DuBose intervened.

“Floyd Toliver is a person who puts his life on the line for me and you,” Mark told the jury. “This is not about [DuBose]. This is about [Toliver]. Toliver went out to that house that day. He didn’t lose control of the situation. The defendant interrupted him while he was trying to do his job.”

Defense attorney Noel Reese recalled for the jury the sequence of events from Feb. 9, 2011 – particularly a 9-1-1 call in which someone, who is believed to be LouAnn Heinsohn, Jessica’s mother, repeatedly shouted, “Shoot him, J!” (“J” is a nickname for Jason Torres, Jessica’s brother.) – and pointed the finger of guilt toward those at the Harwood residence when DuBose arrived.

“The villain here is not James DuBose,” Reese said in summation. “It is not Floyd Toliver. The villain is Jessica, who assaulted poor Tracie Wrape. That’s how this whole thing started. And did Jessica’s mother do anything to prevent this assault? No. Did Jessica’s grandmother do anything to prevent it? No. They both could have, but they didn’t. James and Tracie walked into a hornet’s nest that day. [Jessica’s family] could have prevented the whole incident, but they decided to start it instead.”

Assistant District Attorney Jessie Allen then concluded Thursday’s closing arguments asserting that DuBose chose to assault Toliver, then asked the jury to find DuBose guilty on all counts.

“DuBose felt he needed to be in control of the situation,” Allen said. “That’s all it was. This was not an involuntary reflex. This was not combat. He had a choice in this situation, and he chose to try to be in control of it. He knew he was assaulting a police officer, and he chose to continue assaulting him. I am asking you to find the defendant guilty of all the charges against him.”

Prior to closing arguments, DuBose told his side of what transpired during the altercation.

“I didn’t want to go to Jessica’s house by myself,” DuBose told the jury. “There were a lot of problems between the two of us as it was, and when [girlfriend] Tracie [Wrape] and I pulled up in front of the house and saw all those cars in the driveway, I knew it wasn’t going to be good. Tracie said she had a bad feeling about it.

“So I knocked on the door, and Jessica let me in. Tracie followed me in, and Jessica said she couldn’t be there. Tracie tried to talk to her, but Jessica attacked her. [Jessica] started punching [Tracie] in the face,” he continued.

“After that, Jason (Torres, Jessica’s brother) and I broke them up. I told Tracie to wait outside. I went outside after that, and made a phone call to the sheriff’s department.”

DuBose then said that when Toliver arrived, he began questioning Jessica.

“Her answers were lies,” DuBose charged. “So I started interrupting her so Toliver could hear my side. I guess he didn’t like that. He didn’t want to talk to me, and that got me frustrated. When he said I was interrupting, several other people in the house were talking at the same time.”

Defense attorney Michael Hinton asked DuBose if, after the third time Toliver asked him to leave, did he do it?

“I did,” DuBose explained. “I turned to go, and when I touched the doorknob, I felt someone grab me from behind. I never saw a pair of handcuffs.

“As soon as I felt the grab, I instinctively turned around and punched the person who grabbed me,” DuBose continued. “I didn’t know it was Toliver.”

DuBose testified that by the time he had the person on the ground, he discovered it was, in fact, Toliver, and that he saw Toliver reaching for his gun.

“This made me fear for my life,” DuBose said. “So I grabbed his hand to keep him from getting it. I did not want to get shot.”

DuBose elaborated that matters got worse when Torres entered the room and “started waving a gun around,” and told him to release Toliver.

“When I looked at Jason, I could (peripherally) tell Toliver was going for his pepper spray,” he said. “So I tried to stop him from getting that. In the process, I took Toliver to the ground again.

That’s when I felt a .45 caliber pistol pressed against the side of my head. I knew it was Jason, and I thought he would shoot me, so I released Toliver and walked outside.”

DuBose said his next move was to call the sheriff’s department again, this time to tell them that he had struck Toliver.

“They told me to just hang out until they got there, so I did,” he said. “Before long, [Department of Public Safety troopers Howard] Brothers and [Wayne] Henkes showed up. I was sitting with Tracie on the car, and Brothers yanked me out of the car and pistol-whipped me. He took me to the ground and told me to stay there. I waited and waited for someone to tell me to get up, and they never did. So I got up and stood by Toliver’s car.”

During cross-examination, the prosecution attempted to refute DuBose’s recollections. Assistant District Attorney Michael Mark aggressively pressed his questions of the stories’ legitimacy. He showed the court a video of DuBose’s interrogation the day after the alleged assault in which Lt. Jeromy Belin with the Gonzales County Sheriff’s Office asked him what had transpired.

In the video, DuBose told Belin that Toliver never asked him to leave.

“All he said was, ‘Well I tell you what …,’ and next thing you know I feel somebody grabbing me.”

Mark was having none of it, and demonstrated this by asking DuBose which story was true. “You just told this jury that he did ask you to leave, and that he asked you three times,” he said. “Did you lie to the jury, or did you lie to Lt. Belin?”

DuBose said he didn’t know how to answer the question.

From there, Mark referenced Toliver’s testimony from Tuesday, in which Toliver said he asked DuBose three times to leave.

“Toliver is a liar,” DuBose said. “He never told me to leave, never told me I was under arrest, and I never shouted out, ‘Excessive force!’ He flat out lied about that. He has probably lied about a lot of things.”

When defense testimony began Wednesday, expert witnesses testified that DuBose suffers from post-traumatic stress disorder (PTSD). DuBose shed some light on his experiences in Iraq, and what he thinks caused him to suffer from PTSD.

“I would go out once a week to patrol the area outside my base,” he told the jury. “I operated a machine gun. There were three different instances where I was shot at.”

DuBose said that while he was never wounded in the exchanges, the experiences were enough to lead to his PTSD.

During Wednesday’s proceedings, Sgt. Major Brian Pensak, a hand-to-hand combat instructor with the Marine Corps, explained to the jury that DuBose was trained in mixed martial arts. He also expressed his belief that DuBose’s assault on Toliver was a reflexive response to a situation in which a Marine receives what he believes to be a threat to his safety.

In other words, when Toliver tried to put the cuffs on DuBose, DuBose went into combat mode.

Additional expert testimony came from Houston psychologist George Glass, M.D., who had treated DuBose for post-traumatic stress disorder (PTSD) after his service in the Marines.

Glass explained to the jury some of the criteria for PTSD.

“[DuBose] had recurrent and intrusive distressing recollections of events in Iraq (where DuBose was stationed for a time), including distressing dreams,” he said.

The prosecution kicked off Tuesday’s first day of testimony with a roster of eight witnesses that recounted the events of Feb. 9, 2011, the extent of the injuries Toliver sustained and the results of the Gonzales County Sheriff’s Office investigation.

The most compelling of the prosecution witnesses was Toliver himself, who described his actions and the assault.

“I grabbed his collar first, then grabbed my cuffs,” Toliver said. “Then he yelled, ‘Excessive force!,’ and elbowed me in the face.”

Toliver told the jury that DuBose knocked him to the ground and continued assaulting him, punching him in the face, neck, arms and back. He also said that DuBose kneed and elbowed him in those areas multiple times, causing him extreme pain and temporary incapacitation.

“I reached for my gun, and that’s when he got me on the ground,” Toliver testified. “After that, he struck me repeatedly. I don’t know if the struggle went on for seconds or minutes, but it seemed like forever.”