State rests after first day of testimony in Dubose trial

GONZALES – After the opening day of testimonies, the prosecution rested after putting up seven witnesses in the James Dubose trial.
Dubose is on trial for three felony counts including aggravated assault on a public servant and attempting to take the weapon of a peace officer.
The charges stem from an incident that happened in February of 2011. According to reports, at approximately 4:30 p.m. on Feb. 9, Gonzales County Deputy Floyd Toliver responded to a 911 family violence call at a residence in Harwood. Based on statements from Toliver and witnesses in the home, Dubose began punching Toliver and knocked him down to the floor. Toliver received injuries to his head, face and back, with several small bones in his back being broken by repeated blows.
The beating supposedly continued for several minutes until a man (Dubose’s brother-in-law Jason Torres) held a gun on Dubose and ordered him to stop. During the investigation, witnesses testified that Dubose attempted to grab Toliver’s gun and mace from his belt several times during the attack.
The trial began on Monday with the selection of a jury, which was chosen from a field of over 100 candidates. Several members of the panel were dismissed early on for either being unqualified to serve or unable to do so due to family emergencies or medical conditions.
The final jury was chosen late Monday afternoon and consists of six men and six women.
Prior to the trial, Dubose elected to  have his punishment, if any is required, determined by the jury instead of the presiding judge Dwight Peschel of the 25th District Court. The range of punishment for the crimes Dubose are charged with range from five years probation to life in prison.
“Our office has one duty in this case and that’s to see justice is done,” said assistant district attorney Michael Mark, who is the lead chair for the prosecution. “This is not about getting a conviction, it’s not about putting somebody in jail. It’s about justice.”
 On Tuesday, Toliver took the stand and recounted the event in question. He said he responded to a call of two women fighting and upon arriving at the location, he met Tracie Wrape, Dubose’s girlfriend, at the gate in front of the house.
He testified that he took her statement and then proceeded into the house to take the statement of Dubose’s estranged wife, Jessica Torres Dubose, who was the other party involved in the scuffle.
Toliver, a 22-year veteran of the Gonzales County Sheriff’s Office, said during his interrogation of Jessica Dubose, he was continually interrupted by James Dubose, who was present at the house for a supervised visit with his daughter.
“I asked him to step outside so I could get his wife’s side of the story,” said Toliver from the witness stand. “I told him to leave three times and he refused to do so.”
At that time Toliver said he told Dubose that he was being placed under arrest. Dubose turned around to leave and when Toliver went to grab him by the collar, Dubose struck him on the right side of his face with a closed fist, according to Toliver’s testimony.
“He continued hitting me in the head and I remember going to the ground,” Toliver said. “He kneed me in the head and elbowed me in my lower back. I was getting hit so much that I can’t remember if he kicked me or not.”
Toliver then testified that Dubose escalated the situation further by going for items in the deputy’s belt.
“He tried to get my pepper spray but when he reached for it I snapped it shut,” said Toliver. “I felt my belt being pulled upwards and I remember feeling a tug on my holster.”
Toliver credited the fact that because his weapon had Level Two safeties on it, Dubose was unable to take it from him. Level Two is a maximum rest design with snaps on both the front and back of the gun holster.
Toliver said he was unsure of how long the attack lasted, saying only that is seemed like “forever,” and said he was in pain the entire time.
During cross examination by Dubose’s attorney Michael Hinton, Toliver said he had no knowledge of Dubose or his domestic situation prior to responding to the call.
“I did not know who he was,” Toliver said. “I was not given much information from dispatch. All I knew was there were two women fighting.”
Hinton asked Toliver to recall the statement he had given to Gonzales County investigators two days after his alleged attack. The point of contention was whether or not Toliver had taken his handcuffs out of his belt to restrain Dubose prior to Dubose turning to leave and exit the premises.
“Do you remember telling the investigator he (Dubose) was heading for the door when you told him to,” Hinton said.
“No I do not,” Toliver responded. “He didn’t try to leave until I told him he was under arrest for interfering with an investigation.”
The next compelling testimony came Jessica Dubose’s brother, Jason Torres, who said James Dubose exhibited aggressive behavior from the time he arrived at the house. He also stated that his family was not thrilled with the fact that Dubose had brought Wrap with him as a companion.
Dubose has maintained that Wrap was there in the capacity of a witness to his visit, per the advise of his legal counsel.
“Him and his girlfriend pushed their way through me and my sister at the door,” he said. Her and my sister started swinging at each other. James got in the way and pushed my sister, so I pushed him back.”
After the initial altercation, Torres said the authorities were called by his sister, his stepfather (who was on the phone with Torres’ mother at the time), and Dubose himself. Wrape went outside and the situation started to diffuse.
Torres said shortly thereafter Toliver arrived and began asking questions of Jessica Dubose, but couldn’t make any progress because James Dubose continually cut her off.
“Toliver asked her several times to let her (Jessica) finish because he kept interrupting,” said Torres. “James said no and that he had a right to stand there and listen.”
Torres testified that Dubose used profanity when addressing Toliver, who tolerated the language for a bit until he told Dubose to put his hands behind his back.
“After Toliver reached for him, James elbowed him in the face and wrestled him to the ground,” said Torres. “James had him on the ground face down and he was trying to reach for his belt. He had unsnapped his mace and his pistol, but Toliver had enough sense to keep him from it.”
Torres said at that time he went into his room and retrieved a .45 caliber handgun, which he pointed at Dubose while commanding him to get off the deputy.
“I had to yell at him five or six times to let go of Toliver’s gun,” said Torres. “He finally looked at me and said ‘Don’t do it, don’t shoot.’”
During cross examination, another member of Dubose’s defense team, Noel Reese, said that Dubose was immediately met with hostility upon his arrival and asked why Torres’ family couldn’t have let that go.
“Tracie didn’t threaten your sister did she,” asked Reese. “Wasn’t it your sister who punched Tracie repeatedly?”
Torres didn’t answer that question affirmatively, but did admit that he had to pull his sister off of Wrape.
The testimony of Jessica Dubose’s mother, Louann Bennett Heinsohn, followed closely along that of her son’s. The new wrinkle her statements introduced had to do with the ferocity of Dubose’s attack on Toliver.
“Toliver was in a daze,” she said. “He looked right at me and my son as if to say ‘Please do something.’”
At that moment, she testified that Torres went and got his gun and told Dubose to stop. After he kept going for Toliver’s gun, Heinsohn said Dubose finally relented and went outside. She and her son immediately tended to Toliver’s injuries.
“He was hurt really bad,” she said. “We helped him to the couch and the first thing he did was made sure he still had his gun.”
During cross examination, Hinton asked Heinsohn if perhaps Dubose’s visitation would have gone better if Jessica wasn’t there because their relationship is “toxic.”
“Because of his temper, it would have been a lot better if Jessica hadn’t been there,” said Heinsohn.
“And your daughter doesn’t have a temper?” responded Hinton.
Trooper Howard Brothers, a 33-year veteran of the Department of Public Safety, then recounted his experience with the incident during testimony. The issue that came into question was whether or not Dubose resisted arrest before being forcibly removed from his vehicle by the trooper.
Brothers said from the stand that he responded to a call on an officer being down and possible shots being fired from the scene. When he arrived, he saw Dubose and Wrap sitting in a car in the driveway.
“I knew it was very important for me to neutralize the situation,” he said. “I asked him (Dubose) to get out of the car and he was unresponsive. I opened the door, reached in and pulled him out.”
A video was shown from the vantage point of in-dash cameras from the cars of both Brothers and Trooper Wayne Henkes, who followed Brother to the scene. The footage seemed to indicate that Brothers immediately extracted Dubose from the vehicle upon his arrival.
“You said in your report that Mr. Dubose was aggressive towards you, but I didn’t see that on the video,” said Hinton.
“He was non-compliant with my instructions,” Brothers answered.
“Didn’t you tell him not to move?” said Hinton. “How long did it take before you pulled him out of the car? One second? A second and a half?”
“It took a little longer than that,” Brothers said.
Dr. David Meredith took the stand to speak about the extent of Toliver’s injuries. He said the deputy suffered a myriad of damage including multiple injuries to his arms, face, and shoulder areas, and also broke three bones in his lower back.
“He showed evidence of being significantly traumatized,” Meredith said. “He was definitely in pain.”
Mark read the legal definition of serious bodily injury and asked Meredith if such an injury can be inflicted by a human’s foot, fist or knee?
“It is possible,” Meredith said. “He did suffer injuries that did not allow him to do his job for several months.”
Meredith added that Toliver needed physical therapy and several steroid injection shots to recover enough to return to his post.
The day ended with the State calling Detective Jeromy Belin of the Gonzales County Sheriff’s Office, who investigated the case. Belin verified several items entered into evidence including a pair of steel-toe boots worn by Dubose on the day in question, a crumpled Cowboy hay worn by Toliver, and the deputy’s blood-stained uniform.
The defense will put on its case Wednesday morning after Judge Peschel rules on a pending motion asking him to allow expert testimony to be heard by the jury.
Hinton said he has two military experts, Capt. John Urquhart and former Marine drill instructor Sgt. Major Brian Pensek, who can support the contention that Dubose’s actions on that day were directly related to his training.
“They will testify about what kind of training Marines receive including martial arts and that they are trained to react,” said Hinton. “It is not an insanity defense at all. We’ve never raised that and it’s not the case here.”
Hinton also asked the court to allow testimony from Dr. George Glass, a Houston psychologist who can attest to the fact that at the time Dubose was suffering from Post Traumatic Stress Disorder (PTSD).
“He examined the records from the VA Hospital in Austin where Mr. Dubose was diagnosed with PTSD and has been reporting for treatment,” Hinton explained. “Dr. Glass has adopted his findings and will be giving his own opinion, if the judge allows it, only as it goes to the element of (whether DuBose’s actions were done) intentionally and knowingly.”