                          NUMBER 13-12-00515-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


JAMES DUBOSE,                                                             Appellant,

                                           v.

THE STATE OF TEXAS,                                                        Appellee.


                    On appeal from the 25th District Court
                        of Gonzales County, Texas.


                          MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
            Memorandum Opinion by Justice Rodriguez
      Appellant James Dubose challenges his convictions for assault against a public

servant and attempting to take a weapon from a peace officer, third-degree and state jail

felonies, respectively. See TEX. PENAL CODE ANN. §§ 22.01(a), (b)(1), 38.14(b), (e)(2)

(West, Westlaw through 2013 3d C.S.). By one issue, appellant argues that the trial
court erred in refusing to include his proposed self-defense and defense-of-others

instructions in the jury charge. We affirm.

                                         I. Background1

         Appellant was indicted on one count of aggravated assault of a public servant and

two counts of attempting to take a weapon from a peace officer in connection with his

altercation with a Gonzales County Sheriff's deputy.2 Appellant pleaded not guilty, and

his case was tried to a jury.

         At trial, the following facts were undisputed. On the day of the alleged offenses,

appellant went to the home of his former mother-in-law, LouAnn Heinshon, to visit his

daughter. Appellant brought his girlfriend, Tracie Wrape, with him to the visit. When

appellant arrived at the home, he discovered that several additional people were present:

his estranged wife, Jessica; Inella West, Jessica's grandmother; Jason Torres, Jessica's

brother; Isabell De Los Santos, Jason's ex-girlfriend; and Jordan Meredith, Jessica's ex-

boyfriend. An altercation ensued between Jessica and Tracie, and law enforcement was

called. Sergeant Floyd Toliver, a deputy with the Gonzales County Sheriff's Department,

came to the scene to investigate. After listening to Tracie's version of events, Sergeant

Toliver went inside and began speaking to Jessica. Appellant continually interrupted the

conversation between Sergeant Toliver and Jessica and became increasingly upset and

angry.



         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
         2
        Appellant was also charged with one count of violating his conditions of bond, but the State
abandoned that count prior to trial.
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      Although the exact sequence of the ensuing events are disputed, it is undisputed

that appellant and Sergeant Toliver had a violent altercation, in which Sergeant Toliver

was seriously injured. At trial, Sergeant Toliver testified that when appellant became

belligerent, he attempted to place him under arrest and appellant attacked him. In his

testimony, appellant disagreed that Sergeant Toliver attempted to arrest him. Instead,

appellant testified that Sergeant Toliver asked him leave the home, and as appellant was

attempting to walk out the door, someone grabbed him from behind and appellant then

struck out at the person who grabbed him. Appellant admitted Sergeant Toliver was that

person and that he continued to assault Sergeant Toliver even after he realized the

person he was assaulting was a peace officer. Appellant does not deny that he viciously

attacked Sergeant Toliver—elbowing him in the head, pinning him to the ground, kicking

him in the side with steel-toed boots, and choking him with his arms. Further, there was

testimony that appellant tried to grab Sergeant Toliver's pepper spray and gun; appellant

denied that he ever tried to grab the gun, but testified that he tried to grab the pepper

spray to defend himself.

      Because he believed appellant was trying to grab Sergeant Toliver's gun, Jason,

Jessica's brother, went to his room to retrieve his gun.       He ran out of his room

brandishing a .45 semi-automatic pistol and shouted at appellant that he would shoot

appellant if he did not take his hand off Sergeant Toliver's gun. At this point, appellant

stopped hitting Sergeant Toliver and left the home.

      Appellant testified repeatedly that he was in fear for his life both when he was

grabbed by Sergeant Toliver and when Jason threatened to shoot him. He testified that

his only thoughts throughout the altercation were getting out of the situation alive. He
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also testified that he feared for the lives of the other persons in the house when Jason

began threatening him with his gun.

       After the close of evidence, the jury was charged on the three indicted counts.

First, the jury was charged on aggravated assault of a public servant, with the option of

instead convicting appellant of the lesser-included offenses of aggravated assault, assault

on a public servant, or assault.      Second, the jury was charged on the offense of

attempting to take a weapon from a peace officer, in this count, Sergeant Toliver's firearm.

Third, the jury was again charged on the offense of attempting to take a weapon from a

peace officer, in this count, Sergeant Toliver's pepper spray.

       Before the charge went to the jury, appellant requested four defensive instructions

to be included in the assault charge: one self-defense instruction based on Sergeant

Toliver's actions; one self-defense instruction based on Jason's actions; a defense-of-

other instruction based on Jason's actions; and a self-defense instruction based on the

alleged use of excessive force by Sergeant Toliver. The trial court denied the four

instructions. However, both attempting-to-take-a-weapon charges included the following

excessive-force defensive instruction:

               It is a defense to a prosecution for this offense that the defendant
       attempted to take the weapon from a peace officer who was using force
       against the defendant in excess of the amount of force necessary to be
       used. Therefore, if you find from the evidence beyond a reasonable doubt
       that the officer was using force against the defendant in excess of the
       amount of force necessary to be used then you will find the defendant not
       guilty of the offense of Attempting to Take a Weapon from a Peace Office[r]
       ....

       On count one, the jury returned a guilty verdict on the lesser-included offense of

assault of a public servant. On count two, the jury returned a verdict of not guilty. On

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count three, the jury returned a verdict of guilty. Punishment was tried to the jury, which

assessed a term of ten years' imprisonment in the Institutional Division of the Texas

Department of Criminal Justice for count one and two years' imprisonment in the State

Jail Division for count two. This appeal followed.

                       II. Applicable Law and Standard of Review

               [U]nder [section] 2.03(c) [of the penal code], a defense is supported
       (or raised) by the evidence if there is some evidence, from any source, on
       each element of the defense that, if believed by the jury, would support a
       rational inference that that element is true. [TEX. PENAL CODE ANN. §
       2.03(c) (West, Westlaw through 2013 3d C.S.)]. In determining whether a
       defense is thus supported, a court must rely on its own judgment, formed in
       the light of its own common sense and experience, as to the limits of rational
       inference from the facts proven. If a defense is supported by the evidence,
       then the defendant is entitled to an instruction on that defense, even if the
       evidence supporting the defense is weak or contradicted, and even if the
       trial court is of the opinion that the evidence is not credible. But the
       evidence must be such that it will support a rational jury finding as to each
       element of the defense.

               The requirement that the evidence must rationally support a jury
       finding before a defensive instruction is required serves to preserve the
       integrity of the jury as the fact[]finder by ensuring that it is instructed as to a
       defense only when, given the evidence, that defense is a rational alternative
       to the defendant's criminal liability. If a jury were instructed as to a defense
       even though the evidence did not rationally support it, then the instruction
       would constitute an invitation to the jury to return a verdict based on
       speculation. Whether a defense is supported by the evidence is a
       sufficiency question reviewable on appeal as a question of law.

Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007) (internal citations

omitted).

                                       III. Discussion

       By one issue, appellant challenges the trial court's refusal to include his four

proposed defensive instructions in the jury charge. We will address each requested

instruction in turn.
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A. Self-Defense Against Sergeant Toliver

      Appellant's first requested instruction read as follows:

            A person is justified in using force against another when and to the
      degree he reasonably believes the force is immediately necessary to protect
      himself against the other's use or attempted use of unlawful force.

            The use of force against another is not justified in response to verbal
      provocation alone.

            "Reasonable belief" means a belief that would be held by an ordinary
      and prudent man in the same circumstances as the defendant.

              "Unlawful" means criminal or tortious or both and includes what
      would be criminal or tortious but for a defense not amounting to justification
      or privilege.

             Now bearing in mind the foregoing definitions and instructions, if you
      believe from the evidence beyond a reasonable doubt that the defendant,
      James Dubose, In the County of Gonzales and State of Texas, on or about
      the 9th day of February, 2011, did then and there use force on Floyd Toliver
      in committing the offense of Aggravated Assault of a Public Servant as
      alleged in the indictment, but you further find, or have a reasonable doubt
      thereof, that the defendant reasonable believed (as viewed from his
      standpoint alone) that force when and to the degree used, if it was, was
      immediately necessary to protect himself against the use or attempted use
      of unlawful force by the said Floyd Toliver, and that the use of force, if any,
      by the said defendant was not in response to verbal provocation alone, then
      you will acquit the defendant and say by your verdict "not guilty."

      The language of the foregoing tracked section 9.31(a) of the penal code, which

outlines the requirements for a general self-defense justification. See TEX. PENAL CODE

ANN. § 9.31(a) ("[A] person is justified in using force against another when and to the

degree the actor reasonably believes the force is immediately necessary to protect the

actor against the other's use or attempted use of unlawful force."). However, section

9.31(b) provides that the justification of self-defense is not available in certain

circumstances, namely when the force is being used to resist an arrest "the actor knows

                                            6
is being made by a peace officer." Id. § 9.31(b). To be entitled to an instruction on self-

defense when resisting an arrest that a defendant knows is being made by a peace officer,

there must be some evidence in the record to show that (1) "before the actor offers any

resistance, the peace officer . . . uses or attempts to use greater force than necessary to

make the arrest or search," and (2) "the actor reasonably believes the force is immediately

necessary to protect himself against the peace officer's . . . use or attempted use of

greater force than necessary." Id. § 9.31(c); Porteous v. State, 259 S.W.3d 741, 748

(Tex. App.—Houston [1st Dist.] 2007, pet. dism'd).

        Assuming without deciding that Sergeant Toliver had not attempted to arrest

appellant before the altercation ensued,3 appellant still was not entitled to an instruction

based on general self-defense principles. There was no evidence that the degree of

force used by appellant against Sergeant Toliver—elbowing him in the head, knocking

him to the ground, kicking him in the side with steel-toed boots, and choking him with his

arms—was necessary to protect appellant.                 "The amount of force used must be in

proportion to the force encountered." Tidmore v. State, 976 S.W.2d 724, 728 (Tex.

App.—Tyler 1998, pet. ref'd); see also McBride v. State, No. 13-04-00575–CR, 2006 WL

1965822, at *5 (Tex. App.—Corpus Christi July 13, 2006, pet. ref'd) (mem. op., not

designated for publication). And here, the amount of force used by appellant was clearly



         3 There was conflicting testimony at trial as to whether Sergeant Toliver attempted to arrest

appellant. If we assumed that Sergeant Toliver had attempted to arrest appellant before appellant attacked
him, appellant would only have been entitled to a self-defense instruction based on Sergeant Toliver's
actions if those actions constituted excessive force. See TEX. PENAL CODE ANN. § 9.31(c) (West, Westlaw
through 2013 3d C.S.). Because the instruction proposed by appellant at trial did not include the excessive
force language provided by the statute, under this assumed scenario, appellant's first-requested instruction
did not comply with the applicable law, and we could not conclude the trial court erred in denying this
instruction on this basis.
                                                     7
disproportionate. Appellant testified at trial that, although he was initially unaware of who

grabbed him from behind, he kept attacking that person even after he realized the person

who grabbed him was Sergeant Toliver. In short, it was not reasonable for appellant to

conclude, based on the minimal action taken by Sergeant Toliver in grabbing appellant's

arm and, especially, once appellant realized it was a peace officer he was attacking, that

it was necessary to use the degree of force he used. See TEX. PENAL CODE ANN. §

9.31(a). The evidence did not support appellant's first proposed instruction, and the trial

court did not err in denying it. See Shaw, 243 S.W.3d at 657–58.

B. Self-Defense against Jason and Defense of Others

       Because our conclusions as to appellant's second and third requested instructions

rest on the same reasoning, we address both instructions together. Appellant's second

requested instruction—regarding self-defense against Jason—read as follows:

       A person is justified in using force against another when and to the degree
       he reasonably believes the force is immediately necessary to protect
       himself against the other's use or attempted use of unlawful force.

             The use of force against another is not justified in response to verbal
       provocation alone.

             "Reasonable belief" means a belief that would be held by an ordinary
       and prudent man in the same circumstances as the defendant.

               "Unlawful" means criminal or tortious or both and includes what
       would be criminal or tortious but for a defense not amounting to justification
       or privilege.

              Now bearing in mind the foregoing definitions and instructions, if you
       believe from the evidence beyond a reasonable doubt that the defendant,
       James Dubose, In the County of Gonzales and State of Texas, on or about
       the 9th day of February, 2011, did then and there use force on Floyd Toliver
       in committing the offense of Aggravated Assault of a Public Servant as
       alleged in the indictment, but you further find, or have a reasonable doubt
       thereof, that the defendant reasonable believed (as viewed from his
                                             8
       standpoint alone) that force when and to the degree used, if it was, was
       immediately necessary to protect himself against the use or attempted use
       of unlawful force by the said Jason Torres, and that the use of force, if any,
       by the said defendant was not in response to verbal provocation alone, then
       you will acquit the defendant and say by your verdict "not guilty."

Appellant's third requested instruction—regarding defense of others—read as follows:

              Upon the law of defense of a 3rd person, you are instructed that a
       person is justified in using force to protect a third person when and to the
       degree he reasonably believes the force would be necessary to protect
       himself against the use of force or deadly force he reasonably believes to
       be threatening the third person or persons [he] seeks to protect.

              Now if you believe that on or about the 9th day of February, 2011 in
       Gonzales County, the Defendant, James Dubose reasonably believed that
       force was immediately necessary (as viewed from his standpoint alone) to
       protect third persons or persons, namely, Floyd Toliver, Jessica Dubose,
       LouAnn Heinsohn, Inella West and Jordan Meredith against the use of
       force and deadly force by Jason Torres and a reasonable person in James
       Dubose's situation, would not have retreated, you will acquit the defendant
       and say by your verdict "not guilty."

       In neither his appellate brief nor at trial did appellant explain how his use of force

against Sergeant Toliver was a means of self-defense against Jason.                       Likewise,

appellant does not explain how his attack on Sergeant Toliver protected the third persons

specified in the third requested instruction.4 Although appellant does not rely on it in his

brief, we find that the only evidence in the record that arguably explains the connection is

appellant's testimony that, during his attack on Sergeant Toliver, a thought ran through

his head that taking Sergeant Toliver's pepper spray was the only way to "get out of there

alive." There is no further evidence in the record illuminating why appellant's continued

assault of Sergeant Toliver was necessary to protect himself from Jason or to protect the



       4Indeed, we cannot conceive of any reasonable explanation as to why attacking Sergeant Toliver
was a means of protecting Sergeant Toliver.
                                                 9
identified third persons from Jason.

       In short, we conclude there was no evidence from which a rational fact finder could

conclude that appellant had a reasonable belief that his use of force against Sergeant

Toliver was necessary to protect himself or protect others from Jason's threat. See id.

at 657–58. A verdict based on appellant's testimony about retrieving Sergeant Toliver's

pepper spray would have been no more than speculation by the fact finder. See id. at

658. Therefore, the trial court did not err in refusing these instructions.

C. Justification Based on Excessive Force

       Appellant's fourth requested instruction read as follows:

               You are instructed that a peace officer is justified in using force
       against another when and to the degree he reasonably believes the force
       is immediately necessary to make such arrest, if he reasonably believes the
       arrest is lawful and provided, before using force, such officer manifests his
       purpose to arrest and identifies himself as a police officer, unless he
       reasonably believes his purpose and identity are already known by or
       cannot be reasonably made known to the person to be arrested.

              On the other hand, the use of force to resist arrest is [un]justified if,
       before a person offers any resistance, the peace officer uses or attempts to
       use greater force than necessary to make the arrest and when and to the
       degree the person reasonably believes the force is immediately necessary
       to protect himself against the peace officer's use or attempted use of greater
       force than necessary.

              The term "reasonable belief" means a belief that would be held by
       an ordinary and prudent man in the same circumstances as the actor in the
       particular situation.

              If you find from the evidence, or if you have a reasonable doubt
       thereof, that on the occasion in question Floyd Toliver, the peace officer,
       used or attempted to use greater force than was necessary to effect an
       arrest of the defendant before the defendant offered any resistance and that
       the defendant resisted such efforts to arrest him when and to the degree he
       reasonably believed the force was immediately necessary to protect himself
       against such use or attempted use of greater force than necessary, then
       you will acquit the defendant of the charge of aggravated assault on a peace
                                             10
        officer.

        Appellant's entitlement to this instruction is governed by section 9.31(c) of the

penal code, which provides that a defendant is entitled to use force in resisting arrest if

there is some evidence in the record that (1) "before the actor offers any resistance, the

peace officer . . . uses or attempts to use greater force than necessary to make the arrest

or search," and (2) "the actor reasonably believes the force is immediately necessary to

protect himself against the peace officer's . . . use or attempted use of greater force than

necessary." See TEX. PENAL CODE ANN. § 9.31(c); Porteous, 259 S.W.3d at 748. In

other words, appellant was only entitled to this instruction if there was some evidence at

trial that, before appellant offered any resistance, Sergeant Toliver used excessive force

in attempting to arrest appellant.5

        The evidence in this case showed, undisputedly, two things: (1) appellant did

offer resistance before Sergeant Toliver attempted to arrest him, and (2) the only force

Sergeant Toliver used before appellant attacked him was to grab appellant's arm. In his

testimony at trial, appellant admitted that he was behaving belligerently when Sergeant

Toliver was attempting to question Jessica.                 Appellant testified that he directed

numerous obscenities at both Sergeant Toliver and Jessica and that he refused Sergeant

Toliver's first two requests to step outside. Based on the testimony at trial, we cannot

conclude that appellant offered no resistance before Sergeant Toliver attempted to arrest

him. Moreover, "evidence that a police officer grabbed a suspect's arms, in itself, would

[ordinarily] not be sufficient to show the officer used excessive force to effect an arrest."


        5By requesting this instruction and asking that we review its denial on appeal, appellant appears
to concede that Sergeant Toliver tried to arrest him at some point during the events at LouAnn's home.
                                                   11
Flores v. State, 942 S.W.2d 735, 737–38 (Tex. App.—Houston [14th Dist.] 1997, no pet.);

see also Szumny v. State, No. 13-97-00902-CR, 1999 WL 33757425, at *3 (Tex. App.—

Corpus Christi Sept. 30, 1999, no pet.) (not designated for publication).            And the

evidence here was that the only force used by Sergeant Toliver was grabbing appellant's

arm, at which point appellant swung around and struck the officer.

       In sum, there was insufficient evidence raising the justification of excessive force,

and the trial court therefore did not err in denying appellant's fourth requested instruction.

See Shaw, 243 S.W.3d at 657–58.

D. Summary

       Having concluded that the trial court properly denied each of appellant's requested

defensive instructions, we overrule appellant's issue on appeal.

                                     IV. Conclusion

       The judgment of the trial court is affirmed.



                                                                 NELDA V. RODRIGUEZ
                                                                 Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
1st day of May, 2014.




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