James Allen Bundage v. State ( 2015 )

ACCEPTED
01-14-00522-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/31/2015 6:26:03 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00522-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST SUPREME JUDICIAL DISTRICT
3/31/2015 6:26:03 PM
CHRISTOPHER A. PRINE
AT HOUSTON, TEXAS Clerk
********************
JAMES ALLEN BUNDAGE
Appellant
V.
THE STATE OF TEXAS
Appellee
********************
Appeal from the
12th District Court of Grimes County, Texas
Trial Cause No. 17,304
********************
STATE’S BRIEF
TUCK MOODY MCLAIN
District Attorney
P. O. Box 599
Anderson, Texas 77830
(936) 873-2137
State Bar No. 13737650
NO. 01-14-00522-CR
IN THE COURT OF APPEALS
FIRST SUPREME JUDICIAL DISTRICT
AT HOUSTON, TEXAS
********************
JAMES ALLEN BUNDAGE
Appellant
V.
THE STATE OF TEXAS
Appellee
********************
Appeal from the
12th District Court of Grimes County, Texas
Trial Cause No. 17,304
********************
STATE’S BRIEF
TUCK MOODY MCLAIN
District Attorney
P. O. Box 599
Anderson, Texas 77830
(936) 873-2137
State Bar No. 13737650
IDENTITY OF PARTIES AND COUNSEL
ATTORNEYS FOR THE STATE OF TEXAS
Tuck McLain
District Attorney
Grimes County, Texas
P.O. Box 599
Anderson, Texas 77830
TSB#13737650
(936) 873-2137
(936) 873-2688 fax
APPELLANT:
James Allen Bundage
TDC #1925564
McConnell Unit
3001 S. Emily Dr.
Beeville, Texas 78102
ATTORNEY FOR APPELLANT AT TRIAL
Frank Blezek
1414 11th St.
Huntsville, Texas 77340
William Bennett
P.O. Box 1748
Madisonville, Texas 77864
ATTORNEY FOR APPELLANT ON APPEAL
Mark Maltsberger
216 N. Bryan Ave, Suite 110
Bryan, Texas 77803
TRIAL JUDGE
Hon. Donald Kraemer
12th Judicial District Court, Grimes County, Texas
1100 University Ave., Room 303
Huntsville, Texas 77340
ii
TABLE OF CONTENTS
Identity of Parties and Counsel .......................................................................................... ii
Table of Contents .............................................................................................................. iii
Index of Authorities .......................................................................................................... iv
Statement of Case ............................................................................................................... 1
Issues Presented................................................................................................................... 2
Statement of Facts............................................................................................................... 2
State’s Response to Appellant’s Issue No. 1 ...................................................................... 3
THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUEST
FOR A JURY INSTRUCTION ON “VOLUNTARY CONDUCT”.
Summary of State’s Response to Appellant’s Issue No. 1 ................................................. 4
Argument and Authorities - State’s Response to Appellant’s Issue No. 1 ......................... 4
State’s Response to Appellant’s Issue No. 2 ...................................................................... 7
THE TRIAL COURT PROPERLY DENIED APPELLANT’S CHALLENGE
TO THE JURY PURSUANT TO BATSON V KENTUCKY AND ART.
35.261 TEX. CODE CRIM. PRO.
Summary of Argument - State’s Response to Appellant’s Issue No. 1 .............................. 8
Argument and Authorities - State’s Response to Appellant’s Issue No.1 .......................... 8
Prayer ................................................................................................................................ 12
Certificate of Service ........................................................................................................ 13
Certificate of Compliance ............................................................................................... 13
iii
INDEX OF AUTHORITIES
STATE CASES
Brown v. State, 906 S.W.2d 565, 568 (Tex.App.-
Houston [14th Dist.] 1995) ................................................................................................. 7
Dockery v. State, 542 S.W.2d 644, 649 (Tex.Cr.App.1976) .............................................. 5
Gerber v. State, 845 S.W.2d 460, 467 (Tex.App.-
Houston [1st Dist.] 1993, pet. ref'd) ................................................................................... 7
Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004) ................................... 10, 11
Goldberg v. State, 95 S.W.3d 345, 385 (Tex.App.–
Houston [1st Dist.] 2002, pet. ref'd) ................................................................................. 11
Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ............................................ 11
Joiner v. State, 696 S.W.2d 68 (Tex.App. -
San Antonio 1985, pet. granted, rev’d) .............................................................................. 6
Joiner v. State, 727 S.W.2d 534 (Tex Crim App. 1987) .................................................... 5
Rodgers v. State, 2004 WL 2363830, (Tex.App.-
Houston [1 Dist.] - 2003) ................................................................................................... 7
Satterwhite v. State, 858 S.W.2d 412, 415 (Tex.Crim.App.1993) ................................... 10
Smith v. State, 676 S.W.2d 379, 387 (Tex.Crim.App.1984) ............................................ 10
Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975) .......................................................... 5
Whitsey v. State, 796 S.W.2d 707, 713 (Tex.Crim.App.1989) .......................................... 9
Will. v. State, 630 S.W.2d 640, 644 (Tex.Cr.App.1982) ............................................. 5
Will. v. State, 804 S.W.2d 95, 97 (Tex.Cr.App. 1991) ................................................ 8
FEDERAL CASES
Hernandez v. New York, 500 U.S. 352, 358, 360 111 S. Ct. 1859,
114 L. Ed. 2d 395 (1991) ..................................................................................................... 9
iv
Miller–El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005) ................... 9
Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769,
131 L. Ed. 2d 834 (1995) ................................................................................................... 10
RULES, CODES, AND STATUTES
Penal Code Sec. 6.01(a) .......................................................................................................... 4, 5
v
NO. 01-14-00522-CR
IN THE COURT OF APPEALS
FIRST SUPREME JUDICIAL DISTRICT
AT HOUSTON, TEXAS
********************
JAMES ALLEN BUNDAGE
Appellant
V.
THE STATE OF TEXAS
Appellee
********************
Appeal from the
12th District Court of Grimes County, Texas
Trial Cause No. 17,304
********************
STATE’S BRIEF
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
Now Comes, The State of Texas, and submits this brief in support of its prayer for
affirmation of the jury finding of guilty for murder. Having elected to have the Court assess
punishment appellant was sentenced to confinement for thirty-five (35) years in the Texas
Department of Criminal Justice - Institutional Division.
STATEMENT OF THE CASE
On December 13, 2012 in cause number 17,304, appellant was indicted for capital
murder. After the State having waived the death penalty, a jury was empaneled on the
Page 1 of 13
January 7, 2014 and appellant’s trial began that same date. On January 10, 2014, the jury
found appellant guilty of the lesser included offense of murder. Pursuant to the appellant’s
election, punishment was assessed by the trial court. A sentencing hearing was held on May
19, 2014 whereupon appellant was sentenced to thirty-five (35) years confinement in the
Texas Department of Criminal Justice - Institutional Division.
Appellant timely filed his notice of appeal on May 27, 2014.
ISSUES PRESENTED
The State will not reiterate appellant’s Issues Presented.
STATEMENT OF FACTS
The State will adopt Appellant’s Statement of Facts except to supplement when
appropriate. As stated in Appellant’s Brief, on September 24, 2012, James Bundage shot
Patrick McHale between the eyes with a .30-30 rifle in Grimes County, Texas. (State’s
Exhibit #39)(interview of Appellant). Death was instantaneous. (4 RR 103). Years of bad
blood existed between these neighbors who shared a fence line. (3 RR 77-82, 4 RR 7-13).
McHale operated a dog training facility on his property. (3 RR 74-77). Bundage lived alone
on family land that adjoined the McHale property. (3 RR 74). Bundage had previously been
convicted of disorderly conduct in regards to a prior incident between the neighbors. (4 RR
8-20; see State’s Exhibit #38).
On the morning of McHale’s death, McHale had contacted the Grimes County
Sheriff’s Department to complain of Bundage’s actions. (3 RR 86-91). Deputy Mike Beweley
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was dispatched to Stoneham, Texas and learned of the alleged cross words and actions of
Bundage directed toward McHale and his wife earlier that morning. (3 RR 36-37). Beweley
attempted to interview Bundage at this time but was unable to locate him. (3 RR 37-42).
Shortly thereafter, Beweley was dispatched to return to Stoneham following a 911 call from
McHale’s property. (3 RR 46). The 911 recording captured the audio of the shooting (State’s
Exhibit #5). Upon his arrival, Beweley discovered the dead body of Patrick McHale. (3 RR
48-49). Bundage was not at the scene when Deputy Beweley arrived. Beweley secured the
scene until other officers arrived whereupon a search of the are for Bundage was conducted.
Law enforcement was unable to locate Bundage. He had apparently fled the scene and was
in hiding. Subsequently, a warrant was issued for James Bundage (4 RR 49-50), Later that
evening, Bundage entered his residence without the knowledge of law enforcement watching
the residence. As he was “slipping” out of the residence, he was spotted by a Deputy.
Bundage was holding a .30-30 rifle and supplies while attempting to sneak away from the
his residence (3 RR 180-184). Bundage was immediately arrested. As he was being arrested,
Bundage told Deputies the shooting was an accident (3 RR 185). After his arrest, Bundage
confessed to causing the death of Patrick McHale but claimed that it was an accident. (4 RR
62-63, see State’s Exhibit #39).
STATE’S RESPONSE - APPELLANT’S ISSUE NO. 1
THE TRIAL COURT PROPERLY DENIED APPELLANT’S REQUEST
FOR A JURY INSTRUCTION ON “VOLUNTARY CONDUCT”.
Page 3 of 13
Summary of Argument - Stae’s Response to Appellant’s Issue No. 1:
Appellant requested the jury be instructed on the law of “voluntary conduct”.
Appellant’s request was based on appellant’s statement when arrested that “it was an
accident” along with appellant’s statement during his post arrest interview that it was an
accident. Appellant contended the simple expression that the shooting was a n accident was
sufficient to warrant the charge. The trial court denied the instruction.
The concept of “accident” is now partly performed by the requirement of Penal Code
Sec. 6.01(a). However, the mere assertion that a shooting was an “accident” does not require
an instruction on “voluntary conduct”. To be entitled to an instruction on involuntary
conduct, there must be evidence of an independent event, such as the conduct of a third party,
which could have precipitated the discharge of the weapon. As a result, an appellant's bare
assertion that a killing was accidental does not raise the issue of voluntariness. In the case
at bar, there is not a scintilla of evidence to support appellant’s assertion that the murder was
an accident. Without some evidence of an involuntary act, appellant was not entitled to the
instruction. The trial court properly denied appellant’s request for an instruction on
“voluntary conduct”
Argument and Authorities - State’s Response to Appellant’s Issue 1:
Appellant properly describes the standard of review and general law concerning the
analysis of an objected to charging error. For the sake of argument, the State agrees
appellant’s trial counsel properly preserved error and it is ripe for review. Appellant
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complains that the trial court erred in failing to give a requested jury instruction on
“voluntary conduct” based on appellant’s bare assertion that the shooting was an “accident”.
Appellant offers no evidence of “accident” other than his self serving statement it was an
accident. Appellant seems to imply that this mere assertion somehow necessitates an
instruction on “voluntary conduct.”
In discussing the distinction between “voluntariness” and “accident” and the genesis
of the law related to these concepts, the Court of Criminal Appeals stated as follows:
Under the former penal code there was a defense of accident, which properly
applied to cases in which the defendant's act was not “intentional.” Stiles v.
State, 520 S.W.2d 894 (Tex.Cr.App.1975). It must be recognized that the term
“intentional” had a much different meaning in the law of accident under the
former penal code than it now has in the law of culpable mental states under
the present penal code. See Dockery v. State, 542 S.W.2d 644, 649
(Tex.Cr.App.1976). In the former law of accident, the term “intentional” meant
something like “voluntary.” Therefore, the correct meaning of the former term
“accident” was that the actor did not voluntarily engage in conduct. But,
“accident” was also used under the former penal code to describe a
hodgepodge of defenses, including the absence of a culpable mental state,
conduct which was voluntary but that differed from the intended conduct,
mistake of fact, and an unexpected result. See Dockery v. State, 542 S.W.2d
644, 650 (Tex.Cr.App.1976) (Odom, J., dissenting). It is understandable that
the drafters of the present penal code rejected a term which had so many
meanings in law, as well as in popular usage, that it served to confuse issues
rather than to clarify them. Williams v. State, 630 S.W.2d 640, 644
(Tex.Cr.App.1982);
As such, “accident” is not a defense recognized in the law today contrary to appellant’s
implication. The concept of “accident” is now partly performed by the requirement of Penal
Code Sec. 6.01(a) that “[a] person commits an offense only if he voluntarily engages in
conduct....” Williams at 644; Dockery. 649–50.
Page 5 of 13
In Joiner v. State, 727 S.W.2d 534 (Tex Crim App. 1987), the Court of Criminal
Appeals addressed this issue with facts very similar to the case at bar. The defendant in
Joiner pulled out a pistol when confronting his victim in a bathroom and shot her. After
shooting her, the defendant stated “it was accident”. The Court of Criminal Appeals, in
reversing the lower court, favorably quoted Judge Butts dissent in the court of appeals
opinion. Judge Butts describes why an instruction on “voluntary conduct’ was inappropriate:
Even if we assume as true in this case the unintended but fatal discharge of the
gun pointed unlawfully at the deceased, the fact remains the intentional
pointing of the weapon was a voluntary act and the resulting death is imputable
to the appellant, who carried the gun concealed on his person, who drew the
gun, who pointed it at the deceased from two to three inches distance, and who
shot her in the face. There was no evidence of a scuffle, of the deceased's
striking him or the gun, or of any other movement not willed by appellant. This
is clearly voluntary conduct as contemplated by the statute, [V.T.C.A., Penal
Code Sec. 6.01(a) ] Joiner at 537 quoting Joiner v. State, 696 S.W.2d 68
(Tex.App.—San Antonio 1985) Judge Butts Dissent.
The Court of Criminal Appeals went on to hold:
We hold that on the facts of this case a charge on absence of voluntary conduct
was not required. As previously noted, appellant did not testify; thus, the only
evidence that even remotely raised the issue was the bare statement, “It was an
accident.” There was no explanation of what the “it” was: the statement could
have meant that appellant intentionally fired the revolver but did not intend to
hit her; or, he intended to hit her but not kill her; or, the act of firing the
revolver was unintentional. Joiner at 537.
This very court, faced with a similar set of facts, addressed this issue properly following
Joiner by stating.
Appellant's bare assertion that the firing of the pistol was accidental does not
raise the issue of voluntariness. An accused's testimony that a weapon
“accidentally went off” or that he “didn't intend to shoot but that it was an
Page 6 of 13
accident,” does not raise the issue of the voluntariness of his conduct. Gerber
v. State, 845 S.W.2d 460, 467 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd);
see also Joiner v. State, 727 S.W.2d 534, 536 (Tex.Crim.App.1987) (holding
that request for instruction on voluntariness was properly denied because bare
assertions of lack of intent and accidental discharge do not raise issue of
absence of voluntary conduct).
To be entitled to an instruction on involuntary conduct there must be “evidence
of an independent event, such as the conduct of a third party, which could have
precipitated the discharge of the bullet.” Brown v. State, 906 S.W.2d 565, 568
(Tex.App.-Houston [14th Dist.] 1995), aff'd, 955 S.W.2d 276 (Tex.Crim
.App.1997). Rodgers v. State, 2004 WL 2363830, (Tex.App.-Hous. [1 Dist.]
- 2003)
In the case at bar, appellant did not testify. His recorded statement to law enforcement
made the night of the murder merely had an assertion that the shooting was an accident
(State’s Exhibit #39) . Appellant admitted shot the victim with a 30-30 lever action rifle.
Appellant acknowledged loading the gun (State’s Exhibit #39) . Walking over to the victim’s
property and confronting him with the rifle (State’s Exhibit #39) . Appellant admits he
chambered the gun and, at some point “cocked” the hammer (State’s Exhibit #39) . The
evidence adduced at trial was that the “trigger pull’ on the rifle was 5 ½ - 6 ½ pounds (RR
vol 4 pp 34). Appellant admitted shooting at appellant but denied “intending” to kill him
(State’s Exhibit #39). There was no evidence from any source that there was a scuffle, of
anyone striking the gun or of any other force other than appellant’s own actions causing the
gun to be fired (State’s Exhibit #39). Additionally, the shooting was actually recorded via
a 911 call made by the deceased before the shooting (State’s Exhibit #5). It is clear from the
911 recording, in which the fatal shot can be heard, that there was no struggle, no intervening
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force, nothing that would have caused appellant actions to be “involuntary” or “accidental”.
As in Joiner and Rogers above, the only evidence appellant brings to the court
justifying his request for an instruction on voluntariness is the “bare assertion” that “it” was
an accident. Such “evidence” wholly fails to raise the issue and justify the charge. The trial
court properly denied appellant’s request for a charge on voluntariness.
STATE’S RESPONSE - APPELLANT’S ISSUE NO. 2
THE TRIAL COURT PROPERLY DENIED APPELLANT’S
CHALLENGE TO THE JURY PURSUANT TO BATSON V
KENTUCKY AND ART. 35.261 TEX. CODE CRIM. PRO.
Summary of Argument - State’s Response to Appellant’s Issue No. 2:
The State was challenged for using 3 of its strikes to strike 3 venire men that were
African American. The State offered race neutral reasons for each of the strikes. None of
the State’s race neutral reason were rebutted by appellant and the trial court accepted the
prosecutors explanations as race neutral and denied appellants challenge.
Argument and Authorities - State’s Response to Appellant’s Issue 2:
Appellant’s description of the prevailing law on the requirements to preserve error and
the courts standard of review is correct as it relates to a Batson Challenge. However
appellant simply makes a conclusory statement that the State’s race neutral reasons for each
strike were “invalid explanations.” Appellant asserts the State, therefore, failed to meet its
burden in providing race neutral reason for any strikes they utilized against a member of a
racial minority. As appellant stated, the Texas Court of Criminal Appeals has held that
Page 8 of 13
Batson contemplates a scheme of shifting burdens, whereby
1. Appellant has the initial burden of proof to establish a prima facie case of
purposeful discrimination
2. Burden (termed a burden of production) then shifts to the challenging party
to supply a race-neutral explanation for the peremptory challenge(s)
3. Burden (termed a burden of persuasion) next shifts back to the movant to
rebut the challenging party’s explanations so that it can be rationally inferred
that the challenging party engaged in purposeful racial discrimination.
Williams v. State, 804 S.W.2d 95, 97 (Tex.Cr.App. 1991).
Appellant objected to three of the State’s strikes claiming they were based on race.
Appellant complained of the State’s strike of Juror No. 42, Nicholas, Juror No. 36, Lewis,
and Juror No. 5, Johnson (RR Vol 2, pp 222). The State did not challenge the defenses
assertion that the venire men were of a protected class and the complained of venire men
were African-American as is appellant. Appellant met the first step of a proper Batson
Challenge. The State, essentially agreeing that the appellant had met their prima facie
burden then offered it’s race neutral reasons. The State responded that Juror No. 42,
Nicholas had a short employment history, was young (under 30) and had no ties to the
community (only a resident for a few months). A race-neutral explanation is one based on
something other than the race of the venire men. Hernandez v. New York, 500 U.S. 352, 358,
360 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). At this step of the inquiry, the issue is simply
the facial validity of the prosecutor's explanation. Id. Unless discriminatory intent is inherent
in the explanation, the offered reason is race neutral. Clearly the prosecutors explanation was
race neutral. In the third step, the court must determine whether the defendant proved
purposeful discrimination. The trial judge must evaluate the facially race-neutral reasons
Page 9 of 13
given by the prosecutor to determine whether those explanations are genuine or merely a
pretext for purposeful discrimination. Whitsey v. State, 796 S.W.2d 707, 713
(Tex.Crim.App.1989). Batson affords the State an opportunity to give its reason for striking
a venire men, but requires the court to “assess the plausibility of that reason in light of all
evidence with a bearing on it. Miller–El v. Dretke, 545 U.S. at 252, 125 S. Ct. 2317.
After providing this race neutral reason, the burden shifts to appellant to rebut the
State’s reasoning. Appellant offered no additional evidence indicating that any non-African
American jurors with Juror 42's “profile” were not struck by the State or allowed on the jury.
There was no evidence adduced by witnesses nor presented in the record indicating the
State’s reasoning was, in any way, a pretext. As a result, the appellant wholly failed to rebut
the State’s reasoning.
In reviewing Batson challenges, courts have held that the reviewing court examines
jury selection from a cold record. Satterwhite v. State, 858 S.W.2d 412, 415
(Tex.Crim.App.1993). The trial court, unlike a reviewing court, has the opportunity to view
each venire men's demeanor and to evaluate his or her credibility and, ultimately, is in the
better position to pass on the challenges for cause presented. Satterwhite, 858 S.W.2d at 415
(citing Smith v. State, 676 S.W.2d 379, 387 (Tex.Crim.App.1984)). Consequently, a
reviewing court should not reverse a trial court's ruling on a Batson challenge unless it is
clearly erroneous. See Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004). To hold
that a trial court clearly erred, the reviewing court must have a “definite and firm conviction
Page 10 of 13
that a mistake has been committed.” Goldberg v. State, 95 S.W.3d 345, 385
(Tex.App.–Houston [1st Dist.] 2002, pet. ref'd). The reviewing court should not substitute
it’s opinion for the trial court's factual assessment of the neutrality of the prosecutor's
explanation for exercising strikes, and we focus on the genuiness, rather than the
reasonableness, of the prosecutor's asserted nonracial motive. Gibson, 144 S.W.3d at 534 n.
5 (citing Purkett, 514 U.S. at 765, 115 S.Ct. at 1771–72). The appellate court must give great
deference to the trial court's determination, and view the evidence in the light most favorable
to the trial court's ruling. Gibson, 144 S.W.3d at 534 n. 6 (citing Guzman v. State, 955
S.W.2d 85, 89 (Tex.Crim.App.1997)). In the case at bar, the trial court clearly accepted the
prosecutors race neutral explanations and no evidence in the record a adduced by appellant
contradicts the prosecutors race neutral explanation.
Likewise, the State went on to explain it’s strike of Juror No. 36, Lewis by indicating
Lewis was seen waving at the defendant when entering the courtroom and that they gave
each other the “thumbs up”. This was unrebutted by appellant. Furthermore, the State
testified that during questioning, Juror 36 denied knowing the defendant. (RR Vol 2, pp 222-
223). Once again, appellant failed to offer any evidence challenging the State’s proffer or
indicating the race neutral reasons were a pretext.
Finally, the State explained it’s strike of Juror No 5, Johnson, indicating their decision
was based on multiple criminal charges the State was aware of against Juror No. 5. Once
again, appellant failed to offer any rebuttal for this race neutral reason.
Page 11 of 13
In his brief, appellant’s only attempt to claim appellant made any rebuttal to the
State’s race neutral explanations is a reference to a statement made BEFORE appellant even
made his Batson challenge based on race. Appellant’s attempt at a Batson challenge to
challenge the State’s strikes based on gender. This tactic failed when it was pointed out the
ENTIRE JURY WAS FEMALE! (RR Vol 2 pp 223-224). The state had struck at least four
males and appellant had also struck every male in the strike zone. In support of this
argument that the State was trying to eliminate all women as well as all people of color,
appellant’s trial counsel made an “off hand” and unsubstantiated comment that the state
couldn’t strike all of the women because they were trying to also strike all of the blacks.
Appellant’s made no offer of any proof to substantiate his side bar comment. Of course, this
absurd assertion was completely unsupported by any facts and amounted to no more than an
improper sidebar. This statement was also made some time PRIOR to appellant’s charge that
the State struck jurors based on race and prior to the State’s offer of their race neutral
explanations. Such a sidebar made before the State even makes its race neutral explanation
can not be seriously considered a response to the State unless appellant’s trial counsel is
prescient. As a result, appellant failed to rebut any of the State’s race neutral explanations
and, therefore, the trial court properly denied appellant’s motion to have those jurors seated.
PRAYER
Based on the above, the State of Texas, by and through her District Attorney, prey that
this Honorable Court uphold the jury’s verdict and affirm Appellant’s convictions for Murder
Page 12 of 13
and subsequent sentence of confinement for thirty-five (35) years in the Institutional
Division of the Texas Department of Criminal Justice.
Respectfully submitted:
/S/ Tuck McLain
Tuck McLain
District Attorney - 506th Judicial District
P.O. Box 599
Anderson, Texas 77830
Phone: (936) 873-2137
Fax: (936) 873-2688
TSB# 13737650
CERTIFICATE OF SERVICE
I, Tuck McLain, District Attorney, Grimes County, Texas do hereby certify that a true
and correct copy of the foregoing State’s Brief was sent via U.S. Mail, CMRRR to Counsel
for Appellant, Mark Maltsberger, 216 N. Bryan Ave., Suite 110, Bryan, Texas, 77803 and
via email to mmaltsberger@mmaltsberger.com on March 31, 2015.
/S/ Tuck McLain
Tuck McLain
District Attorney - 506th Judicial District
CERTIFICATE OF COMPLIANCE
I, Tuck Moody McLain, do hereby certify that the forgoing State’s Brief complies
with Rule 9.4 (i)(2) Tex. Rule A. Pro. and contains three thousand thirty-two (3032) words.
/S/ Tuck McLain
Tuck Moody Mclain
Page 13 of 13