                                                                          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

Williams v. State, 630 S.W.2d 640, 644 (Tex.Cr.App.1982) ............................................. 5

Williams 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


                                         Page 2 of 13
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


                                          Page 4 of 13
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


                                         Page 7 of 13
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
