Opinion issued July 30, 2015




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                               NO. 01-14-00522-CR
                          ———————————
                   JAMES ALLEN BUNDAGE, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 12th District Court
                          Grimes County, Texas
                       Trial Court Case No. 17,304



                                  OPINION

      A jury convicted appellant, James Allen Bundage, of the first-degree felony

offense of murder, and the trial court assessed punishment at thirty-five years’
confinement.1 In two issues, appellant contends that (1) the trial court erred in

refusing to submit a jury instruction in the written charge on the defensive issue of

whether he committed a voluntary act and (2) the trial court erred in denying his

three Batson challenges made when the State used three preemptory strikes against

African-American veniremembers.

      We affirm.

                                   Background

      Appellant and his neighbor Pat McHale, the complainant, had had an

acrimonious relationship ever since appellant moved next door to McHale in 2004.

McHale operated a dog training facility on his property, and this business—and the

noise that it generated—had been the subject of numerous complaints filed by

appellant with various authorities, including the Department of Housing and Urban

Development. McHale and his wife, Michelle, on their part, had called the Grimes

County Sheriff’s Department (“GCSD”) on several occasions over the years to

report appellant’s threatening behavior. Appellant had previously been convicted

of disorderly conduct in 2009 after he brandished a gun and threatened McHale

and guests visiting McHale’s property.

      Around 11:00 a.m. on the morning of September 24, 2012, Michelle McHale

was working outside training dogs when appellant started yelling at her and


1
      See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
                                         2
threatening her. Michelle called 9-1-1, but before GCSD Deputy M. Bewley could

arrive in response to the call appellant went back to his own property. Appellant

did not answer his door when Deputy Bewley knocked. When Deputy Bewley saw

McHale after unsuccessfully trying to speak with appellant, he told McHale to call

him if he saw appellant again. Shortly after noon, Deputy Bewley left the area to

pick up lunch. Deputy Bewley had been at a local restaurant for approximately

five to ten minutes when he received a call from 9-1-1 dispatch stating that

McHale had called again, that yelling had been audible during the call, and that the

connection had been lost. Deputy Bewley drove up to a barn located on McHale’s

property and discovered McHale’s body. McHale had been shot once in the head.

      Randi Farquhar, a dispatcher for the GCSD, received both 9-1-1 calls from

the McHales on September 24, 2012. After the connection was lost during the

second 9-1-1 call, she attempted to call McHale back, and, when he did not

answer, she dispatched Deputy Bewley back to the scene. The trial court admitted

an audio recording of the second 9-1-1 call. During this recording, appellant can

be heard yelling at McHale while McHale tries to calm appellant down. On the

recording, McHale said, “Don’t do it, James,” just before the sound of a gunshot.

Farquhar then attempted to speak to McHale, but she received no answer before

the connection was ultimately lost.




                                         3
      GCSD officers apprehended appellant, who had a .30-30 rifle with him, at

his residence later that evening. At the time of his arrest, appellant told Deputy B.

Baldobino, one of the arresting officers, “It was an accident.” Appellant then

spoke with officers about the shooting, and the trial court admitted a DVD

recording of the interrogation.       During his interrogation, appellant generally

described his history with McHale and stated that he had gone over to McHale’s

property earlier that day with a loaded .30-30 rifle, which he brought along with

him because he knew that McHale owned guns. Appellant and McHale stood

approximately ten to twelve feet from each other while they argued, and appellant

admitted that he pointed and aimed the rifle at McHale. Appellant claimed that

McHale “lunged” at him, and that was the point at which appellant pulled the

trigger on the rifle.2 At several points throughout the interrogation, appellant

admitted pointing the rifle at McHale, cocking the rifle, and pulling the trigger. He

also stated multiple times that the shooting was an accident and that he had had no

intent to hurt McHale.




2
      Ryan Mude, an employee of the Texas Department of Public Safety firearms lab,
      testified that the rifle was in working order and that this particular rifle required 5
      1/2 to 6 1/2 pounds of pressure on the trigger to fire.

                                             4
      At the close of voir dire, appellant made three Batson challenges,3 arguing

that the State had impermissibly exercised its peremptory strikes against

Prospective Juror No. 5, Prospective Juror No. 36, and Prospective Juror No. 42 on

the basis that each prospective juror was African-American. The prosecutor stated

that he struck Prospective Juror No. 5 because she was unemployed and had been

charged with four criminal offenses, including assault in 2003, driving with an

invalid license in 2006, making a terroristic threat in 2008, and criminal mischief

in 2009. He stated that he struck Prospective Juror No. 36 based on courtroom

demeanor: when the prospective juror arrived in the courtroom, he waved at

appellant and they gave each other a thumbs up, but the prospective juror did not

acknowledge that he knew appellant during voir dire questioning, even though the

State asked if anyone knew appellant.           The prosecutor stated that he struck

Prospective Juror No. 42 because he had only been employed for eight months, he

was under the age of thirty, and he had “no other ties to the community.” Defense

counsel did not rebut any of these facially race-neutral explanations, and he did not

provide any argument or point to any evidence that the explanations were pretexts

for purposeful discrimination. After considering the arguments of both sides, the

trial court denied the Batson challenges.



3
      Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986) (prohibiting
      use of peremptory strikes to challenge prospective jurors on basis of their race).
                                            5
      During the charge conference, defense counsel objected to the trial court’s

“failure to include an instruction on voluntary conduct.”       The written charge

allowed the jury to find appellant guilty of either the charged offense of capital

murder or the lesser-included offense of murder. The jury found appellant guilty

of murder, and the trial court assessed punishment at thirty-five years’

confinement. This appeal followed.

                     Jury Instruction on Voluntary Conduct

      In his first issue, appellant contends that the trial court erred by failing to

include an instruction in the jury charge on the defense of voluntary conduct.

      We use a two-step process in reviewing jury charge error. Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). First, we determine whether error exists

in the charge. Id. If error does exist, we review the record to determine whether

the error caused sufficient harm to require reversal of the conviction. Id. When

the defendant properly objected to the error in the charge, reversal is required

unless the error was harmless. Id.; see also Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984); Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d, untimely filed) (providing that, to preserve

error in jury charge, defendant must object or request specific charge).

      The trial court must provide the jury with “a written charge distinctly setting

forth the law applicable to the case.” Walters v. State, 247 S.W.3d 204, 208 (Tex.

                                          6
Crim. App. 2007) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14)). The trial

court must instruct the jury on statutory defenses, affirmative defenses, and

justifications whenever they are raised by the evidence in the case. Id. at 208–09.

“A defendant is entitled to an instruction on every defensive issue raised by the

evidence, regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks that the testimony is not worthy

of belief.” Id. at 209. When reviewing a trial court’s ruling denying a requested

defensive instruction, we view the evidence in the light most favorable to the

defendant’s requested instruction. Bufkin v. State, 207 S.W.3d 779, 782 (Tex.

Crim. App. 2006); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

We review the trial court’s decision not to include a defensive issue in the jury

charge for an abuse of discretion. See Love v. State, 199 S.W.3d 447, 455 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Wesbrook v. State, 29 S.W.3d

103, 122 (Tex. Crim. App. 2000)).

      A person commits an offense only if he voluntarily engages in conduct,

including an act, an omission, or possession. TEX. PENAL CODE ANN. § 6.01(a)

(Vernon 2011). “Voluntary conduct” and “accident” are two distinct defensive

theories, and the current version of the Penal Code does not provide for a “defense

of accident.” Rogers v. State, 105 S.W.3d 630, 637–38 (Tex. Crim. App. 2003).




                                        7
“‘Voluntariness,’ within the meaning of Section 6.01(a), refers only to one’s own

physical body movements.” Id. at 638. The Court of Criminal Appeals has stated:

      If those physical movements are the nonvolitional result of someone
      else’s act, are set in motion by some independent non-human force,
      are caused by a physical reflex or convulsion, or are the product of
      unconsciousness, hypnosis or other nonvolitional impetus, that
      movement is not voluntary. The word “accident,” however, is a word
      of many meanings which covers a wide spectrum of possibilities. It
      generally means “a happening that is not expected, foreseen, or
      intended.” Its synonyms include “chance, mishap, mischance, and
      misfortune.” It includes, but certainly is not limited to, unintended
      bodily movements. But at least since this Court’s decision in
      Williams [v. State, 630 S.W.2d 640 (Tex. Crim. App. 1982)], the word
      “accident” has not been used to refer to an “involuntary act” under
      Section 6.01(a). Thus, for purposes of section 6.01(a), an “accident”
      is not the same as, and should not be treated as the equivalent of, the
      absence of any voluntary act.

Id. at 638–39 (internal citations omitted) (emphasis in original).

      A “voluntariness” instruction under section 6.01(a) is “necessary only if the

accused admits committing the act or acts charged and seeks to absolve himself of

criminal responsibility for engaging in the conduct.” Peavey v. State, 248 S.W.3d

455, 465 (Tex. App.—Austin 2008, pet. ref’d); see also Rogers, 105 S.W.3d at 639

n.30 (“When a person claims the involuntary-act defense he is conceding that his

own body made the motion but denies responsibility for it.”); Gerber v. State, 845

S.W.2d 460, 467 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (“[N]o

evidence showed that appellant acted involuntarily, i.e., under force externally

applied.”).

                                          8
      In Joiner v. State, the Court of Criminal Appeals addressed whether a

defendant was entitled to a jury instruction on voluntary conduct. 727 S.W.2d 534

(Tex. Crim. App. 1987). Joiner involved the defendant’s pulling out a gun from

inside his jacket and shooting the complainant. Id. at 535. The “only evidence that

even remotely raised the issue” of voluntariness was the defendant’s testimony that

“it was an accident.” Id. at 537. The court noted, “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 [the complainant]; or, he intended to hit her

but not kill her; or, the act of firing the revolver was unintentional.” Id. The Court

of Criminal Appeals “reject[ed] the Court of Appeals’ conclusion that the bare

statement, ‘it was an accident,’ sufficiently raised the issue of absence of voluntary

conduct.” Id. It stated, “In any event, there was a voluntary act,” and quoted from

the dissenting opinion in the court of appeals:

      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.
      Appellant does not present a challenge to the other component of the
      offense: the culpable mental state.




                                          9
Id. (quoting Joiner v. State, 696 S.W.2d 68, 73 (Tex. App.—San Antonio 1985)

(Butts, J., dissenting)) (emphasis in original).

        This case is factually analogous to Joiner. Here, the only evidence that

raised the issue of voluntariness was testimony from Deputy Baldobino that upon

being apprehended appellant stated, “It was an accident,” and three statements by

appellant during his interrogation, the recording of which was played for the jury,

that the shooting was “an accident.” In the recording of his interrogation, appellant

described what happened with McHale at the time of the shooting. Appellant

stated that he approached McHale’s property with an already-loaded .30-30 rifle,

which he took with him because he knew that McHale owned guns. Appellant

admitted cocking the rifle and aiming it at McHale. He stated that McHale, who

was standing approximately ten to twelve feet away from him, “lunged” at him.

And although appellant stated that he had no intent to hurt McHale, he admitted

pulling the trigger while he had the gun aimed at McHale.           Ryan Mude, an

employee in the DPS firearms lab, testified that the .30-30 rifle used in the offense

was operational and required 5 1/2 to 6 1/2 pounds of pressure on the trigger to

fire.

        The trial court also admitted a recording of McHale’s 9-1-1 call. McHale

and appellant argued briefly on the recording, and McHale said, “Don’t do it,

James,” just before the sound of a gunshot. There were no sounds on the recording

                                           10
indicating that a physical scuffle occurred, nor did appellant state during his

interrogation that a scuffle occurred.

      No evidence suggests that appellant’s acts of aiming the rifle at McHale and

pulling the trigger were “the nonvolitional result of someone else’s act, [were] set

in motion by some independent non-human force, [were] caused by a physical

reflex or convulsion, or [were] the product or unconsciousness, hypnosis or other

nonvolitional impetus,” nor does appellant argue such on appeal. See Rogers, 105

S.W.3d at 638; Gerber, 845 S.W.2d at 467 (“[N]o evidence showed that appellant

acted involuntarily, i.e., under force externally applied.”); see also Farmer v. State,

411 S.W.3d 901, 907 (Tex. Crim. App. 2013) (“All that is necessary to satisfy

Section 6.01(a) of the Texas Penal Code is that the commission of the offense

included a voluntary act.”) (emphasis in original).

      Nevertheless, appellant focuses only on the fact that he told one of the

arresting officers that the shooting “was an accident” and argues that this evidence

raises the issue of voluntary conduct.4 As the Court of Criminal Appeals held in

4
      Appellant also refers to the closing arguments of both parties, in which both
      attorneys pointed to appellant’s statements calling the shooting an “accident” and
      stating that he “accidentally pulled the trigger.” As stated above, however, the
      Court of Criminal Appeals has distinguished between the defensive theories of
      “accident” and “voluntary conduct,” noting that “accident” is not a defense under
      the Penal Code, that attorneys should avoid using the term “accident” to describe
      an offense under the Penal Code, and that “conduct [is not] rendered involuntary
      merely because an accused does not intend the result of his conduct.” Rogers v.
      State, 105 S.W.3d 630, 637–38 (Tex. Crim. App. 2003) (quoting Adanandus v.
      State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993)).
                                          11
Joiner, however, an appellant’s bare statement that his conduct was an

“accident”—particularly in the absence of evidence of, for example, a struggle, the

deceased striking the appellant or the gun, or some other movement during the

commission of the offense “not willed by” the appellant—does not sufficiently

raise the issue of lack of voluntary conduct such that the appellant is entitled to a

jury instruction on that issue.    See 727 S.W.2d at 537.        The only evidence

presented in this case reflects that appellant voluntarily walked over to McHale’s

property with a loaded rifle, aimed the rifle at McHale, and pulled the trigger.

Appellant has pointed to no evidence raising the issue that his actions were

anything other than voluntary.5 See Gokey v. State, 314 S.W.3d 63, 69 (Tex.

App.—San Antonio 2010, pet. ref’d, untimely filed) (“‘Accident,’ in the sense of

an unintended or unexpected result of conduct, no longer supports the defense of

involuntariness.   Rather, the evidence must show ‘one’s own physical body

movements’ were not voluntary.”).

      We therefore hold that the trial court did not abuse its discretion in refusing

to submit appellant’s requested jury instruction on voluntary conduct. See Rogers,

105 S.W.3d at 638–39 (describing when voluntary-conduct jury instruction is

warranted); Love, 199 S.W.3d at 455 (stating that we review trial court’s decision

not to submit defensive jury instruction for abuse of discretion).

5
      We note that appellant does not challenge the sufficiency of the evidence to
      support the essential element of the requisite culpable mental state.
                                         12
      We overrule appellant’s first issue.

                                Batson Challenges

      In his second issue, appellant contends that the trial court erred in denying

three Batson challenges made when the State used three peremptory strikes against

African-American veniremembers.

      A. Standard of Review and Governing Law

      Batson v. Kentucky prohibits the use of peremptory strikes to challenge

prospective jurors on the basis of their race. 476 U.S. 79, 89, 106 S. Ct. 1712,

1719 (1986). Pursuant to Batson, “a defendant may be entitled to ‘a new array’ if

he can demonstrate, by a preponderance of the evidence, that the prosecutor

indulged in purposeful discrimination against a member of a constitutionally

protected class in exercising his peremptory challenges during jury selection.”

Blackman v. State, 414 S.W.3d 757, 764 (Tex. Crim. App. 2013); see TEX. CODE

CRIM. PROC. ANN. art. 35.261 (Vernon 2006) (codifying requirements of Batson).

The opponent of the peremptory challenge bears the initial burden to make a prima

facie case of purposeful discrimination.      See Blackman, 414 S.W.3d at 764

(quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770 (1995)).

      Once the opponent establishes a prima facie case of purposeful

discrimination, the burden of production shifts to the proponent of the peremptory

challenge to articulate a race-neutral explanation for the challenge. Id. At this

                                         13
stage, the proponent need only tender an explanation that is race-neutral on its face.

Id. at 764–65.     The ultimate plausibility of the race-neutral explanation is

considered under step three of the analysis, in which the trial court must determine

if the opponent of the strike has satisfied his burden of persuasion to prove by a

preponderance of the evidence that the peremptory strike “was indeed the product

of purposeful discrimination.” Id. at 765. “Whether the opponent satisfies his

burden of persuasion to show that the proponent’s facially race-neutral explanation

for his strike is pretextual, not genuine, is a question of fact for the trial court to

resolve in the first instance.” Id. (citing Gibson v. State, 144 S.W.3d 530, 534

(Tex. Crim. App. 2004)). The proper focus is not on the reasonableness of the

asserted race-neutral explanation but is instead on the genuineness of the motive.

Purkett, 514 U.S. at 769, 115 S. Ct. at 1771–72.

      We should not reverse the trial court’s ruling on a Batson issue unless we

determine that the ruling was clearly erroneous. Blackman, 414 S.W.3d at 765. In

reviewing the record for clear error, we should consider the entire voir dire record,

and we need not limit our review to “arguments or considerations that the parties

specifically called to the trial court’s attention so long as those arguments or

considerations are manifestly grounded in the appellate record.” Id. We should,

however, “examine a trial court’s conclusion that a racially neutral explanation is




                                          14
genuine, not a pretext, with great deference, reversing only when that conclusion

is, in view of the record as a whole, clearly erroneous.” Id.

      B. State’s Use of Peremptory Challenges

      Here, defense counsel made three Batson challenges, arguing that the State

impermissibly used its peremptory challenges against Prospective Juror No. 5,

Prospective Juror No. 36, and Prospective Juror No. 42 on the basis that all three

prospective jurors were African-American. The State offered the following race-

neutral reasons for the exercise of its strikes: (1) Prospective Juror No. 5 was

unemployed and had been charged with four prior criminal offenses, including

driving with an invalid license, assault, making a terroristic threat, and criminal

mischief; (2) the prosecutor saw Prospective Juror No. 36 wave at the defendant

when he came into the courtroom and the prospective juror and the defendant

“gave each other the thumbs up,” but the prospective juror “would not

acknowledge that he knew the defendant” when the State asked the venire if

anyone knew appellant; and (3) Prospective Juror No. 42 had only been employed

for eight months, he was under thirty years old, and he had “no other ties to the

community.”

      At the Batson hearing, defense counsel did not offer any argument for why

these proffered reasons were a pretext for purposeful racial discrimination, and he

did not challenge the prosecutor’s statement concerning Prospective Juror No. 36’s

                                         15
demeanor. Instead, defense counsel turned to a challenge to the State’s use of

peremptory strikes against four female prospective jurors. The State pointed out to

the trial court that the jury was made up entirely of women and that the defense

counsel used each of his peremptory strikes against males.            The following

discussion among the attorneys and the trial court then occurred:

      The Court:                [Defense counsel], all 12 of these people on
                                your jury are females. Are you—you’re
                                saying that they made strikes based upon
                                gender?
      [Defense counsel]:        They didn’t have enough strikes to get rid of
                                all of them, Judge. I mean, they got rid of—
      [State]:                  We struck four males. If I was targeting
                                females, I wouldn’t have struck the four
                                males.
      [Defense counsel]:        Well, you had to strike all the blacks, too.
      The Court:                Those challenges are denied.

The trial court thus denied each of appellant’s Batson challenges.

      The State offered three facially race-neutral explanations for its use of

peremptory challenges against Prospective Jurors No. 5, No. 36, and No. 42. See

Blackman, 414 S.W.3d at 764. Thus, the burden shifted back to appellant, as the

party opposing the use of the peremptory challenges, to prove by a preponderance

of the evidence that the State’s proffered reasons for the challenges were not

genuine but were instead a mere pretext for purposeful racial discrimination. Id. at

764–65. Appellant did not, at any point in the proceedings, challenge the State’s

                                         16
race-neutral explanations for its strikes, nor did he provide any argument or point

to any evidence in the voir dire record rebutting the State’s race-neutral

explanations and demonstrating that the proffered explanations were mere pretexts

for purposeful discrimination.

      On appeal, appellant bears the burden to establish that the trial court’s denial

of his Batson challenges was clearly erroneous. Id. at 765. Upon the State’s

proffer of its race-neutral explanations in the trial court, appellant did not attempt

to argue why those explanations were not genuine, such as by pointing out non-

African-American prospective jurors who shared the same objectionable

characteristics yet were not struck by the State, nor does he attempt to do so on

appeal. See Watkins v. State, 245 S.W.3d 444, 453–54 (Tex. Crim. App. 2008)

(performing “comparative juror analysis” that involved considering whether

State’s proffered explanations for its strikes applied equally to non-protected-class

members who were not struck by State in determining whether trial court’s

decision to overrule Batson challenges was clearly erroneous).

      Appellant likewise presented no argument or evidence, either in the trial

court or on appeal, regarding the racial composition of the entire venire, such that

we can consider whether the State used a disproportionate number of its strikes to

challenge African-Americans relative to the number of African-Americans on the

venire. See id. at 451–52 (concluding that State used disproportionate number of

                                         17
strikes against African-Americans when it used 55% of its strikes to exclude 88%

of African-Americans on the venire). Appellant also did not rebut the State’s

observations on the record concerning Prospective Juror No. 36’s courtroom

demeanor. See Nieto v. State, 365 S.W.3d 673, 680 (Tex. Crim. App. 2012) (“We

have held that the demeanor of a potential juror is a valid reason to exercise a

peremptory strike.”); see also Blackman, 414 S.W.3d at 767 (“[A] prospective

juror’s demeanor may be ‘considered proved on the record’ if the prosecutor

recites his observation of that demeanor for the record and defense counsel fails to

‘rebut the observation.’”).

      Instead, aside from summarily stating that the State “produced invalid

explanations for its challenges,” appellant’s only argument in support of his

contention that he has carried his ultimate burden of persuasion is that “the State

could not have exercised strikes based on gender . . . since[, as he argued at trial,]

‘well, you had to strike all the blacks, too’ which was accomplished by the State’s

impermissible use of its strikes, denying Appellant equal protection and demanding

reversal in this matter.”     As the State points out on appeal, defense counsel

provided no evidence to support his statement, such as evidence of the racial

composition of the venire, and therefore the record does not support defense

counsel’s statement that the prosecutor, who used three of his twelve peremptory




                                         18
challenges against African Americans, was attempting to strike all of the African

Americans from the venire.

      We conclude that appellant has not established that the trial court’s decision

to overrule his Batson challenges was clearly erroneous.        See Blackman, 414

S.W.3d at 765 (stating that appellate courts “examine a trial court’s conclusion that

a racially neutral explanation is genuine, not a pretext, with great deference,

reversing only when that conclusion is, in view of the record as a whole, clearly

erroneous”).

      We overrule appellant’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Huddle, and Lloyd.

Publish. TEX. R. APP. P. 47.2(b).




                                         19
