Charges against Joshua Stewart Burks, 36, of Alabama have been upgraded to capital murder by Alabama grand jury

The Marine veteran now listed as a middle school teacher, allegedly, shot dead an 11-year-old Troy Ellis on a turkey hunt on May 1

An Albama grand jury upgraded charges against Burks from reckless manslaughter to capital murder of a person under the age of 14

The upgraded charges from Dec. 10, makes Burks eligibile for the death penalty if convicted

Burks fatally shot Troy Ellis and injured his father Obed Ellis at the same May turkey hunt

Ellis family filed a wrongful death suit against Burke hunt organizers, America’s Heroes Enjoying Recreation Outdoors, that was settled in October

Suit claims Burks had taken numerous pain pills the night before and the morning of the hunt and was ‘likely not capable of safely handling a firearm and certainly was not capable of making appropriate decisions with regard to handling a weapon’

Burks was booked back into Jefferson County Jail Friday and released on bond

His defense attorney Tommy Spina said, ‘I am hopeful that the evidence will ultimately establish that what occurred that day was not an intentional act’

The Alabama man who shot dead an 11-year-old boy and injured his father while turkey hunting in May is now charged with capital murder.
Joshua Stewart Burks, 36, was initially charged with reckless manslaughter by the the Jefferson County District Attorney’s office for the death of fifth grader Troy Ellis on May 1.
On December 10 a Jefferson County grand jury upgraded the charges against Burks, a middle school teacher and a U.S. Marine Corps veteran, to capital murder of a person under the age of 14.
Burks who was previously out on $15,000 bond, Friday was booked back into Jefferson County Jail Friday afternoon. He was released the same evening after posting $60,000 bond, according to AL.com.
‘We are disappointed the grand jury saw the case differently than the magistrate and the district attorney’s office that originally charged the case as manslaughter,’ Burks’ lawyer Tommy Spina said. 

‘I am hopeful that the evidence will ultimately establish that what occurred that day was not an intentional act. We pray each day for the family of the deceased,’ he added.
Burks, Troy Ellis and his father Obed Ellis were part of the same turkey hunting party, which was organized by a group that sponsor hunts for wounded veterans.
Burks is an amputee and it was his first time ever going hunting. 
He ended up shooting Troy around 9.30am off Cedar Mountain Road and injured his football coach father. Troy was brought down from the mountain and pronounced dead at the scene.

The Ellis family filed a wrongful death suit against Burke and Kyle Eugene Henley, who acts as a guide for the nonprofit hunting organization called America’s Heroes Enjoying Recreation Outdoors, which was also named in the suit.
The suit claims Burks had taken numerous pain pills the night before and the morning of the hunt and was ‘likely not capable of safely handling a firearm and certainly was not capable of making appropriate decisions with regard to handling a weapon.’
The case was settled in October. 

Spina, Burks’ defense attorney in the criminal case, told Oxygen Tuesday that bloodwork provided to the district attorney’s office does not show his client had taken pills ahead of the hunt in May and he’s unsure if that evidence was presented to the grand jury.
Spina also said his offer for Burks to testify to the grand jury was rejected.
The dfense attorney says his client intends to enter a plea of not guilty.
“The burden of proof is on the state to prove that he acted intentionally,” he said. “Which is simply not the case.” 

Burks will be eligible for the death penalty if convicted. He intends to enter a plea of not guilty, his attorney said.
The criminal charge makes Burks eligible for jail time. The wrongful death suit was a civil lawsuit that doesn’t directly lead to incarceration. 
‘The events that occurred that day were devastating on many levels and our sympathies are with the family of the young man that lost his life in what we believe was a tragic hunting accident,’ Spina said. 
Burks, an amputee, is a U.S. Marine Corps veteran and was a teacher in Mobile as of 2012.
He was listed as a baseball coach at Davidson High School in Mobile.