Joshua Stewart Burks, a 36-year-old middle school teacher and a U.S. Marine Corps veteran, faces the death penalty if convicted

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Troy Ellis
Troy Ellis
| Credit: Go Fund Me

The criminal charge against an Alabama teacher accused in the shooting death of a fifth grader during a spring turkey hunt has been upgraded following a grand jury's decision earlier this month.

Joshua Stewart Burks, a 36-year-old middle school teacher and a U.S. Marine Corps veteran, was initially charged with reckless manslaughter following the death on May 1 of Troy Ellis, reports WPMI, WALA, and AL.com.

But after a grand jury heard testimony on Dec. 10, Burks' charge was elevated to capital murder of a person under the age of 14, making him eligible for the death penalty if convicted.

Burks has not entered a plea to the amended charge, and he is out on $60,000 bond.

PEOPLE was unable to reach him for comment.

Troy, 11, was a student at Cahaba Elementary School in Trussville, Alabama, at the time of his death.

His father, Obed Ellis, a high school football coach, was also injured in the shooting.

The turkey hunt was arranged by a group that organizes hunts for wounded veterans; Burks, an amputee, had never been hunting before.

Troy's family has filed a civil suit against Burks, the guide on the hunt, Kyle Eugene Henley, and America's Heroes Enjoying Recreation Outdoors, which sponsored the event.

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The suit alleges Burks had taken several pain pills the night before — and morning of — the tragic hunt.

Burks' attorney, Tommy Spina, told AL.com the grand jury's decision was a disappointing one.

"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. "I am hopeful that the evidence will ultimately establish that what occurred that day was not an intentional act."

Concluded Spina: "We pray each day for the family of the deceased."