"'An instruction on criminally negligent homicide is proper only where the victim's death was caused by the defendant's inadvertent creation and subsequent disregard of a risk of harm of which he should have been aware, but which in fact he was not aware of. . . . To warrant the giving of such an instruction there must be some evidence that the defendant was not aware of the risk he was creating.'" Marshall v. State, 668 So.2d 891, 892 (Ala.Cr.App. 1995), quoting Wiggins v. State, 491 So.2d 1046, 1048 (Ala.Cr.App. 1986) (citations omitted in Marshall; emphasis in original). Burgess contends that he was entitled to an instruction on criminally negligent homicide because, he says, the evidence presented at trial "demonstrated that he did not intend to shoot the victim in this case and that the gun went off accidentally."

"An instruction on criminally negligent homicide is proper only where the victim's death was caused by the defendant's inadvertent creation and subsequent disregard of a risk of harm of which he should have been aware, but which in fact he was not aware of. . . . To warrant the giving of such an instruction there must be some evidence that the defendant was not aware of the risk he was creating."Wiggins v. State, 491 So.2d 1046, 1048 (Ala.Cr.App. 1986). (Citations omitted; emphasis in original.)

"A person accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. Chavers v. State, 361 So.2d 1106 (Ala. 1978); Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973); Wiggins v. State, 491 So.2d 1046 (Ala.Cr.App. 1986); Wilkerson v. State, 486 So.2d 509 (Ala.Cr.App. 1986). A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.

"In Robinson v. State, 441 So.2d 1045, 1047 (Ala.Cr.App. 1983), this court observed that a person 'who intentionally draws a gun in response to or in anticipation of a confrontation with another is certainly aware of the risk that the gun might discharge; therefore he cannot be guilty of mere criminal negligence.' " Wiggins v. State, 491 So.2d 1046, 1048 (Ala.Cr.App. 1986) (emphasis in original). See also Ex parte Cason, 515 So.2d 725 (Ala. 1987) (evidence that accused drew a gun and shot deceased precluded a charge on criminally negligent homicide).

Wakefield v. State, 447 So.2d 1325 (Ala.Cr.App. 1983); § 13A-2-2, Code of Alabama 1975."Wiggins v. State, 491 So.2d 1046, 1048 (Ala.Cr.App. 1986). "Any contention that the death was accidental 'ignores the nature of the enterprise that the defendant.

The circuit court's broad discretion, however, is fettered by a defendant's ‘right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position.’ Jones v. State, 514 So.2d 1060, 1063 (Ala. Crim. App. 1987) (citing Wiggins v. State, 491 So.2d 1046 (Ala. Crim. App. 1986) ; Chavers v. State, 361 So.2d 1106 (Ala. 1978) ; and Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (Ala. 1973) )." Barrett v. State, 33 So.3d 1287, 1288 (Ala. Crim. App. 2009)

Therefore, we cannot say that the trial court erred when it overruled Hubbert's objection with respect to the video evidence of the portable Breathalyzer test. See Wiggins v. State, 491 So.2d 1046, 1049 (Ala.Crim.App.1986) (“If [evidence] is cumulative, even of improper evidence already admitted without objection, and even if otherwise inadmissible, it may be received without error.”). Accordingly, Hubbert's claim is not properly before this Court, and he is not entitled to relief on this issue.

Culpepper v. State, 827 So.2d 883, 885 (Ala.Crim.App.2001) (citing Knotts v. State, 686 So.2d 431, 456 (Ala.Crim.App.1995) ). The circuit court's broad discretion, however, is fettered by a defendant's ‘right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position.’ Jones v. State, 514 So.2d 1060, 1063 (Ala.Crim.App.1987) (citing Wiggins v. State, 491 So.2d 1046 (Ala.Crim.App.1986) ; Chavers v. State, 361 So.2d 1106 (Ala.1978) ; and Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (Ala.1973) ).”Barrett v. State, 33 So.3d 1287, 1288 (Ala.Crim.App.2009).

"'It has long been the law in Alabama that a [circuit] court has broad discretion in formulating jury instructions, provided those instructions are accurate reflections of the law and facts of the case.' Culpepper v. State, 827 So. 2d 883, 885 (Ala. Crim. App. 2001) (citing Knotts v. State, 686 So. 2d 431, 456 (Ala. Crim. App. 1995)). The circuit court's broad discretion, however, is fettered by a defendant's 'right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position.' Jones v. State, 514 So. 2d 1060, 1063 (Ala. Crim. App. 1987) (citing Wiggins v. State, 491 So. 2d 1046 (Ala. Crim. App. 1986); Chavers v. State, 361 So. 2d 1106(Ala.

'" Gargus v. State, 764 So.2d 565, 567 (Ala.Crim.App. 1999) (quoting McLaughlin v. State, 586 So.2d 267, 272 (Ala.Crim.App. 1991)), overruled on other grounds, Quinlivan v. State, 627 So.2d 1082 (Ala.Crim.App. 1992). "`An instruction on criminally negligent homicide is proper only where the victim's death was caused by the defendant's inadvertent creation and subsequent disregard of a risk of harm of which he should have been aware, but which in fact he was not aware of.'" Akin v. State, 698 So.2d 228, 233 (Ala.Crim.App. 1996) (quoting Wiggins v. State, 491 So.2d 1046, 1048 (Ala.Crim.App. 1986)). In Bridges v. State, 504 So.2d 1223 (Ala. Crim.App. 1987), the defense proffered a theory at trial that the victim was accidentally pushed onto a knife held by the defendant.