
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-00-00301-CR


Christopher Wardlow, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 0992583, HONORABLE MIKE LYNCH, JUDGE PRESIDING


Appellant Christopher Wardlow was convicted of aggravated robbery and sentenced
to imprisonment for thirty-eight years.  We previously held that the district court erroneously
failed to conduct a Batson hearing.  See Wardlow v. State, 6 S.W.3d 786, 788 (Tex. App.--Austin
1999, no pet.).  On remand, the district court conducted the hearing, concluded that the State's
explanation for the strike was race neutral, and overruled Wardlow's objection.  We will affirm.

 A Batson challenge consists of three steps:  (1) the defendant must make a prima
facie showing of racial discrimination by the State; (2) the State must offer a race-neutral
explanation for the strike; and (3) the defendant must persuade the trial court that the State's
explanation is a mere pretext and that the strike was in fact racially motivated.  See Mandujano
v. State, 966 S.W.2d 816, 818 (Tex. App.--Austin 1998, pet. ref'd).  Wardlow satisfied the first
step by showing that the only African-American on the jury panel was peremptorily struck by the
State.  See Wardlow, 6 S.W.3d at 788.  We now turn to steps two and three.

At the hearing, the prosecutor testified that he struck the venire member in question
because she was unable or unwilling to convict "even when convinced on all the elements beyond
a reasonable doubt," was "vacillating," "didn't think she could be a good juror," "didn't think she
could be fair to the state," and "said she would be sympathetic to the defense."  We agree with the
district court that these are race-neutral explanations for the State's strike.

In order to persuade the court that the prosecutor's race-neutral explanations were
a pretext for discrimination, Wardlow urged that other venire members who expressed similar
views had not been struck by the State.  This argument is contradicted by the record.  The venire
member was one of eight panelists who said they would be unable to convict on the testimony of
a single witness even if that witness convinced them of the defendant's guilt beyond a reasonable
doubt.  Four of the eight were excused for cause, and the other four were peremptorily struck by
the State.

During individual questioning at the bench, the panelist continued to express her
reluctance to convict on the basis of one witness's testimony.  She also told the court, "I guess
because of my profession with children, it's -- and I'm looking at this young man -- I don't know
if I could really be a good juror."  She added that she would probably not be fair to the State, and
would be sympathetic to the defendant.

The State provided race-neutral explanations for the challenged strike.  These
explanations are supported by the record.  Wardlow did not introduce any evidence or raise an
inference that the State had a race-based reason for the strike.  The first point of error is
overruled.

Wardlow's second point of error is that the district court erred by admitting his
videotaped statement in evidence.  He contends the State failed to demonstrate that the recording
device was capable of making an accurate recording and that the operator of the device was
competent.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(3) (West Supp. 2000).  We review
the district court's ruling for an abuse of discretion.  See Zuliani v. State, 903 S.W.2d 812, 819
(Tex. App.--Austin 1995, pet. ref'd).

The police officer who took Wardlow's statement testified that he had used the
interview room on other occasions, but did not know how long the recording system had been in
operation or exactly where the camera and microphone were located.  The officer stated that he
had reviewed the videotape and recognized the voices as being his and Wardlow's.  He disagreed
with defense counsel's characterization of the recording as "very poor."  He added, "Sometimes
people mumble and they are kind of hard to understand" but "about all of what [Wardlow] says
you can hear."  He was of the opinion that the recording device and operator were competent.

Wardlow characterizes the officer's testimony as "perfunctory" and urges that "[o]ne
can hardly be competent to operate equipment whose location is a mystery.  Nor can one testify
as to the abilities and accuracy of such equipment."  The quality of the videotaped statement,
however, is the best evidence of the accuracy of the recording device and the competence of the
operator.  Wardlow does not contend that the recorded statement was inaccurate or unintelligible,
nor did he at trial.  We are not persuaded that the district court abused its discretion by admitting
the statement in evidence.  Point of error two is overruled.

The judgment of conviction is affirmed.



  
				Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed:   September 21, 2000

Do Not Publish



court erroneously
failed to conduct a Batson hearing.  See Wardlow v. State, 6 S.W.3d 786, 788 (Tex. App.--Austin
1999, no pet.).  On remand, the district court conducted the hearing, concluded that the State's
explanation for the strike was race neutral, and overruled Wardlow's objection.  We will affirm.

 A Batson challenge consists of three steps:  (1) the defendant must make a prima
facie showing of racial discrimination by the State; (2) the State must offer a race-neutral
explanation for the strike; and (3) the defendant must persuade the trial court that the State's
explanation is a mere pretext and that the strike was in fact racially motivated.  See Mandujano
v. State, 966 S.W.2d 816, 818 (Tex. App.--Austin 1998, pet. ref'd).  Wardlow satisfied the first
step by showing that the only African-American on the jury panel was peremptorily struck by the
State.  See Wardlow, 6 S.W.3d at 788.  We now turn to steps two and three.

At the hearing, the prosecutor testified that he struck the venire member in question
because she was unable or unwilling to convict "even when convinced on all the elements beyond
a reasonable doubt," was "vacillating," "didn't think she could be a good juror," "didn't think she
could be fair to the state," and "said she would be sympathetic to the defense."  We agree with the
district court that these are race-neutral explanations for the State's strike.

In order to persuade the court that the prosecutor's race-neutral explanations were
a pretext for discrimination, Wardlow urged that other venire members who expressed similar
views had not been struck by the State.  This argument is contradicted by the record.  The venire
member was one of eight panelists who said they would be unable to convict on the testimony of
a single witness even if that witness convinced them of the defendant's guilt beyond a reasonable
doubt.  Four of the eight were excused for cause, and the other four were peremptorily struck by
the State.

During individual questioning at the bench, the panelist continued to express her
reluctance to convict on the basis of one witness's testimony.  She also told the court, "I guess
because of my profession with children, it's -- and I'm looking at this young man -- I don't know
if I could really be a good juror."  She added that she would probably not be fair to the State, and
would be sympathetic to the defendant.

The State provided race-neutral explanations for the challenged strike.  These
explanations are supported by the record.  Wardlow did not introduce any evidence or raise an
inference that the State had a race-based reason for the strike.  The first point of error is
overruled.

Wardlow's second point of error is that the district court erred by admitting his
videotaped statement in evidence.  He contends the State failed to demonstrate that the recording
device was capable of making an accurate recording and that the operator of the device was
competent.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(3) (West Supp. 2000).  We review
the district court's ruling for an abuse of discretion.  See Zuliani v. State, 903 S.W.2d 812, 819
(Tex. App.--Austin 1995, pet. ref'd).

The police officer who took Wardlow's statement testified that he had used the
interview room on other occasions, but did not know how long the recording system had been in
operation or exactly where the camera and microphone were located.  The officer stated that he
had reviewed the videotape and recognized the voices as being his and Wardlow's.  He disagreed
with defense 