
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-03-00146-CR



Christopher Stoglin, Appellant

v.


The State of Texas, Appellee






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NO. 9014214, HONORABLE JON N. WISSER, JUDGE PRESIDING



M E M O R A N D U M   O P I N I O N


 Appellant Christopher Stoglin appeals his conviction for aggravated robbery.  See
Tex. Pen. Code Ann. § 29.03(a)(2) (West 2003).  The jury found appellant guilty and the trial court
assessed his punishment at forty-five years' imprisonment.

Point of Error
	In his sole point of error, appellant contends that "[t]he State impermissibly struck
veniremember Billy Ray Shelby on the basis of race in violation of U.S. Const. Amend. XIV." 
Because neither the legal nor factual sufficiency of the evidence is challenged, we need not set out
the facts of the offense to properly dispose of the sole contention on appeal.  We will affirm the
judgment of conviction.


Batson

	The Equal Protection Clause of the Fourteenth Amendment prohibits race-based jury
selection.  See Batson v. Kentucky, 476 U.S. 79, 88-89 (1986).  A party may not use its peremptory
strikes on veniremembers in a purposeful and inappropriate manner.  Id.; see also Tex. Code Crim.
Proc. Ann. art. 35.261 (West 2003).  In Craig v. State, 83 S.W.3d 451, 453 (Tex. App.--Austin
2002, pet. ref'd), this Court stated:

The analysis used to test a Batson challenge consists of three steps.  First, the
defendant must make a prima facie showing of relevant circumstances that raise an
inference that the State made a race-based strike against an eligible panelist. 
Mandujano v. State, 966 S.W.2d 816, 818 (Tex. App.--Austin 1998, pet. ref'd). 
Next, if a prima facie case is made, the State must come forward with a race-neutral
reason for the strike.  Id.  The prosecutor's explanation must be clear and reasonably
specific, and must contain legitimate reasons for the strike related to the case being
tried.  Id.  Finally, once the State offers a race-neutral explanation, the burden shifts
back to the defendant to persuade the trial court that the State's purported reasons for
its peremptory strike are mere pretext and are in fact racially motivated.  Id.; Lopez
v. State, 940 S.W.2d 388, 389-90 (Tex. App.--Austin 1997), pet. ref'd, 954 S.W.2d
774 (Tex. Crim. App. 1997) (McCormick, P.J., dissenting to refusal of State's
petition); see also Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 131 L. Ed.
2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 359-60, 111 S. Ct. 1859, 114
L. Ed. 2d 395 (1991).


	On appeal of a Batson challenge, a reviewing court must apply a "clear error"
standard of review.  Mandujano, 966 S.W.2d at 819; Lopez, 940 S.W.2d at 390 (citing Hernandez,
500 U.S. at 364-365).  In applying this standard, we must review all of the evidence in the light most
favorable to the trial court's ruling and then determine if the ruling was clearly erroneous.  See
Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001); Ladd v. State, 3 S.W.3d 547, 563
(Tex. Crim. App. 1999).  If after reviewing all the evidence, we cannot say that the trial court's
ruling was clearly erroneous, we must uphold the trial court's ruling, even if this Court may have
weighed the evidence differently if we had been the trier of fact.  Lopez, 940 S.W.2d at 390.  For this
Court to conclude that the trial court's decision was clearly erroneous, this Court must be left with
a definite and firm conviction that a mistake has been committed.  Vargas v. State, 838 S.W.2d 552,
554 (Tex. Crim. App. 1992); Craig, 82 S.W.3d at 454.

Discussion

	In the instant case, after the parties had exercised their peremptory challenges by
striking their jury lists, appellant raised a Batson issue.  The trial court conducted a brief hearing. 
Appellant commenced the hearing by directly inquiring of the prosecutor as to the reason that Billy
Ray Shelby, veniremember number five, was struck by the State.  Appellant asserted that Shelby
appeared to be an African-American.  The prosecutor objected that appellant had in effect failed to
sustain his burden as to the first step in the Batson process.  The prosecutor urged that until this
burden was satisfied the State was not required to give its race-neutral reasons for striking a
prospective juror.  A colloquy ensued, with appellant further stating that prior to the striking of the
jury lists, Shelby was the only veniremember within the first thirty-two eligible "jurors" who
appeared to be an African-American.  Appellant also noted that Shelby had designated himself as
"Black" on the jury questionnaire form. (1)  These assertions were all that appellant offered to sustain
his burden to make a prima facie case of discrimination.  No proof was offered, no stipulation or
agreement was noted, and the trial court was not asked to take judicial notice of any court records
or other matters.  No mention of appellant's race was made for the purpose of the hearing. (2)  It is a
matter of little consequence whether appellant satisfied his burden under the first step of the Batson
analysis because immediately after the colloquy, the prosecutor offered his race-neutral reasons for
striking Shelby. (3)  When a prosecutor undertakes such action, the prima facie case requirement
becomes moot.  Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); Ladd, 3 S.W.3d at
563 n.8; Mandujano, 966 S.W.2d at 819.
	The prosecutor stated that he struck Shelby because Shelby, on voir dire examination,
had gone into "a long dialogue" about being racially profiled and had earlier indicated that the
judicial system was not fair to minorities.  The prosecutor further stated that the State had struck
every juror, of any race, who indicated that the judicial system was not fair to minorities.
	The supporting record shows that Shelby apparently raised his hand and was
acknowledged by the prosecutor, who had asked the jury panel if anyone felt that the current criminal
justice system was not fair to minorities.  Later, the prosecutor asked if any veniremember had had
a "recent bad experience with a police officer."  Shelby responded in detail, explaining that while
driving an automobile he was "profiled" and "singled out" by being stopped.  He was told that it was
on the basis of "suspicion."  After furnishing his driver's license and proof of insurance, Shelby
reported that the officer checked on Shelby's employment, and then released him, apologizing. 
When Shelby inquired again why he had been stopped, the officer said the police were looking for
a vehicle that resembled his automobile.  Shelby did not accept this "excuse" and stated, "And I went
home worrying."
	In evaluating the "race-neutral" reasons given by a prosecutor who has exercised a
peremptory challenge to a veniremember, an appellate court must determine whether, assuming the
reasons given are true, the use of the peremptory challenge violated the Equal Protection Clause of
the Fourteenth Amendment.  Hernandez, 500 U.S. at 359.  At this step, the issue is the facial validity
of the prosecutor's explanation.  "Unless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed neutral."  Id. at 360.  "The second step of this process
does not demand an explanation that is persuasive or even plausible."  Elem, 514 U.S. at 767-68. 
The focus of the inquiry is not upon the reasonableness of the asserted non-racial motive, but on the
genuineness of the motive.  Id. at 768; Morris v. State, 940 S.W.2d 610, 612 (Tex. Crim. App. 1996).
	After a prosecutor has provided his explanation, the third step of the process shifts
the burden back to the opponent of the peremptory challenge to persuade the trial court that the race-neutral explanation is merely a pretext for purposeful discrimination.  Batson, 476 U.S. at 98;
Johnson, 68 S.W.2d at 649.  Thus, the opponent of the peremptory strike is given an opportunity to
rebut the prosecutor's reasons.  The burden of persuasion remains with the opponent of the
peremptory strike.  Jasper, 61 S.W.3d at 421.
	Here, after the prosecutor's explanation, appellant simply argued that if it is sufficient
to strike a veniremember because he has been "profiled" and does not believe the judicial system is
as fair "to blacks as it to whites," then it would be rare to ever have an African-American serve on
a jury.  This was all the rebuttal offered to show that the prosecutor's explanation was a pretext for
discrimination.  There was no cross-examination of the prosecutor to invalidate any of the reasons
enunciated.  See Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996).
	Thereafter, the trial court overruled appellant's Batson claim.  A party's failure to
offer any real rebuttal to a proferred race-neutral explanation can be fatal to his claim.  Johnson, 68
S.W.2d at 649; Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999).  Appellant has
failed to sustain his burden of showing intentional discretion.  Based on the record, we cannot say
the trial court's ruling was clearly erroneous.  The sole point of error is overruled.
	The judgment is affirmed.


  
	John F. Onion, Jr., Justice
Before Chief Justice Law, Justices Patterson and Onion*
Affirmed
Filed:   May 27, 2004
Do Not Publish

*	Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment.  See Tex. Gov't Code Ann. § 74.003(b) (West 1998).



1.   The jury questionnaire forms are not in this appellate record.
2.   The record shows that appellant was an African-American.  A defendant, however, need
not be of the same race as the veniremember claimed to have been strongly excluded.  See Powers
v. Ohio, 499 U.S. 400, 415-16 (1991); Marx v. State, 953 S.W.2d 321, 332 (Tex. App.--Austin
1997), aff'd, 987 S.W.2d 577 (Tex. Crim. App. 1999).
3.   The prosecutor may well have offered his reasons for striking the prospective juror in view
of the trial court's remarks that appellant's assertions appeared adequate.  The peremptory strike of
the only remaining African-American veniremember is enough to constitute a prima facie case of
discrimination based on race.  See Salazar v. State, 795 S.W.2d 187, 193 (Tex. Crim. App. 1990); 
Wardlow v. State, 6 S.W.3d 786, 788 (Tex. App.--Austin 1999, no pet.).

