### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN
NO. 03-00-00301-CR Christophe r Wardlow, Appellant

v. The State of Texas, Appellee

FROM THE

DISTRICT CO URT OF TRAV IS COUNTY, 167 TH J

UDICIAL DISTRICT NO. 0992583, HONORAB LE MIKE

LYNCH, JUDGE

PRESIDING Appellant Chri stop her Wardlow was convicted of aggravated robber y and sentenced to impr isonment f

or t hir ty-eigh t year s. W e previously held that the district cou rt err oneous ly failedto conduct a Batson hearing. See Wardlow v. State , 6 S. W. 3d 786, 788 (Tex. App.

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Austin 1999, no pet. ). On remand, the district cour t conducted the hearing, concluded that the Sta te’s explanation

for the str ike was race neutral, and overr uled 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 of fer a r ace-neutral explanation

for the s trike; and (3) the defen dant must persua de th e trial c ourt tha

t the S tate ’s explanation is a mere pretext and that the stri ke 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 fir st2

step by showing that

the only African-Amer ican on the jury panel was peremptor ily 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 str uck the venire member in question because she wa s unable

or unwilling to convict “ even when convinced on all the elements be yond a reasonable

doubt, ” was“ vaci llati

ng, ” “ didn’t

think she coul d be a

good j uror, ” “ didn’t

think she cou ld be fair to the state, ” and “ said she would be sympathetic to the de fense. ” We agree with the district cour t that these are race-neutr al explanations for the State’s strike.

Inorder to persuade the court th at th e p ros ec

ut or’ s r ac e- ne

ut ral ex pl an at io ns we re a pretext for discrimination, Wardlow ur ged that other venir e members who expressed similar views had not been

struck by th e S ta

te . Th is arg um en t i s c on tradi cted by th e re co rd. Thevenire member was one of eight panelists who said they would be unable to convicton the testimony of a single w itness even if tha

t witnes s convin

ced them of the defen

dant’s gu ilt beyond

a reasonab le doubt. F our of the ei gh

t w ere excused for cause, and the other four were peremptor ily struck by the State. Dur ing individual questioning at the bench, the panelist continued to express her reluctance to convict onthe basis of one witness’s testim ony. She also told the c our t, “ I guess because of my profe ssi on wit h chi ldren, it’s —

and I’m looking at this young man — I don’t know if I c ould rea lly b e a go od ju ror.” She added that she would probably not be fair to the State, and would be s

ympathet ic to the d

efendant . The State provided race-neu tral e xplanatio ns for the challeng ed stri ke. These explanations are supported by th e record. Wardlow did not introduce any evidence or r aise an3

inference that t

he S tate had a race-ba sed

reason for the s trike. The first point of error is overr uled. Wardlow ’s second point of er ror is that the di strict court erred by admitting his videotaped

statement in evidence. He contends the State failed to demonstrate that the r ecording device was capable of making an a ccur ate recordi ng and that the operator of the device was compete nt. See Te x. C ode Crim. Pr oc. Ann. art. 38. 22, § 3(a)(3) (West Supp. 2000). We review the district cour t’s ruling for anabuse of discretion. See Zulian i v. State , 903 S. W. 2d 812, 819 (Tex. App.

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Aust in 199 5, pet. ref’d). The police officer who took War dl ow’ s statement testified that he had use d the interview room on other occas ions, but did not know how long the recording syste m had bee

n in op era ti on or exact ly wh ere the camera and

microphone wer e located. The officer stated that he had reviewed the videotape and r ecognized th e voices as being hi s and Ward low’s. He disagreed with defense counsel’s characterization of the recor ding as “ very poor . ” He added, “ Sometimes people mu mb le and t hey a re kind of hard to under stand” but “ about all of what [Wardlow] says you can h ear. ” He was of the opinion tha

t the recording devic e and ope rator were competent. Wardlow charact erize s the offi cer’ s testimony as “ p erfunct ory” and urges that

“ [o]ne can hardly be competent to operate equipment whose location is a mystery. Nor can one test ify as to the abilities and a cc ura cy of such equipment. ” The quality of the videotaped stateme nt, however, is the best evidence of the accuracy of the rec ording dev ice and the competence of the operator . Wardlow does not contend that the recorded stateme nt was in accurate4

or unintelligible, nor did he at tr ial. We are not persu aded tha t the dis trict court abused its discretion by admitting the statement in evidence. Point of er ror two is overr uled.

The judgment of conviction is affir med.

B ea Ann Smith, Justice B efore Chief

Justice Abouss ie, Justices B . A. Smith and Yeakel Affirm ed F iled: September 21, 2000 Do N ot Pu blish