IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 74,354

 

MARK STROMAN, Appellant

v.


THE STATE OF TEXAS



ON DIRECT APPEAL
FROM DALLAS COUNTY

Keasler, J., delivered the opinion of the Court joined by Meyers, Price, Womack, Johnson, Hervey, Holcomb, and Cochran, JJ. Keller, P.J., concurred as to point of error six and otherwise joined the Court's opinion.



O P I N I O N



A jury convicted Mark Stroman of killing Vasudev Patel while in the course of robbing or attempting to rob him. (1) Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, 2(b) and 2(e), the trial judge sentenced Stroman to death. (2) Direct appeal to this Court is automatic. (3) Stroman raises six points of error challenging his conviction and sentence. We reject each of his contentions and affirm the trial court's judgment.

In his first point of error, Stroman asserts that Article 37.071 is unconstitutional because the death penalty violates evolving standards of decency. Specifically, he asserts that developing evidence regarding the number of innocent individuals on death row across the nation shows that the death penalty as it is currently administered is flawed and amounts to cruel and unusual punishment.

Both we and the Supreme Court of the United States have held that the Texas death penalty scheme passes constitutional muster. (4) Additionally, the defendant must show that the statute operates unconstitutionally as to him in his situation. This he has not done. That it may operate unconstitutionally as to others is not sufficient. (5) Stroman's first point of error is overruled.

In his second point of error, Stroman claims that the United States Constitution requires the State "to prove insufficient mitigation beyond a reasonable doubt." Specifically, Stroman states that the trial court erred in not so instructing the jury and in refusing to allow defense counsel to question prospective jurors on their willingness and ability to place this burden on the State. Stroman cites Apprendi v. New Jersey (6) and Ring v. Arizona (7) in support of his argument.

In Resendiz v. State, (8) this Court rejected the defendant's claim that Apprendi requires the State to bear the burden to prove beyond a reasonable doubt that the mitigation issue should be answered in the negative. In fact, we noted that Apprendi does not even address this burden.

Neither does Ring support Stroman's argument. Ring, like Apprendi, refers to an increase in penalty over the statutory maximum. In Texas, the statutory maximum for a capital offense is death. The mitigation issue does not increase the statutory maximum. To the contrary, the mitigation issue is designed to allow for the imposition of less than the statutory maximum, a life sentence.

So the United States Constitution does not require the State to bear the burden of proving beyond a reasonable doubt that there is insufficient mitigation evidence to support a life sentence. Nor did the trial court err in refusing to instruct the jury to this effect or in refusing to allow defense counsel to question prospective jurors on the issue. Point of error two is overruled.

Stroman claims in his third point of error that the "12-10 Rule" of Article 37.071, 2(d)(2) violates constitutional principles. We have repeatedly rejected this claim. (9) Point of error three is overruled.

Stroman complains in his fourth point of error that Article 37.071 is unconstitutional because it fails to define the term "moral blameworthiness" and the phrase "probability of committing future criminal acts of violence" given to the jury in the punishment issues. The phrase about which Stroman complains does not reflect the statutorily correct language of the issue which was given to the jury. (10) This Court has repeatedly rejected claims that terms within this issue need be defined, and Stroman has given us no reason to revisit the issue here. (11) Likewise, the term "moral blameworthiness" need not be defined because it can be understood in its normal use in common language. (12) Point of error four is overruled.

In his fifth point of error, Stroman claims that he was constitutionally entitled to present family members' pleas for mercy to the jury. Article 37.071, 2(a)(1), provides that the State, the defendant, or defense counsel may present evidence "as to any matter that the court deems relevant to sentence, including evidence of the defendant's background or character or the circumstances of the offense that mitigates against the imposition of the death penalty." Stroman does not contend that he was prohibited from introducing evidence concerning his background, his character, or the circumstances surrounding the offense. And whether a witness feels a defendant should live or die does not pertain to that defendant's background or character, or to the circumstances of the offense. The trial court did not err in prohibiting the family's pleas for mercy. (13) Point of error five is overruled.

Finally, in his sixth point of error, Stroman complains that the trial court erred by permitting the State to impeach his key expert witness "by eliciting the fact that she had testified for the defense in other notorious cases in which the jury imposed the death penalty." He asserts that "[t]his line" of cross-examination was improper and was clearly designed to discredit Stroman's expert witness "by portraying her as a 'hired-gun' . . . [who] finds mitigating circumstances no matter how gruesome the offense." However, Stroman then concedes that this line of questioning "and its implicit significance" should be permitted. He agrees that cross-examining experts about who "butters their bread" is a classic method of cross-examining an expert for bias. He even admits that it is permissible to cross-examine experts about the opinions they rendered in previous cases in order to evaluate the expert's consistency. Nevertheless, he asserts that the "line of permissibility" is crossed when the evidence fails to show an inconsistency. In other words, Stroman argues that the State presented improper impeachment evidence.

But at trial, Stroman never objected that the State was improperly impeaching his expert. To the extent Stroman is raising this issue on appeal, his failure to object at trial waives any error. (14) On the other hand, Stroman did object to the complained-of testimony on general relevance grounds. Still, Stroman's argument on appeal contains no discussion or analysis concerning the relevancy of the questions. To the extent Stroman is arguing relevance on direct appeal, he has inadequately briefed the issue. (15) Point of error six is overruled.

We affirm the judgment of the trial court.



DATE DELIVERED: November 19, 2003

DO NOT PUBLISH

1. Tex. Penal Code Ann. 19.03(a)(2).

2. Art. 37.071, 2(g). Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

3. Art. 37.071, 2(h).

4. See generally Jurek v. Texas, 428 U.S. 262, 269 (1976); Conner v. State, 67 S.W.3d 192, 202-03 (Tex. Crim. App. 2001).

5. Moore v. State, 999 S.W.2d 385, 408 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000); Raby v. State, 970 S.W.2d 1, 7 (Tex. Crim. App.), cert. denied, 525 U.S. 1003 (1998).

6. 530 U.S. 466 (2000).

7. 536 U.S. 584 (2002).

8. 112 S.W.3d 541, 550 (Tex. Crim. App. 2003).

9. Johnson v. State, 68 S.W.3d 644, 656 (Tex. Crim. App. 2002); Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000), cert. denied, 531 U.S. 1128 (2001).

10. Art. 37.071, 2(b)(1), states that the jury shall be asked "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society[.]"

11. See, e.g., Ladd v. State, 3 S.W.3d 547, 572-73 (Tex. Crim. App. 1999)(holding that the terms "probability," "criminal acts of violence," and "continuing threat to society" need not be defined because the jury is presumed to understand them without instruction), cert. denied, 529 U.S. 1070 (2000).

12. Arts. 3.01 and 37.071, 2(f)(4).

13. Fuller v. State, 827 S.W.2d 919, 936 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 922 (1993); see and compare Simpson v. State, No. 74,029, slip op. at 17 (Tex. Crim. App. Oct. 1, 2003)(holding that the wishes of the victim's family members as to the defendant's fate are not admissible).

14. Tex. R. App. P. 33.1.

15. Tex. R. App. P. 38.1.