Eric Deshawn Bloom v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-92-298-CR

ERIC DESHAWN BLOOM,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 21,550-361

O P I N I O N

A jury convicted Eric Bloom of two counts of delivery of a controlled substance, cocaine, and assessed his punishment at 99 years in prison and a fine of $2,500 on each count. He appeals on three points. In his first point, Bloom asserts that the court erred in not declaring a mistrial on its own motion after a juror saw him in handcuffs. He contends the court erred when it excused the juror who observed him in handcuffs and proceeded with only eleven jurors. Bloom alleges in point two that the court's instruction to disregard a witness' hearsay testimony concerning the addictive nature of crack cocaine was insufficient to erase the harmful effects of that testimony. Finally, Bloom asserts that the court should have stricken the testimony of a reputation witness because his opinion was not based on conversations with others. We will overrule all three points of error and affirm the judgment.

Before the indictment was read but after the jury was sworn, the parties discovered that one of the jurors had seen Bloom in handcuffs during a break in the proceeding. The court gave Bloom the options of either replacing that juror with the next juror on the list or proceeding with eleven jurors. Bloom chose to proceed with eleven jurors and never moved for a mistrial.

A person charged with a felony who pleads not guilty is entitled to a jury of twelve persons. Tex. Code Crim. Proc. Ann. art. 33.01 (Vernon 1989). However, this right may be waived. Bates v. State, 843 S.W.2d 101, 103 (Tex. App.--Texarkana 1992), cert. denied, 462 U.S. 1132 (1983); Samudio v. State, 648 S.W.2d 312, 313 (Tex. Crim. App. 1983). This waiver must be indicated by an affirmative act in open court, such as a writing or oral declaration, and will not be presumed from a silent record. See Bates, 843 S.W.2d at 104; Samudio, 648 S.W.2d at 313.

Bloom affirmatively waived a jury of twelve persons. After the trial court presented the options to him and he elected to proceed with eleven jurors, the court asked in a series of questions whether he was making this decision to waive a twelve-member jury freely and voluntarily and if he understood the options and consequences of this waiver. Bloom answered all questions affirmatively. This colloquy between the court and Bloom is sufficient to constitute a knowing waiver of his right to a jury of twelve persons. See Bates, 843 S.W.2d at 104. Point of error one is overruled.

Lieutenant Knowles testified that drug offenders had told him crack cocaine was the most addictive drug they had used. Bloom objected to the testimony as hearsay and moved for a mistrial. The trial court sustained the objection, instructed the jury to disregard Knowles' statement, but denied the motion for a mistrial. In his second point, Bloom asserts that Knowles' testimony was so inflammatory that the court's curative instruction was insufficient to remove its harmful effects. Therefore, he argues that the court erred when it denied the motion for a mistrial.

Any harm resulting from improperly admitted testimony may generally be cured by a prompt instruction to disregard the testimony. An exception to this is when the testimony is so inflammatory as to suggest the impossibility of withdrawing its prejudicial effect on the minds of the jury. Crawford v. State, 603 S.W.2d 874, 876 (Tex. Crim. App. 1980), cert. denied, ___ U.S. ___, 112 S. Ct. 202 (1991). We find this situation fits the rule rather than the exception and that the court properly denied the motion for a mistrial. Point two is overruled.

Bloom contends in point three that officer Jagielski's testimony about Bloom's bad reputation should have been excluded. Reputation testimony is properly based on discussions with others or on hearing others' discussions in the defendant's community regarding a defendant and his reputation. Reputation testimony is not proper when it is based solely on the witness' personal knowledge. Turner v. State, 805 S.W.2d 423, 429 (Tex. Crim. App. 1991). Discussions with other police officers will support reputation testimony so long as the opinion of the defendant's reputation is partially based on discussions relating to matters other than the actions for which the defendant is being tried. Id.

Although Jagielski testified that his opinion of Bloom's reputation was based on personal knowledge, he also testified that his opinion was based on conversations with police officers and others not only relating to this offense but to other matters involving Bloom. Officer Jagielski was properly qualified as a reputation witness. We overrule Bloom's third point of error.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 18, 1993

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