Opinion
No. 32894.
February 1, 1961.
Appeal from the 106th Judicial District Court, Dawson County, Truett Smith, J.
William Davenport, San Angelo, for appellant.
George H. Hansard, Dist. Atty., Lamesa, and Leon B. Douglas, State's Atty., Austin, for the State.
The appellant pleaded guilty before a jury to the charge of unlawful possession of marihuana, and the jury assessed his punishment at 10 years in the penitentiary.
The evidence shows that a cigar box and three fruit jars containing marihuana were found buried under the house in which appellant lived; that a trap door in a closet in the house was discovered beneath which were markings or trails leading to some of the marihuana.
Appellant confessed to possessing the marihuana.
The sole ground for reversal is that the trial court, in his charge to the jury, submitted the question of whether they would recommend that the sentence be probated.
Appellant filed an affidavit alleging that he had never been convicted of a felony and requested the court `to instruct the jury that in their discretion they may recommend to the court that * * * defendant be placed on adult probation.'
There were no objections to the charge.
The trial judge was in error in submitting the question of probation to the jury for their recommendation, or, as appellant's counsel puts it, it was `error for the trial judge to invite the jury to sit on the bench with him in deciding whether adult probation should be given a first offender.'
The error was, however, in the court's charge to which there were no objections. Furthermore, the charge complained of was given at the request of appellant. He is therefore in no position to complain. Art. 666, Vernon's Ann.C.C.P. and cases cited under Note 23; Gage v. State, 159 Tex.Crim. R., 263 S.W.2d 553; Green v. State, 157 Tex.Crim. R., 251 S.W.2d 736.
The judgment is affirmed.