Mahan v. State

OPINION

DOUGLAS, Judge.

Larry Wayne Mahan appeals his conviction for possession of more than four ounces of marihuana. Mahan pled guilty to the jury. Punishment was assessed by the jury at two years.

He contends that he should have been allowed to withdraw his announcement of ready and that the prosecutor made three separate improper jury arguments. The sufficiency of the evidence is not challenged.

Mahan contends that he should have been allowed to withdraw his announcement of ready because he was unfairly surprised by the State’s introduction of over a pound of marihuana when he had been led to believe only slightly over four ounces would be introduced. On Friday, March 17, 1978, Mahan’s attorney had a conversation with the district attorney which led him to believe that the State would introduce only slightly more than four ounces. The district attorney furnished the defense attorney with a lab report showing over a pound had been seized. During the weekend, defense counsel prepared a suppression motion challenging the search of the entire quantity of marihuana. On Monday, March 20, 1978, at the pretrial hearing, it became obvious that the State intended to introduce the full amount of marihuana. The defense moved to withdraw its announcement of ready. The court found that the defense was aware of the amount of marihuana since at least the previous Friday and refused to allow them to withdraw their announcement. The court then conducted a hearing on the motion to suppress which was denied. A jury was selected and trial had the following day.

The decision not to allow a withdrawal of an announcement of ready is reviewable by an abuse of discretion standard. Cooper v. State, 509 S.W.2d 565 (Tex.Cr.App.1974); Guerrero v. State, 487 S.W.2d 729 (Tex.Cr.App.1972). The record indicates that the defense was aware of the full amount of marihuana and had prepared an appropriate motion to suppress. Trial was not had until the following day. Appellant has not indicated any specific harm. Under these circumstances, no abuse of discretion is shown.

Complaint is made of the following argument:

“ . . . And he wants you to sort of pat him on the back. Give him probation. Let him go out the door. I don’t think that’s what the members of our community want. I don’t think that’s what they believe. I don’t believe they think that’s what should happen.”

*490No objection was made. Nothing is presented for review.

Mahan’s final two contentions concern jury argument which he contends indicated there was another offense the State could not charge him with and that he was involved in selling marihuana. The complained of argument went as follows:

“Mr. Old got up and said the one word that I had been dying to say. He said that we were trying to infer that this man was selling it. Well, I’ll tell you what. You use your common sense at all this dope. I think it speaks for itself. I know what I think. I know what I’ve heard from the evidence.
“MR. OLD: Your Honor, I’m going to object. He is trying to change the charge. I’d like to take a Bill.
“THE COURT: Well, I’ll overrule that objection.
“MR. COX: I wish I could change it.
“MR. OLD: Your Honor, now that was improper. I’m going to ask that be stricken.
“THE COURT: Sustain the objection. Stay in the record.
“MR. COX: Y’all look at the evidence. Y’all look at the evidence. Y’all see the amount.”

Mahan’s argument concerning the prosecutor’s allusion to another offense is based on the sidebar remark made after the court’s initial ruling. No adverse ruling was obtained by appellant. Taken in context, while the sidebar remark was clearly improper, it does not appear that it implied any additional information that was being withheld from the jury. The court’s ruling was sufficient to cure the error, if any.

The remarks concerning the sale of marihuana were a response to an earlier argument made by defense counsel. Defense counsel had earlier argued:

“I told you the first time I spoke to you Mr. Mahan would plead guilty because he is guilty. What he is guilty of is possession of more than four ounces of marijuana. He doesn’t deny that. That is all he is guilty of. Somewhere in the back of your mind Mr. Cox is trying to work this selling business in and this man is not being tried for selling. He is being tried for possession only.”

Mahan was being tried for possession. His attorney’s argument explicitly stated that possession was all he was guilty of. The evidence indicated an amount of marihuana beyond what would normally be associated with personal use. In view of the defense counsel’s assertion and the evidence, it was proper for the State to ask the jury to consider for itself, based on the evidence, if defense counsel’s statement was justified.

There is no reversible error. The judgment is affirmed.