Hardy v. State

• Decision Date: 27 June 2001
• Docket Number: No. 10-99-336-CV,10-99-336-CV
• Citation: 50 S.W.3d 689
• Parties: (Tex.App.-Waco 2001) MILTON WAYNE HARDY AND LOVELL GREEN HARDY, INDIVIDUALLY AND DOING BUSINESS AS GAME TIME AMUSEMENTS, Appellants v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 689

50 S.W.3d 689 (Tex.App.-Waco 2001)

MILTON WAYNE HARDY AND LOVELL GREEN HARDY, INDIVIDUALLY AND DOING BUSINESS AS GAME TIME AMUSEMENTS, Appellants v. THE STATE OF TEXAS, Appellee

No. 10-99-336-CV

Court of Appeals of Texas, Waco

June 27, 2001

From the County Court at Law No. 1 Johnson County, Texas Trial Court # 99-000127

Michael P. Gibson, Burleson, Pate & Gibson, L.L.P., Dallas, for appellant.

Bill Moore, County Attorney, William F. Lewis, Jr., Stuart Madison, Assistant County Attorneys, Cleburne, for appellee.

Before Chief Justice Davis, Justice Vance, and Justice Gray

OPINION

REX D. DAVIS, Chief Justice

The State sought to forfeit twenty "eight-liner" machines, four slot machines, and other evidence seized in the course of a gambling investigation. After a show-cause hearing, the court found that the seized evidence constitutes gambling devices, gambling paraphernalia, or gambling proceeds and ordered that this evidence be forfeited to the State. Milton Wayne Hardy and Lovell Green Hardy, individually and doing business as Game Time Amusements, (collectively, the "Hardys") claim in six issues that the evidence is legally and factually insufficient to support the court's determination that the eight-liners and slot machines constitute gambling devices and gambling paraphernalia.

BACKGROUND

Officers from the Department of Public Safety, the Office of the Attorney General, and the Office of the County Attorney of Johnson County executed a search warrant at Game Time Amusements ("Game Time") during the course of a gambling investigation. The officers seized twenty devices commonly known as "eight-liners," four slot machines, $2,340.25 in United States currency, seventy-two $5.00 gift certificates for Wal-Mart/Sam's Club, $130.00 in personal checks, and other miscellaneous items.

The State filed a petition seeking forfeiture of the seized items.¹ On the same date, the trial court issued a notice under article 18.18(b) of the Code of Criminal Procedure advising the Hardys that they must appear and show cause why the seized property should not be destroyed or forfeited.² See Tex. Code Crim. Proc. Ann. art. 18.18(b) (Vernon Supp. 2001).

Lovell Hardy testified that the eight-liners and slot machines are electronic devices which operate at least partially by chance. When a player inserted money in one of these devices, the machine would record the number of credits. For each play, the machine recorded the "bets" made and reduced the available credits accordingly. For each win, the device recorded the number of points won. When a player finished at a particular machine, he would summon the attendant to "verify" his points. The attendant then depressed a button which caused the device to dispense tickets in an amount corresponding to the number of points and which deleted that person's recorded point total so another could play. The "penny machines" dispensed one ticket for every 100 points accumulated. The "nickel machines" dispensed one ticket for every 500 points accumulated.

Hardy testified that the 100-point tickets were worth $1.00 and the 500-point tickets were worth $5.00. A player could exchange tickets for a $5.00 gift certificate to Wal-Mart/Sam's Club or for play on another machine. To exchange tickets for re-play on another machine, a player presented his tickets to the attendant who placed the money in the device of the player's choice.

At the conclusion of the hearing, the court found that the seized eight-liners and slot machines are gambling devices and gambling paraphernalia and ordered their forfeiture together with other currency, gift certificates, and miscellaneous items which the court found to be gambling paraphernalia or proceeds.

At the Hardys' request, the court filed findings of fact and conclusions of law. The court made the following findings which are pertinent to this appeal:

g. That a player of the machines could obtain a Wal-Mart/Sam's Club gift certificate as a result of the play of the machines and that 72 such gift certificates were seized at Game Time Amusements on March 10, 1999;

i. That the 72 Wal-Mart/Sam's Club gift certificates, each valued at $5.00 for a total value of $360.00, seized on March 10, 1999 are "things of value" and that the sixteen (16) Wal-Mart/Sam's Club gift certificates, each valued at $5.00 for a total of $80.00, and awarded to Department of Public Safety undercover officers through playing the machines at Game Time Amusements during the course of the investigation are "things of value"; and

n. That the machines as identified in the State's Motion For Forfeiture of Gambling Proceeds, Devices, Equipment and Paraphernalia, do not qualify under the "gambling device" exclusion set out in section 47.01(4)(B) of the Texas Penal Code.

The court stated in Conclusion of Law "a" that the twenty-four seized machines constitute "gambling devices and gambling paraphernalia."

BURDEN OF PROOF

We begin with the settled proposition that forfeiture proceedings under chapter 18 of the Code of Criminal Procedure are in rem proceedings which are civil in nature. See State v. Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976); Janjua v. State, 991 S.W.2d 419, 422 n.3 (Tex. App.-- Houston [14th Dist.] 1999, no pet.); see also United States v. Ursery, 518 U.S. 267, 288-89, 116 S. Ct. 2135, 2147-48, 135 L. Ed. 2d 549 (1996). As such, they are governed by the rules applicable to civil trials and appeals generally. See Janjua, 991 S.W.2d at 422 n.3; Fleming v. State, 704 S.W.2d 530, 531 (Tex. App.-- Houston [14th Dist.] 1986, writ ref'd n.r.e.); Brown v. Barlow, 685 S.W.2d 406, 408 (Tex. App.-- San Antonio 1985, orig. proceeding) (per curiam).

The appropriate standard of review in a civil appeal in which the sufficiency of the evidence is questioned depends on which party had the burden of proof at trial. See, e.g., Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.-- Waco 2000, pet. denied); Crow v. Burnett, 951 S.W.2d 894, 897 (Tex. App.-- Waco 1997, pet. denied). Thus, we must first determine who has the burden of proof in a show-cause hearing under article 18.18(f). See Tex. Code Crim. Proc. Ann. art. 18.18(f) (Vernon Supp. 2001).

Article 59.05(b), which governs a hearing commenced by the State to forfeit contraband used in the commission of first and second degree felonies, drug offenses, and other listed crimes, squarely places the burden on the State to prove its entitlement to forfeiture by a preponderance of evidence.³ See Tex. Code Crim. Proc. Ann. art. 59.05(b) (Vernon Supp. 2001). Article 18.18(f), however, allocates the burden of proof in a different manner.⁴ Id. art. 18.18(f). The statute provides:

(f) If a person timely appears to show cause why the property or proceeds should not be destroyed or forfeited, the magistrate shall conduct a hearing on the issue and determine the nature of property or proceeds and the person's interest therein. Unless the person proves by a preponderance of the evidence that the property or proceeds is not gambling equipment, altered gambling equipment, gambling paraphernalia, gambling device, gambling proceeds, prohibited weapon, criminal instrument, or dog-fighting equipment and that he is entitled to possession, the magistrate shall dispose of the property or proceeds in accordance with Paragraph (a) of this article.

Id.

This statute plainly requires a property owner to prove by a preponderance of evidence that the seized property is not contraband subject to forfeiture. Nevertheless, the parties cite the 1976 Supreme Court decision in Rumfolo as authority for the proposition that the burden actually rests with the State to prove its entitlement to forfeiture by a preponderance of evidence.⁵ See Rumfolo, 545 S.W.2d at 754. In our view, Rumfolo does not support this proposition.

In Rumfolo, the lower court held that article 18.18, subsections (b) and (f), violates the due process and due course of law provisions of the federal and state constitutions because it places the burden of proof on the property owner. See Rumfolo v. State, 535 S.W.2d 16, 21 (Tex. Civ. App.-- Houston [14th Dist.]), rev'd, 545 S.W.2d 752 (Tex. 1976). The Supreme Court rejected this holding. The Court began by noting that due process requires only that the State provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Rumfolo, 545 S.W.2d at 754 (quoting Robinson v. Hanrahan, 409 U.S. 38, 40, 93 S. Ct. 30, 31, 34 L. Ed. 2d 47 (1972)); accord City of West Covina v. Perkins, 525 U.S. 234, 240, 119 S. Ct. 678, 681, 142 L. Ed. 2d 636 (1999) (due process in forfeiture proceeding requires notice and opportunity to be heard); see also LaChance v. Erickson, 522 U.S. 262, 266, 118 S. Ct. 753 756, 139 L. Ed. 2d 695 (1998) ("core of due process is the right to notice and a meaningful opportunity to be heard"); University of Tex. Med. School v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (due course of law "at a minimum requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner").

The perception that Rumfolo places the burden of proof on the State comes from the following statement in that opinion:

We construe Art. 18.18 to require the State to assume the burden to prove the proceeds were used in the gambling activity and to trace the money to the named respondents. As applied to this action, the statute clearly satisfies the constitutional requirement of procedural due process. Here the trial court conducted an evidentiary hearing after notice in writing to the respondents. After the State offered testimony concerning the gambling by the named respondents and the results of the search following the raid, the respondents had an opportunity to present evidence. The record shows the respondents or their attorney were present but offered no evidence at the hearing. To require cla...