Jacobs v. State, 01-06-00556-CR.
| Citation | 245 S.W.3d 520 |
| Decision Date | 14 June 2007 |
| Docket Number | No. 01-06-00556-CR.,01-06-00556-CR. |
| Parties | Toni Hobson JACOBS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
Paul Decuir, Houston, for Appellant.
Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Alan Curry, Asst. Dist. Atty., Houston, for Appellee.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
Appellant Toni Hobson Jacobs pleaded not guilty to the Class A misdemeanor offense of possession of a gambling device. See TEX. PEN.CODE ANN. § 47.06(a) (Vernon 2003). A jury found Jacobs guilty and the trial court assessed punishment at four days' confinement and a $300 fine. In three issues, Jacobs contends (1) the trial court erred in denying her motion for directed verdict because the State failed to prove that her gambling business was not located in a private place, (2) the trial court abused its discretion in denying her motion for new trial because the prosecutor failed to provide her with exculpatory evidence, and (3) the evidence is legally insufficient to support her conviction for possession of a gambling device. We conclude that the evidence is legally insufficient to support Jacobs's conviction for possession of a gambling device because the State did not link Jacobs to any gambling device. We therefore reverse and render a judgment of acquittal.
The Harris County Sheriff's Department received several complaints that a gambling business called "Gone Shopping" was operating in a shopping center in Crosby, Texas. The business sported a small sign that said, "Open," and a note on the door stated that the business was a private club and membership was required for entry.
Detective O. Muir visited the business undercover on December 1, 2005 to investigate. Muir rang the door buzzer. An attendant answered and asked if he had a membership card. When Muir responded negatively, the attendant asked him how he knew about the business. Muir responded that someone told him about the business while he was playing an "8 liner" at a convenience store. See generally Jason Johns, Comment, Win, Lose, or Draw: The Rise of Eight-Liner Video Devices in Texas, 34 TEX. TECH L.REV. 263 (2003) (). Muir obtained a membership card by giving the attendant his driver's license.
The attendant invited Muir to enter the business. He sat down at a device called "J & B Mystery." Muir inserted five dollars into the device and received 500 points. The business matched the amount that Muir put in the device so he also received an additional 500 points. While playing the device, Muir discovered that it awarded points in excess of ten times the amount of his original bet. Muir tried to leave the business when he attained 1108 points, but the attendant informed him that he could not leave until he reached 1500 points because the business had matched the amount of money he put into the device. The attendant also told him that customers say, "ticket out" instead of "cash out," upon leaving, "just to keep everything cool." Muir continued to play and decided to leave when he reached 1508 points. The attendant pushed a button on Muir's device and it dispensed three tickets. The attendant then gave Muir fifteen dollars in exchange for the three tickets. In a spiral notebook, the attendant documented the date, the amount she paid Muir, and the device he had been playing. Muir signed next to the entry in the notebook.
Muir returned to Gone Shopping on December 2, 2005 and used his membership card to enter. Muir signed the guestbook and played another J & B Mystery device. Muir put five dollars into the device and received 500 points. Muir ticketed out at 500 points. On this occasion, the device did not dispense a ticket, but the attendant handed Muir five dollars in cash. The attendant wrote down the information in the notebook and Muir signed his name.
Muir visited Gone Shopping for a third time on December 5, 2005. Muir inserted five dollars into a "Fruit Bonus" device and received 500 points. Muir ticketed out when he reached 504 points. The attendant gave Muir five dollars and he signed the spiral notebook. Muir never observed Jacobs to be present at the business on December 1, 2, or 5.
Based on Muir's undercover work, Sergeant J. Durbin obtained and executed a search warrant at the business on December 8, 2005. The attendant at the door introduced Durbin to Jacobs, who was identified as the owner of the business and the lessee of its premises. The Sheriff's Department seized $2,665.95 in cash and forty-one eight-liner devices found on the premises, twenty-eight of which were operational at the time. The Sheriff's Department also issued gambling citations to the customers present at the business when the warrant was executed.
Durbin later discovered that the devices seized on December 8, although similar in type, were not the same devices that Muir played on December 1, 2, and 5. Durbin acknowledged that none of the devices seized on December 8 pay a player in cash.
Mike Hobson, Jacobs's ex-husband, testified that a vendor removed all the gambling devices from Gone Shopping on December 4 and 5, and that by 8:00 a.m. on December 5, all of the devices were gone and the premises was "vacant, empty and closed." Hobson assisted Jacobs in setting up new devices that a vendor delivered on December 6 and 7.
Jacobs testified that she leased the premises where Gone Shopping was located in September 2005, but had immediately subleased the premises to a third party. She also leased the devices seized on December 8 and produced a lease agreement dated December 6, 2005. Jacobs testified that the devices themselves did not dispense tickets or money; instead, customers could redeem points for prizes. Jacobs also testified that her business was a private club and that customers had to have a driver's license to become a member. Jacobs told the customers present at her business on December 8 that the games were not set up, and provided them with money so that they could "check out the machines."
Wong Vo, a technician for the device vendor, arrived at the business on December 8 while the Sheriff's Department was executing its search warrant. Vo testified that he delivered the devices to Jacobs's business on December 7, and returned to set them up on December 8. Vo testified that he planned to set up the devices according to Texas law so that they would not "pay out" more than ten times the original bet.
J. Richard McGoey is an attorney who leased the devices to Jacobs and testified that Jacobs planned to operate them in accordance with Texas law. McGoey also testified that Jacobs planned to open her business on December 9, 2005.
When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Evans v. State, 202 S.W.3d 158, 161 (Tex.Crim.App.2006); Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005). The standard is the same for both direct and circumstantial evidence cases. King v. State, 895 S.W.2d 701, 703 (Tex. Crim.App.1995). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.App.1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.
In her third issue, Jacobs contends the evidence is legally insufficient to support her conviction for possession of a gambling device.
"A person commits [the offense of possession of a gambling device] if, with the intent to further gambling, he knowingly owns, manufactures, transfers, or possesses any gambling device that he knows is designed for gambling purposes or any equipment that he knows is designed as a subassembly or essential part of a gambling device." TEX. PEN.CODE ANN. § 47.06(a).
"Gambling device" means any electronic, electromechanical, or mechanical contrivance not excluded under Paragraph (B) that for a consideration affords the player an opportunity to obtain anything of value, the award of which is determined solely or partially by chance, even though accompanied by some skill, whether or not the prize is automatically paid by the contrivance. The term:
(A) includes, but is not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so, that as a result of the play or operation of the game award credits or free games, and that record the number of free games or credits so awarded and the cancellation or removal of the free games or credits; and
(B) does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than 10 times the amount charged to play the...
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Wright v. State, 14-11-00394-CR
...argues that the device, in and of itself, was not a gambling device. In support of his argument, appellant cites Jacobs v. State, 245 S.W.3d 520 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd), but appellant's reliance is misplaced. In Jacobs, the court held that, toPage 5prove that the de......