State v. Woffort

• Decision Date: 30 November 2000
• Parties: Page 671 34 S.W.3d 671 (Tex.App.-Austin 2000) The State of Texas, Appellant v. Susan Bozeman Wofford, Carroll Edward Wofford, 1 Benny Charles Jenkins, Clark Anthony Wilson, and Valley Vending, Inc., Appellees NO. 03-99-00489-CR to NO. 03-99-00500-CR TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
• Court: Texas Court of Appeals

Page 671

34 S.W.3d 671 (Tex.App.-Austin 2000)

The State of Texas, Appellant v Susan Bozeman Wofford, Carroll Edward Wofford,¹ Benny Charles Jenkins, Clark Anthony Wilson, and Valley Vending, Inc., Appellees

NO. 03-99-00489-CR to NO. 03-99-00500-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

Novmeber 30, 2000

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT HONORABLE DICK ALCALA, JUDGE PRESIDING

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Justices KIDD, PATTERSON and ONION^*

JOHN F. ONION, Jr., Justice

Pursuant to appellees' motions to dismiss the indictments, the trial court conducted a pretrial evidentiary hearing. The trial court dismissed each indictment. The State appeals. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1) (West Supp. 2000). The motions to dismiss were based on the claim that section 47.01(4)(B) of the Texas Penal Code² is unconstitutionally void for vagueness as applied to appellees' situation--the possession, operation, and use, etc., of modified video machines known as "eight liners." The void-for-vagueness argument in appellees' motions to dismiss is based solely upon a claim of violation of due process of law under the Fourteenth Amendment to the United States Constitution, thus presenting only a federal constitutional issue. The trial court granted the pretrial motions to dismiss on this basis, expressly citing Grayned v. City of Rockford, 408 U.S. 104 (1972).

Section 47.01(4)(B), declared unconstitutional by the trial court's orders, is an express exclusion from the statutory definition of a "gambling device." See Tex. Penal Code Ann. § 47.01(4) (West Supp. 2000). Section 47.01(4) provides:

(4) "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 game or device once or $5, whichever is less.

Tex. Penal Code Ann. § 47.01(4)(A), (B) (West Supp. 2000).³ (Emphasis added.)

Issue

In its first issue, the State asks: "Is the exclusion to the definition of a gambling device unconstitutionally vague as applied to these defendants?" We hold that it is not and set aside the trial court's orders dismissing the indictments.⁴

The Twelve Indictments

In each of the twelve indictments, appellees were individually charged with engaging in organized criminal activity under section 71.02(a)(2) of the Texas Penal Code⁵ by having committed certain Class A misdemeanor gambling offenses under either sections 47.03, 47.04, or 47.06 of the Penal Code. See Tex. Penal Code Ann. §§ 47.03, 47.04, 47.06 (West 1994).⁶

Most of the indictments are multicount indictments, and most, but certainly not all, allege a gambling device, to wit: "an eight liner," sometimes with a further description such as "All Fruit Bonus video eight-liner machines." The indictments appear regular and valid on their faces. There was no exception to a defect of form or substance in the indictments. See Tex. Code Crim. Proc. Ann. arts. 27.08, 27.09 (West 1989). Further, we find no motions to set aside [quash] the indictments. See Tex. Code Crim. Proc. Ann. art. 27.03 (West 1989). And the record does not reflect any pretrial applications for writ of habeas corpus attacking the constitutionality of the gambling statutes underlying the offenses charged in the indictments. Instead, appellees have used pretrial motions to dismiss the indictments on a constitutional basis as their procedural vehicle. See 42 George E. Dix and Robert O. Dawson, Criminal Practice and Procedure, § 30.66 at 127 (Texas Practice 1995); cf. State v. Terrazas, 962 S.W.2d 38, 41-42 (Tex. Crim. App. 1998).⁷ Appellees have directed their federal constitutional attack to section 47.01(4)(B) describing devices that are excluded from the statutory definition of a gambling device.

The State Constitution delegates to the legislature law-making authority including the right to define crimes and fix penalties therefor. See Tex. Const. art III, § 1; McNew v. State, 608 S.W.2d 166, 176 (Tex. Crim. App. 1980) (op. on reh'g). It is also an appropriate legislative function to define the words contained in a statute and to prescribe rules for their interpretation. See 1A Norman J. Singer, Statutes and Statutory Construction § 20.08 at 90 (Sutherland Statutory Construction, 5th ed. 1993). It has been said that when the legislature provides a definition for a term, it is that definition to which a person should conform his conduct. See City of Seattle v. Koh, 614 P.2d 665, 668 (Wash.App.1980).

However, the definitions contained in section 47.01 "do not constitute criminal offenses of and in themselves." Gerald S. Reamey, Criminal Offenses and Defenses in Texas 190 (2d ed. 1993). The section 47.01 definitions are not elements of the gambling offenses in Chapter 47 of the Penal Code, but are grouped rather for simplification, accessability, and uniformity of meanings where such was intended. Cf. Victory v. State, 547 S.W.2d 1, 4 (Tex. Crim. App. 1976). "An element of the offense means: (A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense." Tex. Penal Code Ann. § 1.07(a)(22) (West 1994). "(A) an exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of . . . .'" Tex. Penal Code Ann. § 2.02(a) (West 1996). Section 47.01(4)(B) is not labeled as an exception to any offense. Thus, it is not an element of an offense or a labeled exception as required. Moreover, this provision is not a defense or an affirmative defense because it is not so labeled as required by the Penal Code. See Tex. Penal Code Ann. §§ 2.03, 2.04 (West 1994).

Factual Background

The trial court afforded appellees a pretrial evidentiary hearing. The record reveals that appellees Susan and Carrol Wofford are the operators of Joe's Grocery in San Angelo where the eight-liner machines were in use when seized by law enforcement personnel. Appellees Benny Charles Jenkins and Clark Anthony Wilson operate Valley Vending, Inc., which by agreement or lease, placed the eight-liner machines in Joe's Grocery.

Ben Halamicek, an electronic technician employed by Valley Vending, testified that the company leased juke boxes, pool tables, video and other games to business establishments in and around San Angelo. Halamicek stated that after the 1995 amendment to section 47.01(4) and in response to customer demand, the company began installing eight liners at various locations.

Halamicek testified that eight liners are electronic machines resembling a slot machines and are commonly called eight liners because they can pay out in eight separate ways-- three across, three down, and two diagonally. These machines operate by displaying a three-by-three-grid of symbols or "icons" with a winning combination being any three matching symbols in a line. The machines accept paper currency of one to twenty dollars; some will accept quarters. Halamicek explained that the player who inserts a dollar bill in an eight liner is credited with one hundred points. An individual begins play by betting any number of points ranging from a minimum of eight points to a maximum of sixty-four points which are divided equally among the eight possible lines. A player then presses a button on the machine which activates an internal computer that randomly determines the final outcome. If one or more of the eight lines on the machine ends with three matching symbols--such as fruits, bells, or numbers,--a player wins points according to a payoff schedule. Some combinations yield a higher return than others. Upon completing a game, a player pushes a print button which produces a coupon with a number of points that can be redeemed for gift certificates or merchandise in the store where the machine is located. Unmodified eight liners could conceivably pay far in excess of ten times the amount of the wager or five dollars.

Some time after the installation of eight liners by Valley Vending, questions arose about their legality. Jenkins and Halamicek consulted with private lawyers, the local district attorney's office, the Tom Green County Sheriff's Office, and others to determine how to bring Valley Vending's eight liners into compliance with the law.

After these consultations, Halamicek modified Valley Vending's eight liners at an approximate cost of $30,000. The machines were modified so that the amount of points credited to the ticket or coupon dispensing counter could never exceed ten times the amount "played" or a maximum of five dollars for a single play of the game as required to meet the exclusion from gambling devices set forth in section 47.01(4)(B). Halamicek admitted that a player could win more than five hundred points in a single play, but explained that...