$1760.00 in United States Currency, 37 "8" Liner MacHines v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00391-CV
$1760.00 IN UNITED STATES APPELLANT
CURRENCY, 37 “8” LINER
MACHINES
V.
THE STATE OF TEXAS APPELLEE
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
This is a civil forfeiture case. Appellant Sammy Dean Barnes, owner of
Magic Games Game Room, appeals the trial court’s order forfeiting $1,760.00 in
United States currency and thirty-seven “eight-liner” machines to the State as
gambling proceeds and gambling devices. We are asked to address an issue of
first impression: whether a nonimmediate right of replay––by means of
redeeming a ticket of no cash value for points electronically input from a central
location to an eight-liner chosen by the ticket holder at Magic Games Game
Room at a subsequent visit––prohibits application of the “fuzzy animal”1
exclusion from the definition of “gambling device.” See Tex. Penal Code Ann.
§ 47.01(4) (defining “gambling device”), § 47.01(4)(B) (West 2011) (setting forth
“fuzzy animal” exclusion from the definition of “gambling device”). Because we
hold that the redemption of tickets for points used for replay provided by Magic
Games Game Room does not prohibit application of the “fuzzy animal” exclusion
from the definition of “gambling devices,” we will reverse the trial court’s order
forfeiting the thirty-seven eight-liner machines seized from Magic Games Game
Room.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Tarrant County Sherriff’s Department commenced an investigation of
Magic Games Game Room on January 24, 2011. Deputy Jeffrey Jones stopped
two individuals leaving the game room to investigate whether gambling was
occurring in the game room: Mr. Skelley, a gentleman in his eighties, and Mr.
Coolidge, a ninety-nine-year-old gentleman. Mr. Skelley told Deputy Jones that
the game room did not pay cash; instead, players received tickets that could be
redeemed for prizes or for replays on that day or a later date. Mr. Coolidge told
1
See Fifty Six (56) Gambling Devices v. State, No. 07-03-00132-CV, 2004
WL 635429, at *2 (Tex. App.—Amarillo 2004, no pet.) (on reh’g) (noting that
penal code section 47.01(4)(B) is “commonly known as the fuzzy animal
exception”).
2
Deputy Jones that the game room did not pay cash but that winning players
received tickets that could be redeemed for prizes or for replays at any time.
The eight-liners2 at Magic Games Game Room accepted one-, five-, ten-,
and twenty-dollar bills and converted the money into points that were played on
the machines; it took at least one dollar to start playing. The machines did not
allow patrons to win in excess of ten times the value of their bets. When a patron
would “ticket out,” a central ticket machine would dispense a ticket, which had no
cash value––one ticket for every 500 points that the patron had accumulated on
the machine. Patrons would occasionally ticket out in order to play a different
machine they believed to be more lucky; an attendant would take the patron’s
tickets and, from a central location, electronically transfer the points represented
by the tickets to the machine the patron desired to play. Likewise, the right of
replay was implemented electronically; patrons surrendered their tickets, and the
points represented by the tickets were applied electronically to whichever
machines the patrons wanted to play.3 Patrons also had the option to use their
2
The term “eight-liner” is a generic term; some of the machines at the
Magic Games Game Room had five, eight, ten, or twenty lines that could be
played. The record reveals that winnings were determined by matching symbols
horizontally, vertically, or diagonally and that a patron could choose how many
lines he wanted to play.
3
Barnes testified that there were eight or ten eight-liner machines at Magic
Games Game Room that could not be used for replay because they would not
receive the electronic points properly. Patrons could therefore redeem their
ticket for replay only on certain machines that would allow electronic transfer of
points to the machine.
3
tickets to “buy” a gift, such as toilet paper, paper towels, or coffee; if there were
no gifts that the patron wanted, he could bring his tickets back on a different day
to choose a gift. None of the gifts were in excess of five-dollar wholesale value.
Deputy Jones prepared an affidavit to obtain a warrant to search Magic
Games Game Room for gambling devices. Jones’s affidavit stated,
Based on the information obtained during the investigative
stops, Barnes is giving tickets to patrons, allowing them to come
back at a later date and redeem said ticket for machine credits.
Thus he is allowing patrons to leave and return to play on another
day by thus a violation of the law.
Deputy Jones presented his search warrant affidavit to a magistrate, obtained a
search warrant, executed the warrant at Magic Games Game Room, and seized
thirty-seven eight-liner machines. While at Magic Games Game Room, Deputy
Jones observed that none of the prizes, which he described as “[g]rocery store
items,” exceeded a five-dollar monetary value. Deputy Jones also noted a sign
on the wall that stated, “We do not pay cash. Tickets have no cash value.
Tickets are redeemable for gifts or replay only. If you ask for cash, you will be
asked to leave.”
The State initiated forfeiture proceedings in the justice court,4 and the
justice court ordered the forfeiture of the thirty-seven eight-liner machines, along
4
The State’s motion for forfeiture, which is described in the order, is not in
the record before us.
4
with $1,760.00 in currency.5 Barnes appealed the justice court judgment to the
county court at law,6 and following a bench trial, the county court at law ordered
the forfeiture of the thirty-seven eight-liner machines, along with $1,760.00 in
currency. This appeal followed.
III. APPLICATION OF THE “FUZZY ANIMAL” EXCLUSION
FROM THE DEFINITION OF GAMBLING DEVICES
In his sole issue, Barnes argues that the trial court erred by granting the
State’s motion for forfeiture because Magic Games Game Room’s eight-liner
machines were not gambling devices. Specifically, Barnes argues that the
allowance of a nonimmediate right of replay by means of redeeming a ticket of no
cash value at a subsequent visit by electronically applying the points represented
by the ticket to whichever machine the ticket-holder patron desired to play does
not prevent application of the “fuzzy animal” exclusion set forth in Texas Penal
Code section 47.01(4)(B). The State argues that this future right of replay
vitiates application of the “fuzzy animal” exclusion to the eight-liner machines
seized from Magic Games Game Room.
A. Procedure in Civil Forfeiture Case
Following lawful seizure, gambling paraphernalia, devices, equipment, and
proceeds are subject to forfeiture even when, as here, there is no prosecution of
5
The money was retrieved from an ATM machine that was on the
premises, but Barnes testified that the ATM machine did not belong to him.
6
The record before us does not contain Barnes’s filings in the county court
at law other than a motion to suppress and exclude evidence.
5
the owner of the contraband. See Tex. Code Crim. Proc. Ann. art. 18.18(b)
(West Supp. 2011); In re Seizure of Gambling Proceeds & Devices, 261 S.W.3d
439, 446 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Once the State
has established probable cause to initiate a forfeiture proceeding, the State has
met its burden under article 18. Hardy v. State, 102 S.W.3d 123, 129 (Tex.
2003). At that point, the burden shifts to the claimant to prove that the property is
not subject to forfeiture under article 18.18(f), which provides that, “[u]nless the
[interested person] proves by a preponderance of the evidence that the property
or proceeds is not gambling equipment . . . the magistrate shall dispose of the
property or proceeds . . . .” Tex. Code Crim. Proc. Ann. art. 18.18(a), (f) (West
Supp. 2011); Hardy, 102 S.W.3d at 129. Thus, the ultimate burden of proof in an
article 18.18 forfeiture proceeding is on the possessor of the property, not the
State. Hardy, 102 S.W.3d at 129–30.
B. Challenge to Trial Court’s Conclusion of Law
Rule 296 of the Texas Rules of Civil Procedure authorizes requests for
findings of fact and conclusions of law in a nonjury case. Tex. R. Civ. P. 296.
Neither party requested findings of fact or conclusions of law; the evidence,
however, is undisputed. Barnes and the State both contend that the same,
undisputed facts compel different conclusions of law. The State contends that
the evidence establishes that the eight-liners at issue do not fall within the “fuzzy
animal” exclusion set forth in penal code section 47.01(4)(B); Barnes contends
that the same evidence establishes that they do. We review the trial court’s legal
6
conclusions drawn from facts to determine their correctness. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Rogers v. City of Fort
Worth, 89 S.W.3d 265, 277 (Tex. App.––Fort Worth 2002, no pet.). Thus, we
review de novo here whether the trial court erred by concluding, based on the
undisputed evidence, that the thirty-seven eight-liners seized from Magic Games
Game Room did not fall within subsection (B)’s exclusion to the general definition
of “gambling devices” set forth in section 47.01(4) of the Texas Penal Code.
C. Definition of Gambling Device
and “Fuzzy Animal” Exclusion from Definition of Gambling Device
Section 47.01 of the Texas Penal Code sets forth the following definition of
gambling device:
(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
7
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). Section (4), as quoted above, sets forth the
general definition of gambling device, and subsection (B) sets forth the statutory
exclusion from the definition. See Hardy, 102 S.W.3d at 131. A “thing of value”
as referred to in the definition of “gambling device” in section (4) is defined as
meaning “any benefit, but does not include an unrecorded and immediate right of
replay not exchangeable for value.” Id. § 47.01(9) (West 2011).
D. Statutory Construction
We review issues of statutory construction de novo. Tex. Lottery Comm’n
v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). In construing
statutes, our primary objective is to give effect to the Legislature’s intent. Id.
(citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.
2009)). We rely on the plain meaning of the text as expressing legislative intent
unless a different meaning is supplied by legislative definition or is apparent from
the context, or the plain meaning leads to absurd results. Id. We presume that
the legislature selected language in a statute with care and that every word or
phrase was used with a purpose in mind. Id. (citing In re Caballero, 272 S.W.3d
595, 599 (Tex. 2008)). Courts should give effect to “every sentence, clause, and
word of a statute so that no part thereof [will] be rendered superfluous.” City of
San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) (quoting Spence v.
Fenchler, 107 Tex. 443, 457, 180 S.W. 597, 601 (1915)).
8
E. Analysis
Barnes concedes that because the tickets that patrons received when they
“ticketed out” of the eight-liners could be redeemed electronically for points input
to an eight-liner at a subsequent visit and thereby could be used for a
nonimmediate right of replay, the eight-liners fall within the definition of a
gambling device set forth in penal code section 47.01(4). See Tex. Penal Code
Ann. § 47.01(4); State v. Gambling Paraphernalia, Devices, Equip. & Proceeds,
356 S.W.3d 594, 598 (Tex. App.—Corpus Christi 2011, no pet.) (holding eight-
liners met section 47.01(4)’s general definition of gambling device because
player obtained nonimmediate right of replay via credits on a player card); Allstar
Amusement v. State, 50 S.W.3d 705, 707–08 (Tex. App.—Waco 2001, no pet.)
(holding eight-liners met section 47.01(4)’s general definition of gambling device
because player obtained nonimmediate right of replay by returning at a later date
and presenting ticket to attendant who put $5.00 in the selected machine). That
is, Barnes concedes that because the eight-liners afford the player an opportunity
to obtain a “thing of value”––a benefit other than an unrecorded and immediate
right of replay, that being a right of nonimmediate replay, the eight-liners meet
the definition of gambling device set forth in section 47.01(4). See Gambling
Paraphernalia, Devices, Equip. & Proceeds, 356 S.W.3d at 598; Allstar
Amusement, 50 S.W.3d at 707–08. Barnes argues, however, that even if a
device meets the section 47.01(4)’s general definition of a gambling device, it is
specifically excluded from that definition if it meets the requisites of the “fuzzy
9
animal” exclusion set forth in subsection (B). See Tex. Penal Code Ann.
§ 47.01(4) (defining gambling device as “any electronic, electromechanical, or
mechanical contrivance not excluded under paragraph (B) that . . .”) (emphasis
added); Hardy, 102 S.W.3d at 131 (explaining, “the Hardys do not contend that
the seized eight-liners are not gambling devices under the general definition in
47.01(4)[;] [i]nstead, they contend that their eight-liners fall within the exclusion
provided in section 47.01(4)(B)”).
Barnes claims that the eight-liners here meet the requisites of the “fuzzy
animal” exclusion set forth in subsection (B) because they were designed, made,
and adapted solely for bona fide amusement purposes and reward a player
exclusively with noncash merchandise prizes, toys, or novelties, or a
representation of value redeemable for those items. See Tex. Penal Code Ann.
§ 47.01(4)(B).7 The State argues, however, that a player’s ability to redeem
tickets on a return visit not only to obtain gifts available at Magic Games Game
Room but also to obtain points electronically input on an eight-liner and thereby
get to replay without depositing any more money into a machine is a reward not
itemized in subsection (B) that causes subsection (B) to be inapplicable here.
7
The record before us conclusively establishes that the gifts available to
patrons at Magic Games Game Room in exchange for their tickets did not violate
the not-more-than-ten-times-the-amount-charged-to-play-the-game-once-or-five-
dollar provision of subsection (B).
10
Thus, again, the sole question presented here is whether a nonimmediate8
right of replay––by means of redeeming a ticket of no cash value for points
electronically input from a central location to an eight-liner chosen by the ticket
holder at a subsequent visit––prohibits application of the “fuzzy animal” exclusion
from the general definition of gambling device. This is an issue of first
impression. Two appellate court cases have addressed whether a nonimmediate
right of replay constitutes a “thing of value” for purposes of determining whether
an eight-liner meets section 47.01(4)’s general definition of gambling device, but
those cases have not addressed whether a nonimmediate right of replay
precludes application of the “fuzzy animal” exclusion set forth in subsection (B).
See Gambling Paraphernalia, Devices, Equip. & Proceeds, 356 S.W.3d at 598–
99 (holding nonimmediate right of replay was thing of value causing eight-liners
to meet section 47.01(4)’s general definition of gambling device but holding
subsection (B) inapplicable on another ground, that being because the value of
the points awarded exceeded the not-more-than-ten-times-the-amount-charged-
to-play-the-game-once-or-five-dollar provision of subsection (B)); Allstar
Amusement, 50 S.W.3d at 707–08 (holding nonimmediate right of replay was
8
The State characterizes the right of replay at issue here as being both
recorded and nonimmediate. We need not decide whether the nonimmediate
right of replay here was recorded or unrecorded, however, because to avoid
being a thing of value, the right of replay must be both unrecorded and
immediate. See Tex. Penal Code Ann. § 47.01(9). Here, it is undisputed that the
right of replay was nonimmediate and that the right of replay here is thus not
excluded from the definition of “thing of value.”
11
thing of value causing eight-liners to meet section 47.01(4)’s general definition of
gambling device and not addressing application of subsection (B) because Allstar
did not raise it). The only case to address the application of subsection (B)’s
exclusion from the general definition of gambling device set forth in section
47.01(4) is the Texas Supreme Court case of Hardy. 102 S.W.3d at 129.
In Hardy, the supreme court held that eight-liners that awarded tickets
redeemable “for gift certificates or for cash to play other machines” did not fall
within subsection (B)’s exclusion from the definition of gambling device. The
supreme court noted that Webster’s Dictionary defined “cash” as “money or its
equivalent paid immediately or promptly after purchasing” and held that because
the gift certificates awarded were “used as a medium of exchange at various
retail outlets,” they were an equivalent of money. Id. at 131 (noting that the five-
dollar gift certificates “may be used in precisely the same manner as five-dollar
bills”). The supreme court concluded that “[i]f . . . the reward operates in the
same manner as legal tender in a retail establishment, it does not qualify as a
noncash merchandise prize, toy[,] or novelty item.” Id. at 132. Concerning the
right of replay, the supreme court held that because a player could exchange his
or her tickets not only for gift cards but also for cash, which an attendant would
insert into a machine for the player, subsection (B) was not applicable. Id. (“This
practice of exchanging tickets for cash also removes the machines from the
section 47.01(4)(B) exclusion.”); see also State v. One Super Cherry Master
Video 8-Liner Machine, 102 S.W.3d 132, 133 (Tex. 2003) (applying Hardy and
12
holding tickets redeemable for cash do not meet the gambling device exclusion
under section 47.01(4)(B)). The supreme court in Hardy explained,
While additional play in itself is not proscribed, when that additional
play is accomplished by providing cash to play other machines, the
statutory exclusion is not satisfied. The exclusion requires that the
machine at issue reward the player “exclusively with noncash
merchandise prizes, toys, or novelties, or a representation of value
redeemable for those items. . . . Under the statute, once cash is
awarded, it does not matter whether the player deposited the cash
directly into the machine or whether an attendant performed this
task. Cash to be used for play on another machine is not a noncash
merchandise prize, toy or novelty. If tickets are exchanged for cash,
regardless of whether that cash is used to play another machine, the
exclusion does not apply. We leave open the possibility that
additional play through some other method may not violate section
47.01(4). But in this case, the machines did not reward the players
with representations of value redeemable for noncash merchandise
prizes.
102 S.W.3d at 132 (emphasis in original).
The evidence establishes that at Magic Games Game Room, unlike the
scenario in Hardy, the tickets that winning players obtain when their points are
ticketed out for redemption or when their points are ticketed out for play on
another machine are never redeemable for cash or for gift certificates that could
be used as a medium of exchange at retail outlets. At Magic Games Game
Room, no cash is used to credit points to another machine; an attendant
electronically transfers points from a central location. Thus, Barnes contends
that the cash-focused analysis of the right of replay in Hardy does not apply here.
We agree. The supreme court in Hardy repeatedly articulated, as quoted above,
that it was the provision of cash that violated subsection (B)—specifically
13
subsection (B)’s requirement that rewards be limited to noncash merchandise
prizes, toys, or novelties—and not the right of nonimmediate replay that violated
subsection (B). Id. (explaining, “additional play in itself is not proscribed”).
Having determined that Hardy does not preclude application of subsection (B)’s
exclusion to gambling devices that provide tickets that a patron may opt at a
subsequent visit to redeem for noncash points, electronically input from a central
location to an eight-liner of the ticket holders’ choice––a nonimmediate right of
replay––we next conduct a statutory construction analysis.
In determining whether the nonimmediate right of replay here vitiates
application of subsection (B)’s exclusion from the definition of gambling devices,
we rely on the plain meaning of the text as expressing legislative intent unless a
different meaning is supplied by legislative definition or is apparent from the
context, or the plain meaning leads to absurd results. Tex. Lottery Comm’n, 325
S.W.3d at 635. The plain language of section (4) and of subsection (B) exempts
from the general definition of gambling device “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.” See Tex. Penal Code Ann. § 47.01(4) (stating
“Gambling device” means “any electronic, electromechanical, or mechanical
contrivance not excluded under Paragraph (B)”) (emphasis added); § 47.01(4)(B)
(exempting contrivances rewarding player exclusively with noncash
14
merchandise, prizes, toys, or novelties, or a representation of value redeemable
for those items). Two aspects of the plain language of the text lead us to hold
that the nonimmediate right of replay here does not vitiate application of
subsection (B)’s exclusion from the definition of gambling device: the
legislature’s use of the undefined term “novelties” in subsection (B) and its use of
the phrase “not excluded under Paragraph (B)” in section 47.01(4). See Tex.
Lottery Comm’n, 325 S.W.3d at 635 (instructing us that we are to “presume the
Legislature selected language in a statute with care and that every word or
phrase was used with a purpose in mind”).
In enacting the “fuzzy animal” exclusion to penal code section 47.01(4)’s
definition of gambling device, the legislature chose to exempt gambling devices if
the gambling device rewards players exclusively with noncash merchandise
prizes, toys, or “novelties,” or a representation of value redeemable for those
items. Tex. Penal Code Ann. § 47.01(4)(B). In his testimony at trial, Barnes
classified the right of replay, which a Magic Games Game Room patron could
choose to obtain by redeeming a ticket for points that were electronically
transferred from a central location to a machine chosen by the patron, as a
novelty. The term “novelties” is not defined in the statute, but Webster’s
Dictionary defines “novelty” as being “a new or unusual thing or event.”
Webster’s Third New Int’l Dictionary 1546 (2002); accord Hardy, 102 S.W.3d at
131 (applying Webster’s definition of “cash” to penal code section 47.01(4)(B)).
Utilizing the plain meaning of the term “novelty” as a “new event,” we hold that
15
tickets of no cash value that are optionally redeemable at a subsequent visit for
points electronically input from a central location to an eight-liner of the ticket
holder’s choice is a novelty and is thus within the rewards authorized by
subsection (B). Accord Hardy, 102 S.W.3d at 132 (explaining that “additional
play in itself is not proscribed”).
The State argues that “[t]he safe harbor of the fuzzy-animal exception
requires that the machine award the player ‘exclusively with noncash
merchandise prizes, toys, or novelties, or a representation of value redeemable
for those items’” and that “[a] recorded right of future replay is not a prize, toy[,] or
novelty necessary to meet the exception.” As set forth above, an optional,
noncash, right to redeem tickets for points electronically input from a central
location to an eight-liner of the ticket holder’s choice is a novelty––a new event––
giving the word novelty its plain meaning. Moreover, if the legislature had
intended that subsection (B)’s exclusion be inapplicable to all gambling devices
that provide tickets of no cash value that may be presented at a subsequent visit
to obtain electronically input points to be used to replay a machine, it could have
simply used the defined term “thing of value” in subsection (B) to make
subsection (B) applicable only if the things of value obtainable were exclusively
noncash merchandise prizes, toys, or novelties, or a representation of value
redeemable for those items––thus, incorporating the defined term “thing of value”
into subsection (B) to remove the possibility that a nonimmediate right of replay
could be considered a novelty. See Tex. Lottery Comm’n, 325 S.W.3d at 635
16
(explaining that a court does not rely on plain meaning [here of the word
“novelty”] as expressing legislative intent when a different meaning [here no
different meaning is provided, but could have been by using the defined term
“thing of value”] is supplied by legislative definition). But the legislature limited its
use of the defined term “thing of value”––defining a nonimmediate right of replay
as a thing of value––to the definition of gambling device set forth in section
47.01(4)’s general definition, and we must presume the legislature made this
word choice with a purpose in mind. See Tex. Lottery Comm’n, 325 S.W.3d at
635.
Finally, we note that the plain language of section 47.01(4) contemplates
the application of subsection (B)’s exclusion to gambling devices that afford a
player an opportunity to obtain a nonimmediate right of replay. Section (4)
states, “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,” and a
thing of value includes a nonimmediate right of replay. See Tex. Penal Code
Ann. § 47.01(4) (emphasis added), § 47.01(9). Thus, looking to the literal
language of section (4), a contrivance excluded under paragraph (B) could be
one that includes as a thing of value a nonimmediate right of replay; that is, the
literal language of the statute requires first an examination of whether a
contrivance is excluded from the definition of gambling device under paragraph
(B), and if it is, it is excluded from further analysis of section (4)’s definition of
17
gambling device. Thus, to give effect to both section 47.01(4)’s definition of
gambling device and subsection (B)’s exclusion from that definition, we cannot
agree with the State’s contention that any nonimmediate right of replay renders
subsection (B)’s exclusion inapplicable.
In summary, relying on the plain meaning of section 47.01 and applying
that meaning to the undisputed facts here, the eight-liners seized from Magic
Games Game Room reward a player exclusively with noncash merchandise
prizes, toys, or novelties, or a representation of value (a ticket) redeemable for
those items. We conclude that, as a matter of law, Barnes’s eight-liner machines
were not gambling devices because subsection (B)’s exclusion, the “fuzzy
animal” exclusion, applied to them. See Tex. Penal Code Ann. § 47.01(4)(B);
Hardy, 102 S.W.3d at 132. The trial court erred by concluding that the thirty-
seven eight-liner machines were subject to forfeiture. We sustain Barnes’s sole
issue.9
IV. CONCLUSION
Having sustained Barnes’s sole issue, we reverse the trial court’s forfeiture
judgment as to the thirty-seven eight-liners, and we render judgment that the
9
Barnes does not appear to challenge the forfeiture of the currency in his
issue on appeal. Moreover, because Barnes admitted that he did not own the
ATM machine, he does not have standing to challenge the forfeiture of the
money that was taken from it. See $17,329.00 v. State, 880 S.W.2d 788, 789
(Tex. App.—Houston [1st Dist.] 1993, no writ) (holding that appellant had no
standing to appeal forfeiture of $17,329.00 because he disclaimed ownership in
the money and had no other interest therein).
18
thirty-seven eight-liners are not subject to forfeiture by the State. See Tex. R.
App. P. 43.2(c). Because Barnes does not challenge, and does not have
standing to challenge, the forfeiture of the money that was taken from the ATM
machine that was on the premises, we affirm the trial court’s forfeiture judgment
as to the $1,760.00 in United States currency.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: June 21, 2012
19