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Court of Appeals of Texas, Austin.
Davis, Law Offices of Richard D.
The State of Texas appeals from a judgment rendered on the jury's verdict in a forfeiture action brought by the State against property owned by Alvin Ray Fenter and P.
We will affirm the judgment.
The disputed property consists of thirty-two machines described as "eight liners," each of which is alleged to be a "gambling device" as that term is defined in section 47.
The jury failed to find the disputed articles of property were gambling devices, gambling paraphernalia, or gambling proceeds.
Based on the verdict, the trial court rendered judgment ordering that the property be returned to Fenter and P.
Corporation from whom it had been seized by State officers.
The State appealed to this Court on three issues.
Whether the evidence is legally or factually insufficient to support the judgment.
The State complains the evidence is legally and factually insufficient to justify the jury's "no" answer to cherry master slot machine parts of three special questions: a were any of the eight liners a gambling device; b were any of the other disputed articles gambling paraphernalia; and 3 were any of the cash items gambling proceeds?
We concur with the position of Fenter and P.
Consequently, we will discuss only that aspect of the evidence.
The Texas Penal Code, in section 47.
Before summarizing the material evidence, we should establish what the State was required to show in order to prove the eight liners were gambling devices within the definition of section 47.
It is plain on the face of section 47.
We believe the structure and cherry master slot machine parts of section 47.
Wofford,675-76 Tex.
Consequently, the State bore the additional burden of negating the applicability of section 47.
As discussed below, we believe the State's proof failed in this respect.
In connection with Special Question Number One, the term "gambling device" was defined by a quotation of section 47.
Brady,940 Tex.
For the State cherry master slot machine parts prevail on its factual-insufficiency complaint, we must be able to conclude, after consideration of all the evidence, that the jury's "no" answer is against the great weight and preponderance of the evidence, and we may reverse the judgment only if the great weight and preponderance of the evidence supports a "yes" answer.
animation number slot machine,772 Tex.
Ames,159 Tex.
In our view, both complaints fail with respect to section 47.
We will summarize all the evidence material to that proposition.
The thirty-two eight liners were seized from premises known as the Monte Carlo operated by Fenter and P.
The eight liners bore tax stamps issued by the Comptroller and the conspicuous legend "For Amusement Only.
The eight liners operate on a combination of skill and chance, according to some evidence; according to State witnesses, they operate purely by chance and a player can do nothing to enlarge his chances of winning.
The eight liners differ from slot machines in that the former do not dispense money.
Instead, eight liners record credits representing, in this instance, the player's winnings in denominations of one cent or five cents, depending upon the particular machine.
A player having the requisite number of credits may, by pushing a button on his machine, cancel his existing credits and receive in return a cherry master slot machine parts or tickets issued by the machine.
Each ticket represented one-dollar.
Five such tickets could be exchanged with a Monte Carlo employee for a five-dollar gift certificate redeemable for merchandise at any of four nearby mercantile establishments; or, at the customer's request his tickets could be exchanged for currency that a Monte Carlo employee would deposit in the machine of the customer's choice in order that he might continue playing.
As stated article source, the State adduced evidence that purported to vary the foregoing practice with respect to the employee depositing the currency in a machine in order that the customer might continue playing.
A "single play" of the game, in his opinion, was a player's receiving one ticket from the machine he was playing, but Fenter was not sure that such was the meaning of the term "single play of the game or device" as that term is used in section 47.
When shown photographs of the thirty-two machines allegedly seized from the Monte Carlo by the State, Fenter stated he could not identify them with certainty as his machines because some of the machines portrayed in the photographs bore markings that were not put on his machines by him or his employees.
So far as he knew, the machines had not been tampered with since they were taken into State custody and placed in a storage facility in Round Rock.
He did not, however, accompany the machines to that location.
Afterward, he opened one of the stored machines and saw "tests" performed on them.
Matlock did not know how many times the machines had been played since they were seized, but some were played while in storage; he did not know if disconnecting power from an eight liner changed its computer-controlled operation; nor did he know if the machine displayed in the courtroom for demonstration purposes was in the same condition as when it was seized from the Monte Carlo.
Matlock testified further that he did not know if the seized machines were "designed, made, and adapted go here for bona fide amusement purposes" as that term is used in section 47.
Consequently, here seized machines were not, in his opinion, "solely for bona fide amusement purposes.
He conceded he could not describe a machine that could operate so as to fit within the exclusion found in section 47.
Matlock testified that an eight liner displayed in court for demonstration purposes was in and of itself a gambling device within the meaning of section 47.
He did not know if the computers "circuitry boards" that controlled the operation of the machines had anything to do with whether they were gambling devices within the meaning of the statute.
Before the State's seizure of the machines, Matlock had gone "undercover" to the Monte Carlo to investigate the operation of eight liners there.
He heard some patrons ask to exchange their tickets for "cash back to the machines," or simply "for cash.
Matlock played several machines.
Each time he played, he won more than ten times the amount he bet; and, he saw others do the same.
After overhearing other customers use the expression "cash back to the machine" or "cash back," he used the first expression in exchanging his tickets for cash.
The Monte Carlo employee gave him sixteen dollars, five of which he deposited in a machine and eleven of which he put in his wallet and took with him, for evidence purposes, on leaving the Monte Carlo.
While he saw others receive cash in exchange for their tickets, he conceded he was the only person who was able to take the cash from the premises.
He also admitted he did not include in his report of the investigation his observation that those who had received cash from a Monte Carlo employee used it solely to continue playing the machines.
Marshall Caskey was commander of the Special Crimes Service at the time the eight liners were seized at the Monte Carlo.
Before his examination of the seized machines, he had almost no computer training and did not know how the machine operated.
In his opinion, the eight liners operated purely by chance and, that being the case, there was no possibility section 47.
He conceded he could not tell the jury from personal consider, ufaso pokeris tamashi apologise that any specific person had ever received more than ten times the amount of a "single play" of the seized machines.
And, he admitted, every time anyone questioned his interpretation of "the statute" section 47.
None of them bear on section 47.
We believe the jury could, based upon the evidence adduced, reasonably answer "no" to Special Question Number One which asked: "Do you find from a preponderance of the evidence that any of the property that is the subject of this suit is a gambling device?
And the jury were free to conclude, in our view, that the tickets obtained from the eight liners were exchanged for "noncash merchandise prizes," in the ordinary meaning of those words as used in section 47.
So far as the evidence indicates, the tickets were exchangeable solely for continued play of the machines or for gift certificates redeemable for merchandise at four area merchants.
As used in the statute, the term "noncash merchandise prizes" implies its ordinary meaning— merchandise prizes as opposed to a prize consisting of currency or coin that the recipient was free to take from the premises if he wished.
While Caskey testified that in his opinion a gift certificate was not a "noncash merchandise prize," the jury were free to disbelieve him.
The jury were also free to doubt his credibility based upon what appeared to be his hostility to section 47.
The jury could reasonably believe the subsection had a basis for being included as part of the definition of "gambling device" and they were not free to disregard the definition notwithstanding Caskey's apparent hostility to it.
He stated he could not describe a machine that could come within the exclusion of section visit web page />In much the same way, the jury could reasonably doubt his credibility based upon his view that the word "amusement" precluded the possibility of any kind of prize, notwithstanding that the exclusion read to the jury and given them in the charge expressly contemplated that prizes of a certain kind could permissibly be awarded under the exclusion.
He conceded omitting from his report that the cash he had seen others receive at the Monte Carlo, in exchange for tickets, had been used by them solely to continue playing the machines; he did not know if the machines were "designed, made, and adapted solely for amusement purposes," within the meaning of those words used in the statute; he did not know if the machines had been tampered with while in the State's custody; and he admitted he had been able to leave the Monte Carlo with cash only because he had first deceived an employee, by representing he wanted the money to replay the machines, and then secreted the eleven dollars he had been youtube machine quarter slot to take from the premises.
For these additional reasons, the jury could reasonably doubt his testimony in />We therefore conclude the State did not negate, as a matter of law, the exclusion in section 47.
Whether the trial court erred in omitting from the jury charge an instruction that section 47.
In our discussion above, we concluded section 47.
We hold, therefore, the trial court did not err in the particulars claimed.
Whether the trial court abused its discretion by admitting evidence concerning alleged specific misconduct when that evidence was prejudicial and not cherry master slot machine parts to the case.
Matlock testified he was unaware of the box and thus did not include it or its contents, if any, in his inventory of the property taken from the Monte Carlo.
The testimony, according to the State, was therefore admitted erroneously under Texas Rules of Evidence 608 b and 404 b.
Rule 608 b forbids extrinsic evidence of specific misconduct by a witness for the purpose of attacking or supporting his credibility, except for evidence showing conviction for a crime as provided in Rule 609.
Rule 404 b forbids the admission of evidence of other wrongs or acts to prove the character of a person in order to show he acted in conformity therewith on a particular occasion.
We believe these rules are not applicable here.
We believe Fenter's testimony did not refer to the character of a witness or another person.
Consequently, the testimony was both material and relevant.
Leach,190-91 Tex.
If any error occurred, it was perhaps in the limiting instruction given the jury.
We hold the trial court did not abuse its discretion in admitting the evidence.
Finding no reversible error, we the trial-court judgment.
Justice JONES Not Participating.
Powers, Senior Justice, retiredThird Court of Appeals, sitting by assignment.
Matlock's statement does not account for both possibilities, the game or the device, but only for a play of the device. cherry master slot machine parts cherry master slot machine parts cherry master slot machine parts cherry master slot machine parts cherry master slot machine parts cherry master slot machine parts

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