Opinion
No. 05-03-00914-CR.
Opinion issued February 19, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 8, Dallas County, Texas, Trial Court Cause No. MA01-74847-J. Affirmed.
OPINION
In this appeal of her misdemeanor conviction by a jury of keeping a gambling place, appellant Cheryl E. Aslany presents two issues: whether the evidence is sufficient to establish her guilt beyond a reasonable doubt and whether the trial court erred in submitting a jury instruction she contends undermined her presumption of innocence. Concluding no reversible error has been shown and the evidence is sufficient to support appellant's conviction, we affirm. Following an undercover operation in April and May of 2001 at a gambling establishment known as the Lucky Numbers Game Room, the State charged appellant by information with keeping a gambling place. Specifically, the information alleged that appellant did unlawfully and
knowingly use and permit DANNY KIRKBRIDE to use a building and a room as a gambling place, namely, a place used for making and settling bets, conducting of a lottery and the playing of gambling devices and said property was under the control of the defendant and located at 9888 Ferguson Road, Suite 211, Dallas, Dallas County, Texas.See Tex. Pen. Code Ann. § 47.01(4) (Vernon 2003). The undercover officers actually played video poker and "eight-liner" machines at the business, which was undisputedly owned and controlled by appellant. At trial one officer testified that he put a $5 bill into one of the "Jacks or Better" video poker machines, placed a fifty-cent bet, drew "four of a kind" and the machine registered a win of $10.50. He continued to play and when he cashed out, he received three $5 Minyard's gift certificates from an employee. He testified he then began playing an "eight-liner" video machine by exchanging one of the $5 gift certificates for a $5 bill which the attendant put into the "eight-liner" machine. He explained that although the wins and losses were sometimes registered on the machines in dollars and cents and sometimes in credits, winnings were always received in the form of $5 gift certificates for each $5 worth of credits cashed in. He also testified that the woman seated next to him won 4500 credits or $45 on an "eight-liner" machine. Appellant presented no evidence at trial, relying instead on cross-examination of the State's witnesses. Appellant contends, however, that when the State's evidence is viewed in light of the trial court's fundamentally flawed charge, it is insufficient to prove she "knowingly" kept a gambling place. Appellant further contends the jury charge was fundamentally defective because of its language in paragraph XV concerning "or innocence," which appellant contends eroded the presumption of innocence and, therefore, denied her a fair trial. We first address appellant's complaint of charge error. We first note that at trial appellant did not object to the court's charge on the same ground she now asserts on appeal. Here, appellant specifically complains about paragraph XV of the charge which states:
During your deliberations you are instructed that you should not consider the remarks, rulings or actions of the presiding judge during this trial as any indication of the court's opinion as to the existence or nonexistence of any fact or as an indication of the court's opinion as to the guilt or innocence of the defendant.Appellant contends the use of the language "or innocence" undermined the presumption of innocence to which she was entitled and denied her a fair trial because it instructed the jury that innocence is synonymous with or the functional equivalent of failing to find guilt beyond a reasonable doubt. Thus, appellant argues, it implied to the jury that the purpose of their deliberations was not only to determine her guilt but also to determine her innocence, not presume her innocence as the law requires. The State responds that no charge error is shown and even if there is error, it is harmless. On appeal, we review jury charge error under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). It is appellant's burden to show that error exists in the charge. Almanza, 686 S.W.2d at 174. If error is shown, the appellate court must then determine if it is harmful error. See Almanza, 686 S.W.2d at 174. The standard for determining whether error is harmful under Almanza depends upon whether the error has been properly preserved by objection. If preserved, the error will be reversible as long as the error is not harmless. Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994). By contrast, where the error is urged for the first time on appeal, a reviewing court will search for "egregious harm." Abdnor, 871 S.W.2d at 732 (citing Almanza, 686 S.W.2d at 171; Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986)). Appellant bears the burden to show she suffered actual harm as a result of the error. See Abdnor, 871 S.W.2d at 732. With those standards in mind, we turn to the court's charge. Unlike appellant, we do not view the challenged language in isolation, but rather in context of the entirety of the court's charge. In addition to the paragraph about which appellant complains, the charge contains additional relevant jury instructions. In the application paragraph of the charge, the jury was instructed:
Now, therefore, if you believe from the evidence beyond a reasonable doubt, that in Dallas County, Texas, the defendant, CHERYL ASLANY, on or about April 27, 2001, did then and there knowingly use a building or a room as a gambling place, namely a place used for making or settling bets, the conducting of a lottery, or the playing of gambling devices, and said property was under the control of the defendant, as alleged in the information, you will find the defendant " guilty" as charged, but if you do not so find, or if you have reasonable doubt thereof, you will acquit the defendant by a verdict of " not guilty."Additionally, the jury was instructed:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at his trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after a careful and impartial consideration of all the evidence in this case.And, finally, the jury was instructed:
The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt and if it fails to do so, you must acquit the defendant.We conclude, therefore, that appellant's interpretation of the court's charge fails for two reasons: first, it views the language in isolation and out of context; and second, its strained conclusion that the language erodes the presumption of innocence is neither reasonable nor logical when the court's charge is read in its entirety. Fairly reading the entire court's charge in context, we conclude it properly instructs the jury that appellant was presumed innocent and the State had the burden of proving appellant's guilt beyond a reasonable doubt on each element of the offense with which she was charged. The jury is presumed to have followed the court's instructions. Hutch v. State, 922 S.W.3d 166, 172 (Tex.Crim.App. 1996). No error is shown. Moreover, even if unobjected-to error did occur, we conclude no resulting harm was egregious or rose to the level of denying appellant a fair and impartial trial; thus, no reversible charge error can be shown. See Abdnor, 871 S.W.2d at 732. We overrule appellant's second point of error. Notwithstanding our conclusion that no charge error is shown, we nevertheless address appellant's sufficiency challenge. We apply the well-known standard for measuring legal sufficiency of the evidence in a criminal case. If, after viewing the evidence in the light most favorable to the judgment, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient to support the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Cabrera v. State, 959 S.W.2d 692, 694 (Tex.App.-Fort Worth 1998, pet. ref'd). Evidence not supporting the verdict is disregarded. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). We also apply the well-known standards for measuring factual sufficiency. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996) (citing Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996)). In other words, we review all of the evidence, both for and against the verdict, to determine if the proof of guilt is so obviously weak that it undermines the jury's determination, or if the evidence of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof. Johnson, 23 S.W.3d at 11. We view all the evidence without the "most favorable to the prosecution" prism and we set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Jones, 944 S.W.2d at 647. The jury is the sole judge of the weight and credibility assigned to a witness's testimony. Cain v. State, 958 S.W.2d 404, 409 (Tex.Crim.App. 1997). If reasonable minds could differ with regard to the conclusions to be drawn from the evidence, the conviction should be affirmed. Scott v. State, 934 S.W.2d 396, 399 (Tex.App.-Dallas 1996, no pet). Appellant was charged under section 47.04(a) of the Texas Penal Code with keeping a gambling place. "Gambling place" is defined as "any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the uses of which is the making or settling of bets, bookmaking, or the conducting of a lottery or the playing of gambling devices." Tex. Pen. Code Ann. § 47.01 (Vernon 2003). Specifically, the State contended appellant's business establishment was a gambling place because it was used for the playing of gambling devices. The term "gambling device" is defined in section 47.01(4) of the penal code. Subsection (4)(A) further defines what the term includes and subsection (4)(B) provides what the term excludes. Section (B) provides that the term:
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 $5.00, whichever is less.Tex. Pen. Code Ann. § 47.01(4)(B) (Vernon 2003) (emphasis added). Appellant specifically contends the evidence is insufficient to prove she possessed the requisite mental state of "knowingly."
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). Appellant concedes that her actual conduct was not in issue, rather, the issue was the application of the "gambling device" exclusion to her conduct. Nor does appellant contend the "eight-liners" at issue were not gambling devices. To the contrary, appellant concedes the machines in question were gambling devices and that the activity occurring at her place of business was gambling. Nevertheless, appellant contends the machines were legal, not illegal, gambling devices because they come within the exclusion contained in subsection (B) of section 47.01(4). Appellant's brief states: "[t]he record as a whole most assuredly reveals that the ultimate issue in Appellant's trial was the application of section 47.01(4)(b) to Appellant's business operation." However, application of the 4(B) exclusion would not, as appellant argues, make them legal gambling devices. Rather, the devices, by definition, simply would not be gambling devices at all; consequently, the State could not prove appellant kept a gambling place by the playing of gambling devices. Recently in two civil forfeiture cases involving "eight-liners," the Supreme Court of Texas addressed the application of the section 47.01(4)(B) exclusion. In Hardy v. State, 102 S.W.3d 123, 130 (Tex. 2003), the supreme court held that the person found in possession of an alleged gambling device has the burden to prove, by a preponderance of the evidence, either that the machine is not a gambling device or that the exclusion applies. It also held that the devices known as "eight-liners," which dispense tickets redeemable for cash, even if used only for additional play, or for gift certificates redeemable at local retailers do not, as a matter of law, meet the gambling device exclusion under section 47.01(4)(B). Hardy, 102 S.W.3d at 132. It reaffirmed its decision in State v. One Super Cherry Master Video 8-Liner Machine, 102 S.W.3d 132, 133 (Tex. 2003), issued the same day. Here, appellant presented no evidence at trial. The State's evidence is undisputed that the eight-liners issued tickets which were redeemable for, among other prizes, cash used for additional play or gift certificates used to purchase items at local retailers. Consequently, as a matter of law and fact, the gambling device exclusion under section 47.01(4)(B) does not apply. The evidence, therefore, is sufficient to prove beyond a reasonable doubt appellant knowingly kept a gambling place. We overrule appellant's first point of error. We affirm the trial court's judgment.
After the jury found appellant guilty, the trial court assessed her punishment at 180 days confinement in the county jail, probated for one year, and a $2500 fine.
Although appellant seeks a remand and not an acquittal, the argument under her issue addresses both legal and factual sufficiency. We, therefore, review both.
Although appellant submitted three requested instructions at trial, two of which were denied by the trial court, all were on different grounds from the ground now raised on appeal.
Of course, in this criminal case the State had the burden to prove beyond a reasonable doubt that appellant kept a gambling place and its theory of the case was that appellant did so by using the place for the playing of gambling devices. The State relies on no other theory.