The State of Texas v. Diana G. Valdez--Appeal from 229th Judicial District Court of Jim Hogg County

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MEMORANDUM OPINION
No. 04-02-00715-CR
The STATE of Texas,
Appellant
v.
Diana G. VALDEZ,
Appellee
From the 229th Judicial District Court, Jim Hogg County, Texas
Trial Court No. 02-CR-34
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 25, 2003

REVERSED AND REMANDED

Diana Valdez was charged with keeping a gambling place in violation of Texas Penal Code section 47.04 after undercover officers discovered she possessed devices, known as "eight-liners," at her establishment, Slots O' Fun, that awarded players credits redeemable for either gift certificates to local retailers or for playback cards which could be used for free eight-liner play at Slots O' Fun. See Tex. Penal Code Ann. 47.04 (Vernon 2003). Valdez filed a motion to discharge her case, alleging the trial court lacked a substantial basis for concluding there was probable cause to believe that she possessed illegal gambling devices. The trial court granted Valdez's motion and the State filed this appeal. Because the issues presented in this case involve the application of well-settled principles of law, we reverse the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.4 for the following reason:

1. Section 47.01(4) of the Texas Penal Code defines a gambling device as any device that "for a consideration affords the player an opportunity to obtain anything of value . . . ." Tex. Penal Code Ann. 47.01(4) (Vernon 2003). Excluded from the definition are those devices that reward a 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." Id. 47.01(4)(B). The trial court in this case indicated that it believed the affidavit in support of the search warrant for Valdez's establishment was insufficient to show probable cause to believe gambling devices were located there. The trial court specifically stated that it had no reason to believe Valdez's eight-liners were illegal gambling devices because Valdez's machines did not award players anything of value. This court, however, has held that eight-liners which award players credits redeemable for gift certificates do in fact afford players a thing of value for purposes of Chapter 47 of the Penal Code. See Legere v. State, 82 S.W.3d 105, 113-14 (Tex. App.--San Antonio 2002, pet. ref'd) (holding possession of eight-line devices which awarded players with credits redeemable for gift certificates was sufficient to show probable cause that appellant possessed illegal gambling devices); see also Hardy v. State, 102 S.W.3d 123, 123 (Tex. 2003) (holding eight-liners which dispense tickets redeemable for cash, even if used for additional play, or for gift certificates redeemable at local retailers do not, as a matter of law, meet the gambling device exclusion under Penal Code section 47.01(4)(B)). Consequently, we hold the trial court erred by dismissing the charges against Valdez because the court erroneously concluded that the devices observed at Valdez's establishment, which awarded players credits redeemable for either gift certificates or free play cards, did not constitute probable cause to believe that Valdez possessed illegal gambling devices. The State's first issue is sustained and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Catherine Stone, Justice

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