ROBERT SANCHEZ v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Nueces County

NUMBER 13-01-464-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI EDINBURG

ROBERT SANCHEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 1

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Memorandum Opinion by Chief Justice Valdez

After a jury trial, appellant, Robert Sanchez, was convicted of gambling promotion. The jury assessed punishment at one year imprisonment and a $1,000.00 fine. Appellant s sentence was suspended, and he was released on community supervision. Appellant raises the following three issues on appeal: (1) the evidence was legally insufficient to support his conviction; (2) the evidence was factually insufficient to support his conviction; and (3) the trial court erred by allowing improper jury argument. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On May 26, 2000, a five count complaint and information was filed in Nueces County, Texas charging appellant with various gambling offenses. Specifically, appellant was charged with: (1) intentionally or knowingly participating in the earnings of a gambling place (Count I); // (2) intentionally or knowingly participating in gambling promotion by becoming a custodian, for gain, of a thing of value bet or offered to be bet (Count II); // (3) knowingly keeping a gambling place by using a building or room, to make or settle bets (Count III); // (4) knowingly possessing a gambling device (Count IV); // and (5) knowingly possessing gambling paraphernalia (Count V). //

On February 12, 2001, appellant s trial began before a jury. After presentation of the State s case, the trial judge granted appellant s motion for an instructed verdict on counts I, III, IV, and V. The State was allowed to proceed on Count II, gambling promotion, and the jury returned a guilty verdict on February 14, 2001. On April 4, 2001, appellant filed a motion for new trial, and it was heard on April 18, 2001. The court denied the motion on May 15, 2001; thereafter, appellant filed a notice of appeal on May 17, 2001.

On August 22, 2002, this Court reversed appellant s conviction and entered a judgment of acquittal. // The State filed a petition for discretionary review on October 24, 2002, and the Texas Court of Criminal Appeals granted review on January 29, 2003. On July 2, 2003, the court of criminal appeals vacated this Court s decision and remanded the case for further consideration. //

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite additional facts here except as necessary to advise the parties of the Court s decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. ANALYSIS

A. Sufficiency of the Evidence

In his first two issues, appellant contends that the evidence is legally and factually insufficient to support his conviction. A person commits the offense of gambling promotion if he intentionally or knowingly, for gain, becomes the custodian // of anything of value bet // or offered to be bet. Tex. Pen. Code Ann. 47.03(a)(3) (Vernon 2003). The standards of review for challenges to the legal and factual sufficiency of the evidence are well-settled. See Coleman v. State, 131 S.W.3d 303, 307-08 (Tex. App. Corpus Christi 2004, no pet.). Accordingly, we will not recite them here. See Tex. R. App. P. 47.4. 1. Legal Sufficiency

The record reflects, in summary, the following evidence in support of appellant s conviction: (1) appellant referred to Slots of Luck as his place and demonstrated intimate knowledge about its operation and licensing procedure; (2) Delia Barrera, the person in charge during the execution of the search warrant at Slots of Luck, testified that appellant was her supervisor and that he came in two or three times weekly to oversee the business; (3) the social security number on the account referenced by the bank deposit slips, labeled Slots of Luck, seized on the scene matched appellant s; (4) appellant had control and custody of the Slots of Luck bank account; (5) Officer Steven Day testified that all thirty machines seized from the Slots of Luck operated purely on chance, money was required to play, and winnings were redeemed in the form of gift certificates or credits on other machines; // and (6) Officer Scott Wilson testified that the tally sheets seized at Slots of Luck indicate that appellant participated in the profits made from operation of the machines. This evidence is legally sufficient to support the verdict, and we overrule appellant s contention.

Appellant further contends that his conviction should not stand because:

by dismissing Counts I, [III] // , IV, and V, this Court has essentially ruled that the Appellant Robert Sanchez was not in possession, custody or control of slots of luck or the 8-liner machines. It is therefore incongruous to find him guilty of being custodian of U.S. currency obtained from bets supposedly derived from that place of business or from those gambling devices or machines.

In effect, appellant is asking us to find the evidence legally insufficient because the trial court's directed verdict on Counts I, III, IV and V and his conviction on Count II are inconsistent. However, appellate review of apparently inconsistent verdicts is limited to determining whether there is sufficient evidence to support the charge on which a conviction is returned; what the fact finder did with the remainder of the charge is immaterial. Dunn v. United States, 284 U.S. 390 (1932); Jackson v. State, 3 S.W.3d 58, 61-62 (Tex. App. Dallas 1999, no pet.). Even where an inconsistent verdict might have been the result of compromise or mistake, the verdict should not be upset by appellate speculation or inquiry into such matters. United States v. Powell, 469 U.S. 57, 64-67 (1984); Ruiz v. State, 641 S.W.2d 364, 366 (Tex. App. Corpus Christi 1982, no pet.).

When viewed in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the requisite elements of gambling promotion. See Malik v. State, 953 S.W.2d 234, 236-37 (Tex. Crim. App. 1997). Accordingly, we overrule appellant s first issue.

2. Factual Sufficiency

Appellant offered evidence and alternative theories to rebut the State s case. Specifically, appellant asserted, in summary, that: (1) he was not the custodian of anything of value bet or offered to be bet; (2) the eight-liner machines at the Slots of Luck were used purely for entertainment, and all prizes were de minimus in value; (3) he was unaware the operation of the machines was illegal, as all applicable State-issued permits and licenses were current and properly posted; (4) the State offered no evidence that the monies in the bank account were derived from bets or currency from bets; and (5) beyond operation of the eight-liner machines, Slots of Luck sold food and drinks, and some or all the money evidenced in the bank account could have derived from that source. //

On the contrary, Barrera s testimony, as well as evidence linking appellant to the establishment s bank account, tends to show appellant was custodian of the machines in Slots of Luck. Day s testimony showed winnings were redeemed in the form of credits or gift certificates. Wilson s testimony showed appellant participated in the profits made from operation of the machines at Slots of Luck. Although appellant offered evidence contradictory to the State s case, it is well within the province of the jury to judge the veracity and truthfulness of the witnesses before it and deduce the truth. In addition, the penal code does not require that the offender know the operation of the eight-liners is illegal.

We conclude that the evidence supporting the conviction for gambling promotion is not so obviously weak as to be clearly wrong and manifestly unjust or greatly outweighed by contrary proof. See Wheaton v. State, 129 S.W.3d 267, 272 (Tex. App. Corpus Christi 2004, no pet.). Accordingly, we overrule appellant s second issue.

B. Improper Jury Argument

In his third issue, appellant contends the State improperly commented on his right not to testify. An accused s right not to testify shall not be taken as circumstances against him, nor shall it be alluded to or commented on by counsel in the case. Bird v. State, 527 S.W.2d 891, 893 (Tex. Crim. App. 1975). Such comment is in violation of the privilege against self-incrimination contained in Article I, Section 10 of the Texas Constitution. Id. Further, a comment on an accused's failure to testify may also be a violation of the self-incrimination clause of the Fifth Amendment, which is made applicable to the states by virtue of the Fourteenth Amendment. See Griffin v. California, 380 U.S. 609, 615 (1965).

However, to complain on appeal, appellant must have properly preserved the error in the trial court. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). The proper method to preserve error is to: (1) make a timely objection and secure a ruling; (2) if the objection is sustained, request the trial court to instruct the jury to disregard the statement; and (3) if the instruction is given, move for a mistrial. See Coe v. State, 683 S.W.2d 431, 436 (Tex. Crim. App. 1984); Tex. R. App. P. 33.1. Texas law provides an exception to this rule if the error complained of is considered fundamental; however, the right to remain silent is not considered so fundamental as to require this special protection. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994).

The record reflects that after objecting to the complained-of comments, appellant requested the court to instruct the jury to disregard the statements. The court did not expressly rule on appellant s objection; however, by admonishing the jury to disregard the complained-of comments, the court implicitly sustained the objection. Nonetheless, appellant failed to move for a mistrial and allowed the trial to continue without further complaint or objection. Appellant accepted the court s instruction as a cure for any proposed error. See Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993) (When appellant has been given all the relief requested at trial, there is nothing to complain of on appeal). Thus, appellant waived his right to complain of the proposed error on appeal. Accordingly, we overrule appellant s third issue.

III. CONCLUSION

We affirm the judgment of the trial court.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 10th day of November, 2004.