
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NOS. 2-01-487-CR
        2-01-488-CR
        2-01-489-CR
 
JIMMY LAWTON ELMORE                                                                        
APPELLANT
V.
THE STATE OF TEXAS                                                                             
STATE
------------
FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
------------
OPINION
------------
A jury convicted Appellant Jimmy Lawton
Elmore of using real estate or a building or a room or other property as a
gambling place, namely, a place used for the operation of gambling devices. The
jury assessed his punishment at one year's confinement in jail, suspended for
two years. The jury also assessed a fine. The trial court sentenced Appellant
accordingly. Appellant brings three issues on appeal, arguing that the trial
court erred in failing to suppress the fruits of an invalid search warrant, in
sustaining the State's objection to a defense exhibit, and in failing to provide
a proper limiting instruction in the court's charge. Because we hold, under the
rule of optional completeness, that the trial court abused its discretion in
sustaining the State's objection to Appellant's exhibit, we reverse the trial
court's judgments and remand these causes to the trial court for a new trial.
Factual Background
On January 2, 2001, pursuant to a search
warrant, Lewisville police seized 100 video gaming machines commonly known as
"eight-liners," gift certificates, pictures, and other documentation,
books, and records from a business known as Treasure City Games. Based upon the
evidence seized, Appellant was charged with fifteen counts of possession of a
gambling device or equipment, the offense of keeping a gambling place, and the
offense of gambling promotion. Appellant pled not guilty to all charges against
him. Extensive evidence was presented by both the State and Appellant relating
to the character and use of the video machines seized. Based upon the evidence
presented, Appellant was convicted by a jury of all the charges. Appellant does
not challenge the sufficiency of the evidence to support his convictions.
Search Warrant
In his first issue for each case,
Appellant challenges the sufficiency of the affidavit supporting the search
warrant on the ground that the affidavit failed to establish probable cause that
an offense had been committed. The argument is based on the premise that the
devices described in the affidavit do not meet the definition of gambling
devices. (1) Statements contained in the
affidavit, Appellant argues, are conclusory statements that do not support
probable cause.
A search warrant must be supported by an
affidavit setting forth substantial facts establishing probable cause for its
issuance. (2) For probable cause to exist, an
officer must have reasonable and trustworthy knowledge of facts and
circumstances, sufficient in themselves, to warrant a reasonably cautious person
to believe that a particular individual has either committed or is committing an
offense. (3) In evaluating whether probable cause
existed for the issuance of a warrant, appellate courts must assess the totality
of the circumstances presented within the four corners of the affidavit.(4)
In the pertinent portions of the affidavit
supporting the search warrant in the cases now before us, the affiant stated,

       
  Affiant has been in the establishment approximately 10 times between the dates
  of June 9, 2000 and January 1, 2001.
       
  On each occasion, Affiant placed U.S. currency into the money receptacles of
  electronic video gambling devices, including, but not limited to FRUIT BONUS,
  CHERRY MASTER 96, TREASURE 2000, SUPER POKER, MAGIC TOUCH, TREASURE QUEST. As
  a result of inserting the money in these devices, your Affiant received
  credits, which were displayed on the video monitor of each device. Affiant
  proceeded to bet according to how machine was configured.
       
  . . . .
       
  Under 47.01(4)(A), these devices, wagered on by your Affiant, have the ability
  to record and cancel credits. Posted odds on the devices, as well as on the
  electronic screen, give the player an[] expectation of winning a greater
  amount tha[n] 47.01(4)(B) allows. Several times during the course of the
  investigation, Affiant placed bets on these devices and won greater than ten
  times the amount of his wager or five dollars, whichever was less. Further,
  47.01(4)(B) states that to be an amusement machine the contrivance rewards the
  player exclusively with noncash merchandise, prizes, toys, or novelties, or a
  representation of value redeemable for those items. Your Affiant was awarded
  tickets, which were redeemed for gift certificates, which does not meet the
  qualification as a noncash merchandise prize, toy, or novelty. Further, this
  gift certificate could be redeemed for cash to further play or wager on the
  gambling devices.

We have closely examined the affidavit supporting the search warrant in these
cases. Even though the affidavit states conclusions, it nevertheless adequately
sets out sufficient facts to allow the examining magistrate to determine whether
the affiant's conclusions are accurate under the law.
Section 47.01(4)(B) provides that a
gambling device

       
  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, whichever is less.(5)

Appellant argues that the facts the
affiant relies on to show that the machines are gambling devices show, instead,
that they fall within this exclusion. Since the trial of these cases, the
Supreme Court of Texas has ruled on this issue:

       
  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." Tex. Penal Code § 47.01(4)(B)
  (emphasis added). 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. Thus, as a matter of law, the
  eight-liners at issue do not meet the section 47.01(4)(B) exclusion and were
  subject to forfeiture or destruction as gambling devices.
  (6)

The machines in the cases before us
yielded tickets redeemable for gift certificates that in turn could be exchanged
for cash. Consequently, the machines do not fall within the statutory exception;
they are gambling devices as a matter of law. (7)
Accordingly, the affidavit sufficiently shows the commission of a criminal
offense. We overrule Appellant's first issue.
Rule of Optional
Completeness
In his second issue for each case,
Appellant complains that the trial court abused its discretion in excluding a
letter written by Appellant's wife and codefendant, Susan Elmore, in response to
a letter written by the police chief of the City of Lewisville, Texas. The
letter was admitted into evidence. Rule 106 of the Texas Rules of Evidence
provides:

       
  When a writing or recorded statement or part thereof is introduced by a party,
  an adverse party may at that time introduce any other part or any other
  writing or recorded statement which ought in fairness to be considered
  contemporaneously with it. (8)

Similarly, rule 107 provides:

       
  When part of an act, declaration, conversation, writing or recorded statement
  is given in evidence by one party, the whole on the same subject may be
  inquired into by the other, and any other act, declaration, writing or
  recorded statement which is necessary to make it fully understood or to
  explain the same may also be given in evidence, as when a letter is read, all
  letters on the same subject between the same parties may be given.(9)

These principles comprise the rule of
optional completeness, which was designed to "guard against the possibility
of confusion, distortion, or false impression that could rise from [the] use of
an act, writing, conversation, declaration, or transaction out of proper
context." (10)
In the instant cases, the trial court,
over Appellant's objection, admitted the letter from Chief McFadden. The letter
provided notice that Appellant was operating gambling devices in his place of
business. The final paragraph stated,

       
  As the Chief of Police, I strongly suggest the voluntary removal or
  re-configuration of all 'gambling devices' within the deadline, thereafter I
  intend to pursue vigorous enforcement including but not limited to the seizure
  of said devices and filing charges against any persons found in violation.

The return at the bottom of the letter
showed that it was delivered to Susan Elmore. In response, Appellant offered
Defendant's Exhibit Number One, Susan Elmore's reply to Chief McFadden's notice
letter, faxed to him two months before the search warrant was executed. The
State objected to the letter on the grounds of hearsay, and the trial court
sustained the objection.
The excluded letter provided:

Dear Chief McFadden,
       
  Please be advised that Treasure City Games and its game technicians have
  reconfigured the video games currently located at 201 S. Mill Street, Suite
  101, Lewisville, Texas. The games are full scale, with game counts, and
  conform with Chapter 47 of the Texas Penal Code.
       
  Treasure City Games will re-open for business at 10:00 a.m. Thursday, November
  2, 2000.
       
  Please let us know if you have any questions.

Appellant argues that the trial court
erred in excluding the letter because it completed the communication between the
parties. We agree. Excluding Susan Elmore's letter gave rise to a strong
possibility that the jury could form a false impression regarding Appellant's
intent. (11) Consequently, the trial court
abused its discretion by excluding the letter written by Susan Elmore.
Appellant argues that the harm to him is
unquestionable. He argues that

the erroneous ruling left a false impression with the jury on which the
    State capitalized;
the State repeatedly argued that Appellant had done nothing in response to
    Chief McFadden's notice letter, unfairly prejudicing the jury; and
the exclusion of the letter deprive him of "probative and essential
    evidence concerning the element of intent" as well as a mistake of fact
    defense.

Having found error, we must conduct a harm
analysis to determine whether the error calls for reversal of the judgments. As
Justice Gardner of this court has explained,

       
  Where erroneous exclusion of evidence is the result of misapplication of the
  rules of evidence and its admission is not claimed to be required by the
  United States or state constitutions, we analyze harm under rule of evidence
  103(a), which provides that error may not be predicated upon a ruling that
  admits or excludes evidence unless a "substantial right" of the
  party is affected. Tex. R. Evid. 103(a); Potier v. State, 68 S.W.3d
  657, 666 (Tex. Crim. App. 2002). The standard is the same as that under rule
  44.2(b). Tex. R. App. P. 44.2(b); Potier, 68 S.W.3d at 666. A
  substantial right is affected when the error had a substantial and injurious
  effect or influence on the jury's verdict. Johnson v. State, 43
  S.W.3d 1, 3-4 (Tex. Crim. App. 2001).
       
  In assessing the likelihood that the error adversely affected the jury's
  decision, we consider everything in the record, including all evidence
  admitted for the jury's consideration, the nature of the evidence supporting
  the verdict, the character of the alleged error, and how it might have been
  considered in connection with the other evidence. Morales v. State,
  32 S.W.3d 862, 867 (Tex. Crim. App. 2000). We may also consider the State's
  theory of the case, any defensive theories, closing arguments, and voir dire. Id.(12)
 

As Appellant points out, the State argued
repeatedly that Appellant and his wife failed to respond to Chief McFadden's
letter. For example, during the State's closing argument, the prosecutor argued,

       
  You know, Jimmy and Susan Elmore were put on notice with a letter from Chief
  McFadden of the Lewisville Police Department. Gambling is illegal, Jimmy and
  Susan Elmore, you need to shut down or get into compliance. You need to shut
  down and pull out. This is your chance. Or we're going to shut you down, and
  we're going to seize your eight-liners and your machines. They had the chance
  to shut down, and they chose not to. They were making $20,000 a week at least.
  They chose not to shut down. I think Chief McFadden was more than fair to the
  Elmores. He gave them--
       
  . . . .
       
  . . . You get to decide. Do you think Chief Elmore [sic] was pretty fair to-
       
  . . . .
       
  . . . Do you think he was fair? He didn't have to send them a letter saying,
  look, you're out of compliance; this is illegal; shut down or get in
  compliance. He didn't have to do that. He could have just gone in right then
  and there, seized all the equipment, and closed them down, but he gave them a
  chance.
       
  . . . .
       
  . . . He gave them a chance when he didn't have to. What did they do with that
  chance? They chose to ignore it. Susan Elmore signed this letter [from
  McFadden]. Sure Jimmy saw it too; they're married. And they chose to ignore
  that letter. They chose to proceed on running their casino in Lewisville,
  Texas, right here in your backyard.

The State continued in this tenor, and in
rebuttal argument invited the jury to take McFadden's letter into the jury room
with them. Appellant argued that the machines were not gambling devices and
that, if they were, there was no intent to operate illegal gambling devices.
Since intent was the contested issue, the letter responding to McFadden's notice
was a crucial piece of defense evidence.
Susan Elmore's letter indicates that
Appellant shut down the business, reconfigured the machines, and did not ignore
McFadden's warning. Moreover, the letter creates a real question of intent. The
State's argument was, therefore, misleading and knowingly false. Additionally,
even though Chief McFadden's letter was admitted on a limited basis, despite
timely and proper objection, the trial court failed to include a limiting
instruction in the jury charge. (13) The jury
therefore could consider the State's letter for all purposes during
deliberations but did not have the benefit of considering the Elmores' response
to the letter.
For all of the above reasons, we are
compelled to hold that the trial court's abuse of discretion in excluding
Defendant's Exhibit Number One affected Appellant's substantial rights,
prevented him from adequately presenting his defense, and substantially and
injuriously affected the jury's verdict. (14)
Consequently, we sustain Appellant's second issue. In light of our disposition
of this issue, we do not reach Appellant's third issue in these cases.
(15)
Conclusion
Having held that the trial court abused
its discretion by excluding the responsive letter written by Susan Elmore and
that the error affected Appellant's substantial rights, we reverse the trial
court's judgments and remand these cases to the trial court for a new trial.
 
                                                                        
LEE ANN DAUPHINOT
                                                                        
JUSTICE
 
PANEL A: DAY, LIVINGSTON, and DAUPHINOT,
JJ.
PUBLISH
DELIVERED: August 21, 2003

1. See Tex. Penal Code Ann. § 47.01(4) (Vernon
2003).
2. Tex. Code Crim. Proc. Ann. art. 18.01(a), (b) (Vernon
Supp. 2003); Robuck v. State, 40 S.W.3d 650, 653 (Tex. App.--San
Antonio 2001, pet. ref'd).
3. Amores v. State, 816 S.W.2d 407, 413 (Tex.
Crim. App. 1991); Torrez v. State, 34 S.W.3d 10, 17 (Tex. App.--Houston
[14th Dist.] 2000, pet. ref'd).
4. Jones v. State, 833 S.W.2d 118, 123 (Tex.
Crim. App. 1992), cert. denied, 507 U.S. 921 (1993); Lagrone v.
State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987), cert. denied,
485 U.S. 937 (1988); see Illinois v. Gates, 462 U.S. 213, 228-29, 103
S. Ct. 2317, 2326-27 (1983); State v. Duncan, 72 S.W.3d 803, 807 (Tex.
App.--Fort Worth 2002, pet. dism'd, untimely filed); Wynn v. State, 996
S.W.2d 324, 326 (Tex. App.--Fort Worth 1999, no pet.).
5. See Tex. Penal Code Ann. § 47.01(4)(B).
6. Hardy v. State, 102 S.W.3d 123, 132 (Tex.
2003).
7. See id.
8. Tex. R. Evid. 106.
9. Tex. R. Evid. 107.
10. Livingston v. State, 739 S.W.2d 311, 331
(Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988).
11. See id.
12. James v. State, 102 S.W.3d 162, 179 (Tex.
App.--Fort Worth 2003, pet. filed).
13. See Rankin v. State, 974 S.W.2d
707, 712 n.3 (Tex. Crim. App. 1996); see also Tex. Code Crim. Proc.
Ann. art. 36.14 (Vernon Supp. 2003).
14. See James, 102 S.W.3d at 179.
15. See Tex. R. App. P. 47.1.
