                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00391-CV


$1760.00 IN UNITED STATES                                        APPELLANT
CURRENCY, 37 “8” LINER
MACHINES

                                      V.

THE STATE OF TEXAS                                                APPELLEE


                                   ----------

       FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

                                   ----------

                                 OPINION

                                   ----------

                               I. INTRODUCTION

      This is a civil forfeiture case. Appellant Sammy Dean Barnes, owner of

Magic Games Game Room, appeals the trial court’s order forfeiting $1,760.00 in

United States currency and thirty-seven “eight-liner” machines to the State as

gambling proceeds and gambling devices. We are asked to address an issue of

first impression:   whether a nonimmediate right of replay––by means of
redeeming a ticket of no cash value for points electronically input from a central

location to an eight-liner chosen by the ticket holder at Magic Games Game

Room at a subsequent visit––prohibits application of the “fuzzy animal”1

exclusion from the definition of “gambling device.” See Tex. Penal Code Ann.

§ 47.01(4) (defining “gambling device”), § 47.01(4)(B) (West 2011) (setting forth

“fuzzy animal” exclusion from the definition of “gambling device”). Because we

hold that the redemption of tickets for points used for replay provided by Magic

Games Game Room does not prohibit application of the “fuzzy animal” exclusion

from the definition of “gambling devices,” we will reverse the trial court’s order

forfeiting the thirty-seven eight-liner machines seized from Magic Games Game

Room.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      The Tarrant County Sherriff’s Department commenced an investigation of

Magic Games Game Room on January 24, 2011. Deputy Jeffrey Jones stopped

two individuals leaving the game room to investigate whether gambling was

occurring in the game room: Mr. Skelley, a gentleman in his eighties, and Mr.

Coolidge, a ninety-nine-year-old gentleman. Mr. Skelley told Deputy Jones that

the game room did not pay cash; instead, players received tickets that could be

redeemed for prizes or for replays on that day or a later date. Mr. Coolidge told

      1
       See Fifty Six (56) Gambling Devices v. State, No. 07-03-00132-CV, 2004
WL 635429, at *2 (Tex. App.—Amarillo 2004, no pet.) (on reh’g) (noting that
penal code section 47.01(4)(B) is “commonly known as the fuzzy animal
exception”).


                                        2
Deputy Jones that the game room did not pay cash but that winning players

received tickets that could be redeemed for prizes or for replays at any time.

      The eight-liners2 at Magic Games Game Room accepted one-, five-, ten-,

and twenty-dollar bills and converted the money into points that were played on

the machines; it took at least one dollar to start playing. The machines did not

allow patrons to win in excess of ten times the value of their bets. When a patron

would “ticket out,” a central ticket machine would dispense a ticket, which had no

cash value––one ticket for every 500 points that the patron had accumulated on

the machine. Patrons would occasionally ticket out in order to play a different

machine they believed to be more lucky; an attendant would take the patron’s

tickets and, from a central location, electronically transfer the points represented

by the tickets to the machine the patron desired to play. Likewise, the right of

replay was implemented electronically; patrons surrendered their tickets, and the

points represented by the tickets were applied electronically to whichever

machines the patrons wanted to play.3 Patrons also had the option to use their


      2
       The term “eight-liner” is a generic term; some of the machines at the
Magic Games Game Room had five, eight, ten, or twenty lines that could be
played. The record reveals that winnings were determined by matching symbols
horizontally, vertically, or diagonally and that a patron could choose how many
lines he wanted to play.
      3
        Barnes testified that there were eight or ten eight-liner machines at Magic
Games Game Room that could not be used for replay because they would not
receive the electronic points properly. Patrons could therefore redeem their
ticket for replay only on certain machines that would allow electronic transfer of
points to the machine.


                                         3
tickets to “buy” a gift, such as toilet paper, paper towels, or coffee; if there were

no gifts that the patron wanted, he could bring his tickets back on a different day

to choose a gift. None of the gifts were in excess of five-dollar wholesale value.

      Deputy Jones prepared an affidavit to obtain a warrant to search Magic

Games Game Room for gambling devices. Jones’s affidavit stated,

            Based on the information obtained during the investigative
      stops, Barnes is giving tickets to patrons, allowing them to come
      back at a later date and redeem said ticket for machine credits.
      Thus he is allowing patrons to leave and return to play on another
      day by thus a violation of the law.

Deputy Jones presented his search warrant affidavit to a magistrate, obtained a

search warrant, executed the warrant at Magic Games Game Room, and seized

thirty-seven eight-liner machines. While at Magic Games Game Room, Deputy

Jones observed that none of the prizes, which he described as “[g]rocery store

items,” exceeded a five-dollar monetary value. Deputy Jones also noted a sign

on the wall that stated, “We do not pay cash. Tickets have no cash value.

Tickets are redeemable for gifts or replay only. If you ask for cash, you will be

asked to leave.”

      The State initiated forfeiture proceedings in the justice court,4 and the

justice court ordered the forfeiture of the thirty-seven eight-liner machines, along




      4
       The State’s motion for forfeiture, which is described in the order, is not in
the record before us.


                                         4
with $1,760.00 in currency.5 Barnes appealed the justice court judgment to the

county court at law,6 and following a bench trial, the county court at law ordered

the forfeiture of the thirty-seven eight-liner machines, along with $1,760.00 in

currency. This appeal followed.

              III. APPLICATION OF THE “FUZZY ANIMAL” EXCLUSION
                   FROM THE DEFINITION OF GAMBLING DEVICES

      In his sole issue, Barnes argues that the trial court erred by granting the

State’s motion for forfeiture because Magic Games Game Room’s eight-liner

machines were not gambling devices.         Specifically, Barnes argues that the

allowance of a nonimmediate right of replay by means of redeeming a ticket of no

cash value at a subsequent visit by electronically applying the points represented

by the ticket to whichever machine the ticket-holder patron desired to play does

not prevent application of the “fuzzy animal” exclusion set forth in Texas Penal

Code section 47.01(4)(B).    The State argues that this future right of replay

vitiates application of the “fuzzy animal” exclusion to the eight-liner machines

seized from Magic Games Game Room.

                    A. Procedure in Civil Forfeiture Case

      Following lawful seizure, gambling paraphernalia, devices, equipment, and

proceeds are subject to forfeiture even when, as here, there is no prosecution of

      5
      The money was retrieved from an ATM machine that was on the
premises, but Barnes testified that the ATM machine did not belong to him.
      6
       The record before us does not contain Barnes’s filings in the county court
at law other than a motion to suppress and exclude evidence.


                                        5
the owner of the contraband. See Tex. Code Crim. Proc. Ann. art. 18.18(b)

(West Supp. 2011); In re Seizure of Gambling Proceeds & Devices, 261 S.W.3d

439, 446 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Once the State

has established probable cause to initiate a forfeiture proceeding, the State has

met its burden under article 18. Hardy v. State, 102 S.W.3d 123, 129 (Tex.

2003). At that point, the burden shifts to the claimant to prove that the property is

not subject to forfeiture under article 18.18(f), which provides that, “[u]nless the

[interested person] proves by a preponderance of the evidence that the property

or proceeds is not gambling equipment . . . the magistrate shall dispose of the

property or proceeds . . . .” Tex. Code Crim. Proc. Ann. art. 18.18(a), (f) (West

Supp. 2011); Hardy, 102 S.W.3d at 129. Thus, the ultimate burden of proof in an

article 18.18 forfeiture proceeding is on the possessor of the property, not the

State. Hardy, 102 S.W.3d at 129–30.

               B. Challenge to Trial Court’s Conclusion of Law

      Rule 296 of the Texas Rules of Civil Procedure authorizes requests for

findings of fact and conclusions of law in a nonjury case. Tex. R. Civ. P. 296.

Neither party requested findings of fact or conclusions of law; the evidence,

however, is undisputed.     Barnes and the State both contend that the same,

undisputed facts compel different conclusions of law. The State contends that

the evidence establishes that the eight-liners at issue do not fall within the “fuzzy

animal” exclusion set forth in penal code section 47.01(4)(B); Barnes contends

that the same evidence establishes that they do. We review the trial court’s legal


                                         6
conclusions drawn from facts to determine their correctness.        BMC Software

Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Rogers v. City of Fort

Worth, 89 S.W.3d 265, 277 (Tex. App.––Fort Worth 2002, no pet.). Thus, we

review de novo here whether the trial court erred by concluding, based on the

undisputed evidence, that the thirty-seven eight-liners seized from Magic Games

Game Room did not fall within subsection (B)’s exclusion to the general definition

of “gambling devices” set forth in section 47.01(4) of the Texas Penal Code.

                    C. Definition of Gambling Device
     and “Fuzzy Animal” Exclusion from Definition of Gambling Device

      Section 47.01 of the Texas Penal Code sets forth the following definition of

gambling device:

      (4) “Gambling device” means any electronic, electromechanical, or
      mechanical contrivance not excluded under Paragraph (B) that for a
      consideration affords the player an opportunity to obtain anything of
      value, the award of which is determined solely or partially by chance,
      even though accompanied by some skill, whether or not the prize is
      automatically paid by the contrivance. The term:

             (A) includes, but is not limited to, gambling device versions of
      bingo, keno, blackjack, lottery, roulette, video poker, or similar
      electronic, electromechanical, or mechanical games, or facsimiles
      thereof, that operate by chance or partially so, that as a result of the
      play or operation of the game award credits or free games, and that
      record the number of free games or credits so awarded and the
      cancellation or removal of the free games or credits; and

            (B) 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



                                         7
      of not more than 10 times the amount charged to play the game or
      device once or $5, whichever is less.

Tex. Penal Code Ann. § 47.01(4). Section (4), as quoted above, sets forth the

general definition of gambling device, and subsection (B) sets forth the statutory

exclusion from the definition. See Hardy, 102 S.W.3d at 131. A “thing of value”

as referred to in the definition of “gambling device” in section (4) is defined as

meaning “any benefit, but does not include an unrecorded and immediate right of

replay not exchangeable for value.” Id. § 47.01(9) (West 2011).

                           D. Statutory Construction

      We review issues of statutory construction de novo. Tex. Lottery Comm’n

v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). In construing

statutes, our primary objective is to give effect to the Legislature’s intent. Id.

(citing Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex.

2009)). We rely on the plain meaning of the text as expressing legislative intent

unless a different meaning is supplied by legislative definition or is apparent from

the context, or the plain meaning leads to absurd results. Id. We presume that

the legislature selected language in a statute with care and that every word or

phrase was used with a purpose in mind. Id. (citing In re Caballero, 272 S.W.3d

595, 599 (Tex. 2008)). Courts should give effect to “every sentence, clause, and

word of a statute so that no part thereof [will] be rendered superfluous.” City of

San Antonio v. City of Boerne, 111 S.W.3d 22, 29 (Tex. 2003) (quoting Spence v.

Fenchler, 107 Tex. 443, 457, 180 S.W. 597, 601 (1915)).



                                         8
                                   E. Analysis

      Barnes concedes that because the tickets that patrons received when they

“ticketed out” of the eight-liners could be redeemed electronically for points input

to an eight-liner at a subsequent visit and thereby could be used for a

nonimmediate right of replay, the eight-liners fall within the definition of a

gambling device set forth in penal code section 47.01(4). See Tex. Penal Code

Ann. § 47.01(4); State v. Gambling Paraphernalia, Devices, Equip. & Proceeds,

356 S.W.3d 594, 598 (Tex. App.—Corpus Christi 2011, no pet.) (holding eight-

liners met section 47.01(4)’s general definition of gambling device because

player obtained nonimmediate right of replay via credits on a player card); Allstar

Amusement v. State, 50 S.W.3d 705, 707–08 (Tex. App.—Waco 2001, no pet.)

(holding eight-liners met section 47.01(4)’s general definition of gambling device

because player obtained nonimmediate right of replay by returning at a later date

and presenting ticket to attendant who put $5.00 in the selected machine). That

is, Barnes concedes that because the eight-liners afford the player an opportunity

to obtain a “thing of value”––a benefit other than an unrecorded and immediate

right of replay, that being a right of nonimmediate replay, the eight-liners meet

the definition of gambling device set forth in section 47.01(4). See Gambling

Paraphernalia, Devices, Equip. & Proceeds, 356 S.W.3d at 598; Allstar

Amusement, 50 S.W.3d at 707–08.         Barnes argues, however, that even if a

device meets the section 47.01(4)’s general definition of a gambling device, it is

specifically excluded from that definition if it meets the requisites of the “fuzzy


                                         9
animal” exclusion set forth in subsection (B).       See Tex. Penal Code Ann.

§ 47.01(4) (defining gambling device as “any electronic, electromechanical, or

mechanical contrivance not excluded under paragraph (B) that . . .”) (emphasis

added); Hardy, 102 S.W.3d at 131 (explaining, “the Hardys do not contend that

the seized eight-liners are not gambling devices under the general definition in

47.01(4)[;] [i]nstead, they contend that their eight-liners fall within the exclusion

provided in section 47.01(4)(B)”).

      Barnes claims that the eight-liners here meet the requisites of the “fuzzy

animal” exclusion set forth in subsection (B) because they were designed, made,

and adapted solely for bona fide amusement purposes and reward a player

exclusively with noncash merchandise prizes, toys, or novelties, or a

representation of value redeemable for those items. See Tex. Penal Code Ann.

§ 47.01(4)(B).7 The State argues, however, that a player’s ability to redeem

tickets on a return visit not only to obtain gifts available at Magic Games Game

Room but also to obtain points electronically input on an eight-liner and thereby

get to replay without depositing any more money into a machine is a reward not

itemized in subsection (B) that causes subsection (B) to be inapplicable here.




      7
        The record before us conclusively establishes that the gifts available to
patrons at Magic Games Game Room in exchange for their tickets did not violate
the not-more-than-ten-times-the-amount-charged-to-play-the-game-once-or-five-
dollar provision of subsection (B).


                                         10
      Thus, again, the sole question presented here is whether a nonimmediate8

right of replay––by means of redeeming a ticket of no cash value for points

electronically input from a central location to an eight-liner chosen by the ticket

holder at a subsequent visit––prohibits application of the “fuzzy animal” exclusion

from the general definition of gambling device.         This is an issue of first

impression. Two appellate court cases have addressed whether a nonimmediate

right of replay constitutes a “thing of value” for purposes of determining whether

an eight-liner meets section 47.01(4)’s general definition of gambling device, but

those cases have not addressed whether a nonimmediate right of replay

precludes application of the “fuzzy animal” exclusion set forth in subsection (B).

See Gambling Paraphernalia, Devices, Equip. & Proceeds, 356 S.W.3d at 598–

99 (holding nonimmediate right of replay was thing of value causing eight-liners

to meet section 47.01(4)’s general definition of gambling device but holding

subsection (B) inapplicable on another ground, that being because the value of

the points awarded exceeded the not-more-than-ten-times-the-amount-charged-

to-play-the-game-once-or-five-dollar   provision   of   subsection   (B));   Allstar

Amusement, 50 S.W.3d at 707–08 (holding nonimmediate right of replay was


      8
        The State characterizes the right of replay at issue here as being both
recorded and nonimmediate. We need not decide whether the nonimmediate
right of replay here was recorded or unrecorded, however, because to avoid
being a thing of value, the right of replay must be both unrecorded and
immediate. See Tex. Penal Code Ann. § 47.01(9). Here, it is undisputed that the
right of replay was nonimmediate and that the right of replay here is thus not
excluded from the definition of “thing of value.”


                                        11
thing of value causing eight-liners to meet section 47.01(4)’s general definition of

gambling device and not addressing application of subsection (B) because Allstar

did not raise it). The only case to address the application of subsection (B)’s

exclusion from the general definition of gambling device set forth in section

47.01(4) is the Texas Supreme Court case of Hardy. 102 S.W.3d at 129.

      In Hardy, the supreme court held that eight-liners that awarded tickets

redeemable “for gift certificates or for cash to play other machines” did not fall

within subsection (B)’s exclusion from the definition of gambling device. The

supreme court noted that Webster’s Dictionary defined “cash” as “money or its

equivalent paid immediately or promptly after purchasing” and held that because

the gift certificates awarded were “used as a medium of exchange at various

retail outlets,” they were an equivalent of money. Id. at 131 (noting that the five-

dollar gift certificates “may be used in precisely the same manner as five-dollar

bills”). The supreme court concluded that “[i]f . . . the reward operates in the

same manner as legal tender in a retail establishment, it does not qualify as a

noncash merchandise prize, toy[,] or novelty item.” Id. at 132. Concerning the

right of replay, the supreme court held that because a player could exchange his

or her tickets not only for gift cards but also for cash, which an attendant would

insert into a machine for the player, subsection (B) was not applicable. Id. (“This

practice of exchanging tickets for cash also removes the machines from the

section 47.01(4)(B) exclusion.”); see also State v. One Super Cherry Master

Video 8-Liner Machine, 102 S.W.3d 132, 133 (Tex. 2003) (applying Hardy and


                                        12
holding tickets redeemable for cash do not meet the gambling device exclusion

under section 47.01(4)(B)). The supreme court in Hardy explained,

      While additional play in itself is not proscribed, when that additional
      play is accomplished by providing cash to play other machines, the
      statutory exclusion is not satisfied. 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. . . . 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.

102 S.W.3d at 132 (emphasis in original).

      The evidence establishes that at Magic Games Game Room, unlike the

scenario in Hardy, the tickets that winning players obtain when their points are

ticketed out for redemption or when their points are ticketed out for play on

another machine are never redeemable for cash or for gift certificates that could

be used as a medium of exchange at retail outlets. At Magic Games Game

Room, no cash is used to credit points to another machine; an attendant

electronically transfers points from a central location. Thus, Barnes contends

that the cash-focused analysis of the right of replay in Hardy does not apply here.

We agree. The supreme court in Hardy repeatedly articulated, as quoted above,

that it was the provision of cash that violated subsection (B)—specifically



                                        13
subsection (B)’s requirement that rewards be limited to noncash merchandise

prizes, toys, or novelties—and not the right of nonimmediate replay that violated

subsection (B).   Id. (explaining, “additional play in itself is not proscribed”).

Having determined that Hardy does not preclude application of subsection (B)’s

exclusion to gambling devices that provide tickets that a patron may opt at a

subsequent visit to redeem for noncash points, electronically input from a central

location to an eight-liner of the ticket holders’ choice––a nonimmediate right of

replay––we next conduct a statutory construction analysis.

      In determining whether the nonimmediate right of replay here vitiates

application of subsection (B)’s exclusion from the definition of gambling devices,

we rely on the plain meaning of the text as expressing legislative intent unless a

different meaning is supplied by legislative definition or is apparent from the

context, or the plain meaning leads to absurd results. Tex. Lottery Comm’n, 325

S.W.3d at 635. The plain language of section (4) and of subsection (B) exempts

from the general definition of gambling device “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.” See Tex. Penal Code Ann. § 47.01(4) (stating

“Gambling device” means “any electronic, electromechanical, or mechanical

contrivance not excluded under Paragraph (B)”) (emphasis added); § 47.01(4)(B)

(exempting    contrivances    rewarding     player   exclusively   with   noncash


                                       14
merchandise, prizes, toys, or novelties, or a representation of value redeemable

for those items). Two aspects of the plain language of the text lead us to hold

that the nonimmediate right of replay here does not vitiate application of

subsection (B)’s exclusion from the definition of gambling device:              the

legislature’s use of the undefined term “novelties” in subsection (B) and its use of

the phrase “not excluded under Paragraph (B)” in section 47.01(4). See Tex.

Lottery Comm’n, 325 S.W.3d at 635 (instructing us that we are to “presume the

Legislature selected language in a statute with care and that every word or

phrase was used with a purpose in mind”).

      In enacting the “fuzzy animal” exclusion to penal code section 47.01(4)’s

definition of gambling device, the legislature chose to exempt gambling devices if

the gambling device rewards players exclusively with noncash merchandise

prizes, toys, or “novelties,” or a representation of value redeemable for those

items. Tex. Penal Code Ann. § 47.01(4)(B). In his testimony at trial, Barnes

classified the right of replay, which a Magic Games Game Room patron could

choose to obtain by redeeming a ticket for points that were electronically

transferred from a central location to a machine chosen by the patron, as a

novelty.   The term “novelties” is not defined in the statute, but Webster’s

Dictionary defines “novelty” as being “a new or unusual thing or event.”

Webster’s Third New Int’l Dictionary 1546 (2002); accord Hardy, 102 S.W.3d at

131 (applying Webster’s definition of “cash” to penal code section 47.01(4)(B)).

Utilizing the plain meaning of the term “novelty” as a “new event,” we hold that


                                        15
tickets of no cash value that are optionally redeemable at a subsequent visit for

points electronically input from a central location to an eight-liner of the ticket

holder’s choice is a novelty and is thus within the rewards authorized by

subsection (B). Accord Hardy, 102 S.W.3d at 132 (explaining that “additional

play in itself is not proscribed”).

       The State argues that “[t]he safe harbor of the fuzzy-animal exception

requires that the machine award the player ‘exclusively with noncash

merchandise prizes, toys, or novelties, or a representation of value redeemable

for those items’” and that “[a] recorded right of future replay is not a prize, toy[,] or

novelty necessary to meet the exception.”          As set forth above, an optional,

noncash, right to redeem tickets for points electronically input from a central

location to an eight-liner of the ticket holder’s choice is a novelty––a new event––

giving the word novelty its plain meaning.          Moreover, if the legislature had

intended that subsection (B)’s exclusion be inapplicable to all gambling devices

that provide tickets of no cash value that may be presented at a subsequent visit

to obtain electronically input points to be used to replay a machine, it could have

simply used the defined term “thing of value” in subsection (B) to make

subsection (B) applicable only if the things of value obtainable were exclusively

noncash merchandise prizes, toys, or novelties, or a representation of value

redeemable for those items––thus, incorporating the defined term “thing of value”

into subsection (B) to remove the possibility that a nonimmediate right of replay

could be considered a novelty. See Tex. Lottery Comm’n, 325 S.W.3d at 635


                                           16
(explaining that a court does not rely on plain meaning [here of the word

“novelty”] as expressing legislative intent when a different meaning [here no

different meaning is provided, but could have been by using the defined term

“thing of value”] is supplied by legislative definition). But the legislature limited its

use of the defined term “thing of value”––defining a nonimmediate right of replay

as a thing of value––to the definition of gambling device set forth in section

47.01(4)’s general definition, and we must presume the legislature made this

word choice with a purpose in mind. See Tex. Lottery Comm’n, 325 S.W.3d at

635.

       Finally, we note that the plain language of section 47.01(4) contemplates

the application of subsection (B)’s exclusion to gambling devices that afford a

player an opportunity to obtain a nonimmediate right of replay.             Section (4)

states, “Gambling device” means “any electronic, electromechanical, or

mechanical contrivance not excluded under Paragraph (B) that for a

consideration affords the player an opportunity to obtain anything of value,” and a

thing of value includes a nonimmediate right of replay. See Tex. Penal Code

Ann. § 47.01(4) (emphasis added), § 47.01(9).             Thus, looking to the literal

language of section (4), a contrivance excluded under paragraph (B) could be

one that includes as a thing of value a nonimmediate right of replay; that is, the

literal language of the statute requires first an examination of whether a

contrivance is excluded from the definition of gambling device under paragraph

(B), and if it is, it is excluded from further analysis of section (4)’s definition of


                                           17
gambling device.    Thus, to give effect to both section 47.01(4)’s definition of

gambling device and subsection (B)’s exclusion from that definition, we cannot

agree with the State’s contention that any nonimmediate right of replay renders

subsection (B)’s exclusion inapplicable.

      In summary, relying on the plain meaning of section 47.01 and applying

that meaning to the undisputed facts here, the eight-liners seized from Magic

Games Game Room reward a player exclusively with noncash merchandise

prizes, toys, or novelties, or a representation of value (a ticket) redeemable for

those items. We conclude that, as a matter of law, Barnes’s eight-liner machines

were not gambling devices because subsection (B)’s exclusion, the “fuzzy

animal” exclusion, applied to them. See Tex. Penal Code Ann. § 47.01(4)(B);

Hardy, 102 S.W.3d at 132. The trial court erred by concluding that the thirty-

seven eight-liner machines were subject to forfeiture. We sustain Barnes’s sole

issue.9

                                 IV. CONCLUSION

      Having sustained Barnes’s sole issue, we reverse the trial court’s forfeiture

judgment as to the thirty-seven eight-liners, and we render judgment that the


      9
       Barnes does not appear to challenge the forfeiture of the currency in his
issue on appeal. Moreover, because Barnes admitted that he did not own the
ATM machine, he does not have standing to challenge the forfeiture of the
money that was taken from it. See $17,329.00 v. State, 880 S.W.2d 788, 789
(Tex. App.—Houston [1st Dist.] 1993, no writ) (holding that appellant had no
standing to appeal forfeiture of $17,329.00 because he disclaimed ownership in
the money and had no other interest therein).


                                           18
thirty-seven eight-liners are not subject to forfeiture by the State. See Tex. R.

App. P. 43.2(c).   Because Barnes does not challenge, and does not have

standing to challenge, the forfeiture of the money that was taken from the ATM

machine that was on the premises, we affirm the trial court’s forfeiture judgment

as to the $1,760.00 in United States currency.



                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: June 21, 2012




                                       19
