REVERSED and Opinion Filed February 12, 1999




                                             In The

                                   Court of Appeals
                        iFtftli district of Qfexas at Dallas

                                      No. 05-96-00233-CR



                           MICHELLE A. SAUNDERS, Appellant

                                                V.


                              THE STATE OF TEXAS, Appellee


                     On Appeal from the County Criminal Court No. 4
                                      Dallas County, Texas
                            Trial Court Cause No. MA95-43700-E



                                          OPINION

                  Before Chief Justice Thomas and Justices Bridges and Roach
                               Opinion By Chief Justice Thomas

       Michelle A. Saunders was convicted in a non-jury trial of unlawfully soliciting drinks while

working as an employee ofan establishment licensed by the Texas Alcoholic Beverage Commission.
See TEX. ALCO. BEV. Code Ann. § 104.01(4) (Vernon 1995). In two points of error, appellant
challenges the legal and factual sufficiency ofthe evidence to support her conviction. Specifically,
appellant contends the evidence did not establish that she was an employee ofthe licensed premises.
We agree.

        The uncontested testimony from two undercover police officers established that appellant
danced topless on-stage at the King's Lounge, abar licensed to serve alcoholic beverages. After
finishing herdance, appellant joined the officers at a table. When a waitress arrived to take drink

orders, appellant asked one of the officers if he would buy her a drink. When the officer answered

affirmatively, appellant ordered a Malibu Fling, an alcoholic beverage. The officer paid for the

drink and appellant drank it.

       An "employee" as that term is used in the alcoholic beverage code, means, "any person who

works for the retailer in return for financial or other consideration, and who is subject to the control

of the retailer." See Ackley v. State, 592 S.W.2d 606, 608 (Tex. Crim. App. [Panel Op] 1980).

There is no testimony regarding appellant's compensation arrangements with King's Lounge, nor

did the State produce any evidence showing control of appellant by the establishment. Therefore,

even when viewed in the light most favorable to the judgment, the evidence is legally insufficient

to support the conviction. See Jackson v. Virginia, 443 U.S. 307, 318-19(1979); Narvaiz v. State,
840 S.W.2d415, 423 (Tex. Crim. App), cert, denied, 507 U.S. 975 (1993). We sustain appellant's

point of error.

        We reverse the trial court's judgment, and enter a judgment of acquittal.




                                                        LINDA THOMAS
                                                        CHIEF JUSTICE




 Do Not Publish
 TEX. R. APP. P. 47.3
                                     Fifth Court of Appeals
                               Case Party & Attorney Address List
                                                                                   Page:    1
                                                                     Date Printed: 02/17/1999


                  Case Number: 05-96-00023-CR        Date Filed: 01/04/1996


Style: Hicks, Johnny Ronnell
      v.

      The State of Texas


APP   Johnny Ronnell Hicks
      INM 000732345
       TDC#732345
      Ellis II Unit
       H2-304
       Huntsville, TX 77340

STA    Sue Korioth
       ATT 011681975
       Assistant District Attorney
       Frank Crowley Courts Building
       133 North Industrial Blvd., LB 19
       Dallas, TX 75207
       Phone 214/653-3661
       Fax 215/653-3643


CC:    Clerk -

CC:    Judge -
Author of opinion Chief Justice Thomas
Trial Court Judge Johnson

Rehear denied
**THIS OPINION IS RELEASED FOR PUBLICATION YES / NO
.<>   *--                                                                                            tftlVJo

                                        Court of Appeals
                             JFtfth tltGtrict of (lexac at Dallas

                                            JUDGMENT

      MICHELLE A. SAUNDERS. Appellant                   Appeal from the County Criminal Court No.
                                                        4 of Dallas County, Texas. (Tr.Ct.No.
      No. 05-96-00023-CR          V.                    MA95-43700-E).
                                                        Opinion delivered by Chief Justice Thomas,,
      THE STATE OF TEXAS, Appellee                      Justices Bridges and Roach participating .


             Based on the Court's opinion of this date, the judgment of the trial court is REVERSED
      and the appellant is hereby ACQUITTED.

      Judgment entered February 12, 1999.




                                                        LINDA THOMAS
                                                                              Yfrnofr
                                                        CHIEF JUSTICE
