




02-11-391-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00391-CV
 
 



$1760.00 in United States Currency, 37 “8” Liner
  Machines


 


APPELLANT




 
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
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-liners[2] 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 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 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 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 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
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)).
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 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.
Thus,
again, the sole question presented here is whether a nonimmediate[8]
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 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 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
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 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 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 (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 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
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




[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]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.


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


[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.


[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).


[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.”


[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).


