Paula Wright Hermey D/B/A Ms. P's Video Emporium v. State ( 2001 )

Paula Wright Hermey, Frank Azzuro and Lucky Sunshine v. State of Texas

  IN THE

TENTH COURT OF APPEALS

No. 10-99-263-CV

     PAULA WRIGHT HERMEY

     D/B/A MS. P'S VIDEO EMPORIUM,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

No. 10-99-264-CV

     FRANK AZZURO

     D/B/A GOLD RUSH ARCADE,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

No. 10-99-265-CV

     LUCKY SUNSHINE, INC.,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the County Court at Law No. 1

Johnson County, Texas

Trial Court Nos. C9900057 & C9900059

O P I N I O N

      The State sought to forfeit “eight-liner” machines and other property seized from several Johnson County establishments in the course of a gambling investigation. After a show-cause hearing, the court found that the seized property constitutes gambling devices, gambling paraphernalia, or gambling proceeds and ordered that this property be forfeited to the State. Three of the participants in the hearing appealed.

      Paula Wright Hermey, doing business as Ms. P’s Video Emporium, Frank Azzurro, doing business as Gold Rush Arcade, and Lucky Sunshine, Inc. (collectively, “Appellants”) contend in three points that: (1) section 47.01(4) of the Texas Penal Code which defines the term “gambling device” is unconstitutionally vague; (2) the eight-liners seized in these cases are not gambling devices because they fit within the statutory exception provided by section 47.01(4)(B); and (3) the court erred by failing to quash the search warrants utilized in these cases because the facts stated in the affidavits on which they were based were not within the affiants’ personal knowledge and do not otherwise show probable cause.

      The procedural and factual background of these cases is virtually identical to that presented in Hardy v. State. No. 10-99-336-CV, slip op. at 2-3 (Tex. App.— Waco June 27, 2001, no pet. h.). In fact, the trial court heard these cases and the Hardys’ case in a consolidated hearing. In sum, the evidence establishes that a player could exchange tickets won from play on an eight-liner for gift certificates or for play on another machine. To exchange tickets for re-play on another machine, a player presented his tickets to the attendant who placed the money in the device of the player’s choice.

VAGUENESS

      Appellants contend in their first point that section 47.01(4) of the Penal Code, which defines the term “gambling device,” is unconstitutionally vague.

      However, this Court has recently determined section 47.01(4) is not unconstitutionally vague. See State v. Hancock, 35 S.W.3d 199, 200 (Tex. App.—Waco 2000, no pet.) (per curiam) (citing State v. Wofford, 34 S.W.3d 671 (Tex. App.—Austin 2000, no pet.)). Appellants’ vagueness arguments do not differ appreciably from those raised by the property owners in Wofford (on which we relied in Hancock). See Wofford, 34 S.W.3d at 680-81. Accordingly, we overrule Appellants’ first point.

GAMBLING DEVICE/PARAPHERNALIA

      Appellants aver in their second point that the uncontroverted evidence establishes that the seized eight-liners are not gambling devices because they fall within the statutory exclusion provided by section 47.01(4)(B) of the Penal Code. However, we have recently determined that eight-liners which reward players with tickets exchangeable for gift certificates or money to play on other machines do not fit within this statutory exclusion because they reward players with “cash.” See Hardy, No. 10-99-336-CV, slip op. at 12-13; but see State v. One Super Cherry Master Video 8-Liner Machine, No. 03-99-751-CV, slip op. at 9-11, 2001 Tex. App. LEXIS 3891, at *13-16 (Tex. App.—Austin June 14, 2001, no pet. h.) (State failed to prove as a matter of law that tickets dispensed by machines operated in a similar manner were not exchangeable for “noncash merchandise”). The undisputed evidence establishes that the eight-liners seized from Appellants operated in this manner. Therefore, we overrule Appellants’ second point.

AFFIDAVITS

      Appellants argue in their third point that the court erred by failing to quash the search warrants utilized in these cases because the facts stated in the affidavits on which they were based were not within the affiants’ personal knowledge and do not otherwise show probable cause.

      The affidavits at issue both exceed ten pages in length. Section 4 of the affidavits details the facts on which the affiants relied to show probable cause for issuance of the requested search warrants. The first six pages of facts recited in the Hermey affidavit and the first seven pages of facts recited in the Gold Rush affidavit detail the affiants’ participation in approximately ten years of DPS investigations, including those for “gambling-related offenses.” The affiants both testified in the forfeiture hearing that they did not have personal knowledge of all the facts recited with respect to the ten-year investigatory period. However, none of the facts recited therein refer to Ms. P’s or Gold Rush.

      Following these initial recitations, the affiants set forth the specific facts pertinent to their investigation of Ms. P’s and Gold Rush. The facts stated with reference to the investigation of these two establishments largely correspond to the testimony set out above regarding the operation of these businesses. Appellants do not challenge the veracity of the specific facts recited with respect to Ms. P’s and Gold Rush.

      Appellants cite Franks v. Delaware for the proposition that, if an affidavit offered in support of a search warrant contains false statements made intentionally or with reckless disregard for the truth, the warrant must be quashed and its fruits excluded if the remainder of the allegations in the affidavit do not suffice to establish probable cause. 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978); see also Hinojosa v. State, 4 S.W.3d 240, 246-47 (Tex. Crim. App. 1999).

      We have already determined that the undisputed evidence shows that the eight-liners constitute gambling devices. This is substantially the same evidence on which the affiants relied to obtain the challenged search warrants. Therefore, even disregarding the factual recitations made with reference to the ten-year investigatory period, we conclude that the remainder of the facts set forth in the affidavits suffice to show probable cause for the issuance of the search warrants. See id. Accordingly, we overrule Appellants’ third point.

      We affirm the forfeiture orders.

                                                                   REX D. DAVIS

                                                                   Chief Justice

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

Affirmed

Opinion delivered and filed July 5, 2001

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="font-size: 12pt">      The State went on to establish that, although Thornton did initially receive probation, it was revoked and he was sent to prison for aggravated sexual assault with a deadly weapon. Thornton continued to deny committing the offense, at which time the State asked Thornton if he “remembered” various facts of the crime. Thornton answered “no.”

      A defendant who testifies at trial places his credibility at issue and may be impeached and contradicted like any other testifying witness. White v. State, 21 S.W.3d 642, 646 (Tex. App.—Waco 2000, pet. ref’d) (citing Harper v. State, 930 S.W.2d 625, 630-31 (Tex. App.—Houston [1st Dist.] 1996, no pet.); Booker v. State, 929 S.W.2d 57, 65 (Tex. App.—Beaumont 1996, pet. ref'd)). If he creates a false impression about his propensity for committing criminal acts, he opens the door for rebuttal evidence. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim. App. 1993). The trial court did not commit error in allowing the State to question Thornton about his prior conviction. Issue two is overruled.

      Having overruled each issue presented, we affirm the judgment.

BOBBY L. CUMMINGS

                                                                       Justice

Before Chief Justice Davis

          Justice Gray, and

          Justice Cummings (retired)  

Affirmed

Opinion delivered and filed February 28, 2001

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