NO. 1700-02






Womack, J., delivered the opinion for a unanimous Court.

The legal issues in this case are the construction of a gambling statute and the court of appeals' decision of the legal sufficiency of the evidence. Because we think an issue of fact may not be fully resolved, we remand the cause for reconsideration of the evidence.

On January 14, 2000, Officer Steven Day of the Corpus Christi Police Department began an undercover investigation of a business called "Slots of Luck," upon suspicion that illegal gambling was occurring there. As part of his investigation, Officer Day visited Slots of Luck, where he observed and participated in gambling using eight-liner machines. On March 28, 2000, Officer Day obtained a warrant to search the business and seize illegal gambling devices, gambling proceeds, and gambling records. During the search, a bank deposit book was found showing the name on the account to be "Robert G. Sanchez, Jr., Slots of Luck." Investigators later determined that the appellant's social security number was on the account. The appellant arrived at Slots of Luck during the execution of the search warrant and was arrested on multiple gambling charges.

A jury ultimately convicted the appellant, under Penal Code section 47.03(a)(3), of "for gain, intentionally or knowingly becoming a custodian of anything of value bet or offered to be bet." He was sentenced to one year in jail, probated, and a $1000 fine, and he was ordered to pay court costs and probation fees, and to perform community service. On appeal, the court of appeals found the evidence legally insufficient to sustain the conviction, reversed the judgment, and rendered an acquittal. (1)

The court stated as a matter of fact, "Slots of Luck housed thirty eight-liner machines and sold food and drinks to customers." (2) Its analysis included the following:

Since refreshments were sold at the establishment, it cannot be concluded that some or all of the money in the bank account in question was derived from the eight-liner machines. When viewing this evidence in light most favorable to the prosecution, the connection between Sanchez and the contents of machines that he does not own is too attenuated to deem him to be a "custodian" of the money that customers of Slots of Luck were betting in the machines. We find that a rational jury could not have found the elements of the crime of gambling promotion beyond a reasonable doubt and we sustain Sanchez's legal insufficiency point. (3)

That refreshments were sold at the appellant's place of business has been asserted in the appellant's jury argument, (4) in his argument on the motion for new trial, (5) and in his brief to the court of appeals. (6) (The State has denied these factual assertions on each occasion.) (7) None of the appellant's assertions has been supported by any reference to the record that the appellant has mentioned, nor have we been able to find any support for them.

We have found no evidence of sales of anything at the appellant's place of business, (8) or of any revenue other than that received through the eight-liner machines. The only relevant evidence that we have found is:

The undercover officer's testimony on cross-examination that no one was drinking alcohol in the appellant's place of business. (9) The appellant asked no questions about other refreshments.

Delia Barrerra's testimony that she was the only person there running the business on the date of the arrest. (10) She (the appellant's aunt) testified that she was in charge of the place when she was working. (11) Although both parties asked her about the way in which she dealt with customers, there was no mention of, or questions about, refreshments.

Testimony of a lieutenant in the narcotics-vice section of the police department that the appellant's business was a "casino": "A place of business that has no other activity going on except the operation of casino-type machines." (12)

Testimony of an attorney-general's investigator that the amounts in the appellant's ledgers (also called "daily balance sheets" or "tally sheets") were usually twice as large as the amounts in the bank deposit book (also called "bank receipt book"), which indicated the customary 50-50 split of revenue between the owner of the machines and the operator of the gambling place. When the amounts did not match such a split, the deposits were lower. "And this is common because they take out money to pay for the food and the drinks and pay employees." (13) "I have seen this in past investigations where they -- they take out cash money in order to pay for cokes and the food and pay all --" (14)

It is this last witness's evidence that seems to be the source of the appellant's assertions that food and drink were sold at the appellant's place of business. It might bear repeating that the witness's testimony was not that the ledgers showed evidence of unexplained income from food and drink, but that they showed evidence of unexplained expenditures which might have been for food and drink and salaries.

In its brief to us, the State argues:

The Thirteenth Court appears to base its opinion on that unsubstantiated allegation despite the fact that Appellant could not cite to the record to support the proposition that food and drinks were sold at Slots of Luck. The court converted Appellant's guess that monies could "conceivably" have derived from such sales into a fact: "Slots of Luck housed thirty eight-liner machines and sold (sic) [sic] food and drinks to customers. (Opinion, p. 2). However, a review of the trial record and the briefs of both parties clearly shows that both Appellant and the Thirteenth Court are wrong on this issue. (15)

This issue of fact is one that we think should be, if it can be, resolved by the court of appeals. The court of appeals' bald statement of fact that the appellant's business sold food and drinks to customers, when the evidence in the record is somewhat more ambiguous and the issue was in dispute in the trial court and on appeal, leaves us unsure whether (and how) the issue was resolved. Out of respect for the court of appeals, we think that it should have the opportunity to further consider this factual issue before we undertake to review its legal decision.

Of course the court of appeals is free to review the legal issue again if its resolution of the factual issue changes, (16) and, if it is appropriate, to advance to the appellant's second point of error about jury argument.

The judgment of the court of appeals is vacated and the case is remanded to that court for reconsideration.

En banc.

Delivered July 2, 2003.

Do Not Publish.

1. Sanchez v. State, No. 13-01-464-CR, 2002 Tex. App. LEXIS 6176 (Tex. App. - Corpus Christi August 22, 2002) (not designated for publication).

2. Slip op., at 2.

3. Id., at 4.

4. "How do we know beyond a reasonable doubt that the monies here were from gambling? How do we know they weren't from Coca-Colas or peanuts or popcorn they sold?" 4 Reporter's Record (hereinafter "RR") 35.

5. "The numbers did not indicate that they were from the machines. It didn't indicate whether they were from the popcorn, the sodas and all the other things that the evidence was presented that were sold at that place." 6 RR 7. "I think it was Delia Barrera testified that they sold other things. They sold cokes, candies, popcorn. They sold all kinds of stuff." Id., at 21.

6. "The only evidence presented at trial to show U.S. currency derived from a bet were documents found at Slots of Luck on the day the warrant was executed. (RR Vol. 3, p. 125 & 126) There was no evidence presented showing that the dollar amounts reflected in these documents reflected currency obtained from a bet or currency to be bet. See Trial Exhibits 13, 14, 15, and 16. In fact, testimony showed that SLOTS OF LUCK also sold food and drinks. (RR Vol.) [Sic, without citation to volume or page.] Some or all of the recorded amount could conceivably have been derived from the sale of food and drinks and not from the 8-liner machines." Brief, at 4.

7. "But [the witness] told you as well, yeah, there are some [daily records] that don't match and he said that reason would be if they withheld money to pay for Cokes or whatever." 4 RR 42 (State's rebuttal argument to jury).

"Defense counsel raises an issue that there was other business being transacted, sale of cokes, sale of popcorn, sale of candy, sodas, stuff like that. There's no evidence of that. The State is not aware of any evidence presented during this trial of any other legitimate business." 6 RR 16 (State's argument on motion for new trial).

"For example, Appellant asserts, 'Testimony showed that Slots of Luck also sold food and drinks, without citing to any such evidence in the record.' In fact, there is no evidence in the record supporting Appellant's theory that food or drinks were sold at Appellant's business. Instead, the record shows uncontroverted evidence that Appellant provided complimentary food and drinks to his players just as is the custom in Las Vegas-style casinos." State's Brief, at 18-19 (emphasis in original).

8. We examined photographs of the business premises, which were admitted in evidence, and we saw nothing to indicate that refreshments were sold on the premises.

9. 3 RR 41.

10. Id., at 80 (on cross-examination by appellant).

11. Id., at 75 & 79.

12. Id., at 108.

13. Id., at 127.

14. Id., at 130 (on cross-examination by appellant).

15. Brief, at 21.

16. See Carroll v. State, 101 S.W.3d 454 (Tex. Cr. App. 2003) (on remand, a court of appeals may reconsider a point of error and decide it on grounds not expressly contemplated by the Court of Criminal Appeals' order) (overruling Williams v. State, 829 S.W.2d 216 (Tex. Cr. App. 1992)).