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Affirmed and Opinion filed August 19, = 2008.

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-06-01092-CV

______

 

IN RE=20 SEIZURE OF GAMBLING PROCEEDS AND DEVICES

 

 

 

 

On Appeal from the = County Criminal Court at Law No. 7

Harris County, = Texas

Trial Court Cause = No. 1397130

 

 

O P I N I=20 O N

In this=20 case, appellants Abelardo Jasso (AJasso@) and=20 Emerald Coast Exchange (AEmerald=20 Coast@) ask us=20 to determine whether, under Article 18.18(b) of the Code of = Criminal=20 Procedure, the State=3Ds seizure=20 of gambling devices and proceeds must be pursuant to a search = warrant=20 before the State may seek forfeiture of the property when the=20 property=3Ds=20 possessor was not convicted of an offense.  We hold that a = search=20 warrant is not required for the State to initiate a forfeiture = proceeding=20 under Article 18.18(b) when officers enter a gaming establishment = with the=20 owner=3Ds consent=20 and there is probable cause for seizure of the property.  = Therefore,=20 we affirm the trial court=3Ds=20 judgment.

I.       =20 Factual and Procedural Background

On=20 February 28, 2006, the City of Galena Park Police Department = seized=20 thirty-seven game machines and $9,049.00 in cash from a game room = on=20 Federal Road in Galena Park, Harris County, Texas, known as = AAbel=3Ds Game=20 Room.@  The=20 following August, the State filed an original petition for = forfeiture,=20 claiming that the game machines, commonly known as Aeight-liner@ = machines,=20 were gambling devices[1]=20 and that the cash was gambling proceeds.  The following = affidavit,=20 attached to the State=3Ds=20 petition, explained the circumstances surrounding the seizure of = the=20 property:

My name is=20 Assistant Chief R. D. Bates[.]  I am a Peace Officer employed = by the=20 Galena Park Police Department.  On February 28, 2006, = information was=20 received from a reliable source, Joe Ayala, the Chief of Police at = the=20 Jacinto City Police Department, that an illegal gambling operation = was=20 being run at 1833 Federal Road, Galena Park, Harris County, = Texas.  I=20 proceeded to that location and approached the front door.  = The front=20 door was found to be opened but the burglar bar door was shut and=20 locked.  Chief R. C. Pruett, with the Galena Park Police = Department,=20 called out to get someone to come to the door.  Mrs. = Palomino, later=20 found to be an employee of the game room, and Mr. Abelardo Jasso, = later=20 found to be the owner and operator of the game room, approached = the=20 door.  Mr. Jasso was asked what was going on at the location = and he=20 advised he was running a game room.  Chief Pruett asked Mr. = Jasso if=20 they could come in and he and Mrs. Palomino unlocked the burglar = bars and=20 let them in.  Mr. Jasso led the officers to the back where = officers=20 observed approximately twelve patrons playing eight liner = machines. =20 Asst. Chief Bates took several individuals from the game room to = the=20 Galena Park Police Station and took sworn statements from them = regarding=20 the game room.  Several of the witnesses stated those who = worked in=20 the game room would pay customers in cash.  From the = investigation it=20 was determined that illegal Gambling Devices were being utilized = at the=20 location, a game room known as AAbel=3Ds Game=20 Room[.@] =20 This is a gambling offense as defined in Chapter 47 of the Texas = Penal=20 Code.  The thirty-seven (37) Video Gambling Devices, as = listed in=20 Attachment AA@ = and=20 incorporated herein for all intents and purposes, along with the = listed=20 monies $9,049.00 in U.S. currency, [were] found inside the said = Gambling=20 Devices, inside of bank bags and a cash box all at the = location. =20 Since the gambling devices have been in the custody of the Galena = Park=20 Police Department Asst. Chief Bates and Galena Park Police Officer = J. T.=20 Morton have played all thirty-seven (37) of the devices and all of = them=20 pay ou[t] more than ten to one odds.  Said location was under = the=20 care, custody, and control of Abelardo Jasso, at the previously = mentioned=20 location.

In its=20 petition, the State also averred that, after the property was = seized, the=20 charge against Jasso for keeping a gambling place was = dismissed. =20

Jasso=20 answered with a general denial and requested that the $9,049.00 be = returned to him.  Emerald Coast, claiming ownership of the = game=20 machines, also answered and requested that the game machines be = returned=20 to it.

In=20 October, the trial court held an evidentiary hearing at which = Assistant=20 Chief Bates testified to much of the same information that was in = his=20 affidavit and provided additional details of the circumstances = surrounding=20 the seizure of the property.  Bates also was cross-examined = by both=20 Jasso and Emerald Coast.  No other witnesses were offered by = any=20 party.  At the conclusion of the testimony, the parties = argued=20 whether the forfeiture action was appropriately brought under = Article=20 18.18 of the Code of Criminal Procedure because a search warrant = was not=20 obtained before the property was seized.  After taking the = matter=20 under advisement, the trial court reconvened the hearing and ruled = in=20 favor of the State.

On October=20 23, 2006, the trial court memorialized its ruling in an order = directing=20 that the thirty-seven gambling devices and the $9,049.00 in cash = were=20 forfeited to the State.[2] =20 On January 25, 2007, the trial court signed a AFinal=20 Judgment of Forfeiture@ = specifically ordering that the gambling devices and currency were=20 forfeited pursuant to Article 18.18 of the Texas Code of Criminal=20 Procedure.  This appeal followed.

II.      =20 Analysis of the Issue

In a=20 single issue, Jasso and Emerald Coast contend that the trial court = erred=20 in forfeiting the game machines and cash under Article 18.18(b) of = the=20 Code of Criminal Procedure because there was no search = warrant. =20 Chapter 18 of the Code, entitled ASearch=20 Warrants,@ = provides=20 for the disposition of gambling paraphernalia, prohibited weapons, = criminal instruments, and other contraband when, as here, no = prosecution=20 or conviction follows the seizure of the property:

If there=20 is no prosecution or conviction following seizure, the magistrate = to whom=20 the return was made shall notify in writing the person found in = possession=20 of the alleged gambling device or equipment, altered gambling = equipment or=20 gambling paraphernalia, gambling proceeds, prohibited weapon, = obscene=20 device or material, child pornography, scanning device or = re‑encoder,=20 criminal instrument, or dog‑fighting equipment to show cause = why the=20 property seized should not be destroyed or the proceeds = forfeited. =20 The magistrate, on the motion of the law enforcement agency = seizing a=20 prohibited weapon, shall order the weapon destroyed or forfeited = to the=20 law enforcement agency seizing the weapon, unless a person shows = cause as=20 to why the prohibited weapon should not be destroyed or = forfeited.  A=20 law enforcement agency shall make a motion under this section in a = timely=20 manner after the time at which the agency is informed in writing = by the=20 attorney representing the state that no prosecution will arise = from the=20 seizure.

Tex.=20 Code Crim. Proc. art.=20 18.18(b). 

Jasso and=20 Emerald Coast contend that, in Hardy v. State, the Texas = Supreme=20 Court held that a search warrant is required to precede a = forfeiture under=20 Chapter 18 of the Code, citing the following language:  = AIn order=20 to initiate a forfeiture proceeding, the State must obtain a = search=20 warrant based on a sworn affidavit averring sufficient facts to = satisfy=20 the issuing magistrate that probable cause does in fact exist for = its=20 issuance.@ =20 See 102 S.W.3d 123, 127 (Tex. 2003).  Thus, they = argue,=20 because no search warrant was obtained here, the property may not = be=20 forfeited under Chapter 18. 

The State=20 responds that the language cited in Hardy is not = dispositive=20 because it is not the holding of the case, but is merely an = explanation of=20 the usual manner in which gambling devices or proceeds are = forfeited under=20 Article 18.18.  Further, the State contends, no search = warrant was=20 required in this case because the officers had consent to enter = the game=20 room, and the State demonstrated that it had probable cause to = seize the=20 property.  As we explain below, we agree with the = State.

A.     =20 The Hardy Case Does Not Hold that a Warrant is=20 Required

In=20 Hardy v. State, the State seized twenty eight-liner = machines while=20 executing a search warrant at the Hardys=3D = place of=20 business.  Id. at 124.  The Hardys filed a = petition for=20 the return of the machines, but after an evidentiary hearing, the = trial=20 court found that the seized eight-liners were illegal gambling = devices and=20 ordered their forfeiture.  Id. at 124-25.  The = court of=20 appeals affirmed the trial court=3Ds=20 judgment.  Id. at 125.  On review, the issues = before the=20 Supreme Court were (1) which party bears the burden of proof in a = civil=20 forfeiture proceeding involving alleged gambling devices, and (2) = whether=20 an eight-liner that awards tickets exchangeable for either gift=20 certificates or cash used for play on another machine satisfies = the=20 exclusion to the definition of Agambling=20 device@ = in=20 section 47.01(4)(B).  See id.

Addressing=20 the first issue concerning which party has the burden of proof, = the=20 Hardy Court began by explaining that a civil forfeiture = proceeding=20 under Chapter 18 of the Code of Criminal Procedure is an in rem = proceeding=20 against the property itself, not the owner, and does not involve = the=20 conviction of the owner or possessor of the property seized.  = Id. at 126B27. =20 The Court went on to explain:

A=20 forfeiture proceeding begins when the State presents an affidavit = to a=20 magistrate and ends after a show cause hearing in which the = magistrate=20 determines whether the seized property should be destroyed or=20 forfeited.  In order to initiate a forfeiture proceeding, the = State=20 must obtain a search warrant based on a sworn affidavit averring=20 Asufficient=20 facts ... to satisfy the issuing magistrate that probable cause = does in=20 fact exist for its issuance.@ =20 TEX. CODE CRIM. PROC. art. 18.01(b).  The affidavit = underlying the=20 search warrant is public information, and the = magistrate=3Ds clerk=20 must make a copy of the affidavit available for public = inspection. =20 Id.  After the magistrate issues the search warrant, = the State=20 executes the warrant by conducting a search and seizure of the=20 property.  Id. arts. 18.06, .09.

Id. = at=20 127.  This language was not a part of the holding of=20 Hardy.  It was simply a discussion of the procedures = generally=20 followed in a forfeiture action under Article 18.18. =20

In=20 resolving the issue before it, the Hardy Court=3Ds holding=20 was that, under the statutory scheme in Article 18, the = State=3Ds initial=20 burden is satisfied to the extent it establishes probable cause = for=20 seizing the person=3Ds=20 property.  Id. at 129.  The Court went on to = explain=20 that, A[o]nce the=20 State has established probable cause to initiate a forfeiture = proceeding,=20 the State has met its burden under article 18@ = and the=20 burden then shifts to the claimant to prove that the property is = not=20 subject to forfeiture under Article 18.18(f).[3] =20 Id.  The Hardy case did not purport to address = the=20 situation in which alleged contraband is seized without a warrant = and the=20 State subsequently seeks to have that contraband = forfeited.

Here, the=20 eight-liners and cash were properly recovered after the officers = entered=20 the business with Jasso=3Ds=20 voluntary consent.  See Gutierrez v. State, 221 S.W.3d = 680,=20 688 (Tex. Crim. App. 2007) (holding that consent exception to = warrant=20 requirement applied when appellant voluntarily consented to=20 officers=3D = entry and=20 search of home); State v. Haley, 811 S.W.2d 597, = 599B600 (Tex.=20 Crim. App. 1991) (employees gave investigator and officer consent = to enter=20 business, and contraband evidence was then properly seized under=20 Aplain=20 view@ = doctrine).  The consent exception to the warrant requirement = has been=20 applied in at least two cases involving earlier versions of the = statutes=20 covering the seizure and forfeiture of gambling devices.  = See=20 Meador v. State, 151 Tex. Crim. 53, 204 S.W.2d 628, 631 (1947) = (holding that lack of search warrant did not make evidence of = gambling=20 inadmissible when officers searched appellant=3Ds=20 residence with appellant=3Ds consent=20 or invitation); San Angelo Country Club v. State, 210 = S.W.2d 855,=20 857 (Tex. Civ. App.CAustin=20 1948, no pet) (holding seizure of gambling devices without search = warrant=20 was legal when custodian consented to officers=3D = entry by=20 voluntarily unlocking game room and showing officers the = machines).=20

Here,=20 Jasso does not dispute that he voluntarily consented to the=20 officers=3D = entry and=20 directed them to the back of the game room where customers were = playing=20 the eight-liner machines.  Thus, no warrant was required = because the=20 officers entered the game room with Jasso=3Ds=20 voluntary consent.

B.     =20 Neither Chapter 18 Nor Article 18.18(b) Mandate a Search=20 Warrant

Further,=20 we do not agree with Jasso and Emerald Coast that, under Article = 18.18(b),=20 the lack of a search warrant precludes the State from seeking the=20 forfeiture of illegal property.  Nothing in the language of = Chapter=20 18 or Article 18.18 mandates that the State obtain a warrant = before it may=20 initiate a forfeiture action, and to hold otherwise would be = contrary to=20 the intent and purpose behind the article.

1.      =20 Standard of Review

The=20 construction of a statute is a question of law, which we review de = novo.  F.F.P. Operating Partners, L.P. v. Duenez, 237 = S.W.3d=20 680, 683 (Tex. 2007).  In construing a statute, our primary = objective=20 is to determine the Legislature=3Ds intent,=20 which, when possible, we discern from the plain meaning of the = words=20 chosen.  State v. Shumake, 199 S.W.3d 279, 284 (Tex. = 2006);=20 see also State v. Silver Chevrolet Pickup 140 S.W.3d 691,=20 693B94 (Tex.=20 2004) (per curiam) (on review of civil forfeiture proceeding under = Texas=20 Code of Criminal Procedure Chapter 59, stating that the = Amost=20 important rule of statutory construction@ = is=20 Athat the=20 court must give effect to legislative intent@ = and the=20 principle that forfeitures are strictly construed does not prevent = a court=20 from considering the purpose of a statutory provision).  We = presume=20 that every word of a statute was used for a purpose, and, = likewise, that=20 every word excluded was excluded for a purpose.  Cameron = v.=20 Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. = 1981).  We=20 must consider the statute as a whole rather than its isolated=20 provisions.  Helena Chem. Co. v. Wilkins, 47 S.W.3d = 486, 493=20 (Tex. 2001); Cont=3Dl Cas.=20 Ins. Co. v. Functional Restoration Assocs., 19=20 S.W.3d 393, 398 (Tex. 2000).

In=20 determining legislative intent, we may examine old law, the evil = to be=20 corrected, and the object to be obtained.  Barshop v. = Medina=20 County Underground Water Conservation Dist., 925 S.W.2d 618, = 629 (Tex.=20 1996); see also Tex.=20 Gov=3Dt=20 Code ' = 311.023.  We presume the Legislature intended a just and = reasonable=20 result by enacting the statute.  Helena Chem. Co., 47 = S.W.3d=20 at 493; Tex.=20 Gov=3Dt=20 Code ' = 311.021(3).  Courts should not read a statute to create an = absurd=20 result.  Barshop, 925 S.W.2d at 629; = Bridgestone/Firestone,=20 Inc. v. Glyn-Jones, 878 S.W.2d 132, 135 (Tex. 1994) (Hecht, = J.,=20 concurring) (A[I]n some=20 circumstances, words, no matter how plain, will not be construed = to cause=20 a result the Legislature almost certainly could not have=20 intended.@);=20 McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691, 698 = (1955)=20 (AUnless=20 there is no alternative, a statute will not be interpreted so as = to lead=20 to a foolish or absurd result.@). =20 When a statute is silent about the consequences of noncompliance, = we look=20 to the statute=3Ds purpose=20 to determine the proper consequences.  Helena Chem. = Co., 47=20 S.W.3d at 494.

2.      =20 Chapter 18 and Article 18.18(b)

We=20 acknowledge that Chapter 18 contemplates the issuance of a search = warrant=20 and describes the procedures to be followed when a search warrant = is=20 sought to permit a law enforcement agency to seize certain = property or=20 persons.  See Tex.=20 Code Crim. Proc. art. 18.01 ( requirements for search = warrant);=20 art. 18.02 (grounds for issuance of search warrant); art. 18.04 = (contents=20 of warrant); art. 18.06 (execution of warrant); art. 18.09 = (directing=20 officer to search for and seize property and arrest persons as = directed by=20 the warrant and take the property or person to the = magistrate).  And,=20 Chapter 18 includes gambling devices and proceeds among the types = of=20 property that may be seized pursuant to a search warrant.  = See=20 id. art. 18.02(5) (AA search=20 warrant may be issued to search for and seize . . . gambling = devices or=20 equipment, altered gambling equipment, or gambling=20 paraphernalia.@). =20

Article=20 18.01 provides, A[n]o=20 search warrant shall issue for any purpose in this state unless = sufficient=20 facts are first presented to satisfy the issuing magistrate that = probable=20 cause does in fact exist for its issuance.@ =20 Id. art. 18.01(b).  This requirement is consistent = with the=20 Hardy court=3Ds holding=20 that, in a forfeiture action under Article 18.18, the State must = satisfy a=20 threshold burden to establish probable cause before the burden of = proof=20 shifts to the claimant of the property to demonstrate that the = property is=20 not subject to forfeiture.  See Hardy, 102 S.W.3d at=20 129B30. =20 This requirement also is consistent with the stated goals of our = search=20 warrant law, namely (1) to ensure that there is adequate probable = cause to=20 search, and (2) to prevent the mistaken execution of the warrant = against=20 an innocent third party.  See Bridges v. State, 574 = S.W.2d=20 560, 562 (Tex. Crim. App. 1978).  However, Chapter 18 = contains no=20 language requiring that a search warrant issue before property may = be=20 seized or persons may be arrested pursuant to its provisions, and = it does=20 not prohibit the forfeiture of property obtained through a proper = search=20 and seizure conducted without a warrant when the State has = demonstrated=20 probable cause.  Nor does Chapter 18 provide for any penalty = for=20 failing to obtain a warrant.

Similarly,=20 Article 18.18(b), in setting out the procedures to be followed in = a=20 forfeiture action when there is no prosecution or conviction = following the=20 seizure of property, imposes no warrant requirement on the = State.  We=20 acknowledge that Article 18.18(b) contains some language that = presupposes=20 the execution of a search warrant before the forfeiture proceeding = is=20 initiated.  See Tex.=20 Code Crim. Proc. art. 18.18(b) (providing that, when there = is no=20 prosecution or conviction following seizure, Athe=20 magistrate to whom the return was made shall notify in = writing the=20 person found in possession of the alleged gambling device . . . = [or]=20 gambling proceeds . . . to show cause why the property seized = should not=20 be destroyed or the proceeds forfeited@)=20 (emphasis added).  However, Article 18.18(b) contains no = language=20 requiring that a warrant have been executed before the State may = initiate=20 a forfeiture action.  Nor does it expressly prohibit the = State from=20 seeking forfeiture if no warrant was obtained or otherwise = penalize the=20 State for failing to obtain a warrant.  It merely sets out = the=20 procedures for notice and the opportunity for a hearing to allow = persons=20 who were not prosecuted for or convicted of one of the offenses = listed in=20 Article 18.18(a) to demonstrate that the property or proceeds = seized=20 should not be destroyed or forfeited.  See id. art. = 18.18(b)B(f);=20 State v. Dugar, 553 S.W.2d 102, 104 (Tex. 1977) = (determining=20 legislative intent to be that Article 18.18(b)B(f)=20 provide the authority for forfeitures in all cases not covered by = Article=20 18.18(a)); Burnom v. State, 55 S.W.3d 752, 753B54 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, no pet.) (applying reasoning of Dugar to = hold=20 that when property owner was convicted of an offense not = enumerated in=20 Article 18.18(a), the contraband may be forfeited under the = authority of=20 Article 18.18(b)).

The=20 apparent intent of the Legislature in enacting Chapter 18 was to = provide=20 for the seizure of certain illegal property and the arrest of = criminally=20 responsible persons through the use of a properly obtained search = warrant=20 to enforce the law and to protect the general public from criminal = enterprises.  Consistent with this intent, Article = 18.18 is=20 directed specifically to the disposition of gambling = paraphernalia,=20 prohibited weapons, criminal instruments, and other = contraband. =20 Under Article 18.18(a), if a person is convicted of possession of = a=20 gambling device or equipment (or one of the other enumerated = offenses),=20 the judgment of conviction is to be accompanied by an order that = the=20 related property be destroyed or forfeited to the State.  = See=20 Tex. Code Crim. = Proc.=20 art. 18.18(a).[4] =20 Article 18.18(b) authorizes the State to seek forfeiture of = illegal=20 gambling devices and proceeds even when no conviction of a person = is=20 obtained, but it provides a procedure by which the possessor of = the=20 alleged gambling devices or proceeds may demonstrate that the = property=20 should not be forfeited.  The intent reflected in these = provisions is=20 to remove from society the instrumentalities and proceeds of = criminal=20 enterprises.  See Dugar, 553 S.W.2d at 104 (broadly = construing=20 Article 18.18(b)B(f) to=20 apply to more situations than the literal language suggested, = because to=20 do otherwise Awould be=20 contrary to the basic premise of an in rem forfeiture proceeding = that,=20 while the possessor may not be guilty of any criminal offense, the = property seized is of such a nature that it should be destroyed or = confiscated by the State.@). =20 Further, the State is prevented from removing such property from = society=20 only when a person not convicted or prosecuted of an offense under = Article=20 18.18(a) is able to demonstrate that such property should not be = destroyed=20 or forfeited.  Nothing in Chapter 18, and more specifically = Article=20 18.18(b), reflects a legislative intent to deny the State the = ability to=20 seek forfeiture of allegedly illegal property merely because that = property=20 was properly obtained by a recognized exception to the general = requirement=20 of a search warrant.

To=20 construe Article 18.18(b) to preclude the State from seeking = forfeiture of=20 gambling devices in this case merely because the officers entered = with=20 voluntary consent rather than a search warrant would conflict with = a=20 legislative intent to authorize the State to confiscate or destroy = illegal=20 gambling devices and proceeds.  See Tex. Code Crim. Proc. = art.=20 18.18; Dugar, 553 S.W.2d at 104 (rejecting narrow = interpretation of=20 Article 18.18(b)B(f) to=20 apply only to situations where there is no conviction for any = offense=20 because then funds that were clearly gambling proceeds could not = be=20 forfeited solely because the State obtained a conviction for an = offense=20 that was not among those listed in Article 18.18(a)).  = Indeed, not=20 only would such a conclusion conflict with the legislative intent = of the=20 article, it would produce an absurd result, because it would = require=20 officers to obtain a search warrant when none was required solely = to=20 preserve the State=3Ds ability=20 in the future to seek forfeiture of the illegal property in the = event the=20 possessor of the property is not convicted of an offense under = Article=20 18.18(a) or any offense at all.  We are to avoid construing a = statute=20 to create an absurd result.  See Barshop, 925 S.W.2d = at 629;=20 Bridgestone/Firestone, Inc., 878 S.W.2d at 135 (Hecht, J.,=20 concurring); McKinney, 282 S.W.2d at = 698.

Therefore,=20 we conclude that the Legislature did not intend to preclude the = State from=20 seeking forfeiture of gambling devices and proceeds under Article = 18.18(b)=20 when the property was seized after the officers obtained the=20 possessor=3Ds=20 voluntary consent to enter and the possessor directed the officers = to the=20 gambling devices.  See Gutierrez, 221 S.W.3d at 688;=20 Haley, 811 S.W.2d at 599B600;=20 Meador, 204 S.W.2d at 631; San Angelo Country Club, = 210=20 S.W.2d at 857; see also State v. Rumfolo, 545 S.W.2d 752, = 755 (Tex.=20 1976), disapproved on other grounds by Hardy v. State, 102 = S.W.3d=20 123 (Tex. 2003) (in action by State for forfeiture of gambling = proceeds=20 under Article 18.18(b), holding trial court had sufficient = evidence before=20 it to conclude there was probable cause for arrests and subsequent = searches even though search warrant was not in evidence). =20

C.     =20 The State Demonstrated Probable Cause

Jasso and=20 Emerald Coast argue that, because there was no search warrant, = there=20 cannot, as a matter of law, be probable cause for the seizure of = the game=20 machines and cash.  However, as we have already held, a = search=20 warrant was not required because the officers entered the game = room where=20 the machines were located with Jasso=3Ds=20 voluntary consent.  Although Jasso and Emerald Coast do not = otherwise=20 challenge whether the State established probable cause, we agree = with the=20 trial court that the State established probable cause in this = case.=20  

After the=20 eight-liners and cash were properly recovered, the State then = sought,=20 through its original petition and affidavit, to have that property = forfeited.  As the Hardy court held, in a forfeiture = action=20 under Article 18, the State must satisfy its threshold burden to = establish=20 probable cause before the burden of proof shifts to the claimant = of the=20 property to demonstrate that the property is not subject to=20 forfeiture.  See Hardy, 102 S.W.3d at 129B30. =20 Probable cause is a reasonable belief that a substantial = connection exists=20 between the property to be forfeited and the criminal activity = defined by=20 the statute.  Id. at 129 (citations omitted).  It = is that=20 link, or nexus, between the property to be forfeited and the = statutorily=20 defined criminal activity that establishes probable cause, without = which=20 the State lacks authority to seize a person=3Ds=20 property.  Id. (citations omitted). =

Assistant=20 Chief Bates said he was told by the Chief of Police at the Jacinto = City=20 Police Department that an illegal gambling operation was being run = at a=20 location on Federal Road in Galena Park.  When Bates went to = the=20 location, which was a game room known as AAbel=3Ds Game=20 Room,@he found=20 the front door open but the burglar bar door shut and = locked.  Chief=20 Pruett, who accompanied Bates, called for someone to come to the = door, and=20 Jasso and an employee of the game room approached the door.  = When=20 asked what was going on inside, Jasso stated that he was running a = game=20 room.  Pruett then asked if they could come in, and Jasso and = the=20 employee unlocked the burglar bars and  allowed them to = enter. =20 Jasso then led the officers to the back where approximately twelve = patrons=20 were playing the eight-liner machines.  In his affidavit, = Bates=20 stated that this was a gambling offense as defined in Chapter 47 = of the=20 Texas Penal Code.  The officers also found $9,049.00 in U.S. = currency=20 in the eight-liners and other places at the location.  Bates=20 testified at the hearing that he and Pruett interviewed some of = the=20 patrons, who told the officers that they were being paid in cash,=20 sometimes as much as $500.00.  They also stated that they = would win=20 prizes including a 42-inch plasma TV, computers, and CD = players. =20 Once the patrons told him they had been paid in cash of more than = five=20 dollars, Bates believed the machines were gambling devices. =

Assistant=20 Chief Bates established a substantial connection between the = property to=20 be forfeited and the criminal activity defined by the statute, in = his=20 affidavit and through his testimony at the hearing, thereby = establishing=20 probable cause for the State to seize the eight-liners and the = cash. =20 Further, Jasso and Emerald Coast do not claim that the gaming = machines and=20 cash seized are not gambling devices and proceeds.  = Therefore, the=20 trial court did not err in ordering forfeiture of the = property.

Conclusion

We=20 overrule appellants=3D = issue and=20 affirm the judgment of the trial court.

 

/s/     =20 Wanda McKee Fowler

Justice

 

Judgment=20 rendered and Opinion filed August 19, 2008.

Panel=20 consists of Justices Fowler, Frost, and Seymore.


[1]  The Texas Penal Code defines a = Agambling device@ as:

 

any electronic, electromechanical, or = mechanical=20 contrivance not excluded under Paragraph (B) that for a = consideration=20 affords the player an opportunity to obtain anything of value, the = award=20 of which is determined solely or partially by chance, even though=20 accompanied by some skill, whether or not the prize is = automatically paid=20 by the contrivance.  The term:

(A) includes, but is not limited to, = gambling=20 device versions of bingo, keno, blackjack, lottery, roulette, = video poker,=20 or similar electronic, electromechanical, or mechanical games, or=20 facsimiles thereof, that operate by chance or partially so, that = as a=20 result of the play or operation of the game award credits or free = games,=20 and that record the number of free games or credits so awarded and = the=20 cancellation or removal of the free games or credits;  = and

(B) does not include any electronic,=20 electromechanical, or mechanical contrivance designed, made, and = adapted=20 solely for bona fide amusement purposes if the contrivance rewards = the=20 player exclusively with noncash merchandise prizes, toys, or = novelties, or=20 a representation of value redeemable for those items, that have a=20 wholesale value available from a single play of the game or device = of not=20 more than 10 times the amount charged to play the game or device = once or=20 $5, whichever is less.

 

Tex. Penal = Code=20 ' 47.01(4).

[2]  The October 23 = order also=20 contained findings of fact and conclusions of law.  The trial = court=20 found, among other things, that the testimony offered at the = hearing was=20 credible, that Jasso freely and voluntarily permitted the police = officers=20 to enter the premises, and the evidence presented supported the = factual=20 allegations in the State=3Ds original petition = for=20 forfeiture as to the nature and character of the eight-liners and = the=20 currency seized.  In its conclusions of law, the trial court=20 concluded, among other things, that Jasso freely and voluntarily = consented=20 to the request by Chief Pruett to enter the premises, that the = devices and=20 currency were lawfully seized, and that the State proved by a=20 preponderance of the evidence that the thirty-seven eight-liners = were=20 gambling devices and the currency constituted gambling proceeds.=20

[3]  Article 18.18(f) = provides:

 

If a person timely appears to show cause = why the=20 property or proceeds should not be destroyed or forfeited, the = magistrate=20 shall conduct a hearing on the issue and determine the nature of = property=20 or proceeds and the person's interest therein.  Unless the = person=20 proves by a preponderance of the evidence that the property or = proceeds is=20 not gambling equipment, altered gambling equipment, gambling=20 paraphernalia, gambling device, gambling proceeds, prohibited = weapon,=20 obscene device or material, child pornography, criminal = instrument,=20 scanning device or re‑encoder, or dog‑fighting = equipment and that he is=20 entitled to possession, the magistrate shall dispose of the = property or=20 proceeds in accordance with Paragraph (a) of this = article.

 

Tex.=20 Code Crim. Proc. art.=20 18.18(b).

[4]  Article 18.18 provides as=20 follows:

 

(a) Following the final conviction of a = person for=20 possession of a gambling device or equipment, altered gambling = equipment,=20 or gambling paraphernalia, for an offense involving a criminal = instrument,=20 for an offense involving an obscene device or material, for an = offense=20 involving child pornography, or for an offense involving a = scanning device=20 or re‑encoder, the court entering the judgment of conviction = shall order=20 that the machine, device, gambling equipment or gambling = paraphernalia,=20 instrument, obscene device or material, child pornography, or = scanning=20 device or re‑encoder be destroyed or forfeited to the = state.  Not=20 later than the 30th day after the final conviction of a person for = an=20 offense involving a prohibited weapon, the court entering the = judgment of=20 conviction on its own motion, on the motion of the prosecuting = attorney in=20 the case, or on the motion of the law enforcement agency = initiating the=20 complaint on notice to the prosecuting attorney in the case if the = prosecutor fails to move for the order shall order that the = prohibited=20 weapon be destroyed or forfeited to the law enforcement agency = that=20 initiated the complaint.  If the court fails to enter the = order=20 within the time required by this subsection, any magistrate in the = county=20 in which the offense occurred may enter the order.  Following = the=20 final conviction of a person for an offense involving dog = fighting, the=20 court entering the judgment of conviction shall order that any=20 dog‑fighting equipment be destroyed or forfeited to the = state. =20 Destruction of dogs, if necessary, must be carried out by a = veterinarian=20 licensed in this state or, if one is not available, by trained = personnel=20 of a humane society or an animal shelter.  If forfeited, the = court=20 shall order the contraband delivered to the state, any political=20 subdivision of the state, or to any state institution or = agency.  If=20 gambling proceeds were seized, the court shall order them = forfeited to the=20 state and shall transmit them to the grand jury of the county in = which=20 they were seized for use in investigating alleged violations of = the Penal=20 Code, or to the state, any political subdivision of the state, or = to any=20 state institution or agency.

 

Tex.=20 Code Crim. Proc. art. = 18.18(a).

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