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NUMBER 13-01-464-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
ROBERT SANCHEZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 1
of Nueces County, Texas.
O P I N I O N
Before Justices Dorsey, Hinojosa, and Yañez
Opinion by Justice Dorsey
Appellant, Robert Sanchez, was charged by Information with five gambling offenses. Specifically, he was charged with:
1) intentionally or knowingly operating or participating in the earnings of a gambling place,
2) for gain, intentionally or knowingly becoming a custodian of anything of value bet or offered to be bet,
3) knowingly using or permitting another to use as a gambling place . . . . property owned by him . . . . ,
4) with the intent to further gambling, knowingly . . . . possessing any gambling device. . . . ,
5) with the intent to further gambling, knowingly . . . . possessing gambling paraphernalia.
Tex. Pen. Code '' 47.03(a)(1),(3), 47.04(a), 47.06(a),(c) (West 2000).
After the presentation of evidence, the trial court granted Sanchez's motion for instructed verdict of not guilty on all counts except for the violation of the second offense listed, ' 47.03(a)(3). Tex. Pen. Code ' 47.03(a)(3) (West 2000). The jury found Sanchez guilty of that offense and he was sentenced to one year in jail, probated, and was ordered to pay a $1000 fine, court costs, probation fees, and to perform eighty hours of community service. The court denied Sanchez's motion for a new trial. By two points of error, Sanchez contends that the trial court erred in entering judgment finding him guilty of violating ' 47.03(a)(3). See Tex. Pen. Code ' 47.03(a)(3) (West 2000). We reverse and render a judgment of acquittal.
Facts
Officer Steven Richard Day, with the Corpus Christi Police Department, visited Slots of Luck at 5410 Everhart Drive, Corpus Christi, Texas during the course of an undercover investigation into illegal gambling. Slots of Luck housed thirty eight-liner machines and sold food and drinks to customers. Officer Day played several of the eight-liner machines in Slots of Luck and determined that they met the criteria for illegal gambling devices and obtained a warrant to seize the machines and other evidence of gambling. A bank deposit book from the First Community Bank of Corpus Christi styled ARobert G. Sanchez, Jr., Slots of Luck@ was found during the search and the bank account was determined to belong to Appellant. Sanchez does not own the building where Slots of Luck was located nor does he own the machines that were seized. Sanchez was not present at the beginning of the warrant execution but arrived during the search after an employee of Slots of Luck called him. Sanchez was arrested upon his arrival to the scene for multiple gambling offenses.
Analysis
By his first issue, Sanchez argues that the evidence was legally and factually insufficient to sustain his conviction for gambling promotion.
A legal sufficiency challenge requires us to question whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 (1979).
Sanchez was found guilty of violating ' 47.03(a)(3), which prohibits becoming a custodian of anything of value bet or offered to be bet. Tex. Pen. Code ' 47.03(a)(3) (West 2000). A bet is defined by the Texas Penal Code as an agreement to win or lose something of value solely or partially by chance. Tex. Pen. Code ' 47.01(1) (West 2000). Black's Law Dictionary defines Acustodian@ as anyone who has charge or custody of property, papers, etc. and defines Acustody@ as the care and control of a thing. Black's Law Dictionary 347 (5th ed. 1979).
In the State's oral argument, counsel argued that Sanchez became custodian of the money when customers of Slots of Luck placed it in the eight-liner machines. The machines were shown to operate solely by chance; therefore, the customers were in fact placing bets with the money that they put in the machines. However, it was never proven that Sanchez owned these machines nor was it proven that he owned the building in which the machines were operated or that he managed Slots of Luck. 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 the 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 Acustodian@ 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. Jackson, 443 U.S. at 318.
In Burks v. United States and Greene v. Massey, the Supreme Court held that retrial is barred after an appellate determination of insufficient evidence. Burks v. United States, 437 U.S. 1, 18 (1978); Greene v. Massey, 437 U.S. 19, 24 (1978). Thus, the remedy for a finding of legally insufficient evidence on appeal is acquittal. Gollihar v. State, 46 S.W.3d 243, 246 n.4 (Tex. Crim. App. 2001).
Sanchez also challenges the factual sufficiency of the evidence. Because the evidence is legally insufficient, we need not determine whether the evidence is factually sufficient. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996).
By his second issue, Sanchez argues that the trial court erred in overruling his objection when the prosecutor commented on his failure to testify. Because of our disposition on the first point of error, it is not necessary to discuss the second point of error. Tex. R. App. P. 47.1.
We REVERSE the trial court's judgment and RENDER a judgment of acquittal. Tex. R. App. P. 43.2(c); Burks, 437 U.S. at 18; Greene, 437 U.S. at 24.
______________________________
J. BONNER DORSEY,
Justice
Do not publish.
Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 22nd day of August, 2002.