The State of Texas v. 5 Gambling MacHines

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-24-00011-CV

THE STATE OF TEXAS, Appellant

V.

5 GAMBLING MACHINES, Appellees

On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CV-23-46217

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice Rambin
Chief Justice Stevens dissenting without opinion
MEMORANDUM OPINION

Following a post-seizure show-cause hearing,1 the trial court determined that five devices

seized from a Fannin County convenience store are not gambling devices as that term is defined

in Section 47.01(4) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 47.01(4).

The parties to the show-cause hearing were the State, Appellant, and the Appellees,

S&M, Inc., the owner and operator of Quick Stop Food Store in Savoy, Texas; POM of Texas

LLC, Inc., the “software manufacturer” of the seized machines (referred to as Pace-O-Matic or

“Pace”); and Republic Amusements, LLC, the Texas “operator” for Pace. We refer to Appellees,

collectively, as Pace.

The trial court made its ruling via thirty-four findings of fact and twenty-one conclusions

of law. As a result of those findings and conclusions, the trial court ordered the return of the

devices themselves, as well as the return of cash seized at the same time as the devices.

Via a consolidated brief, the State appeals.2

The State’s brief, however, does not contain a standard of review. 3 As shown below, a

trial court’s findings of fact are reviewed with deference. Nor does the State specify which

particular finding(s) it challenges. Generally, this must be done.4

1
See TEX. CODE CRIM. PROC. ANN. art. 18.18(f); Hardy v. State, 102 S.W.3d 123, 127 (Tex. 2003).

2
The State initially filed two separate forfeiture proceedings (one regarding the devices, and the other, the proceeds)
each citing both Chapter 59 and Article 18.18 of the Texas Code of Criminal Procedure. A third case was brought
by the parties who are now Appellees. That case sought the return of the seized devices and proceeds. The trial
court heard all three cases together. Accordingly, we issue this opinion, as well as opinions in our cause numbers
06-24-00012-CV and 06-24-00013-CV. Since the State only challenges the element of a gambling device under
Article 18.18, we will limit our review in all cause numbers to Article 18.18.

2
Given the deferential standard of review, we affirm.

I. Review of the Trial Court’s Factual Findings

The State asserts that “[t]he trial court erred in finding that the devices seized were not

gambling devices and the cash seized did not constitute proceeds from gambling.”

A. Standard of Review

“If a case proceeds to a bench trial and the trial court enters findings of fact . . . appellate

courts defer to the trial court’s findings of fact—so long as they are supported by the

record . . . .” Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020).

The trial court heard the evidence in person. We did not. That matters. See Ad Villarai,

LLC v. Chan Il Pak, 519 S.W.3d 132, 135 n.1 (Tex. 2017) (per curiam) (noting the “practical

concerns” presented if fact-findings are made by a trial judge who did not hear the evidence,

observing: “it ‘would be impossible for a judge who had not heard the testimony to express in

the form of conclusions of fact the impression which the conflicting evidence made upon the

mind of one who heard it’” (quoting Storrie v. Shaw, 75 S.W. 20, 21–22 (1903))).

3
The absence of a standard of review in the State’s brief means that the State’s arguments are untethered from a
standard of review. As a result, were we to consider the State’s arguments, this Court would be put in the position
of surmising for the State how the arguments relate to a standard of review that the State did not provide. That said,
briefing waiver is disfavored: “we have instructed the courts of appeals to construe the Rules of Appellate
Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely
necessary to effect the purpose of a rule.” Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015)
(quoting Republic Underwriters Ins. Co. v Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004)).
4
As with the absence of a standard of review, the absence of a challenge to specified finding(s) puts the Court in the
position of surmising the true nature of the State’s appeal. Generally, “an appellant challenging the sufficiency of
the evidence offered in a nonjury trial must challenge specific findings of fact.” Boucher v. Thacker, 609 S.W.3d
206, 216 (Tex. App.—Texarkana 2020, no pet.) (quoting Green v. Alford, 274 S.W.3d 5, 17 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied)). However, “a challenge to an unidentified finding of fact may be sufficient if the
reviewing court—after giving consideration to the number of findings, the nature of the case, and the underlying
elements of the applicable legal theories—can fairly determine from the argument the specific finding being
challenged.” Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 534 S.W.3d 558, 582
(Tex. App.—San Antonio 2017), aff’d by 593 S.W.3d 324 (Tex. 2020).
3
By their nature, findings of fact are the trial court’s resolution of conflicting testimony:

“fact findings are not necessary when the matters in question are not disputed.” Id. at 135

(quoting Barker v. Eckman, 213 S.W.3d 306, 310 (Tex. 2006)).

Accordingly, “[a] trial court’s findings of fact issued after a bench trial have the same

weight, and are judged by the same appellate standards, as a jury verdict.” Tex. Outfitters Ltd.,

LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019). That being so, the standard of review is as

follows:

Evidence is legally insufficient to support a [trial court’s fact]finding when (1) the
record bears no evidence of a vital fact; (2) the court is barred by rules of law or
of evidence from giving weight to the only evidence offered to prove a vital fact;
(3) the evidence offered to prove a vital fact is no more than a mere scintilla; or
(4) the evidence conclusively establishes the opposite of a vital fact. When
determining whether legally sufficient evidence supports a finding, we must
consider evidence favorable to the finding if the factfinder could reasonably do so
and disregard evidence contrary to the finding unless a reasonable factfinder
could not.

Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017) (footnote omitted) (citation

omitted).

B. Analysis Regarding the Devices

The trial court made factual findings applying Section 47.01 of the Texas Penal Code.

Under Section 47.01, a “[g]ambling device” is defined as:

any electronic, electromechanical, or mechanical contrivance . . . 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.

4
TEX. PENAL CODE ANN. § 47.01(4).5

1. Trial Court Findings Regarding Skillful Play of “Follow Me”

We begin with the trial court’s findings that a skillful player can recover 105% of the

consideration paid to play by use of the “Follow Me” mode of game play:

15. . . . . [T]he player is always offered the opportunity to continue
gameplay through the “Follow Me” feature of the game.

16. Every session of “Follow Me” is capable of being played
successfully. . . . A skillful player can win Follow Me every single time it is
played. . . . [A] skillful player will win every time.

....

23. With skillful play, a player will be awarded a prize, with said prize
value greater than the consideration, on fully 100% of games played.

As set forth above, we review the trial court’s factual findings with deference. These

findings are supported by the record.

The findings of the trial court and the testimony in the record focus our attention on

“Follow Me.” In broad strokes, the devices at issue are video consoles involving three modes of

play: base, bonus, and “Follow Me.” The trial court heard considerable testimony regarding all

the permutations of the base and bonus modes. We do not recount those permutations here. This

is because the trial court found in findings of fact 14 and 15 that a skillful player can play the

base and bonus modes “optimally” and still recover less than 105% of the consideration paid to

play. Indeed, the trial court found that the “Follow Me” mode is contingent on the outcome of

the “base” and “bonus” modes. The finding regarding what triggers “Follow Me” is supported

5
This statute also has listed inclusions and exclusions which are not contended to apply to the devices at issue here.
See TEX. PENAL CODE ANN. § 47.01(4)(A), (B).
5
by the record. Dr. Olaf Vancura, Pace’s expert, testified that the “Follow Me” mode is initiated

based on the result of the base and bonus modes: “if you play the puzzle without error and you

haven’t yet won 105 percent then you are just given the opportunity to play Follow [M]e.”

“Follow Me” is a pattern-repetition game involving memorizing and repeating twenty

sequences increasing to twenty lit circles. The process can take nine minutes or more. Andrew

Camplen, a supervisor of the Pace compliance team, testified the “Follow Me” sequence does not

change as it increases, and a player can write down the sequence for “Follow Me.” Camplen

testified that “every time you play you can win 105 percent guaranteed.” Vancura testified that

“Follow [M]e,” if successfully completed, “tops you off at 105 percent” so that “there is always a

way to win[,] to get back 105 percent of what you put in as consideration.”

Thus, the record supports the trial court’s findings that the effect of “Follow Me” is that

the award of something of value, namely 105% of the consideration paid to play, is determined

by skill.

The State effectively concedes as much regarding “Follow Me” itself. The State candidly

admits that “[p]laying ‘Follow Me’ makes it possible for the player who lost credits [in other

game modes] to win back that amount, plus an additional five percent.” The State argues as

follows:

[Pace’s] assertion is that because Follow Me is completely a skill-based game it
renders the device to not be a gambling device. This premise would perhaps be
true if the device presented only the game Follow Me, but it does not operate that
way, nor did [Pace’s] designers intend for it to be played in that fashion.

(Emphasis added).

The dispute, therefore, turns to the role of “Follow Me” in the game as a whole.
6
2. Trial Court Findings that a Skillful Player Will Win Every Play of the
Game

The analysis above focused on the trial court’s findings regarding the “Follow Me” mode

of game play. The trial court also made fact-findings regarding the role of “Follow Me” in the

game as a whole. That can be seen by revisiting the findings above, as well as findings 15, 16,

and 19 through 23:

15. . . . . [T]he player is always offered the opportunity to continue
gameplay through the “Follow Me” feature of the game.

16 Every session of “Follow Me” is capable of being played
successfully. . . . A skillful player can win Follow Me every single time it is
played. . . . This feature removes chance from the award of a prize and ensures
that a skillful player will win every time.

....

19. At the hearing, the State provided no evidence that, in playing the
Seized Games, the award of a prize is determined solely or partially by chance.

20. . . . [F]or a skillful player, chance is entirely eliminated in the
determination of whether to award a prize . . . .

21. A single game play on the Seized Games comprises multiple
components . . . .

22. The game affords all players the ability to win more than the cost
to play on each and every play of the game.

23. With skillful play, a player will be awarded a prize, with said prize
value greater than the consideration, on fully 100% of games played.

(Emphasis added).

Those findings are supported by the record. The trial court heard testimony from

Camplen and Vancura that all the game’s modes should be considered as a whole, and that, for a

7
skillful player, every play of the game is guaranteed to result in recovery of 105% of the amount

paid to play. The following exchange summarizes Vancura’s testimony: “Is chance present in

the determination of whether to award a prize to the skillful player? A. No.” The trial court, by

its findings, chose to credit that testimony.

As discussed at the outset, the State did not provide a standard of review. As a result, the

State makes no argument that, under the standard of review, other evidence conclusively

establishes the opposite of the testimony relied on by the trial court.

Similarly, the State hints at, but does not request, a construction of Section 47.01.6 As

noted above, we show lenience to the State regarding failure to brief the standard of review and

failure to identify which particular finding(s) it challenges. But there comes a point at which “it

is not our duty to review the record, research the law, and fashion a legal argument for an

appellant when he fails to do so.” Birnbaum v. CSD Van Zandt, LLC, No. 12-23-00282-CV,

2024 WL 2798849, at *2 (Tex. App.—Tyler May 31, 2024, pet. denied) (mem. op.) (citing

Zhang v. Cap. Plastic & Bags, Inc., 587 S.W.3d 82, 90 (Tex. App.—Houston [14th Dist.] 2019,

pet. denied)). Statutory construction can involve the balancing, and hopefully harmonization, of

concepts in tension. See Malouf v. State ex rel. Ellis, 694 S.W.3d 712, 730 (Tex. 2024) (noting

that courts may consider the purpose of a statute, but at the same time, the courts should not look

beyond the text of the statute). The meaning of mundane words can be elusive. Id. at 725

6
Absent from the State’s brief are: “construe,” “construction,” and “ambiguous.” Instead, the State bases its
argument on “the plain and ordinary meaning” of the words of Section 47.01(4). The State points to “Tex. A.G. Op.
KP-0245 (Feb. 6, 2023).” Tex. Att’y Gen. Op. No. KP-0245 (2023). That opinion cautions that, “[b]ecause it
involves the resolution of fact questions, we do not opine on whether a particular amusement machine constitutes a
gambling device.” Id. We are mindful of that caution. The State, though, does not take that caution into account by
addressing how that opinion is impacted by the trial court’s fact-findings made regarding the “particular amusement
machine[s]” in this case. Id.
8
(“[W]e cannot tell solely from the word itself whether ‘and’ is used in the joint sense or the

distributive sense.”). This is a civil in rem forfeiture proceeding based on a provision of the

Texas Penal Code that could be used for criminal prosecution. We additionally note, then, that

“[t]he Court of Criminal Appeals has emphasized that an appellate court has no obligation to

construct and compose issues, facts, and arguments for an appellant.” Bierwirth v. State, No. 03-

17-00314-CR, 2019 WL 577154, at *4 (Tex. App.—Austin Feb. 13, 2019, pet. ref’d) (mem. op.,

not designated for publication) (citing Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App.

2017)). We, therefore, do not construe Section 47.01(4).

Because evidence supports the trial court’s factual findings, we defer to them. Given the

deferential standard of review, we affirm the trial court’s findings regarding the overall nature of

the devices.

C. Analysis Regarding Cash Proceeds

The trial court entered a fact-finding that the seized cash proceeds at issue are not

proceeds of gambling activities:

The State did not present any evidence that the Seized Funds were proceeds of
gambling. The State did not trace the Seized Funds to any act of gambling. The
Movants presented evidence to the contrary and demonstrated that the Seized
Funds were not proceeds of gambling.

The State admits that the cash proceeds seized are not gambling proceeds if the seized

machines are not gambling devices. In light of the trial court’s fact-findings regarding the nature

of the devices, which we affirm, and given the State’s concession that the nature of the devices

9
dictates the outcome regarding the seized cash proceeds, we affirm the trial court’s finding of

fact that the seized cash proceeds are not gambling proceeds.7

II. Conclusion

Based on the circumstances of this case—the evidence presented to the trial court, the

factual findings of the trial court, the issue presented on appeal, and the deferential standard of

review—we affirm the challenged factual findings of the trial court.

We affirm the trial court’s judgment.

Jeff Rambin
Justice

Date Submitted: October 9, 2024
Date Decided: April 30, 2025

STEVENS, C.J., dissents without opinion.

7
Having affirmed the trial court’s fact-findings regarding the devices and the proceeds, we need not and do not
address the State’s second issue regarding whether there was probable cause for the seizure.
10