Comment

Texas Penal Code chapter 47 has five distinct sections providing different offenses concerning gambling. This chapter includes instructions for the misdemeanor offenses of gambling under Tex. Penal Code § 47.02(a)(1) and (3) and gambling promotion under Tex. Penal Code § 47.03(a)(1). The Committee has not included instructions for keeping a gambling place, communicating gambling information, or possession of gambling devices, equipment, or paraphernalia.

Three defenses to the offense of gambling are contained in section 47.02. Furthermore, section 47.09 provides three additional defenses that apply to all gambling offenses listed in chapter 47. Many of the defenses involve participation in the state lottery or other activities permitted under various statutes, such as bingo or charitable raffles. Only a select number of defenses are included in this chapter. The Committee agreed that including all the defenses in the pattern jury instruction would make the instruction cumbersome and likely unhelpful given that the defenses are seldom invoked.

The instructions for gambling under section 47.02(a)(1) and (3) include two of the more likely defenses—private gambling and playing with a nongambling device.

Applying Culpable Mental State Requirement. Tex. Penal Code § 47.02 supplies no culpable mental state for the offense of gambling. Under Tex. Penal Code § 6.02, if the definition of an offense does not prescribe a culpable mental state, then intent, knowledge, or recklessness suffices to establish criminal responsibility. Section 6.03(c) makes no provision for applying recklessness to the conduct constituting a crime, and the Committee was confident the required culpable mental state applies to the conduct—making a bet. Consequently, the Committee decided the legislature did not intend recklessness to apply to this offense. Accordingly, the instruction provides the accused must have acted intentionally or knowingly.

Affirmative Defense Created by Section 47.09. Tex. Penal Code § 47.09 provides one affirmative defense for offenses under section 47.04, 47.05, and 47.06. The affirmative defense deals with ocean-going vessels upon which gambling activities are conducted. Under section 2.04(c), the affirmative defense is not submitted to the jury unless evidence is admitted supporting the defense. Further, if the affirmative defense is submitted, the defendant must prove the affirmative defense by a preponderance of the evidence. The Committee decided not to draft an instruction for the affirmative defense provided in section 47.09(b) related to ocean-going vessels because the defense is seldom raised and limited in its application. For example, the ocean-going vessel affirmative defense is unavailable to a person charged with gambling under section 47.02 or gambling promotion under section 47.03. See Tex. Penal Code § 47.09(b).

Evidence and Testimonial Immunity. Two sections in chapter 47 deal with evidentiary matters in gambling prosecutions. Section 47.07 appears to relax the burden on the state to show that a sporting event, which gave rise to the culpable gambling conduct, actually occurred. Section 47.08 essentially bars the state from offering testimony by the defendant, when the defendant testifies about the gambling activity. For example, if the defendant testifies that he was present during an illegal poker tournament, the state cannot use that testimony in the prosecution against him.