The state accuses the defendant of having committed the offense of gambling.

Relevant Statutes

A person commits the offense of gambling if the person intentionally or knowingly makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest.

Definitions

Intentionally Makes a Bet

“Intentionally makes a bet” means making a bet with the conscious objective or desire to make a bet.

Knowingly Makes a Bet

“Knowingly makes a bet” means making a bet with awareness one is making a bet.

Bet

“Bet” means an agreement to win or lose something of value solely or partially by chance.

[Include the following if raised by the evidence.]

A bet does not include—

1. contracts of indemnity or guaranty or life, health, property, or accident insurance;
2. an offer of a prize, award, or compensation to the actual contestants in a bona fide contest for the determination of skill, speed, strength, or endurance or to the owners of animals, vehicles, watercraft, or aircraft entered in a contest; or
3. an offer of merchandise, with a value not greater than $25, made by the proprietor of a bona fide carnival contest conducted at a carnival sponsored by a nonprofit religious, fraternal, school, law enforcement, youth, agricultural, or civic group, including any nonprofit agricultural or civic group incorporated by the state before 1955, if the person to receive the merchandise from the proprietor is the person who performs the carnival contest.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, two elements. The elements are that—

1. the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly made a bet; and
2. the bet was [on the partial or final result of a game or contest [insert specific allegations, e.g., specifically that Baylor would beat the University of Texas in the football game to be played on November 12, 2015]/on the performance of a participant in a game or contest [insert specific allegations, e.g., specifically that the Baylor quarterback would throw five touchdown passes in the November 12, 2015, football game against the University of Texas]].

You must all agree on elements 1 and 2 listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, either of the two elements listed above, you must find the defendant “not guilty.”

[Select one of the following.]

If you all agree the state has proved, beyond a reasonable doubt, both of the elements listed above, you must find the defendant “guilty.”

[or]

If you all agree the state has proved, beyond a reasonable doubt, both of the elements listed above, you must next consider whether the defendant is not guilty because of the defense of [insert defense, e.g., private gambling].

[Include the following if raised by the evidence.]

Private Gambling

It is a defense to gambling that—

1. the actor engaged in gambling in a private place;
2. no person received any economic benefit other than personal winnings; and
3. except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Burden of Proof

The defendant is not required to prove that the defense of private gambling applies to this case. Rather, the state must prove, beyond a reasonable doubt, that the defense does not apply.

Definitions

Private Place

“Private place” means a place to which the public does not have access and excludes, among other places, streets, highways, restaurants, taverns, nightclubs, schools, hospitals, and the common areas of apartment houses, hotels, motels, office buildings, transportation facilities, and shops.

Application of Law to Facts

To decide the issue of private gambling, you must determine whether the state has proved, beyond a reasonable doubt, that
either—

1. the defendant was not engaged in gambling in a private place;
2. at least one person received an economic benefit other than personal winnings; or
3. except for the advantage of skill or luck, the risks of losing and the chances of winning were not the same for all participants.

You must all agree that the state has proved one or more of elements 1, 2, or 3 listed above. You need not agree on which of these elements the state has proved.

If you find that the state has failed to prove, beyond a reasonable doubt, any of elements 1, 2, or 3 listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of gambling, and you all agree the state has proved, beyond a reasonable doubt, one of the three elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]