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 plays and bets for money or other thing of value at any game played with cards, dice, balls, or any other gambling device.

Definitions

Intentionally Play and Bet

“Intentionally play and bet” means playing and betting with the conscious objective or desire to play and bet.

Knowingly Play and Bet

“Knowingly play and bet” means playing and betting with awareness that one is playing and betting.

Thing of Value

“Thing of value” means any benefit, but does not include an unrecorded and immediate right of replay not exchangeable for value.

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.

Gambling Device

“Gambling device” means any electronic, electromechanical, or mechanical contrivance not excluded under the second paragraph below 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. The term—

1. includes, but is not limited to, gambling device versions of bingo, keno, blackjack, lottery, roulette, video poker, or similar electronic, electromechanical, or mechanical games, or facsimiles thereof, that operate by chance or partially so, that as a result of the play or operation of the game award credits or free games, and that record the number of free games or credits so awarded and the cancellation or removal of the free games or credits; and
2. does not include any electronic, electromechanical, or mechanical contrivance designed, made, and adapted solely for bona fide amusement purposes if the contrivance rewards the player exclusively with noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items, that have a wholesale value available from a single play of the game or device of not more than ten times the amount charged to play the game or device once or $5, whichever is less.

Application of Law to Facts

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

1. the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly played and bet;
2. the bet was for money or anything of value; and
3. the playing was at a game played with cards, dice, balls, or any other gambling device [insert specific allegations, e.g., specifically a poker game played with cards].

You must all agree on elements 1, 2, and 3 listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of the 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, each of the three elements listed above, you must find the defendant “guilty.”

[or]

If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must next consider whether the defendant is not guilty because of the defense of [insert defense, e.g., playing with a nongambling device].

[Include the following if raised by the evidence.]

Playing with a Nongambling Device

It is a defense to gambling that the person played for something of value other than money using an electronic, electromechanical, or mechanical contrivance excluded from the definition of gambling device.

Burden of Proof

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

Application of Law to Facts

To decide the issue of whether the defendant was playing with a gambling device, you must determine whether the state has proved, beyond a reasonable doubt, that either—

1. the defendant did not play for something of value other than money; or
2. the defendant did not use an electronic, electromechanical, or mechanical contrivance that was not excluded from the definition of gambling device.

You must all agree the state has proved either element 1 or 2 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, either element 1 or 2 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, either element 1 or 2 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.]